Clinton Foods, Inc.

CLINTON FOODS, INC. 239 In applying its contract-bar rules the Board is primarily concerned with whether the contract imparts to the relationship of the parties a degree of stability which outweighs the right of the employees to a redetermination of bargaining representatives at that particular time." In the Oswego Falls case,13 the Board weighed these factors and resolved them in favor of stability and there found the contract, although not formally signed until the petition was filed, to be a bar. The circumstances in this case present an even more persuasive basis for such a finding here. Thus, throughout the previous contract period and the difficult period of negotiations which followed, when they could have expressed their desire for a change of representative, the employees continued with their current bargaining agent. In- deed, at the conclusion of negotiations, they ratified what had been accomplished by that representative on their behalf. The resultant agreement had been put into effect and the language of the written contract approved. All that remained was the ministerial act of placing signatures upon the agreed document, which was deliber- ately delayed by the branch president for reasons totally unrelated to any disagreement between the parties as to the terms or content of their contract. In view of the foregoing we do not believe that stabil- ity envisioned by the Act would be served by a redetermination of employee representatives at this time. Accordingly, we find that the current contract of the Employer and Intervenor is a bar to this proceeding and we shall therefore dismiss the petition herein. [The Board dismissed the petition.] MEMBERS RODGERS and LEEDOM took no part in the consideration of the above Decision and Order. 12 See Nash-Kelvinator Corporation, Body Plant .#6, 110 NLRB 447 13 Footnote 9, supra. Clinton Foods, Inc. and Local 514, International Chemical Work- ers Union, AFL. Case No. 10-CA-1707. April 19, 1955 DECISION AND ORDER On August 13, 1954, Trial Examiner Sidney Lindner issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that the Respondent cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended that the complaint be dis- missed with respect thereto. Thereafter, the Respondent and the 112 NLRB No. 37. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union filed exceptions to the Intermediate Report and supporting- brief s, and the Respondent also filed a brief in support of the Interme- diate Report.' 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 Interme- diate Report, the exceptions and briefs, and the entire record in this case and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the following modifications : 1. We agree with the Trial Examiner's conclusion that the Re- spondent's contention that it had no duty to bargain with the Union prior to April 1, 1953, because Local 514 had not achieved full coin- pliance with Section 9 (f), (g), and (h) of the Act until that date, is without merit. However, we find it unnecessary to adopt the Trial Examiner's reasoning in support of this conclusion, as we base our finding on the following facts only : It was the International which was certified by the Board on September 11, 1952, and which requested the Respondent to bargain, thereby setting the negotiations in motion. At this time there was no local in existence. Although Local 514 was organized thereafter during the time the negotiations were in progress, and was in compliance at the time the original charge and complaint were issued, it was the International representative who was the chief negotiator for the employees throughout the entire period of bar- gaining. 2. We agree with the Trial Examiner, for the reasons set forth in the Intermediate Report, that the Respondent violated Section 8 (a) (5) and (1) by refusing to bargain on employee group insurance, conditioning negotiations on the withdrawal of unfair labor practice charges, and refusing to furnish information on rates of pay, job classifications, and rate ranges. 3. We also agree with the Trial Examiner, for the reasons given by him, that the Respondent violated Section 8 (a) (3) and (1) by dis- criminatorily discharging employee Wallace Teal. 4. We further agree with the Trial Examiner, for the reasons stated in the Intermediate Report, that the Respondent independently vio- lated Section 8 (a) (1) by soliciting employees Emanuel and Lang- ford to abandon the strike with promises of benefits. ORDER Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Clinton Foods, Inc., Dune- din, Florida, its officers, agents, successors, and assigns, shall: 1 The Respondent also requested oral argument The Union opposed this request. In our opinion the record, including the exceptions and briefs, fully presents the issues and the positions of the parties. Accordingly, the request for oral argument is denied. CLINTON FOODS, INC. 241 1. Cease and desist from : (a) Refusing to bargain collectively on the subject of employee group insurance with Local 514, International Chemical Workers Union, AFL, as the exclusive representative of its employees in the following appropriate unit : All production, maintenance, and ware- house employees at the Employer's Dunedin, Florida, plant, including factory clericals and inspectors; but excluding office clerical em- ployees, professional and administrative employees, guards, and su- pervisors as defined in the Act, and specifically excluding the chief inspector, the rotary juice serviceman, laboratory employees, cafeteria employees, and all seasonal production employees. (b) Refusing and failing to furnish job classifications, rate ranges, and rates of pay, upon request, to Local 514, International Chemical Workers Union, AFL, as the exclusive representative of its employees in the appropriate unit described above. (c) Conditioning further bargaining negotiations on the with- drawal of unfair labor practice charges. (d) Discouraging membership in Local 514, International Chemi- cal Workers Union, AFL, or in any other labor organization of its employees, by discriminatorily discharging any of its employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. (e) Soliciting employees to discontinue protected concerted activi- ties with promises of benefits. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist Local 514, International Chemical Workers Union, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for purposes of collective bar- gaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act : (a) Upon request furnish Local 514, International Chemical Workers Union, AFL, as the exclusive representative of its employees in the appropriate unit described above a list of job classifications, rate ranges, and rates of pay of the employees in the appropriate unit. (b) Upon request bargain collectively with Local 514, Interna- tional Chemical Workers Union, AFL, as the exclusive representa- tive of its employees in the appropriate unit described above, with 242 DECISIONS Or NATIONAL LABOR RELATIONS BOARD respect to employee group insurance, and if an understanding is reached, embody such understanding in a signed agreement. (c) Offer to Wallace Teal immediate and full reinstatement to his former or substantially equivalent position without prejudice to seniority and other rights and privileges previously enjoyed; and make him Whole in the manner set forth in the section of the Inter- mediate Report entitled "The Remedy." (d) Upon request, make available to the Board or its agents for examination and copying all payroll records, social-security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of back pay due under the terms of this Order. (e) Post at its plant at Dunedin, Florida, copies of the notice attached hereto marked "Appendix." 2 Copies of said notice, to be fur- nished by the Regional Director for the Tenth Region, shall, after being duly signed by a representative of the Respondent, be posted by the Respondent immediately upon receipt thereof and be maintained by it for a period of sixty (60) consecutive days thereafter in conspic- uous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the Tenth Region, in writing, within ten (10) days from the date of this Order what steps the Respondent has taken to comply herewith. IT IS l URTHER ORDERED that the complaint, insofar as it alleges that the Respondent violated the Act in respects other than found herein, be, and it hereby is, dismissed. MEMBER LEEDOM took no part in the consideration of the above Decision and Order. 2In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Couit of Appeals, Enforcing an Order" APPENDIX NOTICE To ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in Local 514, Interna- tional Chemical Workers Union, AFL, or any other labor organ- ization by discharging any of our employees, or by discriminat- ing in any other manner in regard to their hire or tenure of em- ployment or any term or condition of employment. WE WILL NOT refuse to bargain collectively with Local 514, International Chemical Workers Union, AFL, as the exclusive CLINTON FOODS, INC. 243 representative of all employees in the appropriate unit described below with respect to employee group insurance, or by failing and refusing to furnish said exclusive representative informa- tion as to job classifications, rate ranges, and rates of pay, or by conditioning further negotiations on the withdrawal of unfair labor practice charges. WE WILL NOT solicit our employees to discontinue protected concerted activities with promises of benefits. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organ= ization, to form labor organizations, to join or assist Local 514, International Chemical Workers Union, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as authorized by Section 8 (a) (3) of the National Labor Rela- tions Act. WE WILL upon request bargain collectively with Local 514, In- ternational Chemical Workers Union, AFL, as the exclusive representative of all our employees in the appropriate unit with respect to employee group insurance, and furnish upon request job classifications, rate ranges, and rates of pay for each em- ployee in said unit, and if an understanding is reached, embody such understanding in a signed agreement. The appropriate bar- ,gaining unit is : All production, maintenance, and warehouse employees at oar Dunedin, Florida, plant, including factory clericals and inspectors; but excluding office clerical employees, profes- sional and administrative employees, guards, and supervi- sors as defined in theAct, and specifically excluding the chief inspector, the rotary juice serviceman, laboratory employees, cafeteria employees , and all seasonal production employees. WE WILL offer Wallace Teal immediate and full reinstatement to his former or substantially equivalent position, without preju- dice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay he may have suffered as a result of the discrimination against him. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization, includ- ing Local 514, International Chemical Workers Union, AFL, except to the extent that said right may be affected by an agreement in con- formity with Section 8 (a) (3) of the Act. We will not discriminate 369028-56-vol 112-17 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in regard to the hire or tenure of employment or any term or condi- tion of employment against any employee because of membership or nonmembership in any labor organization. CLINTON FOODS, INC., Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act, as amended (61 Stat. 136), hereinafter called the Act, was heard before the duly designated Trial Examiner at Clearwatei, Florida, from February 8 through 13, 1954. The parties were represented as indicated above,' and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally, and to file briefs and/or proposed findings of fact and conclusions of law. The amended complaint issued on January 28, 1954, and based on a charge and amended charge duly filed and served, alleged in general terms that on and after October 1, 1952, Respondent refused to bargain in good faith with the Union (The International Chemical Workers Union, AFL, herein called International, had been certified by the Board on September 11, 1952, as the exclusive representative of all production, maintenance, and warehouse employees at the Dunedin plant of the Respondent, including factory clericals and