Union Carbide and Carbon Corp.

NATIONAL CARBON DIVISION 689 NATIONAL CARBON DIVISION, UNION CARBIDE AND CARBON CORPORATION AND NATIONAL CARBON COMPANY, INC. and LOCAL 85, UNITED GAS, COKE & CHEMICAL WORKERS OF AMERICA, C. 1. 0., Case No. 3-CA- 177. August 22,1952 Decision and Order On May 21, 1951, Trial Examiner Isadore Greenberg issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of the complaint with respect to such allegations. Thereafter, both the Respondent and General Counsel filed exceptions to the Intermediate Report and supporting briefs. - The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.' The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case and hereby adopts without change such of the findings, con- clusions, and recommendations of the Trial Examiner as dismiss cer- tain allegations of the complaint, or interpret certain evidence as nonsupportive of the complaint's allegations. It adopts the remaining findings, conclusions, and recommendations, however, only with the following additions and modifications : 1. The alleged failure to bargain in good faith on the subject of employee pensions The Trial Examiner found that, during the 37 negotiating meetings held between March 25, 1949, when bargaining for a new agreement 1 As noted in the Intermediate Report , the Respondent moved , at the outset of the hearing, that the complaint he dismissed. This motion, which the Trial Examiner denied, was predicated upon the fact that the initial charges were filed by the Union at a time when its parent organization , the CIO, was not in compliance with the provisions of Section 9 ( f), (g), and ( h) of the Act. For the reasons set forth in IBS Manufacturing Co , 96 NLRB 1263 , we find that the Trial Examiner's ruling on this matter was proper See also the Board 's Rulings on Appeal , dated July 29, 1952, in Shell Chemical Corpora- tion, 20-CA-151, and The Magee Carpet Company, 4-CA-178. We note, moreover , that unlike the cases cited above , the Union filed amended charges at a date following that upon which the CIO effected full compliance with the provisions of Section 9 (f),, (g), and (h) and that the conduct hereinafter found to have been violative of the Act is embraced in these amended charges In these circumstances, we do not believe that the complaint, to the extent we have sustained it. could in any event be open to attack on the grounds asserted by the Respondent 100 NLRB No 117. 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD began, and August 25, 1949, the date of the last bargaining conference, the Respondent failed and refused to bargain in good faith on the subject of pensions and other employee benefits. This finding is based primarily upon the Respondent's rejection of the Union's alternate proposal that, if the Respondent was unwilling to include in the contract, then under negotiation, changes in its employee benefit plans, the contract should incorporate an agreement that the question of such changes should be left open for further negotiation in the middle of the contract term. In effect, it was the Trial Examiner's view that Respondent's rejection of the Union's proposal was so unreasonable under all the circumstances as to negate the Respondent's claim that it was premised on economic considerations, and that together with certain other conduct of the Respondent, such rejection manifested that the Respondent was unwilling to recognize the right of the Union to participate in any decision on the substantive changes which might be made in the employee benefit program. We, however, do not believe that the record as a whole preponderates in favor of such a view, or otherwise warrants a finding that the Respondent's position on the employee benefit proposals, unyielding as it was, was premised on considerations reflecting on the Respondent's good-faith participation in the negotiations with a view to reaching an agreement. In testing the Respondent's attitude here, we note that it consistently maintained, throughout the period here in question, that it was unwill- ing to obligate itself contractually to any terms which would increase its operating costs, and that its refusal to grant a more liberal em- ployee benefit program at that time was both consistent with this view and, as the Trial Examiner in effect finds, reflected a position based on economic considerations which were frankly and openly discussed with the Union. We are not persuaded by the record that its refusal to agree to keep the subject open for negotiation was incon- sistent with this general objective of keeping the operating costs stable, or that the evidence otherwise negates the existence of economic reasons for the refusal of this alternate union demand. For the incorporation of the then existing "monetary" terms and conditions of employment into a binding agreement for a fixed term, an offer the Respondent made continually throughout the meetings, may reasonably be re- garded as an effective means of achieving a fixed "operating cost" objective. That at the Union's insistence the Respondent receded from its general position to the extent that it was willing to agree to a renegotiation of the Union's wage increase demands in mid-term, does not appear to us to reflect on the "good faith" of its refusal to make the same concession with respect to the employee benefit issue. Because of the inherent character of employer-financed benefit programs, they require long-range planning different from that involved in a less NATIONAL CARBON DIVISION 691 complex wage-increase problem. This suggests the possible existence of lawful economic reasons for the Respondent's differing treatment of the two. Moreover, the apparently inconsistent positions taken by the Res- pondent with respect to these two monetary issues can reasonably be construed as an effort to practically apply the "give and take" prin- ciple of collective bargaining. Also conciliatory in effect was the Respondent's June 16 proposal to "explore" for 40 hours the issue of employee benefits in mid-term. Contrary to- the Trial Examiner's view, this proposal may be regarded as an effort to compromise the diverse positions of the parties as to whether there should be bargain- ing during the contract term on the subject of employee benefits. There is other evidence relied upon by the Trial Examiner which, if viewed in isolation, may furnish some basis for suspecting that the Respondent did not sincerely wish to open its employee benefit plans to collective bargaining. Thus, the Respondent's reference in its letter of April 19 to the fact that the question of the "bargainability" of pensions was pending before the courts falls into this dubious category. However, it looses significance in the light of the Respon- dent's offer to incorporate its existing benefit program into the col- lective contract, and its frank and open discussion of the general economic objectives it sought to obtain as a result of the negotiations. Equally suspect is the statement in its letter of May 13, a repetition of one made by the Respondent's agents frequently throughout the negotiations, that the obligation to bargain does not contain an obli- gation to grant the demands made by the Union. But in the light of the Respondent's past collective bargaining history and the absence of any earlier unfair labor practices, this statement cannot be regarded as anything more than a factual statement of the law 2 Finally, we must reverse the Trial Examiner to the extent that he relied upon the Respondent's 1950 changes in its employee benefit plans in finding that a refusal to bargain occurred in 1949. For we cannot say upon this record that the economic circumstances facing the Respondent in the earlier period, when the Respondent refused to accede to any changes, were the same as those existing approximately 1 year later, when it actually instituted changes. We cannot there- fore resort to these later changes, by which the Respondent in fact granted the employees, unilaterally, what the Union had earlier sought to obtain through the process of collective bargaining in the period here considered, as a means of testing the good-faith validity of the Respondent's "economic" reasons for refusal of the Union's 2 We do not adopt the Trial Examiner's finding that the letters of April 19 or May 13 contained statements exceeding the bounds of speech protected by Section 8 (c) of the Act Accordingly, we hereby reverse the Trial Examiner 's findings to the extent that he relies upon such letters in sustaining the 8 (a) (1) allegations of the complaint. 226260-53-v o 1100--4 5 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD demands in 1949. This is so even though, for. reasons hereafter ap- pearing, we find as did the Trial Examiner, that the unilateral insti- tution of the changes was conduct per se violative of Section 8 (a) (5) and (1) of the Act; - We conclude upon the basis of the foregoing, that the Respondent did not fail and refuse to bargain with the Union on the subject of employee ben Sts during the period between March 25 and August 25, 1949. 2. Other conduct o the Respondent in the period between March 25, 1949, and August 25, 1949, alleged to be violative of Section 8 (a) (5) and (1) of the Act (a) The Respondent's position with respect to cetrain policies, and the negotiability of job changes and piece rates - The General Counsel also contended that the Respondent's violation of Section 8 (a) (5) and (1) was further shown by the Respondent's position on the Union's proposals for : (1) the incorporation into the contract of clauses or practices which the Union claimed had thereto- fore been in effect on a "noncontractual" basis; 3 and (2) a change in the method (theretofore employed under the prior contract) by which the Union was to be afforded an opportunity to present its position on new job changes and new piece rates. We find no merit in these contentions.4 On the "existing policies" issue, the record shows that when the Union's request was made, the Respondent initially rejected it on the ground that certain of the "policies" referred to by the Union had not in fact been in effect. As to these, the Respondent offered to negotiate on the merits. On those policies, which admittedly had been in effect, the Respondent asserted there was no reason or obligation to incor- porate them in the contract. After further discussion with the Union, however, and after seeking legal advice on the subject, the Respondent receded from this position and agreed to incorporate certain of the admittedly existing "policies" into whatever contract might finally be consummated. The Union apparently found this position satis- factory, as it did not press for the inclusion in the contract of the re- maining clauses it had originally requested. Upon these facts, and particularly in view of the Respondent's re- cession from its initial position, we find no warrant for a holding that , The alleged policies covered by the requested clauses included nondiscrimination on racial or religious grounds, the printing of the contract , make-up negotiating committees, paid lunch periods , and pay while employees were on jury duty. 4 Because of his conclusion that the Respondent otherwise violated Section 8 (a) (5) and (1 ) of the Act, in the period here material , the Trial Examiner found it unnecessary to resolve the issues posed by these contentions . Our disagreement with the Trial Exam,inei's basic 8 (a) (5) finding, however , makes it necessary for the Board to dispose of these additional contentions NATIONAL CARBON DIVISION 693 Respondent's mere statement of a mistaken view as to the scope of its statutory obligations either amounted to a per se violation of Section 8 (a) (5) and (1) of the Act,5 or otherwise reflected on the Respondent's "good-faith" participation in the negotiations here considered. Similarly, we do not believe that the record establishes that the Re- spondent failed to bargain with respect to the Union's job change and piece-rate proposal. The record shows that the Union sought, through this proposal, to obtain the Respondent's agreement that it would not put job changes, piece-rate changes, or new job classifications into ef- fect during the contract period before submitting its plans in this re- spect to negotiation with the Union. The Respondent rejected this proposal, stating that it believed the rate-setting function to be a management prerogative. Nevertheless, it counterproposed in effect that the right afforded the Union under the prior collective contract, to discuss its position on job changes and piece rates through the con- tractual grievance machinery, be continued. This counterproposal was apparently satisfactory to the Union, as its original demand did not appear among those demands incorporated in the "final" proposal submitted by the Union prior to the strike. It thus appears that the Respondent's offer did not in reality contemplate the reservation to Re- spondent of unqualified control over the establishment of piece rates and job changes, despite Respondent's statement that it believed it had such legal privilege, but that it aimed, rather, at the channelization of collective bargaining on the subject through grievance machinery.6 In view of this fact, and the further fact that the Union apparently found the counterproposal acceptable, we attach no significance to the Respondent's mere statement of its belief as to the nonnegotiability of the subject at hand, nor predicate unfair labor practice findings thereon. (b) The Respondent's "strike settlement" conditions (1) Preliminary statement of the position of the Respondent and the Union with respect to the reinstatement of strikers As is set forth more fully in the Intermediate Report, the Respond- ent and the Union met on numerous occasions during the course of the strike not only for the purpose of arriving at a collective contract, but also for the purpose of arranging for the specific conditions under which employees still on strike at its termination date would be re- turned to work. As is indicated by the Trial Examiner, there is no question but that an the subject of the strikers' reinstatement, the nego- tiations were hopelessly deadlocked. This resulted from the Union's Cf Standard Generator Company of Missouri, Inc, 90 NLRB 790. e Cf Crown Zellerbach Corporation, 95 NLRB 753. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD insistence on the one hand, that irrespective of replacements made during the strike, all strikers be unconditionally reinstated to the ex- tent that their jobs were otherwise available, and from the Respond- ent's refusal, on the other : (1) to take back 28 strikers it believed guilty of strike misconduct, and to reemploy, absent certain dis- ciplinary conditions, 12 other strikers it believed guilty of less serious acts of strike misconduct; and (2) to restore to strikers whose jobs had been filled during the strike, the full and unconditional rights as em- ployees they had possessed prior to the strike. It is the General Coun- sel's contention that the position taken by the Respondent during the negotiation meetings on the subject of the reinstatement of strikers, as well as certain letters issued by the Respondent to the employees on July 19, not only establishes, independent of other conduct, the viola- tion of Section 8 (a) (5) of the Act, but also the additionally charged violation of Section 8 (a) (3) and (1) of the Act. For the following reasons, we do not find enough in the Respondent's position on this subject, or in the statements it made about it to the employees in its letter of July 19, to establish any of the violations al- leged in the complaint. (2) The Respondent's refusal to take back strikers it believed guilty of serious strike misconduct The record shows that the Respondent attributed to the 40 strikers involved in its proposed refusal to employ, the commission during the strike of serious acts of misconduct which would constitute legal cause for discharge.7 The Respondent notified the Union that it would not under any circumstances take back the 28 from this group to whom it attributed the acts it believed to be most flagrant, and also that it would not reinstate the remaining 12 to whom it attributed less flagrant but nonetheless serious acts of misconduct, unless the Union would agree that for a period of 1 year, such employees could be discharged for not unlawful reasons, without-the right of recourse to the grievance procedure. Upon the Union's request that the ques- tion of the reinstatement of these strikers be submitted to negotiation, the Respondent replied in effect that while it would discuss the subject in principle, it would not yield to the Union any voice in determining '' The record does not identify with specificity in all cases, whom the Respondent charged with the commission of the assaults, threats, and acts of violence which apparently occurred in the course of the strike. The General Counsel does not deny either that acts of mis- conduct of this general kind occurred, or that, except as to 9 of the 40 persons involved herein, the Respondent did not have a reasonable basis for identifying the individuals involved in these refusals to reinstate proposals as the guilty actors. In these circum- stances, and in view of our agreement with the Trial Examiner that the 9 individuals (named in the 8 (a) (3) allegations of the complaint) were not discriminated against, we must presume that the acts attributed to the 40 strikers were of a kind which we would recognize as valid cause for discharge. NATIONAL CARBON DIVISION 695 either whether the Respondent's disciplinary measures should be effected, or whom they were to affect. It is the General Counsel's position that : (1) Irrespective of whether the Respondent had legal cause for its proposals to refuse to reemploy, it was nevertheless obligated, as a matter of law, to negotiate on the matter upon request; and (2) once the Respondent decided to re- employ strikers it might have otherwise discharged, it must be deemed to have condoned their misconduct, and it could not therefore, as a matter of law, deprive such employees of any of the privileges afforded- other employees in the unit, nor seek the Union's agreement to a denial of such privileges. We cannot agree with this position. In our view, an absolute right is granted to employers under the law to take disciplinary measures against strikers who in fact engage in serious acts of misconduct, which measures may go as far as absolute discharge." It follows that: (1) No obligation can be imposed upon an employer to treat the exercise of such a right as "bargainable;" and (2) as the Employer's right to discipline in such a situation ex- tends as far as discharge, his imposition of a lesser penalty, in this instance the grant of reinstatement on "probational" conditions to cer- tain of the strikers, must necessarily be deemed valid .9 True it is that by refusing to negotiate about such matters, and by insisting upon unilateral exercise of its disciplinary- powers, the Respondent ran certain risks. Thus, if it became established later to the Board's satis- faction that the Respondent disciplined a worker who did not in fact commit the acts forming the reason for the disciplinary measure, both his refusal to negotiate on the matter and the disciplinary action itself could be found violative of the Act, But, although the existence of the risk may have formed the basis for an argument by the Union in its attempt to obtain the Respondent's voluntary agreement to "nego- tiate" on the strike reinstatement issues, it constitutes no legal reason either for imposition of a duty to bargain on such issues on a record such as that presented here, or for regarding the Respondent's failure to bargain on the issues as evidence of "bad faith" with respect to matters encompassed in the statutory bargaining duty. (3) The Respondent's refusal to displace employees hired or returning to work during the strike, in order to make room for strikers As is set forth in more detail in the Intermediate Report, the Re- spondent was operating at the end of the strike with a full complement 9N L R. B. v. Fansteel Metallurgical Corp , 306 U. S. 240, 253. 9 Cf. Firestone Tire ci Rubber Co, 93 NLRB 981 We find no merit in the General Counsel's apparent contention that, once a Respondent decides to reemploy strikers who could have been subjected to discharge , he must be deemed to have fully "condoned" their misconduct, where, as here, he has indicated prior to the offer of reemployment that his "condonation" is conditional , and no evidence of specific unlawful discrimination exists. 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the employees it then required 10 Absent displacement of indi- viduals at work, there were no jobs available to which the strikers could be promptly reinstated. It is undisputed that the Union re- quested such displacement, at least to the extent that persons at work had less seniority than strikers seeking reinstatement. The Respond- ent refused to make any such immediate displacement, declaring that it believed the striker-replacements were entitled to some job pro- tection for a reasonable period. It agreed, however, to make dis- placements at the end of a 6-month period following the termination of the strike, in the event there then remained on the rehire list any employees having greater seniority than those already at work. In all other respects involving reinstatement and layoff problems the Re- spondent agreed to apply the layoff procedures previously existing. The General Counsel challenged the legal validity of the Respon- dent's proposal on various alternative grounds. He claimed primarily that the strike was an "unfair labor practice" strike, and that, accord- ingly, the Respondent was obligated to make room for all the strikers at the expense of any individuals already at work prior to the strike's termination. He also claimed that even if the strike were regarded as an economic strike : (1) The striker-replacements were not hired in "permanent" capacities, and accordingly the Respondent was obli- gated to' displace such of the striker-replacements as had less seniority than the strikers; and (2) even if the striker-replacements were "per- manent," the effect of the Respondent's proposal was to penalize the strikers for strike activity by placing them in a less favorable seniority status than they would have had if they had not gone on strike, for purposes of making the layoffs necessary at the strike termination date. The Trial Examiner agreed with the General Counsel's position on the premise that the strike was an unfair labor practice strike in its origin. As we have been unable, however, to find that the Respondent committed any unfair labor practices up to this point, it follows that we must find the strike to have been economic in character, at least up to the time the proposal herein considered was made. So viewing the character of the strike, we believe the validity of the Respondent's position turns wholly upon a determination as to whether the striker- replacements were employed in "permanent," rather than "temporary" capacities.11 For, if the striker-replacements were hired in "perma- 1O It Is undisputed that, due to economic circumstances, the number of jobs at the end of the strike had been reduced to about one-half of what It was when the strike began. Of the approximately 400 individuals at work when the strike ended, only 21 represented persons newly hired The remainder were former strikers who abandoned the strike prior to its termination and returned to work. 31 We find no merit to the General Counsel's suggestion that for purposes of testing the rights of employees at work at the end of a strike, as against employees still on strike In a situation such as is here presented, new employees should not be grouped together with former strikers who had abandoned the strike. NATIONAL CARBON DIVISION 697 vent" capacities, the Respondent's refusal, for a 6-month period, to displace them in order to make their jobs available to returning strik- ers, reflected an exercise of legal rights with respect to replacements of economic strikers less than that granted to employers under the ancient Mackay Radio doctrine 12 We are persuaded by the record that, as the Respondent maintains, the striker-replacements in fact represented "permanent" rather than "temporary" hirings. Thus, the advertisements published by the Re- spondent as part of its effort to restaff its plant during the course of the strike, indicated that the offer of work was on a "permanent" basis. For such advertisements contain specific reference to the Respondent's "long standing" policies of paying excellent wages and giving its em- ployees fair treatment, and contain no statements which would imply that the jobs so offered were to have a duration limited to the duration of the strike. Though not conclusive, this evidence supports the Re- spondent's claim that its offer of employment was not in fact a lim- ited-but a "permanent" offer. We do not believe it is negated either by the Respondent's reassignment of the striker-replacements to other jobs following the termination of the strike,13 or by its proposal to open the-jobs held by striker-replacements to competing, more senior strikers remaining on the rehire list after a 6-month period. We conclude, on the basis of the foregoing, that the Respondent did not unlawfully discriminate against its striking employees by the pro- posals concerning their rehire,14 and that its insistence upon such rehire provisions, as a condition of its agreement to a strike-settlement, did not constitute a refusal to bargain. In view of our conclusion as to the validity of the Respondent's striker-reinstatement proposals and as to the absence of any other evidence of "bad-faith" bargaining, we must regard as privileged the Respondent's communication of its bargaining position to its em- ployees dated July 19. Although, as the Trial Examiner notes, such communication appealed to the strikers to end their strike activity, we IN. L R B v. Mackay Radio Corp , 305 U. S 333, where the supreme Court pointed out that an employer who exercised his right to hire permanent striker -replacements during the course of the strike was under no obligation to discharge such replacements in order to make room for returning strikers It must be noted that the instant case does not, as the General Counsel contends , present a situation similar to that in Potlatch Forests, Inc , 87 NLRB 1193 For, unlike Potlatch, this Respondent's proposal did not contemplate the extension of "superseniority" to the striker-replacements in the event the Respondent found itself in a situation . at any time following the termination of the strike, necessitating reduction in its payroll . It clearly indicated that, if such reduction became necessary , and its payroll included not only striker-replacements but, also reinstated strikers , both groups would be in equal competi- tion on the basis of over -all seniority. The only effect of the Respondent's proposal, therefore, was to preclude strikers from obtaining, for a 0-month period , any job already filled by a striker-replacement, even though the latter had less over -all seniority. 13 Cf, The Texas Co., 93 NLRB 1358, 1390; The Electric Auto-Lite Co., 80 NLRB 1601 "Contrary to the contention of the General Counsel , the record fails to establish that the Respondent discriminated against any strikers whom it actually reinstated at or after the termination of the strike. 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD find nothing in the statements it contained which exceeded the bounds of employer persuasion permissible in such circumstances 15 The strike terminated July 25 and, as we have held that none of the Respondent's acts during its course amounted to unfair labor prac- tices, we find, contrary to the Trial Examiner, that the strike remained an economic strike in character throughout. (4) Refusal to bargain after August 25, 1949 The Trial Examiner found that at various times after August 25, 1949, the Respondent violated Section 8 (a) (5) and (1) of the Act, by refusing to resume negotiations with the Union and by unilaterally increasing wages and employee benefit plans. We agree to the extent noted below. Upon the termination of the strike on July 25, 1949, the Respondent continued to recognize the majority status of the Union. On August 25 the Respondent informed the Union that it had just received a representation claim from the Independent Union and that it had not had time to determine what its "proper position" should be, but that until the situation could be "clarified" it nevertheless intended to continue to bargain with the Union. On September 12, the Independ- ent filed a representation petition with the Board, whereupon the Respondent refused, on request, to continue negotiations with the Union. On March 30, 1950, the Regional Director dismissed the peti- tion because of the pending unfair labor practice charges. On April 21 this dismissal was sustained by the Board. Thereafter, the Re- spondent again refused, upon request, to resume bargaining with the Union and unilaterally made certain changes as to wages and employee benefit plans. Primarily, the Respondent seeks to justify its action on the ground that the filing of the petition created a question concerning representa- tion which, under the "Midwest Piping" doctrine 16 precluded it from bargaining further with the incumbent union, and that even the dismissal of the petition by the Board did not resolve that question. In applying the Midwest Piping doctrine, the Board has held that the mere filing of a petition by a rival union seeking to dislodge an incumbent union, such as that here, does not itself require an employer to refrain from continuing to recognize the incumbent statutory repre- sentative 17 But we also pointed out that, in continuing the established relationship with the incumbent union, the employer runs the risk of 16 Our decision in The Texas Company, 93 NLRB 1358 , sets forth the Board's views as to the.extent of an employer's legal privilege to appeal to striking employees to end their strike activity. 16 The doctrine derived its name from the case entitled Midwest Piping and Supply Co., Inc., 63 NLRB 1060. 37 William Penn Broadcasting Company, 93 NLRB 1104. NATIONAL CARBON DIVISION 699 an unfair labor practice finding if the Board later determines that the petition raised a "real question concerning representation." It would therefore be manifestly unfair to require an employer who has engaged in no antecedent unfair labor practice, to bargain at his peril during the pendency of a timely petition. We accordingly find, in agreement with the Respondent, that it was privileged to refrain from bargaining with the Union during the pendency of the petition. We reach a different result, however, with respect to the Respond- ent's refusal to bargain after the Board had affirmed the dismissal of the petition. After such dismissal, the Respondent was no longer under any possible legal jeopardy within the meaning of the Midwest Piping doctrine. That the Board, in the exercise of its administrative discretion, dismissed the Independent's petition for procedural reasons, because of the pendency of charges, without consideration of its merits, is of no moment here, because the net effect of the Board's action was a holding that the petition gave rise at that time to no question concern- ing representation. Accordingly we find that, after the Board's dis- missal of the petition, the Respondent could not as a matter of law rely upon any claimed question concerning representation to excuse its refusal to resume bargaining with the incumbent charging Union. That Union's majority status, established by Board certification in 1945, must be presumed under the circumstances here present to have continued on and after April 21, 1950. The Remedy It having been found that the Respondent, by its action in refusing to bargain with the Union after knowledge of the dismissal of the peti- tion on April 21, 1950, and in unilaterally effecting changes in its insurance and pension plans and in its rates of pay, has engaged in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act, it will be ordered that the Respondent cease and desist therefrom. However, we do not find that the Respondent's conduct demonstrated a general opposition to the purpose and policies of the Act. Accordingly, we shall confine the cease and desist provisions of our order to the specific conduct found violative of the Act herein and any like or related conduct. It having also been found that the Respondent did not refuse to bargain collectively with the Union in any other respect, and that the Respondent did not otherwise engage in acts of interference, restraint, or coercion, and that it did not discriminatorily refuse to reinstate any of the nine named striking employees or any other striking employee, we shall dismiss the complaint insofar as it alleges the commission by the Respondent of such unfair labor practices. 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent National Carbon Division, Union Carbide and Carbon Corporation and National Car- bon Company, Inc., its officers, successors, and assigns shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Local 85, United Gas, Coke & Chemical Workers of America, C. I. O., as the exclusive repre- sentative of the Respondent's employees in the appropriate unit with respect to rates of pay, wages, hours of work, insurance and pension plans, and other conditions of employment. (b) Taking any action to effect changes in its employee benefit plans, its rates of pay, or any other conditions of employment, without prior consultation with the Union, so long as it is the statutory represent- ative of the employees comprising the appropriate unit. (c) In any like or related manner interfering with the efforts' of Local 85, United Gas, Coke & Chemical Workers of America, C. I. 0., to bargain collectively with it as the representative of its employees in the appropriate unit. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request bargain collectively with Local 85, United Gas, Cofle & Chemical Workers of America, C. I. 0., as the exclusive repre- sentative of all of its employees in the appropriate unit with respect to rates of pay, wages, hours of work, insurance and pension plans, and other conditions of employment. (b) Post at its Acheson, National, and Republic plants at Niagara Falls, New York, copies of the notice attached hereto, marked "Appen- dix A." is Copies of said notice shall be furnished to the Respondent by the Regional Director for the Third Region, and shall, after being duly signed by a representative of said Respondent, be posted by it immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by the said Respondent to insure that said notice is not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Third Region in writing, within ten (10) days from the date of this Order, what steps it has taken to comply therewith. 'a In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words "A Decision and Order " the words "A Decree of the United States Court of Appeals Enforcing " NATIONAL CARBON DIVISION 701 IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent refused to bargain collectively with the Union at any time prior to April 21, 1950, that it discriminatorily refused to rein- state any of the nine named striking employees or any other striking employees, or that it otherwise engaged in acts of interference, re- straint, or coercion, be and the same is hereby dismissed. MEMBERS PETERSON and STYLES, dissenting in part and concurring in part : For the reasons set forth by the Trial Examiner, we would find, contrary to the majority, that the Respondent failed and refused to bargain in good faith on the subject of pensions and employee benefits from the outset of the negotiations which began March 28, 1949. It follows therefore that the strike of May 8, 1949, was an unfair labor practice strike, and that, to the extent found by the Trial Examiner, the Respondent's refusal to reinstate the strikers upon request was discriminatory. Because of the occurrence of these unfair labor practices, we would find, further, that the Respondent was not privileged to refuse to bargain with the Union at any time following the strike despite the pendency of the rival union's petition. For, under well-established principles, no valid question concerning representation could exist while the Respondent's unfair labor practices remained unremedied,19 and any loss of majority which might have occurred could be attrib- uted to the Respondent's unlawful conduct. In light of this holding as to the continuing duty of the Respondent to bargain, we would also find, in accord with the conclusion of the majority and that of the Trial Examiner, that the Respondent's unilateral increases in rates of pay and in employee benefits, constituted per se violations of Sec- tion 8 (a) (5) and (1) of the Act. In view of the foregoing, we need not and do not pass upon the other unfair labor practice issues considered by our colleagues. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT refuse to bargain collectively with LOCAL 85, UN11`ED GAS, COKE & CHEMICAL WORKERS OF AMERICA, C. I. 0., as '9 See N L R B V. Franks Bros , 321 U. S. 702 ; John Deere Plow Company, 82 NLRB 69; Pacific-Gamble Robinson Co., 88 NLRB 482-, Metropolitan Life Insurance Co, 91 NLRB 473. 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the exclusive representative of the employees comprising the ap- propriate unit. WE WILL NOT take any action to effect changes in employee benefit plans, rates of pay, or other conditions of employment, without prior consultation with LOCAL 85, UNITED GAS, COKE & CHEMICAL WORKERS OF AMERICA, C. I. 0., so long as it is the statutory representative of the employees comprising the ap- propriate unit. WE WILL NOT in any like or related manner interfere with the efforts of LOCAL 85, UNITED GAS, COKE & CHEMICAL WORKERS OF AMERICA, C. I. 0., to bargain collectively with us, so long as it is the statutory representative of the employees comprising the ap- propriate unit. The appropriate unit is : All hourly paid employees of the Respondent 's Acheson, Na- tional, and Republic plants at Niagara Falls , New York, known as the Niagara Works, including checkers and store clerks, the Acheson plant carpenter and millwright, watch- men, gang or group leaders, the head floormen, the head cooks, the inspectors departmental, and the development laboratory assistants, but excluding intraplant messengers , clerical and office employees, salaried employees , bricklayers, guards, the head shipping clerk , supervisors, and all other supervisory employees with authority to hire, promote, discharge , disci- pline, or otherwise effect changes in the status of employees, or effectively recommend such action. NATIONAL CARBON DIVISION , UNION CAR- BIDE AND CARBON CORPORATION AND NATIONAL CARBON COMPANY, INC. By --------------------------- ---------- (Representative ) ( Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon charges duly filed by Local 85, United Gas, Coke & Chemical Workers of America, C. I. 0., herein called the Union, the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel and the Board, by the Regional Director of the Board for the Third Region (Buffalo, New York), issued a, complaint dated May 3, 1950, against National Carbon Company, NATIONAL CARBON DIVISION 703 Inc. (Niagara Works), herein called the Respondent, alleging that the Respond- ent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended , 61 Stat. 136, herein called the Act. With respect to the unfair labor practices, the complaint alleges in substance that: (1) The Union has at all times material herein been the duly designated collective-bargaining representative of the Respondent's employees in an appro- priate unit; (2) the Respondent has in various ways since March 25, 1949, failed and refused to bargain with the Union; (3) the Respondent has since May 8, 1949, infringed on the statutory rights of its employees by: (a) soliciting its employees, then engaged in a strike, to abandon the said strike and return to work; (b) threatening its employees with reprisals for engaging in concerted activities; and (c) promising benefits to its employees in return for abandoning the strike; (4) the aforesaid strike was caused and prolonged by the aforesaid alleged unfair labor practices; (5) on or about July 15, 1949, the Respondent discriminatorily discharged nine named employees 2 and has since refused to rein- state them; (6) the Respondent has discriminatorily refused to reinstate to their former or substantially equivalent jobs the striking employees who uncondition- ally applied for such reinstatement on or about July 19, 1949, when the strike was terminated. In its answer, duly filed, the Respondent denies the commission of any unfair labor practices. Pursuant to notice, a hearing was held at Niagara Falls, New York , on various days between November 8 and December 5, 1950, before the undersigned duly designated Trial Examiner. The General Counsel and the Respondent were rep- resented by counsel ; the Union by two of its officials. All participated in the hearing, and full opportunity was afforded all parties to be heard , to examine and cross-examine witnesses , and to introduce evidence bearing on the issues. At the opening of the hearing I denied a motion to dismiss the complaint pre- viously filed by the Respondent with the Regional Director, which was referred to me for ruling. This motion was based on the Respondent's contention that the complaint was improperly issued because at the time of the filing of charges herein the Union was not in compliance with the requirements of Section 9 (f), (g), and (h) of the Act' A motion by the General Counsel to amend the com- plaint by adding to its introductory paragraph certain language which had in- advertently been omitted , was granted without objection . During the course of the hearing, counsel for the Respondent moved to dismiss paragraph 12 of the complaint on the ground that it alleges that the striking employees applied uncon- ditionally for reinstatement on July 19, 1949, and the evidence shows that such ' After its issuance the complaint was amended, pursuant to stipulation of the parties, by naming as Respondents , therein , National Carbon Division , Union Carbide and Carbon Corporation, and National Carbon Company , Inc. The reasons for this amendment are set forth in section I of this Intermediate Report and Recommended Order. Also for the reasons therein detailed , the term "Respondent" as used herein shall be taken to refer to National Carbon Company , Inc. (Niagara Works ), rip to December 31, 1949, and to National Carbon Division , Union Carbide and Carbon Corporation (Niagara Works) subsequent thereto. ' Yousef Ahmed ; Joseph Bartha ; George Barner ; Anthony Clurylo (misspelled in the complaint as "Curylo") ; Walter Dolhon (misspelled in the complaint as "Dolhan"),; Andrew Ezak ; Cleve Henderson ; Thomas J. Morganti (called "Carmen Morganti" in the complaint) ; and Robert Simmons. ' See, Goodyear Rubber Sundries, Inc., 92 NLRB 1382; J. H. Rutter-Rem Mfg. Co., Inc, 90 NLRB 130 : Rubin Brothers Footwear, Inc at al, 91 NLRB 10. 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an application, if any, was not made until July 25. This motion was denied. Ruling was reserved on the Respondent's motion to dismiss paragraphs 7-C, 11, 14, 15, and 17 of the complaint. This motion is disposed of by the findings, con- clusions, and recommendations made below. At the close of the hearing, counsel for the Respondent made motions to dismiss the complaint in whole and in part on the ground of failure of proof. Ruling on these motions was reserved. They are similarly disposed of by the findings, conclusions, and recommendations em- bodied in this report. A motion of the General Counsel to conform the pleadings to the proof was granted without objection. Counsel waived opportunity to argue orally before the Trial Examiner. Since the close of the hearing, briefs were received from counsel for the Respondent and the General Counsel. Upon the entire record in the case, and from my observation of the witnesses, I make the following : FINDINGS OF FACTS 1. THE BUSINESS OF THE RESPONDENT Until December 31, 1949, the Respondent, National Carbon Company , Inc., a New York corporation, was a wholly owned subsidiary of Union Carbide and Carbon Corporation, similarly a corporation organized under the laws of the State of New York. The principal office of the latter corporation is located in the City of New York. On the aforesaid date, National Carbon Company, Inc., was merged with Union Carbide and Carbon Corporation. As a result of the merger all assets of National Carbon Company, Inc., became vested in Union Carbide and Carbon Corporation, and the latter assumed all contracts, obligations, and lia- bilities of the former. All business operations formerly carried on by and in the name of National Carbon Company, Inc., have, since December 31, 1949, been carried on by and in the name of National Carbon Division, Union Carbide and Carbon Corporation. At all times material herein the Respondent has operated three manufacturing establishments known as the National, Republic, and Acheson plants, in the city of Niagara Falls, New York. These are collectively called the "Niagara Works." In these plants the Respondent is engaged in the manufacture of carbon and graphite electrodes, and certain graphite and carbon "specialty items" which are used in the chemical and steel industries for corrosion-resistant equipment. While some of the aforesaid products are made completely in one or another of the three plants, many are processed in all three before completion. During the calendar year ending December 31, 1949, which period concededly is representative of all times herein material, the Respondent purchased raw materials, for use at its Niagara Works, valued in excess of $1,000,000, of which more than 50 percent was shipped to its aforesaid plants in Niagara Falls from points outside the State of New York. During the same period, the Re- spondent manufactured finished products at the Niagara Works valued in excess of $1,000,000, of which more than 50 percent was sold and shipped to cus- tomers outside the State of New York. The Respondent concedes, and I find, that it is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED Local 85, United Gas, Coke, & Chemical Workers of America, C. I. 0., is a labor organization admitting to membership employees of the Respondent. NATIONAL CARBON DIVISION III. THE UNFAIR LABOR PRACTICES 705 A. The setting' ' On May 5, 1945, the Union was certified by the Board as collective-bargaining representative of the hourly paid employees of the Respondent's Niagara Works in a unit found appropriate by the Board. In July of that year, the Union and the Respondent entered into a collective-bargaining contract. Since that time they have been parties to three succeeding agreements, the last of which became effective on May 8, 1948, and expired at midnight of May 8,1949. The last contract between the parties provided that it was to continue auto- matically in effect from year to year after May 8, 1949, unless either party notified the other at least sixty (60) days prior to an annual expiration date that it wished to discontinue or modify the contract. Pursuant to this clause, the Union, on March 7, 1949, notified the Respondent in writing that it desired to meet with it to negotiate changes in the contract. On March 15 the Respond- ent acknowledged receipt of the Union's letter, advised the Union that "the Company has in mind certain modifications likewise," and suggested March 25, 1949, as the day for the initial meeting to discuss proposed changes. The parties accordingly met on that and subsequent dates. The issues in this case center around the ensuing negotiations and the events following the failure of the parties to reach an agreement. B. The alleged refusal to bargain 1. The appropriate unit, and the Union's majority status On April 9, 1945, after the usual proceedings , the Board issued a Decision and Direction of Election ( Case No. 3-R-918, 61 NLRB 457) in which it found that all hourly paid employees of the Respondent's Acheson, National , and Republic plants at Niagara Falls, New York, known as the Niagara Works, including checkers and store clerks, the Acheson plant carpenter and millwrights , watch- men, gang or group leaders, the head floormen , the head cooks , the inspectors departmental ,' and the development laboratory assistants , but excluding clerical (including intraplant messengers and Ernest F Crawford ) and office employees, salaried employees, bricklayers, guards, the head shipping clerk, supervisors, and all other supervisory employees with authority to hire, promote , discharge, discipline, or otherwise effect changes in the status of employees , or effectively recommend such action, constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9 (b) of the Act. After an election which established the majority status of the Union among the employees in the aforesaid unit , the Board, on May 7, 1945, certified it as the exclusive representative of the said employees for purposes of collective bargaining. The parties concede the appropriateness of the unit above described, and I find that at all times material herein it constituted , and now constitutes, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act' 'All findings of fact herein made are based upon undisputed evidence except when otherwise indicated a John ]Zenner is excluded as a supervisory employee. The parties agree that no professional employees are carried on the Respondent's hourly payroll The composition of the above-described unit is, consequently, in no way affected by the enactment of the amendments to the Act which provide, among other things, that professional employees are not to he included in a unit with other classes of employees unless a majority of the professional employees vote for inclusion in such unit. 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is no dispute as to the continuing majority status of the Union after its certification by the Board, at least until August 25, 1949. Indeed, the record contains evidence affirmatively establishing that the Union continued to occupy such a position as late as June 1949. In April 1949 (the last full month prior to the time the employees went out on strike), the Respondent was authorized to, and did, check off dues for the Union from the pay of 807 employees in the above-described unit, at which time the unit consisted of no more than 924 employees. On June 17, 1949, the Respondent, during a negotiating meeting with the Union, pointed out to the union representatives that the Union "had a great majority" among the employees.? Thereafter, the Respondent continued to treat with the Union as the exclusive bargaining representative of its employees until August 25, 1949, on which date the Respondent for the first time raised a question as to the Union's majority status. On that date, during a negotiating meeting, the Respondent called the attention of the Union to the fact that "shortly before," it had received a letter from another union claiming to represent the employees in the unit 8 The Re- spondent informed the Union that it still intended to "continue discussions" with it, but would have to keep in mind the possibility that any agreement reached "might be upset by a [representation] election." On September 27, 1949, as is found below, the Respondent indicated to the Union that it would no longer bargain with it. Subsequently , several requests by the Union to resume negotiations were rejected by the Respondent. It will be remembered that the petition of the Independent was dismissed by the Regional Director of the Board on March 30, 1950, and that this dismissal was sustained by the Board on April 21, 1950. Thereafter (as is more fully described hereinafter), the Respondent unilaterally effectuated certain changes in wages and employee benefit plans which were directly within the scope of the issues about which the parties had previously negotiated, and which the Union was still demanding be negotiated with it. The Respondent in this proceeding takes the position that a question of repre- sentation was raised by the demand of the Independent for recognition ; that this question remained unresolved despite the dismissal of the Independent's petition, which the Respondent understood to be "without prejudice" ; and that under the circumstances, the Respondent was no longer under any obligation after August 25, 1949, to bargain with the Union as collective-bargaining representative of the employees , and indeed, was legally restrained from doing so." 7 Union dues were checked off by the Respondent on the basis of individual voluntary authorizations executed by employees, pursuant to provisions of the contract between the parties, and in accordance with the requirements of Section 302 of the Act. It should be noted that the contract in no way made membership in the Union a condition of employ- ment, there being no union-security clause in the agreement. 8 On September 12, 1949, "National Carbon Independent Union of Niagara Falls, New York," filed a petition for certification of representatives with the Board's Regional Office (Case No 3-RC-346)„ in which it set forth that it had made a request of the Respondent for recognition as bargaining representative of the employees on August 23, 1949, and that the Respondent had rejected its request on August 29. The aforesaid petition was dis- missed by the Regional Director on March 30, 1950 , on the ground that the unfair labor practice charges filed by the charging union herein ( including a charge of refusal to bargain ) were pending . The Regional Director's dismissal of the petition on that ground was sustained by the Board on April 21, 1950. 9 The Respondent also contends that the negotiations with the Union had reached an impasse, thus leaving it free to take unilateral action within the area of the deadlocked issues. However, this defense is not germane to the question here being discussed, which is whether the Union continued to occupy the status of exclusive bargaining representative of the employees . The Respondent 's contention as to an impasse will be dealt with below, NATIONAL CARBON DIVISION 707 It is to be kept in mind that the Union originally established its majority status by Board certification on May 5, 1945 , and that the record affirmatively establishes that it continued in that position as late as April 1949. It is well settled that after a union's majority status is established by Board certification , the "con- tinuation of this status is presumed conclusively for a reasonable period, usually 1 year after certification , and indefinitely thereafter until rebutted." (Tooleraft Corporation , 92 NLRB 655, and cases therein cited.) The question is, then, whether the Respondent has come forward with suffi- cient evidence to rebut the presumption of the Union 's continued incumbency in the position of exclusive bargaining representative of the employees . All that the record reveals in this connection is that in August 1949 the Independent made a naked assertion that it represented a majority of the employees, and in Septem- ber 1949 filed a representation petition , which, in my view, constituted no more than a repetition of its bare claim. The Board has held that "the pendency of a petition for certification imposes no duty upon an employer to refrain from continuing exclusively to recognize and deal with an incumbent bargaining representative , such as we have here, unless the petition has a character and timeliness which create a real question concerning representation" ( William Penn Broadcasting Company, 93 NLRB 1104 ). The question whether the filing of a petition raises a "real question" of representation is of course one ultimately to be determined by the Board (ibid.). Here the Independent's petition was dismissed by the Board because of the pendency of the unfair labor practice charges which had been filed by the in- cumbent Union . In my opinion this was tantamount to a determination that, under all the circumstances, no genuine question of representation then existed. I do not believe that even before the dismissal of the Independent 's petition, the mere filing thereof, standing by itself, was sufficient to rebut the presumption of the Union's uninterrupted status as majority representative of the employees. Certainly after the petition was dismissed , there was nothing to rebut that pre- sumption." In any event , as is hereinafter found , the Respondent had, prior to the inter- position of the Independent's demand for bargaining rights, violated its obliga- tion to bargain in good faith with the Union with respect to at least one of the basic issues involved in the negotiations between the parties. It follows that even if the Union had lost the adherence of a majority of the employees by the time the Independent put forward its representation claim , such hypothetical loss of majority would have been attributable to the Respondent's preceding failure to bargain in good faith , and would not, consequently , have nullified the Respondent's continuing duty to bargain with the Union on all proper subjects. Jones & Laughlin Steel Corporation, 72 NLRB 975, 983; Eva-Ray Dress Manu- facturing Co., Inc., 88 NLRB 361, 363; Franks Bros . Co. v. N. L. R. B., 321 U. S. 702, 705. I accordingly conclude and find that at all times since May 7 , 1945, the Union has been the exclusive representative of all the Respondent 's employees in the above-described appropriate unit, for the purposes of collective bargaining with respect to rates of pay, wages, hours, and other conditions of employment. 10 See, The Hoover Company, 90 NLRB 1614, in which the Board held : "Under the doctrine of the Midwest Piping case the employer's exclusive recognition of one of the two rival unions violates the Act only if at the time such recognition is granted the question concerning representation raised by the rival petition still is pending, However, before recognition is granted many things might occur which would remove that question and would render exclusive recognition of a majority representative perfectly lawful • Thus, for example, the rival union might withdraw its petition , or the Board, for any number of reasons, might dismiss it. .. .11 (Emphasis supplied.) 227260-53-vol. 100---46 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The negotiations between the Respondent and the Union up to the time of the strike Prior to the expiration of the 1948-49 contract, the Respondent and the Union entered into discussions , beginning on March 25, 1949, with respect to proposed changes in that agreement . After 13 negotiating meetings held between March 25 and May 8, 1949, when the contract expired, the parties had failed to agree on a new contract, and the employees went out on strike. The General Counsel contends that the "Respondent 's negotiations with the Union were not intended by Respondent to lead to consummation of an agree- ment with the Union, but merely to preserve the appearance of bargaining." He also contends that the strike was caused by the Respondent 's said refusal to bargain with the Union in good faith, and that it was, consequently, an unfair labor practice strike " The Respondent points out that it responded promptly to the Union's request for a meeting to discuss proposed contract changes, contends that it thereafter participated in prolonged negotiations without resorting to delaying tactics, that all points at issue were thoroughly discussed with the Union , that it made a number of concessions to the Union prior to the strike , and that it offered to renew the current contract for another year. All of these circumstances, the Respondent argues, "constitute in [themselves ] a denial of any charge that Re- spondent was merely going through the motions and the forms of bargaining." It will be helpful, in order to come to grips at once with the issues arising out of the conflicting contentions of the parties , to summarize the discussions between the Respondent and the Union. 0 , The first negotiating meeting, held on March 25, 1949, was opened by a short talk by the Respondent's district works manager, H. T. Reid, who, among other things, said that industry was "passing from a buyer 's to a seller's market and must keep its cost at a minimum if there are to, be steady jobs for all."" The Union then presented to the Respondent a proposed new contract embodying such provisions of the current agreement as it wished to retain, and new provisions which it wished to have added thereto. The union representatives stated that the contract proposal submitted by them included all the demands of the Union except specific proposals as to changes in the Respondent's pension and insurance plans" The Union then asked whether the Respondent 's negotiators, made up of representatives of "local management ," were prepared to bargain "on pension and insurance plans." To this the Respondent 's representatives replied that "the local management would do all the negotiating that was to be done," that they were prepared to bargain, but that "the Union should bear in mind that by bargaining or negotiating [they] meant complete discussion of any plans, but that such discussion, under the law, did not include the obligation to agree." 11 In view of the above-stated contention , it will be necessary to divide my discussion of the refusal -to-bargain phases of this case into sections dealing with the negotiations up to the time of the strike , and those following that date In reaching my ultimate con- clusions, however, as to whether or not the Respondent bargained with the Union in good faith, I shall, of course, consider the course of the negotiations as a whole. 11 Findings of fact made herein as to what occurred at the negotiating meetings are based for the most part on the minutes of such meetings kept by the Respondent It was stipulated at the hearing that these minutes, which were received in evidence , represent an accurate summary of what was said by representatives of both parties . To some small extent both the General Counsel and the Respondent adduced testimony at the hearing to supplement the minutes with respect to points which were not fully covered therein. 11 The Union's proposal did indicate, however, that the Union wished to have the Respondent 's group insurance and hospital benefit plans modified so as to have the Respondent pay all the costs thereof , and the pension plan modified so as to be "more suitable," with "higher benefits to the pensioners " NATIONAL CARBON DIVISION 709 The Union outlined some of the other contract modifications included in its proposal, such as provisions for a union shop and the demand for a wage increase of 25 cents per hour, which "included whatever money would be needed to finance pensions: The remaining part of the 25 cent demand was to bring the [Respond- ent] up to the national pattern of raises since V-J Day." The Union stated its position that "this could be done on the basis of the past earnings of the Company." The meeting then adjourned to afford the Respondent time to study the Union's proposals. The next two negotiating meetings, held on March 28 and 29, were exploratory in nature, being devoted entirely to the Respondent's questioning the Union about the intent and effect of its proposed new contract, clause by clause, and to the Union's answering such questions. During the March 28 meeting the Union indicated that it would be willing to sign a new contract, if agreed upon, "without completing negotiations on a pension plan." At the fourth meeting, on March 31, the Respondent declared that it had analyzed the Union's demands as falling into 6 categories, and proceeded to state its "fundamental thoughts on each of those 6 categories," as follows: (a) Seniority-9 of the Union's demands were for setting up seniority as the criterion to govern "a man's getting or holding a job," whereas the Respondent considered "qualifications, efficiency, initiative and quality of work" as equally important factors; (b) invasion of the management field-15 of the Union's demands were in conflict with the Respondent's prerogatives as the "single authority" that "has to make the final decision on all matters," especially 6 "Mutual Agreements" provisions in the Union's proposed contract; 14 (C) anion security and responsibility-the Respondent "objects to compulsion on its employees," and will "fight any attempt" to establish any form of union shop. It likewise objects to the Union's proposal to eliminate the "no-strike " clause from the contract, and at the same time to retain a provision for arbitration as the final step in the grievance procedure; (d) miscellaneous-12 of the Union's demands were to incorporate in the contract certain "long-standing Company policies." " The Respondent stated that, "we get the impression you want these as window dressing for the Union" ; (e) probable nonissues-15 minor demands as to which there should be no controversy; (f) money-as to 27 of the Union's demands which, if granted, would raise the Respondent's costs, various factors must be considered. The profits of the corporation as a whole are not a fair criterion for bargaining purposes, since those profits would "never keep [the Niagara Works] from being shut down if [these plants] begin losing money." Second, the Respondent's wage rates and benefit plans "are way above" those of its competitors. Third, the Respondent's "position in the local community is high" with respect to these matters. Fourth, "the cost of living is going down." Fifth, "productivity has decreased since 1937." Sixth, "the current business situation is uncertain. Stock piles are rising and employment is dropping off." The Respondent then advanced the following additional arguments : 14 Apparently the six provisions above referred to were the Union's demands, in its proposal, that the Respondent be required to negotiate with the Union, and in the event of their failure to agree, submit to arbitration, as to "job rates and piece rates" estab- lished for new jobs, or changes with respect to such rates for existing jobs ; as to any change in the number of hours worked above or below the established 40-hour week ; as to the establishment of "incentive plans" ; as to changes in "job writeups" ; and as to layoffs or "hires" to decrease or increase production, is Illustrative of these demands were proposals for contract clauses to require the Respondent to pay employees for time spent on jury duty , to forbid discrimination against employees on the basis of race, color, or creed, payment for lunch periods ; etc. 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "In order to keep our competitive position we must cut costs to rock bottom. We pay the highest wages in our industry, and we must watch carefully so that we don't price ourselves out of the market. Most of our business is based on -the steel industry's [use of our electrodes in] electric furnaces. Electrodes rep- resent 12-15% of the cost of using an electric furnace. If our electrodes costs go higher, we may make the electric furnaces so expensive to operate that the open hearth furnaces would drive us right out of business." During a discussion which ensued, the subject of wages was again brought up. The Union, in answer to questions, stated that it was basing its wage demands on the following factors: (a) The alleged fact that the Respondent's wages were 10 cents "behind the pattern of raises in the steel industry since V-J Day"; (b) the Respondent's stockholders had gotten a 32-percent increase in dividends; (c) the Respondent's parent corporation had made profits of $102,000,000, and there- fore "the company could afford to give a raise"; (d) the employees "wanted to obtain a better living standard." The Respondent replied that dividends during 1948 "represented only a 5 percent return on the investment" ; that "if financial conditions were to be considered, which they were not, the financial condition of [the Niagara Works] rather than [the parent corporation]" was "what the Union would have to base its demands on. If the Niagara Works fail to make a profit, they would be shut down regardless of the [parent corporation's] profits." To this the Union countered by stating that it "would have to base [its] demands on the whole corporation because [it] had no local figures," and that if it were shown that "the local plants were not able to pay an additional raise [the Union] might withdraw [its] wage demands." 16 The Respondent replied to this by arguing that "the competitive situation" would not permit it to grant a raise since its costs would thereby be forced "way out of line" with its competitors. It also contended that the Union "could not base demands for a wage increase on ability to pay because no one can foresee the future" earnings of the Company. The meeting closed with the union spokesman "complimenting [the Respond- :ent's representatives] on the fair attitude they had taken thus far in negotiations." The fifth negotiating meeting was held on April 8, 1949. The Respondent proceeded further to argue against the Union's wage demands, and the reasons in support thereof advanced by the Union. It contended that it had granted its employees wage raises totaling 48 cents per hour since V-J Day, in comparison with total raises of 46% cents per hour granted by the steel industry since that day, and argued that the Respondent was thus ahead of, rather than behind, the steel industry in this respect, as the Union had claimed. The Respondent also stated that since the Union had refused to "pare down" its demands, it was "forced to reject [the Union's] proposal and offer [its] own counterproposal," which was "that the present contract be renewed for a full year." The Respondent stated that "this is the proper thing to do because of the current uncertain economic conditions." le The minutes of the March 31 meeting were amplified by the witness, Beebe, who testi- fied at the hearing that as spokesman for the Union he had asked that the Respondent "show us their records for their inability to pay and if the records show that they were not able to give us an increase on their earnings that we would drop our demands for a wage increase." The witness explained that he had asked specifically for the records of earnings of the Niagara Works. The General Counsel stresses the fact in his brief that the Respondent admittedly never furnished the Union with a record of such earnings. Since, as is clear from the whole record, the Respondent consistently took the position that it was not basing its rejection of the Union's wage demands on any asserted inability to pay higher wages due to lack of profits, it seems to me that the Respondent's failure to submit such data to the Union is without significance. NATIONAL CARBON DIVISION 711 The parties then reargued the matter of wages, in essence repeating their respective positions as has been above summarized . During this discussion the Union made the point that it felt justified in refusing to accept the Respondent's counterproposal because the Respondent "had not proved [that it] was unable to give a raise." To this the Respondent replied that it "did not consider ability to pay a valid basis on which to grant an increase ." In concluding its statement as to wages the -Respondent "asked the Union to remember that they cannot expect to get something more every year-there may be years when we have to negotiate a decrease instead of an increase." The Union promised to submit the Respondent 's counterproposal and its argu- ments to a special membership meeting of the Union . At the end of this negotiat- ing session the Union submitted a proposed pension plan to the Respondent. At the next negotiating meeting, held on April 15, the Union announced that the Respondent's counterproposal had been presented to a meeting of its member- ship, and that the latter had decided to reject it and to resubmit to the Respondent the Union 's original proposal. After some discussion of the Union 's demands, the Respondent stated that "it wants it clearly understood that we have nothing to give on money items-we see no logical reason for agreeing with any of the Union's demands on money items ; business conditions are too uncertain for us to do anything but maintain the status quo." The Respondent then asked "whether the Union would be interested in a proposal for a six -month wage reopening clause in our present contract , in view of the unsettled future which confronted us all." The Union replied that such a wage reopening clause would not make the Respondent's proposal "any more attractive" to the Union. The Respondent thereupon stated that the parties "seemed to have reached an impasse," and suggested that they "call in the Federal Conciliation Service." One of the union representatives said that he "disliked seeing outside assistance being brought in." The Respondent answered that it "did not feel more money was justified this year in any form" ; that it had heard all the Union 's arguments ; the Union had heard the Respondent 's arguments , and "we just seem to have reached an impasse." The Respondent again suggested bringing in the concilia- tion service, adding, "We have been, and still are, perfectly willing to bargain collectively ; but that does not imply that we must give the Union anything." At this point a union spokesman "said that the Company had not answered his suggestion that a bonus be given at the end of the year , and that this would take into account the business conditions during the year ." The Respondent "reiter- ated the point that the Company could not and would not base wages on the ability to pay," and "pointed out that the six month reopening clause on wages which [had been] mentioned would give both parties a chance to renegotiate wages dependent on business conditions." The Union stated that it was "very discouraged because the Company had not bargained on pensions," to which the Respondent replied as follows : "We have bargained and are willing to bargain on pensions but this does not mean any agreement will be reached Pensions are one more money demand for which there is, in our view, no justification . It is also an extremely difficult subject because both the State and Federal governments are working on pensions, and we have no idea what may happen in the future." When the Respondent again suggested calling in the conciliation service, the Union agreed , and the meeting ended with an understanding that the next negotiating session would be held "whenever the Federal Conciliator calls us together." The seventh meeting between the parties , held on April 19, was called by a commissioner of the Federal Mediation and Conciliation Service, who was in 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attendance. After acquainting himself with the status of the negotiations, the commissioner met separately with the union representatives. When the parties reconvened, the commissioner expressed the opinion that "the Union definitely would not renew the present contract," urged the parties to meet together alone, go over the Union's demands item by item, and "try to eliminate as many as possible." He also suggested that the "money items" be left to the last for dis- cussion, while the parties attempted to "pare down" the other union demands. The Respondent rejected this suggestion, explaining that, "About 40% of the demands are money issues, and because of the uncertainty of business conditions we are not prepared to grant any money increases in wages or benefit programs. Our decision is based on the fact that our wages are far superior to our com- petitors', and are second only to DuPont in the local area. We feel the Union is not justified in asking an increase. There is no sense in our meeting with the Union by ourselves because there won't be any settlement on the issues until agreement has been reached on wages." The meeting ended on this note. At the opening of the eighth meeting, on May 2, "some discussion" took place, according to the minutes, "as to the identity of union representatives." The incident was more fully described by the testimony of witnesses at the hearing, and since the General Counsel contends that this discussion arose out of an attempt by the Respondent to dictate the composition of the Union's negotiating committee, it may be well to summarize that testimony at this point." The delegation which appeared for the Union at the May 2 meeting included R. Keis- ter, E. Swisher, and R. Edwards, who are designated in the minutes of that meeting as "international representatives" of the Union. None of these three gentlemen had previously participated in the negotiations. Despite the fact that they were introduced to the Respondent's representatives as officials of the Union, the Respondent challenged the right of Keister (and perhaps Swisher also, it is not clear from the record) to act as union negotiators until they were "properly identified" to the Respondent. After considerable discussion, and a telephone call to the Respondent's attorney in New York, all consuming about li/2 hours, the Union appears to have furnished the Respondent with written identification of the men in question as representatives of the Union, and they were permitted to participate in the negotiating session without further incident. The above-described occurrence, according to the General Counsel, not only illustrates the bad faith of the Respondent, but in addition constituted in itself a violation of the employees' right to bargain collectively through representa- tives of their own choosing. It is undoubtedly true that "who is to represent the employees as bargaining agent and the manner of selection are matters which belong exclusively to the employees." 38 But the evidence in this case falls short of establishing any attempt by the Respondent to interfere with or dictate the selection of the Union's representatives. At most the Respondent challenged the right of one or two of the Union's representatives to take part in the negotiations until they had been identified as such to the Respondent's 11 The witnesses who testified with respect to the above-described episode are Feathers and Beebe The above findings of fact are based on their composite testimony. Counsel for the Respondent sought at the hearing to adduce additional testimony concerning this matter, which he was precluded from doing by my ruling sustaining the General Counsel's objection thereto Respondent's counsel thereupon made an offer of proof, with respect to which I reserved rulinn for reasons stated on the record Because. In my opinion, the evidence already admitted into the record affords adequate basis for deciding the issue under discussion, and in view of the disposition thereof hereinafter made, I find it unnec- essary to rule on the Respondent's offer of proof. 18N L R B. v. Sunbeam Electric Manufacturing Go, 133 F. 2d 856, 860 (C. A. 7), cited by the General Counsel in his brief. NATIONAL CARBON DIVISION 713 satisfaction. When that was done, the Respondent withdrew its challenge, and no further difficulties ensued on this score . Even if we assume, for the sake of argument, that the Respondent exhibited poor judgment in raising the issue, I fail to see that it thereby demonstrated any bad faith. Nor can I per- deive that the rights of the employees or of the Union were in any substantial sense infringed by the fact that the bargaining session was delayed for 11/2 hours until the Respondent was satisfied that the Union's representatives had properly been identified. Were there evidence of a pattern of dilatory or obstructive conduct during the negotiations on the part of the Respondent, I might, against such a background, view this incident in another light As the record stands, however, I conclude and find that the Respondent's conduct in connection with the above-described occurrence neither reflected bad faith on its part, nor in itself constituted a violation of the Act. When the parties, at the May 2 meeting, reached the point of continuing the negotiations, the Respondent announced that while it was adhering to its position of rejecting the Union's proposed contract, it was prepared to make a number of "minor concessions." '0 The Union emphasized that the announced concessions "were certainly minor," and stated that "there were other items in the demands which are past practice, and which should be put in the contract." An example of alleged existing practice which the Union cited as constituting one of its de- mands was for "an agreement that maintenance work normally performed by [the Respondent's] own employees could not be given to outside contractors." The Respondent replied that "the above items [l. e., those conceded at the outset of the meeting] are the only ones which the Company is willing to give on." The next, and ninth, meeting between the parties was held on May 3. At the demand of the Union the parties again discussed the Union's proposed contract clause by clause 20 When they reached the clause demanded by the Union which would prohibit the Respondent from discriminating against employees on the basis of color, race, creed, or national origin, the Respondent argued that "this was already a law," Z1 and that there was, therefore, "no reason for putting it in." The Union replied that "there was no reason for not putting it in and the Union wants it in the contract." The Union's demand for a union-shop clause was then discussed. The Re- spondent stated that "this was a very old story," asked whether the Union "did not already understand our answers on this clause," and declared that "we had not changed position on it." A spokesman for the Union "admitted that he under- stood [the Respondent's] position." With respect to the Union's demand for a clause requiring the Respondent to furnish all new employees in the unit with a copy of the contract, the Respondent 19 The concessions thus announced were 10 in number, and are listed in the minutes of the aforesaid meeting 20 The General Counsel contends that the Respondent refused to bargain within the meaning of the Act, and thereby further revealed its bad faith during the negotiations, by its "unwillingness to incorporate [ in a written contract ] agreements reached, and existing practices , as is plainly required by Section 8 (d) of the Act " He cites as examples of this, the Respondent 's rejection of the Union 's demands for contract clauses prohibiting the use of outside contractors to do maintenance work ; prohibiting discrimination against em- ployees on racial or religious grounds ; requiring the Respondent to print and distribute the contract among employees ; regulating the composition of the Union 's negotiating commit- tee, requiring the Respondent to pay employees for time spent on jury duty and lunch periods; requiring the Respondent to pay employees for gloves and tools ; and others I am, consequently, summarizing the discussions of the parties with respect to these union demands 21 It is to be noted that the Respondent's Niagara Works are located in the State of New York, which has in effect a law forbidding such discrimination 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said that it "did not see any reason why this needed to be in the contract. We might be willing to print the contract as we have done in the past. Last year we did not get around to doing it because Mr. Haynsworth was sick." When the Union replied that the Respondent "never gave them out to the employees," the Respondent stated that it "might give them out this year." The Union then asked whether the Respondent "would give [the Union] a letter to that effect," and the Respondent refused. The proposed contract also contained a provision that in "collective bargain- ing with the Company, the Grievance Committee of the Union (consisting of 6 members), plus the President of the Union, shall be the recognized spokesmen for the Union," and that these seven representatives of the Union be paid their regular rates of pay by the Respondent for time spent at grievance discussions during regular working hours. The Respondent took the position that it was willing to pay the six members of the Union's grievance committee for time spent on grievance, as it had in the past, and that if the Union wished to have its president represent it at grievances, it could include him among the six representatives who were thus paid. As to the clause in the proposed contract regulating the composition of the Union's negotiating committee, the Union took the position that "this new clause would spell it out a little more specifically" than it was in the current contract, and the Respondent replied that "it was unnecessary to put it in." An additional clause demanded by the Union was one providing that "job rates and piece rates for new jobs which are established-or for jobs which are changed during the term of this contract and new piece rates for existing jobs not at present covered by piece rates shall be subject to negotiation by the Union and the Company. If no agreement is reached by the parties, these rates will be subject to arbitration." The Respondent stated that "this was one of the clauses which we feel [is] an invasion of the management field." The Respondent further stated that while it had in the past "asked [the Union] to negotiate many piece rates or job rates before putting them into operation," it was unwilling to include a clause in the contract requiring it to do so. The Respondent stated further, "It is more than we have in the present contract and we don't want to be limited in our right to put in new job rates. We have already conceded to the Union the right to grieve on those rates, and that is as far as the Company is willing to go." With respect to the Union's demand for a contract clause providing for paid lunch periods, the Respondent "pointed out that [it was] already paying as the Union requested, and did not see any reason why this should be put into the contract." To this the Union replied that the Act requires that "anything on which an agreement is reached has to be made part of the contract." Another clause in the Union's proposed contract provided for negotiations between the parties as to any revisions of "job write-ups" during the life of the contract, and for arbitration of such issue in the event of their failure to agree. The Respondent opposed such a clause, taking the position that "Management must have the sole right to change the job, although the new rate might be subject to arbitration." As to the proposed clause requiring the Respondent to pay employees for time spent on jury duty, the Respondent stated that "it was a long standing Company policy to pay for jury duty and we [do] not want to put it into the contract." The Union's demand for a clause providing for the institution of an incentive plan to "be put into effect upon approval of the parties," evoked the following NATIONAL CARBON DIVISION 715 reply from ,the Respondent : "The company should be allowed to install incen- tive plans as they see fit. There should be no mutual consent involved." When the parties reached the proposed clause providing that "all work which is considered maintenance work" be performed by the Respondent's "own mainte- nance men," the Respondent stated, "we [are] certainly interested in having the maintenance work done by our own people but we don't want to put any provision in the contract. We don't believe that there is any language that will cover this section in such a way that it will be interpreted consistently with what we have in mind. We especially do not want to put any limits on the management of the plants." When the Union charged that the Respondent was "refusing to negotiate [changes in the Respondent's group insurance] plan," the Respondent asserted that the Union had not yet offered any plan and stated that the Respondent "was certainly willing to listen to any plan that the Union had in mind." The Union then submitted a "plan for [the Respondent] to consider." The Respondent "pointed out that [it was] willing to accept the plan to look it over, but that does not mean we will accept it," adding, "We are especially not interested in any plan that will increase our costs." On the next day, May 4, 1949, the parties held their tenth negotiating session, which was "again devoted to the discussion of the Union's proposal," item by item. According to the minutes, "non-money issues were the only ones consid- ered." In discussing the Union's demand for an antidiscrimination clause (on the ground of race, color, or creed), the Union "said that the discrimination clause would have to be put in writing or it would be evidence of bad faith on the part of the Company and the Union would file a charge." The Respondent denied that it was acting in bad faith and reiterated that it had no intention of discriminating. Reverting to the Union's demand for mutual agreement, and arbitration in the event of their inability to agree, on any revisions of job "write-ups," before such revisions were to be effectuated the Respondent continued its refusal to include such a clause in the contract a It took the position that it had "no idea of any speed-up program, but it does wish to retain the right to change a job without mutual agreement. This would be an invasion of the Management field." With respect to the Union's demand for a clause obligating the Respondent to replace the tools of maintenance employees which were stolen, lost, or broken, the Union contended that this was merely a reduction to written form of an agree- ment which the Respondent had followed in practice. The Respondent at one point said that "the policy had been to replace all broken tools, and to replace tools which are stolen if we are satisfied after talking to the employee." When the Union contended that "up to 3 months ago the National Plant used to replace all broken, lost or stolen tools," the Respondent replied that it "had checked up on this and [had found] that that was not the case." u After further discussion of various items in the proposed contract, the Re- spondent summarized the results of the two most recent meetings by saying, "that going through the contract item by item again had not resulted in any changes on the part of the Company. We do not want the Union to misunder- stand our position : we have offered to renew the [current] contract for one year with a six month wage reopening clause and we have yielded on twelve "This subject is covered in the minutes of the May 4 meeting under the heading, "Fair Day's Work." Z' I conclude from the above that the Respondent had, in the past, admittedly replaced, for maintenance employees, all tools which had been broken or stolen, but denied having replaced lost tools. 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD minor issues. The Company does not want to `rock the boat' this year and that is the position we have taken." Various spokesmen for the Union then stated their opinions "on how negotia- tions had progressed." These statements, in sum, expressed the view that the Respondent had taken an obdurate position throughout the negotiations, and had seemed to listen to the Union's arguments "only to be polite," with no real intention of giving them.serious consideration. As an example of the bad faith with which the union spokesmen were charging the Respondent, some of them accused the Respondent of "having agreed in principle with many of the [Union's] demands but [refusing] to put the words in the contract," citing the demands for distribution of contracts, pay for jury duty, and for an antidiscrimination clause. The Respondent denied these accusations and stated, "To give the impression that NN e would horsetrade with you this year would have been in- sincere. We just don't have anything we can give. Negotiating doesn't mean we have to agree." The meeting ended after further similar exchanges, with the union repre- sentatives finally threatening to file charges of "bad faith in bargaining" against the Respondent, and stating that the Respondent was "giving the [Union] committee no alternative but to ask for a strike." Another meeting, with the conciliator present, was held between the parties on May 6. This constituted their eleventh negotiating session. After reiterating its complaints against the Respondent's alleged "unwillingness to bargain," the Union proposed to "drop" 10 of its demands "in an endeavor to reach agreement." As enumerated by the Union these were the clauses in its proposed contract with respect to : (a) Composition of the Union's grievance committee. (b) Composition of the Union's negotiation committee. (c) Definition of continuous shifts. (d) Paid lunch periods for 12-hour shifts. (e) The institution of incentive plans. (f) Temporary job openings. (g) Posting of vacancies. (h) Superseniority provisions. (i) Grievance procedures. (j) Pay for members of the Union's negotiating committee. The Union stated that it was still demanding the proposed clauses relating to discrimination on the ground of race, color, or creed ; performance of mainte- nance work by the Respondent's employees rather than outside contractors; the higher rate for employees transferred to a higher rated job for a full day ; and paid lunch periods for employees working overtime. During further discussions, the Union stated that except for the clauses specifically enumerated as those which it was willing to forego, the Union's proposed contract "remained as it was." ' The Respondent then requested that the Union specifically list its "present demands," and indicated that if this were done, it might be willing to make a few additional "minor concessions." The Union's reply to this was that "the Company already knew what they [the remaining demands] were," and that the Union's "proposal would remain as is until the Company made some move." Finally the Respondent "reiterated the Company's views that very few of the [Union's] 88 demands represented past practice." The Respondent indicated, however, that It had asked its- legal department for an opinion as to whether or not it was under obligation to include in the contract the proposed clauses relating to pay for jury duty, pay for overtime lunch periods, and discrimination in employment, and that it expected to receive an answer within 24 hours. NATIONAL CARBON DIVISION 717 The parties then apparently reached an agreement to retain the wording of the old contract with respect to the handling of fluctuations in the size of the Respondent's working force. The Union's demand for a union shop was again discussed, with the Respondent maintaining its opposition thereto, and the Union indicating that "this was one item on which the Union would be willing to strike." With respect to the performance of maintenance work by the Respondent's own maintenance employees rather than by outside contractors, the parties were in disagreement as to just what their present understanding was,2' and finally a spokesman for the Respondent "stated that we certainly did not want to give the work to outside men, but that lie didn't feel there was any wording which could adequately cover the situation without leading to future disputes." He added that "the Company would continue its present practice." At the conclusion of this meeting the Respondent announced that it had "gotten clearance from [its] Legal Department and clauses would be worked up on Jury Duty; discrimination for race, color, creed, and national origin; and pay for overtime lunch periods." The parties held their twelfth negotiating session the next day, May 7. It was announced at the outset of the meeting that the membership of the Union had voted "3 to 1 in favor of supporting strike action." A union spokesman then proceeded to "give the Union's final proposal before going on strike." The proposal is summarized in the minutes as follows : (a) A union shop. (b) Payment by the Company of Group Insurance premiums. (c) Payment by the Company of hospitalization insurance premiums. (d) A medical and surgical [ insurance] plan to be worked out jointly. (e) The Union reserves the right to negotiate on a more suitable pension plan when and if any government plan goes into effect. (f) Renew the present contract including the insertion of those things we've mutually agreed on to date. (g) A wage reopening on July 8, 1949, with a fifteen day period starting July 8, 1949, wherein the no-strike clause will not be effective. The meeting ended after some questions put to the Union by the Respondent, with respect to its "final proposal," and after the conciliator suggested that both parties consider extending their current contract for 15 days to attempt to pre- vent a strike. On the next day, May 8, the parties held their thirteenth session , which proved to be the last negotiating meeting before the strike began. After several unsuccessful efforts by the conciliator to break the impasse which had been reached in the negotiations, he brought the parties together in a joint session. The union spokesmen made it plain that the Union would strike "if there is no agreement by midnight." 2g One of the Respondent's represent- atives answered "that he was sure the Union understood the Company position. We can't see at this time any change in our position." Finally a union negotia- tor announced that "at 12: 01 a. m. the Union's demands would revert to their original proposal." 26 m The Union asserted that "maintenance work was to be done only by employees who normally perform that type of work unless it was an emergency." The Respondent seemed to take the position that "the maintenance agreement only covered overtime work " 21 The contract then in effect expired at that time. 28 The minutes of this meeting, which began at 10 p. in , note the fact that "during the above meeting, three members from the Union negotiating Committee, one from each plant, had gotten up and left " 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During a recess which followed the exchanges above summarized, the Respond- ent stated its position to the conciliator. It said, in sum : That it was, and would remain, opposed to a union shop; that it rejected the Union's three de- mands respecting insurance plans because these "involve money, and we won't do anything to increase our costs" ; that it had negotiated on pensions "this year," but did not "want to negotiate [on pensions] during the term of the next con- tract"; that it would agree to renew the current contract (presumably with such changes therein as had been agreed upon) ; and that it suggested that a compro mise be worked out as between the Union's demand for a 2-month reopening clause and the Respondent's demand for a 6-month reopening clause. The negotiations then revolved around the differing interpretations of the parties of the term "wages." The Union took the position that by "wages" it meant all its money demands, including changes in the pension and insurance plans ; the Respondent asserted that it meant by this only "the wage schedule, job rates, and piece rates." The Union explained that if agreement were reached on a contract reopening clause, it would expect to discuss pensions and insurance as well as rates of pay in the event of a reopening. The Union "pointed out that [its] offer of an extension of the contract was based on the Company's accepting the Union Shop and insurance items, plus the right to ask for more on July 8." " Further discussion during this meeting revealed the respective positions of the parties to be unchanged, whereupon the conciliator summarized the "remaining issues" as follows : Union Shop Group Insurance Hospitalization to be paid for by the Company Medical and Surgical Insurance to be worked out Pensions dependent on government action The minutes note that "the meeting was adjourned when [a union spokesman] stated that the Union was not interested in a change in time of the reopening clause unless the first four items would be worked out." It is undisputed that the Respondent's employees went out on strike as of mid- night of May 8, 1949. 3. Negotiations between the parties during and after the strike On May 19, 11 days after the strike began, the conciliator met with the parties, holding separate sessions with each of them, apparently in different rooms. After meeting first with the Union, the conciliator reported to the Respondent that the "Union's position was unchanged," and that he "assumed that the Union had not reverted to their original proposal." The Respondent stated that its "position was still the same," and summarized that position by offering to renew the contract for 1 year ; to include therein the 12 "minor concessions" previously made; to include clauses on jury duty, antidiscrimination, overtime lunch periods, and "the glove list" ; and to include a 6-month or shorter wage reopening clause (the term "wages" to be construed in its narrower sense). After conveying the aforesaid to the Union, the conciliator reported back to the Respondent that the Union was not interested in discussing a shorter wage reopening clause. The session ended without the parties being called together. 'n In later discussion the Union' s position was further explained as being that "if the Company were willing to grant the Union Shop and insurance items, the wage reopening clause would apply only to the wage schedule." NATIONAL CARBON DIVISION 719 'The next meeting was held on June 8, 1949, after the strike had been in progress a month. Both parties reiterated their previous positions and advanced argu- ments in support thereof. One new issue was injected into the discussions when the Union called attention to the fact that "the Company had opened hiring halls and had succeeded in hiring anywhere from 50 to 250 strike-breakers." The Union demanded "to know what the position of the people on the payroll at the time the strike was called, would be when work was resumed." The Respondent's first answer to this question was, in sum, that "because of continuing cuts in the demand for our products, it would not be possible to employ the same number of people who had been on the rolls at the time the strike was called" ; " that the Respondent would need 200 or 250 fewer employees after the strike than it had previously employed ; and that the "new people who had been hired" would be retained in the Respondent's employ after the strike, with "old employees" being -added to the payroll in "the order of seniority." This answer evoked strong protests from the Union. Finally the Respondent suggested that the parties seek to settle their other differences, and leave the issue of the status of the "strike breakers" to be "looked at again in the light of our overall success with these negotiations." The matter was left in that posture. After two intervening sessions with the conciliator, during which no joint dis- cussions were held, the parties again met on June 16. At this time the Respond- ent submitted a written proposal to the Union through the conciliator. In sub- stance the said proposal was a formulation of the agreements already reached between the parties, together with the Respondent's last proposals before the strike (e. g., that the question of wage schedule and piece rates be subject to reopening within 6 months or some mutually agreed upon shorter period). In .addition, the proposal contained a new offer with respect to the issue of revised insurance and pension plans. It was, in effect, an offer to meet with the Union during the term of the renewed contract, for periods not to exceed a total of 40 hours, for the purpose of "exploring together the needs and desires of employees with respect to" the items of insurance and pension plans, with the understanding that the parties were not "required . . . to reach agreement on any revision in any of said plans presently in effect or on adoption of any of said plans not ;presently in effect." - On the next day, June 17, the parties met jointly. At this meeting the Union submitted a written proposal in which it accepted certain portions of the Re- spondent's proposal of the day before, and rejected others. In it, the Union stated that it was "agreeable to discussing an appropriate period for a wage reopener," and, with respect to the Respondent's offer to "explore" pension and insurance plans for 40 hours, stated that the Union had "left these for further .negotiations." When the parties began to discuss their respective proposals, the Respondent "pointed out that in the Company's proposal there was only one item which was ,considered to be negotiable, and that was the item that dealt with the time of the wage reopening." The Union then took exception to the Respondent's proposal that the subject of pensions and insurance plans be "explored" during the coming year; it de- clared that it wished to "negotiate on these benefits" and not merely "discuss" them. The union spokesman asked directly, "Is the Company willing to nego- tiate on a Pension Plan?" The Respondent answered, "that according to the law negotiating did not mean that the Company had to agree to any particular plan." Further discussion of this question adduced a statement from the Re- 28 It was stipulated at the hearing that the Respondent's work force was legitimately seduced after the strike because of economic conditions 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent that "it was always willing to talk about these plans at any-time [but] was indicating that it was not willing to do anything about the plans this year." On July 8, 1949, with the strike still in progress, the parties met again After extended but general discussion, the Union stated that, in order to bring the strike to an end, it was willing to drop its demand for a union shop. In answer to this offer, the Respondent, after a recess, came forward with the following proposals for settlement of the strike : (a) Strikers guilty of flagrant illegal conduct during the strike would not be reinstated-and "this is not a matter for negotiations." (b) The Respondent would "insist on some seniority protection for those people now at work." (c) Reinstatement of the last contract, including "those changes mutually agreed to prior to the strike." (d) Term of the new contract to be from date of acceptance to November 8, 1950. (e) A reopening clause "on wage schedule only," February 8, 1950, upon 60 days' prior notice. The Union thereupon demanded to be informed as to the identity of the strikers alleged to have forfeited their right to reinstatement by engaging in illegal con- duct, and to have explained more specifically what the Respondent meant by "seniority protection" for those employees who worked during the strike. At this point the Respondent declared that it would not disclose the identity of the strikers who would be denied reinstatement, and insisted that this, in any event, was not a negotiable issue. It also stated that it would "work out some provision which would provide job protection for those men who were now in the plants, as far as their having a job was concerned." The meeting ended with the Union presenting lengthy arguments against the foregoing position of the Respondent. At the next meeting, held the next day, July 9, the Union again argued against the Respondent's proposals, especially those dealing with reinstatement of strikers, and protection of the job tenure of the employees who were then in the plants. - On July 10, the twenty-second session was held. The Union asked whether the current proposal of the Respondent included the offer to negotiate, for a. period not to exceed 40 hours, the question of pensions. The Respondent said that "this item of the June proposal had been dropped," but that the Respond- ent was "willing at any time to listen to proposals for betterment of any of the benefit plans now in existence." With respect to insurance, the Respondent reiterated that it would be willing to negotiate if the Union recognized that under the law "negotiations can be conducted in good faith without the neces- sity of giving on the part of either party. . . . It was not possible to indicate, however, that any liberalization of the plan was in the cards." During this meeting the mayor and city manager of Niagara Falls appeared at the door of the room. The minutes show that, "As they entered the meeting room the Company Representatives left the joint meeting." 29 "The General Counsel takes the position in his brief that the Respondent' s conduct in refusing on this and a previous occasion to meet jointly with these city officials and the Union, "conclusively establishes the Respondent's bad faith." The Respondent's explana- tion, namely, that it "considered it inadvisable to bring in another third party [in addi- tion to the Federal Conciliator] at this point; that the strike situation was extremely delicate and Respondent hesitated to do anything to unbalance it," seems to me to dispose of the contention that its aforesaid conduct was indicative of bad faith. I therefore reject the General Counsel's contention NATIONAL CARBON DIVISION 721 After the city officials had met separately with each of the parties and the conciliator, apparently to urge them to settle the strike, the Respondent and the Union reconvened their joint session with the conciliator . The Union then offered the following proposal as a basis for settlement of the strike: (a) All employees to "return to work in accordance with seniority clause in present contract without discrimination." (b) The contract of May 8 to continue in effect for 1 year, to be reopened 6 months from date of settlement for negotiations on wages, insurance, and hospitalization. (c) The Respondent and the Union to "jointly seek the elimination of the present City and Supreme Court Action [apparently referring to strike violence cases in city court and injunction proceedings in Supreme Court]." After a recess the Respondent indicated its rejection of the Union's proposal on the ground that it "does not take into account the principle of nonreinstate- ment of people who have been guilty of illegal acts." The Respondent, in ensuing discussions, insisted that only the "principle" of non reinstatement be negotiated, but that the identity of those strikers who were to be denied rein- statement was not to be discussed The Union protested against being asked to concede to the Respondent the right to a "blank ticket " to "go over individual employees and decide who, in their opinion, had violated a Federal or State Law." The meeting ended without agreement. On July 11, the parties met again. The chief topic of discussion was again the Respondent's insistence that employees then at work not be replaced by returning strikers , even when such strikers had greater seniority than those employees then on the job. The Respondent pointed out that its proposal envisioned only "protec- tion against lay-off for some period of time" with respect to employees then in the plants, and that "during this period seniority would not be allowed to accumulate for the men at work." At the next meeting, on July 12, the Union renewed its arguments against the Respondent's proposed terms for settlement of the strike , especially the one relating to retention of employees then at work as against returning strikers. The Respondent assured the Union that it wished merely to give temporary protection to "men who had returned to work during the strike," and that after an unspecified period, "men who are laid off who had greater seniority-would be brought back in place of those who had been protected." After separate sessions with the Union and the Respondent on July 13 and 14, the conciliator met again with both parties on July 15. At this meeting the parties came to agreement "as to the issues still pending," $0 and the Respondent submitted written and more specific formulations of its proposals with respect to the reinstatement of strikers . These may be summed up as follows: (a) All new employees hired as replacements for strikers , and all employees who returned to work during the strike, to be retained at the end of the strike without being replaced by returning strikers for a period of 6 months following the termination of the strike. Employment during such 6-month period to be excluded in deter- mining seniority rank. After 6 months, such employees to become subject to layoff provided there be laid-off former employees on the rehiring list available for employment, with greater seniority rank; (b) the Respondent to be free for 30 days following termination of the strike to "use employees where they are 30 This formulation of the issues in written form, as drafted by the Respondent, is appended to the minutes of the July 1 5 meeting. 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD needed without regard to the job placement provisions of the contract ;"" (c) classification of strikers who had engaged in illegal conduct during the strike into 3 groups, on the basis of the degree of misconduct in which they had engaged : group 1, numbering 28, to be denied reinstatement ; group 2, consisting of 12 strikers, to be reinstated on probation for 1 year , provided that the Union agrees to wave any rights to grievance in case of discharge ; group 3, 64 in number, to be reinstated on probation for 1 year, with any disciplinary action against them to be subject to the grievance procedure. After three sessions during which the conciliator met with the parties sepa- rately, and which resulted in no further agreement , a joint meeting was held on July 23. On this occasion the Union presented a written statement to the Respondent. It read as follows : The Negotiation Committee of [the Union ] . . . herein makes the follow- ing statement : Such Committee, as mandated by its membership, herein states to the management of the National Carbon Co., Inc., that all employees will return to work at their respective plants Monday, July 25, 1949 at 8: 00 A. M. The Union, for itself and on behalf of any and all employees of the National Carbon Company, Inc., Niagara works, hereby expressly reserve all of their rights under the National Labor Relations Act and any and all other pertinent State and Federal Statutes. In reply to the foregoing, the Respondent submitted the following statement : In view of your discontinuance of negotiations on Saturday afternoon, July 23, on the remaining issues to be settled in connection with the termi- nation of the strike, you are hereby notified that all offers of settlement advanced by the Company are hereby withdrawn. The Company stands ready to continue negotiations leading to the settle- ment of this strike and to agreement on a mutually acceptable collective bargaining contract. Meanwhile the Company having been advised by the Union that all em- ployees would return to work on July 25 at 8: 00 A . M., the Company informs the Union that as the various plant departments are conditioned for the return to work of additional employees , such employees will be notified by the Company as to when to report for work, subject however to the exten- sive lay-off of employees made necessary by the reduction in the Company's business. On July 25 the parties met again , at the request of the Union , and the Union presented a demand that a grievance procedure be set up to enable the Union to perform its function of representing the employees . The Union recommended "the same grievance machinery as [the parties ] had had in the old contract," but stated that it was willing to entertain other suggestions . In reply to this the Respondent stated that it "would be willing to talk over grievances with the Union," but would prefer "to begin now to negotiate a complete contract instead of negotiating piecemeal on such items as the grievance procedure." After further discussion , the meeting adjourned without any agreement on the matter being reached On the next day, the parties, after some discussion, decided to hold another meeting at which each was requested by the other to submit proposals for 81 This was explained in the Respondent 's proposal as being necessitated by the reduc- tion in business which had occurred , with a resultant need for 350-400 fewer employees than were employed prior to the strike, and by the "abnormal conditions involved in re-establishing all operations.". NATIONAL CARBON DIVISION 723 settling the issues left undecided by the strike. Pursuant thereto, they met to- gether on August 2, 1949. The Union proposed that the old contract be reinstated and kept in effect from week to week while the parties negotiated a new agree- ment. Once the old contract was reestablished, the Union further proposed, the parties would begin negotiating on a new contract "where [the parties] had left off on May 8th," i. e. on the basis of "the twelve minor changes which had been agreed to," leaving six still-disputed issues to be resolved e: In subsequent discussion the Union pointed out that under its proposal the seniority provisions of the old contract would govern layoffs or return to work of strikers as well as those employees who had returned to work before the termination of the strike. On August 9 the parties met for further discussion. A number of "grievances" presented by the Union were discussed, among them the matter of 28 employees who had been discharged by the Respondent, allegedly for having engaged in illegal conduct during the strike. On this occasion the Respondent furnished the Union with the names of these employees. The Union also reiterated its arguments that returning strikers should be reinstated on the basis of seniority. On August 16, at their next meeting, the parties engaged in additional dis- cussion of the issues of the reinstatement of strikers and the discharges for alleged illegal activities. In sum, both parties adhered to their former positions. The Respondent however, as the discussion developed, amended its attitude with respect to giving "job protection" for a definite period of time to those employees who had returned to work before the end of the strike. At this meeting the Respondent finally stated that its "current position on this point is simply that men who returned to work need not be replaced by strikers," and that "if another lay-off came . . . the lay-off ivould be made on the basis of seniority." As to men newly hired during the strike, the Respondent said that "these men .. . would be placed in the same category as the rest of the men who were wurcing." On August 25, 1949, the last negotiating meeting between the parties was held. The Respondent informed the Union "that a letter had been received from an- other union claiming to represent a majority of the people at work in our plants," and "went on to say that'it was not the Company's policy to recognize any union for the purpose of collective bargaining until they had been certified by the National Labor Relations Board." After some discussion, the Respondent stated : "While-it is true that the Company has to keep in mind the possibility of having any agreement which it would make with the Chemical Workers [Union] upset by a representative [sic] election, the Company still intended to continue discussions with the Chemical Workers until the situation could be clarified. [The Respondent] had gotten the letter [from the other union] shortly be fore [the Respondent's spokesman] came into the meeting and had had no time to decide what the proper position of the Company might be. However, the Com- pany was willing to talk about anything in today's meeting that might be of 'interest to the Union but some uncertainty would exist as to how any matter might be finally resolved." At this point the Union again brought up the question of pensions, indicated that "this subject was probably the most important item to employees of the Company," and asked the Respondent to make some proposal with respect to changes in its pension plan. The Respondent answered that "every progressive "The six issues to be negotiated were the Union 's demands for an open shop; full pay- ment by the Respondent of the costs of group insurance ; payment by the Respondent of the costs of hospitalization insurance ; a medical and surgical insurance plan ; the Respond- ent's pension plan to be renegotiated "whenever a new government plan became effective" ; reopening of the contract on the question of wages with the date of such reopening to be agreed upon. 227260-53-vol. 10047 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD company was thinking about pensions and continuing to do so all the time. In view of the current uncertain position of the government, it was difficult to arrive at any final conclusions. Pensions represented an increase in manu- facturing costs and the Company did not feel that it was in a position to upset the present economic balance." The final meeting ended with the understanding that another session would be called if the Respondent, after further consideration, came to the conclusion that it was prepared to change its "present position." In a letter to the Respondent dated September 16, 1949, the Union referred to the demand for recognition which had been made by the independent union, and inquired whether the Respondent had decided on what position it would take with respect thereto. The Union declared that it was "anxious to complete . . . negotiations and get a workable contract," and asked whether or not the Respondent intended to continue to negotiate with it. The Respondent answered this inquiry both by telephone call and by letter, the latter dated September 27, 1949. Its reply was to the effect that there were two main reasons why further negotiations between the parties would, be,useless, the first being the filing of unfair labor practice charges against the Respondent by the Union (referring to the charges which initiated this proceeding), the other being the filing of a representation petition by the independent union. The Re- spondent argued that the unfair labor practice charges related to the issues directly involved in the previous negotiations, and that the parties had apparently reached a deadlock on these issues, which could be broken only by a determination by the Board. With respect to the petition of the independent union, the Ite- spondent took the position that the filing of that petition had raised a question of representation which could not be resolved until after the pending unfair labor practice charges had been disposed of. The Respondent concluded that it was precluded from signing a contract with the Union, even assuming that one could be agreed upon, until "the question of representation is determined by the Board." On April 3, 1950, the Union again wrote to the Respondent, called attention to the dismissal of the Independent's representation petition by the Regional Direc- tor of the Board,33 and requested the resumption of negotiations for a collective- bargaining agreement. This request was rejected by the Respondent in a letter dated April 7, 1950, in which it stated to the Union that it considered tag question of representation still undetermined in view of the possibility that the iNdepend- ent union's petition would be reinstated after the unfair labor practice charges had been disposed of. On April 11, 1950, the Union again demanded the reopening of negotiations, this time specifically on the issue of insurance and pension plans; coupled with this demand was a warning that the Union would consider unilateral action by the Respondent on these matters as an infringement of its rights as collective- bargaining agent of the employees. On April 13, the Respondent replied that it was "no more free under the law to engage in [negotiations with respect to insurance and pensions] with [the Union] at this time, than in negotiations on any other matters. . . ." On May 2 and 5, 1950, an exchange of letters between the Union and the Respondent again took place, in which the Union reiterated its demand for bargaining in view of the Board's action on April 21, sustaining the dismissal of the independent's petition, and the Respondent adhered to its position that the n The petition was dismissed by the Regional Director on March 30, 1950, and that action was sustained by the Board on April 21, 1950. The reason stated for such dis- missal was the pendency of the unfair labor practice charges filed by the Union. NATIONAL CARBON DIVISION 725 petition had been dismissed "without prejudice," thus leaving a question of representation still pending. 4. Unilateral changes in wages, insurance plans, and pension effected by the Respondent after negotiations with the Union had been discontinued It is undisputed that on May 29, 1950, and again on September 18, 1950, the- Respondent put into effect general wage increases for its hourly paid em- .plgyees in the Niagara Works, without notifying the Union or discussing the- matter with that organization. It is similarly admitted that on April 24, 1950, the Respondent in letters to- all its employees announced, and on May 1, 1950, made effective liberalizations- of and additions to its existing insurance plans, without notice to or discussion" with the Union " On April 3, 1950, as is undisputed, the Respondent posted a notice to its em- ployees in which it announced that it had "been giving much study to Pension Benefits, with the idea of working out a satisfactory plan, to be available in the near future." This was followed by another notice posted on May 25, 1950, which announced to the employees that "a new and additional Pension Plan will go into effect July 1, 1950. . . ." The new pension plan, which was sup- plementary to the Respondent's preexisting retirement plan, provided, in sum, for "a monthly pension [for employees reaching the retirement age] of not less than $100 per month including the primary Social Security payable, and including any benefits which the Company may have paid for under the existing Retirement Plan." Under the new plan, the aforesaid pension benefits were to be provided for by the Respondent "at no cost to employees," except for the pay deductions made for social security. The additional pension plan was admittedly announced and put into effect without prior notice to the Union or negotiation with it. 5.' Concluding findings with respect to the alleged refusal to bargain 'a. Unilateral changes in, wages and benefit plans"nidde by the Respondent The General Counsel contends that by rejecting the Union's demands after August 25, 1949, to resume negotiations, by unilaterally effectuating wake increases in May and September 1950, and by unilaterally announcing and effect- ing liberalizations of its insurance and pension plans in April, May, and July, 1950, the Respondent violated its duty to deal with the Union as the collective- bargaining representative of its employees, thereby committing unfair labor practices within the meaning of Section 8 (a) (1) and (5) of the Act 86 34 The changes above referred to may he briefly surnamed up as follows : (a) The existing group insurance plan, covering life, sickness, and accident insurance, was liberalized by the Respondent's assuming a greater portion of the cost, thereby reducing the cost to employees, (b) whereas employees had previously paid the full cost of Blue Cross Hos- pitalization Insurance, the Respondent assumed half the cost for participating employees ; (c) Blue Shield Surgical Insurance, not previously available to the employees, was offered, to them, with the Respondent paying half the cost. $ Paragraph 7 of the complaint alleges that the Respondent refused to bargain with the Union "by the following and other acts and conduct . G. At all times subsequent to the termination of the strike, . Respondent has failed and retased to meet and confer with the Union . J On or about April 3, 1950, [Respondent unilaterally' announced that the liberalized insurance plans] would go into effect May 1, 1950, and that Management has been giving much study to Pension Benefits, with the idea of work- ing out a satisfactory plan to be available in the near future " As has been found above, the Respondent did meet with the Union several times after the termination of the strike, and did not actually refuse to "meet and confer" with it until after the meeting of August 25, 1949 There is thus a variance between the allega- 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent's contention that it was justified in discontinuing negotiations with the Union and effectuating unilaterally the changes in question, because an unresolved question of representation existed at the time, has been considered above and decided adversely to the Respondent (p. 707). The Respondent also advances the argument that before it broke off negotia- tions with the Union and resorted to unilateral action, an impasse had been reached in the negotiations which left the Respondent free to do so. More fully stated, the Respondent's contentions in this connection are as follows : The negotiation between the Respondent and the Union had become deadlocked on the issues of wages and employee benefit plans, with the Union demanding an increase in wages and improvements in the insurance and pension plans, and the Respondent insisting that it could not grant any such increase or improvements. Negotiations had also reached an impasse over the question of reinstatement .and discharge of strikers. The Union had filed unfair labor practice charges .against the Respondent involving these issues and there seemed to be no hope that they could be resolved by the parties, at least until after the Board had determined the validity of the unfair labor practice charges. For this reason, as well as the Respondent's belief that a question of representation existed, the Respondent was justified in rejecting the Union's demands that negotiations be resumed. For the same reasons, the Respondent was within its rights in acting unilaterally when it later decided to grant wage increases and liberalize its employee benefit plans. As to its reasons for inaugurating the said improve- ments at the time it did, the Respondent makes the following explanation: i0 During the period of "some months preceding the time of Respondent's putting into effect its new benefit plans," there had been a "veritable procession of new benefit plans among large employers," and the Respondent "joined the procession" by offering improved benefit plans to its employees. It has been the Respondent's practice to have the same pension and insurance plans in effect at its various plants throughout the country. At about the same time that the liberalizations in the employee benefit plans and the wage increases were effectuated for the employees of the Niagara Works, the Respondent had put into effect at its plants at other locations, identical or similar improved benefit plans and wage increases87 Therefore, in- order not to discriminate against the employees of the Niagara Works, it felt impelled to grant the same benefits to the latter. In considering the question here under discussion I have kept in mind that after parties to collective bargaining have reached an impasse with respect to certain issues, a situation may arise wherein unilateral action by the employer tion in paragraph 7-G of the complaint and the proof. I do not consider this variance to be a fatal one. The Respondent had full opportunity to litigate this issue, and did so. I therefore feel free to make findings of fact and conclusions of law with respect to the said issue, on the basis of the evidence in the record. It will also be noted that the complaint does not specifically allege the two unilateral wage increases as instances of the Respondent's refusal to bargain with the Union, and that paragraph 7-J of the complaint refers Only to the announcement of the forthcoming changes in the insurance plans, and of the Respondent's intention to liberalize its pension plan. Paragraph 7 of the complaint does, however, allege generally that the Respondent's refusal to bargain was evinced by the enumerated "and other acts and conduct." In view of that, and the facts that the Respondent did not object to the admission of evidence with respect to the wage increases, as well as the actual effectuation of the unilateral changes in the insurance and pension plans, and that, indeed, the Respondent itself adduced evidence with respect thereto, I deem these issues to have been fully litigated, with no prejudice to the Respondent. as Respondent's brief, pp. 168-170 ; testimony of director of industrial relations, Nichols. 87 In those of its said plants which were organized , the Respondent emphasizes, these changes were made after agreement thereon had been reached with the unions represent- ing the respective employee units involved. NATIONAL CARBON DIVISION 727 as to those issues may be warranted. Did the circumstances with which we are dealing in this case create such a situation? The seeming impasse as to wages and employee benefit plans which was reached by the parties to this proceeding arose out of the Respondent's adamant and total rejection of the Union's demands for a wage increase, for the Re- spondent to assume some of the costs of the group insurance plans hitherto borne by the employees, for a widening of the scope of such plans to include medical and surgical insurance, and for liberalization of the Respondent's pension plan. Without again recapitulating the history of the negotiations between the parties, it is sufficient to note that the Respondent's unswerving position throughout the entire discussions was that it would not grant any of these demands, to any degree, because it did not feel it could justifiably increase its operating costs at that time." It is obvious, therefore, that when the Respondent took the unilateral actions here in question it conferred upon its employees substantially those benefits which the Union had been demanding, and which the Respondent had uncompromisingly refused to grant to its employees through the Union. This necessarily had the effect of "undermining the prestige of the employees' selected bargaining repre- sentative, and of depriving the Union of the credit which clearly would have accrued from the Respondent's" having first submitted the contemplated benefits to the Union for its acceptance. Cf. Bradley Washfountain Company, 88 NLRB 1662. Unilateral action by an employer under such circumstances necessarily has the effect of subverting the collective bargaining process. It is for this reason that the principle has become established that an employer may not ignore the bargaining representative of his employees by unilaterally instituting employee benefits not previously offered to that representative, or greater than those offered to such representative, even after an impasse has seemingly been reached in negotiations. N. L. R. B. v. Crompton-Highland Mills, Inc., 237 U. S. 217, 224-225 30 We come finally to the Respondent's argument that it was impelled to confer the benefits in issue on the employees of the Niagara Works, in order to avoid 81 It is true that the Respondent finally proposed a wage reopening clause If the Union would forego its demands for the time being, and would sign a contract providing for the existing wages and benefit plans, and that the Union rejected this proposal. However, this proposal for reopening the question of wages at a later time was limited to that sub- ject, and the Respondent, as is obvious from the summary of the negotiations hereinabove set forth, never unqualifiedly would agree to keep open the subject of employee benefit plans for later bona fide negotiation. 39 In its argument that an impasse had been reached before it took unilateral action, the Respondent refers also to the deadlocked negotiations on the subject of discharge and reinstatement of strikers, and implies that no agreement with the Union as to any of the Issues was possible until that dispute was resolved As the Supreme Court pointed out In the Crompton-Highland case, supra, "The opening which a raise in pay makes for the correction of existing inequities among employees and for the possible substitution of [other concessions] in lieu of some part of the proposed increase in pay, suggests the infi- nite opportunities for bargaining that are inherent in an announced readiness of an employer to increase generally the pay of its employees The occasion is so appropriate for collective bargaining that it is difficult to infer an intent to cut off the opportunity for bargaining and yet be consistent with the purposes of the National Labor Relations Act " These remarks are applicable with even more force to the instant case, because the Respondent here granted not only two general wage increases to the employees, but also comprehensively liberalized its insurance and pension plans. The possibilities for com- promise of all existing differences between the parties had the Respondent made known to the Union its readiness to grant these substantial benefits, and to bargain collectively with it with respect to them, were even greater than those suggested by the facts in the Crompton case. 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discriminating against them in view of the similar benefits contemporaneously granted to the employees in its other plants. The short answer to this is that discrimination against the employees of the Niagara Works could easily have been avoided by the Respondent by consulting the duly designated representative of those employees and giving the Union an opportunity to approve or reject the proposed benefits. Had the Union rejected them, the Respondent could not then be found to have committed an unfair labor practice by unilaterally putting them into effect. Crompton-Highland case, pp. 224-225. If, on the other hand, the Union and the Respondent, after collective bargaining, had agreed on .the benefits or some modification thereof, it is obvious that no question of discrimi- nation could then arise. Of. Benson Produce Company, 71 NLRB 888, 89T. On the basis of the foregoing and the entire record, I conclude and find that the Respondent failed and refused to bargain with the Union, within the meaning of the Act, by rejecting the demands of the Union to resume negotiations at all times after August 25, 1949; by unilaterally announcing in April 1950 improve- ments in its insurance and pension plans, by unilaterally effectuating such changes in May and July 1950, and by unilaterally announcing and putting into effect general wage increases for the employees of its Niagara Works in May and September 1950. I further conclude and find that by its aforesaid conduct the Respondent committed unfair labor practices within the meaning of Section S (a) (1) and (5) of the Act. b. The question of the Respondent's good faith throughout the negotiations with the Union The complaint alleges and the General Counsel maintains that the Respondent's intent and purpose throughout the course of its negotiations with the Union was to "go through the motions or forms of bargaining without contracting with the Union with respect to wages, terms and conditions of employment." One of the specific phases of the Respondent's conduct relied upon by the General Counsel ti support his position is the Respondent's alleged refusal at all times since the negotiations began, to bargain in good faith with respect to pensions and insur- ance. I shall consider first the narrower issue which arises out of the General Counsel's last-stated contention, and the Respondent's denial thereof. The Respondent begins the formulation of its defense to the aforesaid allegation by emphasizing that "bargaining does not necessarily mean agreeing" (Re- spondent's brief, p. 24.) As a baldly stated proposition of law there can be no dispute as to this, for Section 8 (d) of the Act explicitly declares that the obliga- tion to bargain collectively "does not compel either party to agree to a-proposal or require the making of a concession." But the same section of the Act also makes it clear that the duty to bargain encompasses an obligation to "confer in good faith" with the purpose of seeking to reach agreement (emphasis supplied). It is thus just as accurate to say that mere discussion is not necessarily equiv- alent to bargaining in good faith as to state that bargaining does not necessarily mean agreeing. The decisive question is whether a party to bargaining negotia- tions has discussed. the issues with the other party with the sincere purpose of seeking to reach agreement: The answer to that question can be arrived'at only by weighing all the circumstances. As we have seen, the Union's demands for liberalization and broadening of the existing insurance and pension plans were closely coupled with its request for a wage increase ; indeed, the Union's basic "money demand" consisted of a proposal that the Respondent increase the over-all compensation of employees by 25 cents per hour-this sum to be applied first to meeting the cost of the requested pension NATIONAL CARBON DIVISION 729 and insurance improvements, with the remainder, if any, to be granted to the employees in the form of a direct wage increase. At the very first bargaining session between the parties the Union inquired whether the "local management Was prepared to negotiate on pension and insurance plans," and the Respondent answered that "the local management would do all the negotiating that was to be done for Niagara Works." When the Union persisted in its questioning on this point, a spokesman for the Respondent stated that "the local management was prepared to bargain, but at the same time pointed out that the Union should bear in mind that by bargaining or negotiating he meant complete discussion of any plans, but that discussion, under the law, did not include the obligation to agree." 40 The' Respondent's response to--the Union's economic demands was twofold : (1) That the uncertain economic outlook and the Respondent's competitive posi- tion made it unwilling to grant the demands, even in part, because to do so would involve an increase in operating costs which the Respondent felt it should not undertake; (2) the subject of employee benefit plans was an "extremely difficult" one, because the State and Federal Governments were working in this field and it was uncertain what action they would take, and in any event, the subject of pensions and insurance would require long and careful study. As early as March 28, 1949, when the parties held their second negotiating session, the Union indicated its willingness to sign a contract, if one were agreed upon, without waiting for the completion of negotiations with regard to improve- ments in the pension plan. On May 8, the last time the parties met before the strike, the Respondent stated, "We have negotiated on pensions this year, but we don't want to negotiate (luring the term of the next contract." During the period-between the aforesaid two meetings, namely, on April 19, 1949, the Re- spondent mailed- to all of its employees a letter giving its version of the nego- tiations to date. Some of the statements in that letter shed considerable light on the attitude which pervaded the Respondent's approach to the Union's de- mands with regard to employee benefit plans. Thus, after detailing its reasons for having rejected, in toto, the Union's aforesaid demands;' the Respondent's letter concluded, "For these reasons, we feel that this is not the time to consider any changes in any of our [employee benefit] plans " In the same letter the Respondent stated, "Furthermore, the United States Supreme Court now has 90 Where, as here, it is alleged that one of the parties has sought to satisfy Its obligation to bargain-by going through the motions of negotiating, with no real Intention of reaching aereement, and that panty has admittedly reiterated, throughout the discussions, that "bargaining does not mean agreeing," one of the pertinent circumstances to be considered is the significance of such a iepeatecl declaration of that indisputably correct plincnple of law On the latter point the Respondent offers the following explanation, which is contained for the most part in the testimony of General Supeiinteudent Feathers of the Niagara Works . Feathers was of the opinion that the Union's conception of bargaining was one that meant primarily the Respondent's agreeing to concessions ; the proposed contract first submitted by the Union contained an unusual number of demands for improved con- ditions, some of which were admittedly Included for trading purposes; the Respondent felt that it would be unwise foi it to grant the Union's demands and thus to increase its gists at the time: for these reasons. Feathers, as principal spokesman for the Respondent during, most- of* the' negotiations, felt it desirable at the outset of the negotiations to impress' upon the Union that bargaining does not mean agreeing, and subsequently to reit- erate that position on various occasions during the course of negotiations. Whether the Respondent's emphasizing of the said.principle has only the significance that it contends, will lie decided in the light of the whole course of the negotiations between the parties. '1 The Respondent's letter declared that although it had "told the [Union] committee that we are willing to bargain on these issues, . . bargaining does not, however, mean that the Company must .agave to any and every unpractical idea which the Union may propose." 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before it the question of whether or not any Company is legally obligated to bargain on these issues, and no one knows yet what the court will decide."" It seems clear from the foregoing that the Respondent had approached the dis- cussions with the Union with some mental reservations as to whether or not the subject was a proper one for collective bargaining, and in addition, with the conviction that the time was not an appropriate one to consider any changes in its benefit plans. Moreover, even after the Supreme Court had refused to disturb the decision of the Court of Appeals for the Seventh Circuit that employ- ers are obligated to bargain on such subjects , and after the Union had offered to leave open the issue of changes in the pension plan for later bargaining, the Respondent refused to agree to participate in such later bargaining. As to the implication in the Respondent's letter that the Union's proposals were "imprac- tical," and thus not worthy of consideration, one is led to wonder whether those proposals became more practical in the Respondent's eyes only after the Respond- ent found a justification, about a year later, for unilaterally putting substantially those proposals into effect. It may logically be argued, of course, that it was entirely consistent with good faith on the Repondent's part for it to reject the Union's proposals in 1949, when economic conditions were uncertain," and to institute the requested changes in 1950, when the situation was more favorable. But this does not explain why, if the Respondent was bargaining in good faith with the Union as it claims, it should, in May 1949, reject the Union's suggestion that the issue of pensions be left open for bargaining at a later time. Additional insight into the Respondent's attitude towards bargaining with the Union on the issue of benefit plans is afforded by another letter, sent to all employees by the Respondent on May 13, 1949, 5 days after the strike had begun. In that letter the Respondent took pains to impress upon its employees that its existing benefit plans had been inaugurated before the employees were represented by any union, and that, "Needless to say, then, your Union had noth- ing to do with the establishment of these plans. Neither did any other Union. They were all established voluntarily by the Company alone." (Emphasis in original.) In the same communication the Respondent added, "Moreover, let me also point out that your Company is constantly studying new and revised plans, with the hope always, of improving employee benefits as conditions permit." When the foregoing statements are viewed in the context of the course of conduct theretofore engaged in by the Respondent, a clear pattern begins to emerge in connection with its handling of the issue of benefit plans. On March 28, 1949, the Union indicates its willingness to postpone negotiations with re- spect to pensions; on April 19, the Respondent says that "this is not the time to consider any changes in any of our [benefit] plans" ; on May 8, the Respond- ent declares its unwillingness to bargain on pensions "during the term of the next contract"; on May 13, the Respondent boasts to its employees that no union had had anything to do with the establishment of its existing benefit X42 On September 23, 1948, the United States Court of Appeals for the Seventh Circuit bad enforced a Board decision and order holding that employers are obligated to bargain collectively on such issues as employees pension plans . (Inland Steel Co. v. N. L. R. B., 170 F. 2d 247 (C. A. 7).) Certiorari was denied by.the Supreme Court on April 25, 1949. (336 U. S. 960.) 93 That economic conditions were uncertain during the period of negotiations between the parties is not disputed ; in fact, it was stipulated at the hearing, in connection with another issue, that declining orders for the Respondent 's products during the period In question necessitated some layoffs of employees. NATIONAL CARBON DIVISION 731 - plans, and assures them that it is "constantly studying new and revised plans, with the hope, always, of improving employee benefits as conditions permit." " The inference, which I draw, seems inescapable, that the Respondent treated the subject of benefit plans as one to be considered and disposed of by the Respondent alone, and that it excluded the Union from genuine participation in the consideration of improvements to its current plans, lest the Union's prestige be enhanced by successfully negotiating such improvements. Subsequent developments support the foregoing.conclusion. On June 16, 1949, after the strike had been in progress for some time, the Respondent submitted a proposal to the Union through the conciliator in which, among other things, it offered to sign a contract with the Union leaving in effect the current employee benefit plans, with the understanding that during the term of such contract the parties "shall meet from time to time as mutually agreed but not to exceed a total of forty hours, for the purpose of exploring together the needs and desires of employees with respect to [the insurance and pension plans]," it being "specifically understood that the parties are not required in connection with or as a result of these exploratory discussions to reach agreement on any revision in any of said Plans presently in effect or on adoption of any of said Plans not presently in effect." On the next day, in a joint meeting, the Union stated that it was "not here to simply discuss social benefits ; they wanted to negotiate on these benefits." In its opinion, the Union added, negotiating did not mean "exploring." . The union spokesmen then asked several direct ques- tions-in sum, whether the Respondent was willing to "do something about negotiating a more satisfactory" plan. At this point, the Respondent, emphasized that "according to the law negotiating did not mean that the Company had to agree to any particular plan." The Respondent further stated that it was "always willing to talk about these plans at any time," but was "indicating that it was not willing to do anything about the plans this year." The Respondent was of course under no duty to "agree to agree" with the Union, but as must be said again, it was legally obligated to negotiate with the purpose of seeking agreement " It requires no laboring of the facts reasonably to conclude that by its statements at the June 17 meeting, in connection with its proposal of June 16, especially when considered as part of the entire sequence of events, the Respondent made it abundantly clear that while it recognized a legal obligation to "talk" to the Union about improvements to its benefit plans, it had no intention of according the Union a voice in the determination of that issue, or of reaching any agreement with the Union in connection therewith. 44 That the Respondent was, as it stated on May 13, 1949, then considering Improve- ments in its benefit plans, is to be believed, and I so find. Such improvements, the Respondent emphasized, entailed "long and careful study." In April and May 1950, as we have seen, the Respondent announced that after giving the subject much study, it had worked out improved plans, which were put into effect in May and July of that year. " The law is realistic enough to recognize that there is such a thing as "surface bar- gaining," paying mere lip service to the law, which does not satisfy the obligation to ,bargain in good faith. Thus, it has been held that going through the "motions of collec- tive bargaining" by meeting on numerous occasions with a union, conferring at great length regarding contract proposals, making concessions on minor issues, and the like, does not constitute bargaining in good faith where these "surface indicia" of bargaining are nullified by the employer's "manifest determination to deprive the Union of any voice in determining such major issues as wage rates and working conditions. Such conduct on the part of [an employer] demonstrates that its participation in discussions with the -Union [is] not intended to lead to consummation of an agreement with the Union but merely to preserve the appearance of bargaining." Tower Hosiery Mills, Inc., 81 NLRB 658. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Here we have an additional demonstration of the Respondent's erroneous notion that it was fulfilling its obligation to bargain in good faith with the Union by a readiness to "listen" to its proposals, and to engage in discussion with- it. The facts also illustrate the real significance of the Respondent's oft-reiterated dec- laration throughout the discussions that "bargaining does not mean agreeing." Later events shed no different light on the Respondent's attitude. At the twenty-second negotiating session, held by the parties on July 10, 1949, the Union inquired whether the Respondent "still intended to discuss for a period riot to exceed 40 hours the matter of pensions as [proposed on June 16]." The Respondent replied that this item of the proposal "had been dropped." The Union also asked whether its demands for improvements to the insurance plan "could be made a subject for negotiations at some future times." The Respond- ent's spokesman then referred to the differing concepts of the term "negotiations" held by the Union and the Respondent, and made the following statement : "By the law, negotiations can be conducted in good faith without the necessity of giving on the part of either party. If this difference was accepted by the Union, then it would be possible for the Company to say that future negotiations on the matter of insurance would be carried on. It was not, possible, .however, to indicate that any liberalization of the plan was in the cards. Some thought will certainly be given to the plan but there is no assurance of any liberalization " It is to be noted that when the Respondent was confronted directly with a de- umand by the Union for a commitment to negotiate on the subject of benefit plans, it was unwilling to come forward with an unqualified promise to perform its legal duty, and indeed, felt impelled to emphasize that no "liberalization of the plan was in the cards." Contrast this attitude towards the Union with the assurance made directly to the employees in the Respondent's letter of May 13, 1949, that "your Company is constantly studying new and revised plans, with the hope, always, of improving employee benefits as conditions permit." At the last negotiating session between the parties, held on August 25, 1949, the union spokesman stated that the subject of pensions was probably..the most important item to the Respondent's employees, that he was certain that "the Company, at this moment, was thinking about changing its position on pensions, and he wondered why some idea was not thrown out on the table at this time " The Respondent's representative answered that although every progressive com- pany was thinking about pensions, the Respondent did not "feel that it was in a position to upset the present economic balance" by undertaking the increased costs which an improvement to its pension plan would entail, especially in view of the "current uncertain position of the Government." It is thus seen that even at their last negotiating session, the Respondent's answer to the Union's demands for bargaining about the benefit plans was no different than it had been at the beginning of the discussions. The final event that took place in this connection was the Respondent's unilateral inauguration in May and June 1950, of improve- ments to its insurance and pension plans. On the basis of the foregoing and the entire record I,concludeand, find that the Respondent has, since March 25, 1949, failed and refused to bargain with the Union in good faith on the subject of improvements to its employee benefit plans, and has thereby committed unfair labor practices within the meaning of Section 8 (a) (1) and (5) of the Act. As has been noted, the General Counsel contends that the Respondent's bar- gaining with the Union at all times herein material was conducted in bad faith on the Respondent's part, and this is his contention with respect to all the issues discussed between the parties, not only the subject of employee benefit plans. NATIONAL CARBON DIVISION 733 Some aspects of the Respondent's conduct to which the General Counsel points =iii"evidence of its general bad faith have, in prior portions of this Report, been considered and the General Counsel's contentions with respect thereto rejected. Others have not as yet been passed upon. Included in these are a number of matters which, if fully analyzed, might well lend support to the General Counsel's position. I have in mind, for example, the Respondent's alleged insistence during the negotiations that such subjects as changes in job and piece rates and incentive plans (which have been held to be proper subjects for collective bargaining) are "management prerogatives," and that the Union was not entitled to demand that such matters be made subject to mutual agreement. I do not consider it necessary or desirable to burden an already lengthy report with the additional discussion which would be necessary to resolve these issues. Even if findings were to be made that the Respondent dealt with the Union in bad faith concerning all the subjects discussed with it, such findings would not result in a recommendation of any broader remedy than is hereinafter recommended, and since that remedy is adequate to fully effectuate the purposes and policies of the Act, it is not deemed necessary to go into the additional subjects mentioned, 6. The character of the strike It has been found above that the Respondent's employees went out on strike at midnight of May 8, 1949, and remained on strike until July 25, 1949. It is undisputed that of the five issues which remained unresolved between the parties just prior to the strike, four of them related to the Union's demands for changes in the employee benefit plans.40 It is also obvious from the summary of the negotiations which is set forth hereinabove, that the Union's demands for im- provements in the benefit plans were among the basic demands put forward by the Union, and that the Union's accusation that the Respondent had not bar- gained in good faith with respect to them was one of the main reasons for the 'Unions •ca3ling -of the strike. It is therefore found that the aforesaid sbrlke resulted in large part from the Union's feeling that the Respondent had failed to bargain with it in good faith on the subject of changes in the insurance and pension plans As has been found, the Respondent in fact failed to bargain with the Union in good faith with respect to such changes ; it follows that the strike was from its inception an unfair labor practice strike .41 It is so found. 46 The conciliator involved in the negotiations summed up the "remaining issues" just before the strike started as follows. (1) Union shop, (2) group insurance; (3) hos- pitalization to be paid for by the Company, (4) medical and surgical insurance to be worked out ; (5) pensions dependent on Government action 47 Rven when an employer's unfair labor practices are only one contributing factor in causing a strike, the other being an attempt by strike action to enforce the economic demands of the employees, the strike may be considered an unfair labor practice strike Berkshire Knitting Mills V. N L. R. B, 139 F. 2d 134, 137 (C A 3) The Respondent advances the argument in its brief (pp. 33-35) that the granting of an injunction by a judge of the Supreme Court of the State of New York. on June 17, 1945 ; .'against"the officers of, the Union, restraining, ce'rfain-acts of violence nn,e,innection with the-strzke, and certain findings of fact made in connection therewith by the court, foreclose a finding in thi', proceeding that the strike in question was caused by unfair labor practices on the Respondent 's part. Its argument runs as follows : "The Civil Practice Act of the State of New York prohibits the issuance of an injunction in any case growing out of a labor dispute except after a finding that the party seeking the injunction has complied with all obligations imposed by law which are involved in the labor dispute in question , and a finding that such party has made every reasonable effort to settle such dispute by negotiation or in other ways In view of this requirement, and the court's= finding that the Respondent had conferred with the Union in good faith, it has been conclusively established that the strike herein involved was not caused by a 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7. The Respondent's conduct after the strike in connection with the reinstatement of returning strikers It having been found that the strike in question was an unfair labor practice strike, it follows that after the strike was called off the Respondent was legally obligated to reinstate in its employ, upon application, all the striking employees for whom work was available, even those who had been replaced during the strike. (N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U. S. 333; Uuuited Biscuit Co. v. N. L. R. B., 128 F. 2d 771, 774 (C. A. 7).) On July 23, 1949, the Union presented the Respondent with a written state- ment to the effect that it was calling off the strike and that "all employees will return to work at their respective plants, Monday, July 25, 1949, at 8: 00 a. nW." The Respondent replied to this on the same day by stating that "as the various plant departments are conditioned for the return to work of additional employees, such employees will be notified by the Company as to when to report for work, subject, however, to the extensive lay-off of employees made necessary by the reduction in the Company's business. 11 4' Following this and before July 25, the Respondent instructed its striking employees, by way of announcements broad- cast over the radio in the Niagara Falls area, not to return to work until the Respondent notified them to do so " It is undisputed that during the term of the contract in effect between the parties up to the time the strike began, the Respondent followed the principle of effectuating layoffs of employees in order of seniority, according to the seniority rules provided for by the contract. Since that time, including the period after the strike, the Respondent has professedly adhered to the same practice and con- tinued to follow the seniority principles laid down in the terminated contract 60 The record shows that in May 1949, during the strike, the Respondent an- nounced that it was opening its plants for operation and advertised for em- ployees. As a result some striking employees, and others not theretofore in the Respondent's employ, applied for jobs and were put to work in the struck plants beginning in June. By July 25, when the strike ended, 400 people were working in the said plants, 379 of these being former strikers who had abandoned the strike, and 21 of them being newly hired outsiders.` The Respondent's payroll records, which are in evidence, reveal, and it is un' disputed, that some of the 379 former strikers who returned to work before the refusal to bargain on the Respondent's part, and could not have been an unfair labor practice strike." This argument overlooks the fact that Section 10 (a) of the Act confers exclusively upon the Board the power to prevent unfair labor practices affecting ' com- merce, and that it has been held that the policies and findings of other tribunals with respect to such unfair labor practices are not controlling on the Board. N. L. R. B. v. Walt Disney Products, 146 F. 2d 44, 48 (C. A. 9) ; United Brick & Clay Workers v. Junction City Clay Co, 158 F. 2d 552 (C. A. 6). 48 It was stipulated at the hearing that during the period of contract negotiations and the period of the strike a decline in demand for the Respondent's products necessitated whatever layoffs of employees which were made during such periods, and that the Respond- ent did not require any greater number of employees on July 25 or August 8, 1949, than it actually had on its payroll at such times. 49 Testimony of Superintendent Feathers. DO Ibid. 61 The' 379 former strikers who were at work on July 25 included 26 who returned to work for the first time on that date. These were men who had previously discussed the matter of abandoning the strike with the Respondent, and whom the Respondent had, prior to the ending of the strike, instructed to return to work on that day. On July 25, notwithstanding the Respondent's instructions that they not return to work until recalled, some 200 former strikers, in addition to those then on the Respondent's payroll, pi esented themselves at the gates of the plants . None of these was put to work. NATIONAL CARBON DIVISION 735 -end of the strike and were at work on July 25, 1949, possessed less seniority than some of the striking employees who remained unreinstated on and after July 25." In addition, the 21 employees newly hired during the strike necessarily possessed less seniority than any of the striking employees .3 The Respondent concedes that it did not lay off any of the 400 employees at work in its plants on July 25,_ 1949, to make way for those of its older employees in point of seniority who ap- plied for reinstatement after the strike." On August 3, 1949, having determined that it required the services of some 41' or 42 additional employees, the Respondent summoned that number of former- strikers back to work, and reinstated them on August 8, 1949. On August 3, also, the Respondent sent letters to all the remaining former strikers (those who had not yet been reinstated), some 453 in number, informing them that they were "laid off" effective as of August 5, 1949. Former strikers who were reinstated after July 25, 1949, were not permitted to "'Ind" 55 for job vacancies existing as of the date of their application for reinstate- ment (July 25), but were limited to bidding for vacancies in existence at the times they were actually recalled to work.60 In contrast, those employees who, worked during the strike were given the opportunity to bid for all job openings. posted during the entire period of their employment.57 It is well settled that where a strike has been caused by unfair labor practices on the part of an employer, the striking employees are, in the absence of some valid cause for discharge, entitled to reinstatement to their former positions upon request, even if it be necessary, in order to make positions available for them, to discharge employees newly hired during the strike, or strikers who returned to, s ork preceding the termination of the strike, who would normally be replaced by the applicants for reinstatement under the employer's existing layoff and hiring practices. (Neuhoff Packing Company, 29 NLRB 746, 747-768; Pacific Gamble- Robinson Company, 88 NLRB 432, 486-487). Clearly, then, the Respondent was under an obligation, when the strike ended on July 25, 1949, and the strikers all applied for reinstatement, to fill all available jobs in its plants by placing in sucht 12 It is of course obvious from the blanket application for reinstatement made by the, Union on July 23, and the Respondent's reply that it would recall striking employees to- work as it wished them to return , that it was not incumbent on the strikers to apply for reinstatement individually , but that on and after July 25 they were in the position of striking employees who had unconditionally applied for reinstatement , and that those of -them who were not thereafter recalled to work by the Respondent were and are in the- position of empl,yees whose applications for reinstatement were rejected. 68 The Respondent recognizes that it would be discriminatory for it to deprive the striking- employees of seniority for purposes affecting tenure of employment for the time they re- mained on strike. Necessarily , therefore , employees newly hired during the strike, could not, during the period of the strike , acquire seniority standing equal to that of any former- employee who went out on strike . General Electric Company, 80 NLRB 510, 512-513. 64 E. g , testimony of Superintendent Feathers . The Respondent takes the position that it was justified in retaining in its employ all those at work on July 25, even as against returning strikers with a higher seniority standing, because, as the Respondent contends, the strike was an economic strike and the employees at work on July 25 had replaced`. those still on strike . The General Counsel presents arguments to the effect that, even. assuming the strike was economic in character , the striking employees had not ,been perma- nently replaced by those who returned before July 25 It has been found that the strike, was an unfair labor practice strike ; I therefore find it unnecessary to consider what would: have been the rights of the parties had the cause of the strike been purely economic. "Pursuant to the seniority rules provided for in the contract in effect up to the time, of the strike, and thereafter avowedly followed by the Respondent. "The record shows that some former strikers , in addition to the 40 or 42 reinstated ow August 8, were recalled at later times as the Respondent needed more employees , e. g , on, January 17, 1950. 67 Vacancies were admittedly posted in the Respondent 's plants in September, October,. November, and December, 1949. 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jobs those employees with the highest seniority standings at the time, replacing, to the extent necessary, the employees then at work with lower positions on the seniority lists. To the extent that this was not done, the Respondent discrimi- nated against the former strikers who remained unreinstated on and after July 25, thus committing unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. As a consequence of the Respondent's aforesaid discrimination, those former strikers who were entitled to be, but were not reinstated on July 25, suffered further prejudice by being placed on the layoff list of August 5, and by being deprived of the opportunity to bid for jobs which were opened to bidding by employees with lesser seniority who returned to work before the end of the strike. This, of course, in effect constituted a penalty against them for having exercised the legally protected right to strike. The Respondent concedes in principle, and it is beyond question, that an employer may not discriminate against,;itriking employees, but must; upon their application, reinstate them to their former or substantially equivalent jobs without prejudice to their seniority or other rights ,or privileges 69 Consequently, an unfair labor practice striker may not have his right to reinstatement to his former or a substantially equivalent job impaired by .reason of his having been replaced during the strike. The facts revealed by the record establish that some of the Respondent's striking employees who applied -for reinstatement on July 25, 1949, were in fact penalized, as against employees who returned to work before that elate, with respect to the opportunity to regain their former jobs or jobs substantially equivalent thereto. This flowed from the violation by the Respondent on and after July 25, 1949, of its obligation to apply to all its employees, without prejudice to those who remained on strike until' that date, the rules relating to hire, assignment of jobs,, and layoffs, which were•pro-' vided for in the contract in effect up to the time of the strike, and which were avowedly continued in effect thereafter by the Respondent. To the extent that it violated that duty, it is found, the Respondent further discriminated against some of its employees 69 in regard to their hire and tenure of employment, and the terms and conditions of their employment, within the meaning of the Act, thereby - interfering with, restraining, and coercing its employees in the exercise of their rights as guaranteed in Section 7 of the Act, thus committing unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 8. The contention that by letters sent to the employees individually, by inducing employees to abandon the strike, and by its refusal to bargain with the Union in regard to the reinstatement of strikers, the Respondent violated Section 8 (a) (1) and (5) of the Act Reference has been made above in this Report to certain letters sent by the Respondent directly to its employees. These letters have been considered thus far only to the extent in which they shed light on the Respondent's state of mind in connection with its dealing with the Union on the issue of employee benefit plans. The General Counsel contends further that these and other communica- tions sent by the Respondent to the employees individually, constituted part of a campaign to undermine the Union's status as bargaining representative of the 66 Striking employees are entitled to reinstatement after the strike, and to be'treated "in all matters involving seniority and continuity of employment as though they had not been absent from work." Republic Steel Corp. v. N. L R. 11., 114 F. 2d 820, 821 (C.A. 8) ; General Flectric Co., supra. se The ,identity of the specific employees discriminated against by the Respondent is a matter more appropriately to be determined at the crmpliance stage of this proceeding than in this Report. NATIONAL CARBON DIVISION 737 employees, and that the sending of such letters was, therefore, in violation of the Act. As has been found, the Respondent's consistent position, in dealing directly with the Union, was that it was not willing to do anything about changes in its employee benefit plans in view of prevailing conditions. Yet, in its letter of May 13, 1949, to all employees, it boasted of the fact that it had, without the participation of any union, instituted the benefit plans in question, and assured the employees that it was "constantly studying new and revised plans, with the hope, always, of improving employee benefits as conditions permit." When this assurance is read in the light of the Respondent's adamant refusal to commit itself- to bargaining with the Union on the subject, even at a later time when "conditions" might "permit" improvements to the benefit plans, and in con- nection with the Respondent's emphasis that no union bad had anything to do with the original inauguration of the plans, it seems obvious that the cal- culated effect of the letter upon the employees was to lead them to conclude that they might fare better in obtaining improved conditions by abandoning the Union as their collective-bargaining representative, and relying upon the Respondent unilaterally to grant such improvements. So read in the context of surrounding circumstances, as it must be, the letter plainly constituted an implied promise to the employees to grant improved benefit plans to them if the Union were out of the picture. Such a promise of benefit in return for abandoning a collective-bargaining representative flies in the face of the pro- hibitions of Section 8 (a) (1) and (5) of the Act, and is not such an expression of views,..a.rgument, or opinion as is protected by Section 8 (c), as the explicit language of that section makes clear. As has been set forth in the summary of the negotiating sessions between the parties, one of the basic issues which, towards the end of the strike, was ob- structing a settlement, arose from the Respondent's insistence upon giving some degree of "job protection" to those employees who worked during the strike as against the employees, even those with greater seniority, who stayed on strike until, its termination. At the meeting held on July 10, 1949, the Union spoke of the Respondent's aforesaid proposal for "superseniority" for the strike breakers as being a difficulty which at the moment seemed to be preventing a settlement of the strike, and proposed that the strike be called off under the following conditions : (1) Employees shall all return to work in accordance with seniority clause in contract, without discrimination; (2) the previous contract be continued in effect, with a 6-month reopening clause for negotiations on wages, insurance, and hospitalization; (3) the Respondent and the Union jointly to seek dismissal of the court actions flowing out of the strike. The proposal was rejected At the next meeting, held the following day, the Re- spondent still insisted on protection against layoff for some temporary period for those employees then at work in its-plants, and on July 12, the Respondent explained that it based this proposal on its feeling that "people who have come back to work- under adverse circumstances not caused by the Company are entitled to some protection from layoff." On July 15, the Respondent proposed that employees at work during the strike be protected against layoff for 6 months after the end of the strike, that they not accumulate seniority during that period, and that former strikers who remained unreinstated at that time should be returned to work thereafter on the basis of the relative seniority standings of all employees. On August 16, the Respondent stated that since the Union had rejected the Respondent's previous proposals, the Respondent's current position was "simply that men who returned to work need not be replaced by strikers," and that the employees newly hired during the strike would be placed 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the same category as the "rest of the men who were working." That was the final position taken by the Respondent during negotiations between the parties. On July 19, 1949, while the strike was in progress, and the above-summarized negotiations were being carried on, the Respondent sent a letter to all employees in which it told them, among other things, of its then-current proposal to give temporary protection against layoffs for 6 months to employees "who have returned to work." The letter stated, "More than 300 employees are back at work and drawing full pay checks. We are not going to lay them off now just to make room for strikers. We have not discharged and we do not intend to discharge any employee just because he has not yet returned to work . . . This strike should never have been called. There is no reason why. this strike should not be called off at once." It has been found above that the Respondent's failure to reinstate its striking employees, upon their application for such reinstatement, in accordance with the seniority practices then in effect in its plants, and without prejudice on account of their having engaged in a strike, was in violation of the Act. The Respondent's insistence, at all times during the negotiations, that the Union agree to permit the Respondent to engage in that illegal conduct, as a condition of settling the strike, was likewise a refusal to bargain in the contemplation of the Act, and interfered with, restrained, and coerced the Respondent's employees in the exercise of their statutory rights. Gay Paree Undergarment Company, 91 NLRB 1363. (And compare N. L. R. B. v. J. J. Allison Company, 165 F. 2d 766, 768-769 (C. A. 6), cert. denied 335 U. S. 814, in which the court held that an employer's insistence upon an agreement to permit it unilaterally to act on matters falling within the sphere of collective bargaining constituted a violation of the employer's duty to bargain collectively.) Under all the circumstances, the Respondent's letter of July 19, 1949, containing as it did a warning to the striking employees that the more than 300 employees then "back at work and drawing full pay checks" would not be laid off "just to make room for strikers," necessarily conveyed a threat to the strikers that if they did not abandon the strike and return to work, they would lbe deprived of their legal right to reinstatement, after the strike was over, on the basis of their seniority standing, and without prejudice because of their having remained on strike. As such, the letter constituted an individual solicitation to each of the striking employees, over the head of their collective-bargaining representative, to abandon the strike and return to work, reinforced with a threat of economic reprisal against them if the solicitation remained unheeded. The necessary effect of such individual solicitations, under the circumstances of this case, was to induce the employees to abandon their concerted activities, to undermine the effectiveness of their collective-bargaining agent, and to interfere with, restrain, and coerce the employees in the exercise of their statutory rights. Consequently, the Respondent by sending the said letter to its striking employees, committed unfair labor practices within the meaning of Section 8 (a) (1) and (5) of the Act. (Cf., The Texas Company, 93 NLRB 1538, in which the Board discusses the circumstances under which such individual solicitation of striking employees is illegal, and in which the pertinent authorities are cited.) The General Counsel contends that in addition to the conduct above discussed, the Respondent, through its supervisors, also engaged in personal solicitations of striking employees to abandon the strike. The only evidence in the record tend- ing directly to establish such a case of personal solicitation of a striker deals with the alleged attempt by Foreman George Hunt to induce his subordinate, Philip Wendt, to return to work before'the strike ended. Considerable testimony was adduced with regard to this matter by both parties, most of it in conflict with NATIONAL CARBON DIVISION 739, that of the other. Even if Wendt's version of the facts be believed, however, the- most that would be established would be an isolated case of personal solicitation. This lends some weight to the Respondent's contention that its supervisors were instructed during the strike to abstain from soliciting the return to work of strikers, and to refrain from discussing the matter with any employee unless the- latter first indicated a desire to return to work during the strike. If, with respect to over 800 employees, the General Counsel can make a showing only that 1 was personally solicited by a supervisor to abandon the strike, it could hardly be found that the Respondent was carrying on a campaign to induce- strikers to return to work through personal solicitation of the strikers by its- supervisors. I deem it unnecessary, therefore, to resolve the conflicts in testi- mony with respect to the Hunt-Wendt episode, since in any event I would be- unwilling to base unfair labor practice findings thereon.' 9. The cases of strikers discharged by the Respondent for having allegedly- engaged in acts of violence during the strike The General Counsel contends that nine striking employees" were discharged- by the Respondent on or about July 16, 1949, while the strike was still in progress,- because of their membership in and activities on behalf of the Union, and on. account of their legally protected concerted activities. The Respondent admittedly discharged each of these strikers on the date above- named, but it contends that it discharged them solely because they had engaged in acts of violence in connection with their strike activities, and that such acts- of violence are not protected by the Act. The facts are as follows : Ciurylo, Bartha, and Ezak On June 21, 1949, during the strike, employee Peter Cournyea came to work at- the Acheson plant of the Niagara Works by public bus. On the same bus coming to work were employees Herman Haseley and Arthur Ruff. First off the bus when it stopped was Cournyea, followed by some unidentified person, Haseley, and Ruff in that order. Standing at or near the spot where the bus came to a stop were several striking employees, including Ciurylo, Bartha, Ezak, and one known as. "Bing" Ozyp. As Cournyea stepped off the bus, Ciurylo began to slap or cuff him about the face, knocking Cournyea's glasses off. Bartha exclaimed, "There's the dirty bastard ; let's get Lim!" Bartha and Ezak then stepped in and both struck Cournyea about the body. At that point a police whistle was heard and, the group scattered °2 A short time after the above-described incident, on the same day, employees. Joseph Colosi, Tony Colosi, and Albert Micale were walking together on a public- street on their way to work in the Respondent's Acheson plant. They were- 41 The briefs submitted by counsel allude also to a remark made by Supervisor Brommet to employee Sorrentino, and to an incident involving employee Peter Colosi, in connecti-n with an offer to the latter to provide him with transportation if he wished to return to, work. Since unc^ntradicted testimony adduced by the Respondent persuades me that both of these incidents arose merely out of offers by the Respondent to furnish transporta- tion to striking employees who had previously indicated a desire to return to work, I am not persuaded that they involve solicitations of the employees to abandon the strike, and, shall not discuss them in any greater detail. m Yousef Ahmed ; Joseph Bartha ; George Barner ; Anthony Ciurylo ; Walter Dolhon ; Andrew Ezak ; Cleve Henderson ; Thomas J. Morganti ; Robert Simmons. 02 Based on the credited testimony of Cournyea, Haseley, and Ruff. To the extent that the testimony of Ciurylo, Ozyp, and Bartha is inconsistent with the above findings of- fact, their testimony is not credited. Ezak did not testify. 227260-513-vol. 100-48 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD approached by a group of strikers, including Bartha, Ozyp, Ciurylo, and two named William Mayes and Raymond Stone . As the two groups came together, Ciurylo addressed Joseph Colosi, asking, "Where are you going?" When Joseph Colosi said that he was going to work, Ciurylo answered, "Go on home." At about the same time Tony Colosi said to Ozyp, who was nearest him, "Don't touch me with your hands," simultaneously pulling a knife from his pocket, opening it, and holding it with the blade pointed at Ozyp. At this point, Bartha ran off to summon a policeman , and returned with an officer a few moments later. The policeman took the knife from Tony Colosi, and the group of returning employees proceeded to work without further incident, except Micale, who apparently remained behind .13 Dolhon On June 20, 1949, during the strike, employee William D. Howells, who had worked in the Respondent's National plant during that day, was driving his antomobile on his way home from work, accompanied by 5 other nonstriking employees. Howells' automobile was overtaken by another car which forced it to the curb, and was then blocked from behind by still another car. The two intercepting automobiles were filled with striking employees . These strikers then forced Howells and his passengers to get out on the street , and attempted to overturn the Howells vehicle. During these events, some 25 or 30 strikers gathered in the vicinity, and Howells and his passengers were berated by some of the strikers as "s- of b-" who were "taking our jobs." During this period, striker Dolhon, who was at the scene, exclaimed _ nipatiently,i "enough, of this -! " and proceeded to substitute action for words by punching Howells in the mouth , displacing a dental plate which the latter was wearing, and causing the clasp thereof to pierce Howells' lip. Following this the crowd of strikers upset Howells' automobile.84 es For the most part the testimony of all the witnesses who testified about the above- mentioned , incident is in substantial-agreement as to the essentials of what happened. i I do not regard the conflict- in testimony as to whether T - ny.Colosi was searched by 'the policeman , who then took the knife, from his pocket, or whether Colosi handed the knife to the officer, as having any significance . The witnesses did disagree, however, with respect to whether any of the strikers pushed members of the group of returning employees. Thus, Joseph Colosi testified that Ciurylo pushed him with his hands at the same time he told him to "Go on home " This was corroborated by Tony Colosi ; Albert Micale also testified that he (Micale ) was pushed by one cf the group of strikers . It is conceded by all that Ozyp did not at any time place his hands on Tony Colosi , who pulled the knife, although Tony Colosi testified that he was afraid that Ozyp wag about to do so. Ciurylo denied that he had pushed anyone, and his denial was corr berated by Ozyp. What is even more convincing, a witness not involved in the strike , one Russell Keiper, a railroad employee who was sitting on a viaduct not far from the scene, and who saw the occurrence, testified that he did not see anyone push or t°uch the three returning employees. I con- elude and find that no one of the group of returning employees wag assaulted by any of -the strikers. In my opinion the evidence establishes only that the two Colosis and Micale were stopped by a group of strikers who sought to persuade them to desist from acting as strikebreakers ; that no force or threat of force was used by any of the strikers; and that Tony ' Colosi became frightened and pulled a knife. I do not see in this incident any proper basis for the discharge of any of the striking empl yees therein involved. " The above findings of fact are based on the credited testimony of Howells , and Patrick M Pearson and Robert F Wallace , both of whom were passengers in the Howells car. Dolh n testified that he and another striker , Joseph Cali , were on picket duty on June 20, and that they came to the scene of the Howells car incident only after the said car had been turned over. He denied striking Howells or making the remark quoted above. 'He admitted having come in contact with Howells and Wallace in the plant prior to the strike Cali corroborated Dolhon's testimony. I do not credit their testimony insofar as it is inconsistent with the above findings. NATIONAL CARBON DIVISION Ahmed and Henderson 741 After work on June 20, 1949, during the strike, employees Frank R. Hargrave, Donald J. Hargrave, Robert C. Hargrave, Mike Morreale, and Steve Morreale left the Respondent's National plant in a group. Donald and Robert are sons of Frank Hargiave. As these employees were walking along the street towards their-parked car, Ahmed and Henderson, strikers who were in the vicinity, walked or ran from across the street towards the same side of the street on which the group of nonstrikers was walking. Frank Hargrave heard someone near the plant entrance shout, "Hargrave, bring them back " As Hargrave turned in that direction, Henderson aimed a punch at him which he ducked, and the blow just touched the top of his head. Thereupon Henderson struck Donald Hargrave in the back of the head. This blow caused. Donald to-fall; he was saved from hitting the ground by being caught in the arms of his father. During the scuffle, Ahmed punched Mike Morreale in the back of the head. Some police officers. who were stationed nearby, came quickly to the scene and took Henderson and Ahmed into custody. As Ahmed was placed under arrest, being held by one of the policemen, Mike Morreale struck. back at him, punching him in the jaw ' bforgant i Two of the Respondent's supervisors, Charles R. Brummett and Clark J. Hall, Jr., had been assigned on June 20, 1949, to observe and take motion pictures of a railroad switching operation at the Respondent's Republic plant, which operation involved hauling freight, carp away from the said, plant ". At the time of the events here in question. Brummett and Hall were standing together near the scene of the switching activities and a crowd of unidentified men was gathered near and around them. Some hostility against the two super- visors seems to have been entertained by the crowd, for there were mutterings of various uncomplimentary profane and obscene phrases; ,gravel flew through the air and struck Brummett and Hall; and a small board propelled by an unknown force landed near them.. As the switching engine started out of the plant gate, Hall began to take motion pictures of the scene. Thereupon he was jostled by three men who passed close to him, one of the three being Morganti, "The above findings are based on the composite testimony of the three Hargraves, the two Morreales, William G. Pitt, and police officers Hunt, Truesdale, and Paterniti. The General Counsel points to some inconsistencies in their testimony, as to the sequence of events and minor details. I am not persuaded that their testilnmony, which in the main is mutually corroborative, is discredited by being at variance in some details It is not unusual even for honest men who witness rapidly moving and confusing actions to differ s mewhat in their recollection of events Nor is it a reflection upon the reliability of their testimony that some of the witnesses observed details which others did not. I therefore rely on the testimony of the above-mentioned witnesses, which I credit generally Hender- son teetifted- sketchily that he and Ahmed were •near the scene in question ; that he saw Ahmed and Morreale "in a tangle", that some policemen "had git over to Ahmed, and Morreale bit Ahmed"; that he (Henderson) then threw his hand up and said, "Don't hit that man"; and that a policeman then grabbed him and put him.under arrest. Ahmed testified that he and Henderson had` fihished picketing duty on the afternoon' in" question and were stopped on the street while walking home when the Hargrave-Morrea,le gr-up passed by ; that he knew the members of that group and smiled to them, thinking they were strikers; that Mike Morreale then demanded, "what you laughing at?" and punched him; that he (Ahmed) tried to strike back, and that two policemen then grabbed Ahmed and put him under arrest. The testimony of Henderson and Ahmed is unconvincing and I discredit their version of the events. 61, No charge of illegal surveillance is made in this proceeding in connection with Brum- mett`e and Hall's activities. 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a striking employee of the Respondent. Hall then pointed his camera at Morgantil and started to photograph him, whereupon a striker named John Granter either struck at or accidentally came in contact with the camera. At this- point, also, Morganti punched Brummett on the jaw and then struck at Hall's- temple. Three peace officers attached to the sheriff's office of the county, who were stationed near the crowd came to the scene and took Morganti and Granter into custody after the latter two were pointed out to them by Brummett and: Hall. The evidence regarding this incident actually contains little direct conflict. Brummett and Hall testified substantially as above found, except that Brummett testified further that when Morganti was being taken away by the officers he kicked Hall in the legs. Since neither Hall nor the arresting officers so testified,. I have not found that to have occurred. Two of the officers testified only that they saw a scuffling and swinging of arms in the crowd, but did not know who was responsible therefor. Granter admitted being in the crowd near Hall and Brum- mett, and seeing the gravel hit them. He testified further that when Hall aimed: the camera in their direction, he and Morganti put their hands up "so he wouldn't get our picture," and that in raising his hand he "did touch Mr. Hall's camera." Granter did not testify as to whether or not Morganti struck Brummett or Hall_ Morganti likewise admitted being in the crowd and seeing the flying gravel and_ board. He testified that when these missiles were thrown, Hall called his (Morganti's) name and then turned to take Morganti's picture. At this point,. according to Morganti, he (Morganti) ducked into the crowd, and was arrested" upon being pointed out by Hall. On direct examination by the General Counsel Morganti was asked a series of specific questions, in response to which he denied having thrown gravel or the board ; having kicked Hall ; having kicked Brum- mett ; having shoved or shouldered Hall or Brummett ; or having used any vile or profane language on the occasion. He was not asked whether he had punched Brummett or Hall nor did he deny having done so. Whether or not this was in- advertent, the fact remains that the testimony of Brummett and Hall that Mor- ganti punched them stands uncontradicted in the record. On the basis of that testimony, and that of the sheriff's men that they saw flying arms in the crowd, I conclude that the events took place as I have found them above. To the extent -that Morganti's and Granter's testimony is inconsistent with those findings of fact, I do not credit it. Simmons On June 28, 1949, employees William L. McHenry and Peter Nogash were driving home from work at the Respondent's National plant. Nogash was riding as a passenger in McHenry's automobile, which was being driven by McHenry. The car window on the driver's side was open. As the car came to a temporary- stop on its route, Simmons, a striker who was on picket duty nearby, called McHenry a "G- d- scab," rushed to the car, and punched McHenry in the mouth, crushing a cigarette which McHenry was smoking. Prior to this attack neither McHenry nor Nogash had said anything to Simmons or anyone else out- side the car. A police officer on duty at the scene arrested Simmons immediately after the said occurrence.87 17 Based on the credited testimony of McHenry and Nogash, which was corroborated by- that of police officer Dawson In one respect Nogash's testimony is in conflict with that of McHenry The latter testified that his face was not cut or bruised by Simmons' blow ; Nogash testified that McHenry's lip was cut. Since I am convinced by a preponderance- of the evidence that Simmons did in fact punch McHenry, the aforesaid variance between the testimony of the two witnesses does not affect my credibility findings. Simmons' de- scription of the fracas is as follows : When McHenry's car stopped near Simmons, McHenry- NATIONAL CARBON DIVISION Barner 743 On June 20, 1949, employee Francis W. Davis, who worked during that day fin the Respondent's Acheson plant, had parked his automobile on some private .property behind a building near the said plant. After work, Davis. accompanied by employee Martin D. Timmins, who had also worked that day in the Acheson .plant, proceeded to the place where Davis' car was parked. On their way they passed a group of strikers, including Barner, Andrew Stoner, and Kenneth Corbin. As Davis and Timmins passed the group, Barner, Stoner, and Corbin followed them. At a point near the parked car the three strikers caught up to 'the two nonstrikers and Barner remarked, "Let's get them." Barner then threw some substance resembling rock salt or gravel into Davis' face, and after coming ,closer to Davis pummeled the latter about the body with his fists. Davis, who had seen a policeman in the vicinity, called to the officer, whereupon Barner hurried away. Stoner and Corbin followed after Barner a little later.° There is no question but that the nine striking employees whose cases have been above discussed were avowedly discharged by the Respondent for having engaged in the conduct above found. The Respondent contends that such activi- ties are not the kind of "concerted activities" which are protected by the Act, and that it discharged the employees for having engaged in illegal activities, and mot out of antiunion motivation. The General Counsel contends that the con- -duct for which the strikers were discharged was of a minor nature, if illegal at .all ; that such disorders commonly occur during strikes, which have a tendency ,to arouse inflamed feelings and unrestrained behavior; and that the activities -of the said strikers, therefore, do not furnish the Respondent with a valid justification for their discharge. He further contends that the Respondent ,discriminated against the nine dischargees because it did not discharge, and even .reinstated, some strikers who had engaged in similar acts. His argument runs ,that having "condoned" violence on the part of some strikers, the Respondent cannot be justified in discharging others for the same kind of behavior. The Board and the courts have held that striking employees who participate in minor disorders arising out of their strike activities do not thereby forfeit their right to reinstatement after the strike. The line between "minor disorder" .and "violence justifying discharge" is not always easy to draw. But recent Board decisions have made it clear that strikers who engage in wilfull assaults, -such as were committed by the nine employees herein involved, may lawfully be •discharged for such conduct by their employer. Bradley Washfountain Co., 89 NLRB 1662; Standard Oil Company of California, 91 NLRB 1540. I am not persuaded that the Respondent discriminatorily selected these nine strikers for discharge, as the General Counsel contends. The preponderance of the evidence called Simmons a "sucker"; Simmons then jumped towards the car and swung through the open window, attempting to punch McHenry, but the blow missed its mark. I do not -credit Simmons' version. Dawson, the police officer who arrested Simmons, also testified that on some other occasion during the strike, he (Dawson) had arrested a striker named Zielinski for some misconduct, and that Simmons attempted to incite a crowd of strikers forcibly to take Dawson's prisoner away from him. Dawson also attributed to Simmons, based on Daw- -son's supposition , some stone throwing at the automobiles of employees leaving the plant, -on the day preceding the McHenry affair. In view of the findings made with respect to the latter incident, I deem it unnecessary to pass on the additional events referred to. 65 Based on the credited testimony of Davis, Timmins, and officer Olszewski. Barner testified that he, Corbin, and Stoner followed Davis and Timmins on the occasion in question for the purpose of talking to them, and that when they caught up to the two nonstrikers, a police officer came to the scene and ordered them away. He denied having punched either Davis or Timmins, or throwing any gravel or rock salt at them. Neither Corbin nor Stoner testified. I do not credit Burner's denials. 744' DECISIONS OF NATIONAL LABOR RELATIONS BOARD establishes, rather, that the Respondent terminated their employment, in con- trast to other employees who were-involved in strike disorders, but who were not discharged, because the acts of violence committed by the discharged strikers were of a more serious nature than those in which the other employees engaged. It is to be noted that the General Counsel made no showing that the nine dis- charged strikers held any offices or leading positions in the Union, or were any more active on its behalf than those employees who were retained in the Re- spondent's employ despite their strike activities. On the basis of the record as a whole I conclude and find that the Respondent did not commit unfair labor practices by discharging the nine employees in question. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to, and have led to, labor disputes burdening'and-obstructing'commerce and the free flow of commerce. V. THE REMEDY It has been found that the Respondent has engaged in unfair labor practices- It will therefore be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent has refused to bargain with the Union as the exclusive representative of its employees in an appropriate unit, I shall recommend that the Respondent, upon request, bargain collectively with the Union as such representative, and if an understanding is reached, embody such understanding in a signed agreement. The statement made above that it has been found that the Respondent has, refused to bargain with the Union refers to the finding that the Respondent failed to bargain in good faith with respect to the issue of improveil'employee benefit plans, to the findings that it took unilateral action with respect to matters about which it was obligated to bargain with the Union, to the findings that it broke off negotiations with the Union after August 25, 1949, and thereafter rejected the Union's requests to resume bargaining with it, and to all the. other findings made herein with respect to the Respondent's violations of Section 8 (a> (5) of the Act. As was pointed out in the main body of this Report, the issue as to whether the Respondent failed to bargain with the Union in good faith with respect to all the subjects about which the parties negotiated up to August 25, 1949, was not resolved because to do so would in any event result only in making cumulative findings which would not change the scope of the remedy to be recommended. It has also been found that the Respondent discriminated against some of its employees by failing and refusing after the strike to offer reinstatement to their former or substantially, equivalent jobs to, those employees who remained on strike until the termination thereof, taking into consideration the legitimate decrease in the number of available jobs after the strike, and in accordance with the seniority rules provided for in the last contract between the Respondent and the Union, and without prejudice to the striking employees because of their having engaged in the strike. It will therefore be recommended that the Respond- ent offer to all employees who were thus discriminated against immediate and full reinstatement to their former or substantially equivalent positions,69 with- "The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 440, 497-8. NATIONAL CARBON DIVISION 745 out prejudice to their seniority and other rights and privileges , if necessary dismissing all employees newly hired during the strike, all those former em- -ployees who returned to work before the end, of the strike who possessed less seniority than any of the striking employees who remained on strike until the end of the strike, as well as those employees newly hired after the date or dates of he Respondent 's discrimination.70 If there is not then sufficient work avail- able for the remaining employees and those to be offered reinstatement , all avail- able positions shall be distributed among them without discrimination against any employee because of union membership or activity , following the principles i elating to seniority , assignment of jobs and layoffs heretofore applied in those of the Respondent's plants which are herein involved. The Respondent shall then place those employees , if any , for whom no employment is available after such distribution , on a preferential list, with priority in accordance with the aforesaid system of seniority , assignment of jobs and layoffs, and thereafter offer them reinstatement as such employment becomes available and before other persons are hired for such work. It will also be recommended that the Respondent make w .hole.those.employees ,against whom it has discriminated for any losses , they- may have suffered because of the Respondent's discrimination , by payment to each of them of a sum of money equal to the amount that be normally would have earned as wages from the date of such discrimination to the date of the offer of reinstatement , or place- ment on a preferential list, as the case may be, less his net earnings during said period," the back pay to be computed on a quarterly basis in the manner estab- lished by the Board in F. W. Woolworth Company, 90 NLRB 289. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other such period . It will also be recommended that the Respondent make avail- able to the Board on request payroll and other records to facilitate the checking of the amount of back pay due.72 In view of the nature and variety of the unfair labor practices committed by the-Respondent , the commission by the Respondent of^similarly varied unfair labor practices may be anticipated . It will therefore be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act.7a Since it has been found that the Respondent did not commit unfair labor practices by discharging Yousef Ahmed, Joseph Bartha, George Barner, Anthony Ciurylo, Walter Dolhon, Andrew Ezak, Cleve Henderson , Thomas J. Morganti, and Robert Simmons , it will be recommended that the complaint be dismissed insofar as it alleges that the discharge of these employees constituted unfair labor practices. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following : CONCLUSIONS OF LAW 1:-' Loca1.85, United- Gas, Coke & Chemical 'Workers of America, C. I. 0., is a labor organization within the meaning of Section 2 (5) of the Act. 2. All hourly paid employees of the Respondent's Acheson, National, and Re- public plants at Niagara Falls, New York, known as the Niagara Works, includ- ing checkers and store clerks, , the Acheson plant carpenter and millwright, 71 Harold V. Utterbaek and David it. Schatz, d/b/a U. and S Lumber Company, 92 NLRB 163 ; Pacific Gamble-Robinson Company, 88 NLRB 482, 486-7. 71 Crossett Lumber Company, 8 NLRB 440, 497-8 72 Woolworth case. supra. 73 May Department Stores v N L R B., 326 U S. 376. 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD watchmen, gang or group leaders , the head floormen , the head cooks, the inspec- 1ors departmental,4 and the development laboratory assistants , but excluding clerical (including intraplant messengers and Ernest F. Crawford ) and office employees, salaried employees, bricklayers, guards, the head shipping clerk, -supervisors, and all other supervisory employees with authority to hire, promote, Fdischarge, discipline, or otherwise effect changes in the status of employees; or •effectively recommend such action , constitute a unit appropriate for the purposes •of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Local 85, United Gas, Coke & Chemical Workers of American, C. I. 0., was -on May 7, 1945, and at all times thereafter has been , the exclusive representative -of all the employees in the above-mentioned appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing to bargain collectively with the aforesaid Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of -Section 8 (a) (5) of the Act. 5. By discriminating in regard to the hire or tenure and terms and conditions of employment of some of its employees, thereby discouraging membership in the aforesaid Union , the Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 6. By the above unfair labor practices, and by otherwise interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting -commerce within the meaning of Section 2 (6) and (7) of the Act. 8. The Respondent did not commit unfair labor practices by discharging Yousef Ahmed, Joseph Bartha, George Barner, Anthony Ciurylo, Walter Dolhon, Andrew Ezak, Cleve Henderson, Thomas J. Morganti, and Robert Simmons. LRecommendations omitted from publication in this volume.] 74 John Henner is excluded as a supervisory employee. FARMERS' ELECTRIC COOPERATIVE, INC. and INTERNATIONAL BROTmIR- HOOD OF ELECTRICAL WORKERS, LOCAL UNION NO. 69, AFL. Case No. 16-CA-429. August 26, 195 Decision and Order STATEMENT OF THE CASE Upon a charge filed on September 13, 1951, by International Brotherhood of Electrical Workers, Local Union No. 69, AFL, herein called the Union, the General Counsel of the National Labor Relations Board, herein called respectively the General Counsel and the Board, by the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued a complaint dated October 8, 1951, against Farmers' Electric Cooperative, Inc., Greenville, Texas, herein called the Re- 100 NLRB No. 119.