inspectors, excluding office cleri- cal employees, professional and administrative employees, guards, and supervisors, as defined in the Net, and specifically excluding the chief inspector, the rotary juice serviceman, laboratory employees, cafeteria employees, and all seasonal production employees. Local 514 was formed, organized, and chartered by International after the aforesaid certification of International and the membership of Local 514 is and has been composed of employees of the Dunedin plant. The International and its Local 514 are collectively referred to herein as the Union.) That general allegation was followed by the specification, inter alia, in 12 respects of per se refusals to bargain as follows. (a) Refusing to bargain on October 23, 1952, and thereafter concerning a group insurance plan for its employees; (b) refusing to bargain, throughout its negotiations with the International and Local 514 concerning merit wage increases and promotions for employees within the bargaining unit; (c) refusing on Febru- ary 26, 1953, and thereafter, to furnish information requested by the international and Local 514 concerning the factors considered by Respondent in its consideration of employees for merit wage increases, which information was material and neces- sary to intelligent collective bargaining by the International and Local 514, (d) refusing on November 28, 1952, and thereafter, to incorporate in any contract with the International and Local 514, a clause concerning the safety and health of its employees, despite the fact that Respondent agreed to comply with the provisions of the proposed clause; (e) withdrawing on February 19, 1953, from an agreement previously reached by it with the International and Local 514 on a seniority clause to be incorporated in a proposed collective-bargaining contract; (f) insisting, through- out its negotiations with the International and Local 514, on a contract clause pro- hibiting any union activity on Respondent's property, and making the inclusion of such a clause a condition precedent to the execution of any collective-bargaining agreement, (g) requiring on or about April 15, 1953, the withdrawal by Local 514 of a charge filed against Respondent with the Board, as a condition precedent to further contract negotiations, (h) withdrawing on March 7, 1953, all offers and con- tract proposals previously made to the International and Local 514, (i) insisting on May 6, 1953, and thereafter, that any contract entered into with the international and Local 514 terminate at the expiration of a period of 1 year after the certification of 1 The General Counsel of the Board and his representative are referred to herein as the General Counsel , Clinton Foods, Inc , as Respondent for the Company ; and the Charging Union as the Union CLINTON FOODS, INC. 245 the International; (j) insisting on May 6, 1953, and thereafter, on the inclusion in any contract entered into with the International and Local 514, of a clause providing for withdrawal of the charge previously filed by Local 514 with the Board and making the inclusion of such a clause a condition precedent to the execution of any contract; (k) refusing on May 6, 1953, and thereafter, to furnish information requested by the international and Local 514 concerning the employees in the unit, their job classifications, promotions of employees in the unit and from the unit, rates of pay of the employees in the unit, jobs eliminated within the bargaining unit, changes in the rates of pay and the jobs of the employees in the unit, and the reinstatement and re- placement of strikers, which information was material and necessary to intelligent bar- gaining by the International and Local 514; and (1) attempting, on or about February 2, 1953, to persuade the union bargaining committee to withdraw from the Union and bargain unilaterally with the Company. The complaint also alleged that on or about March 6, 7, and 8, 1953, the Re- spondent locked out and laid off its employees at the Dunedin plant because of their membership in and activities on behalf of the International and Local 514 and be- cause they engaged in concerted activities for the purposes of collective bargaining and other mutual aid and protection and particularly because its employees attended a union meeting on March 6, 1953, and at said meeting voted to go on strike on March 9, 1953, unless progress was made in the meantime in contract negotiations between Respondent and the International and Local 514 It further alleged that the strike on or about March 9, 1953, of the employees at the Dunedin plant was caused and prolonged by the unfair labor practices of the Respondent. With respect to the striking employees the amended complaint alleges that on or about April 27, 1953, application for reinstatement to their former or substantially equivalent posi- tions was made by that Respondent on the said date and at all times thereafter failed and refused to reinstate the said employees to their former or substantially equivalent positions Further the amended complaint alleges the forced resignation of George Dillard on or about August 18, 1953, and the discriminatory discharge of Wallace J. Teal on or about December 31, 1953, because of the membership and activities of Dillard and Teal in the Union. There is also alleged in the amended complaint the refusal of the Respondent to reinstate a group of seasonal employees because they had engaged in activity on behalf of the Union and because it believed they were members of the Union and further because of the union membership and activity of the husbands and relatives of the said employees. Finally the amended complaint alleges that the Respondent by specifically named agents and supervisors solicited employees to abandon the strike and return to work and made promises of increased pay, better working conditions, and other benefits to the said striking employees. Respondent's answer duly filed denied generally that it had committed any unfair labor practice Briefs were received from the General Counsel and Respondent on or about April 8, 1954. In addition Respondent submitted for consideration by the Trial Examiner, proposed findings of fact and conclusions of law. The briefs and proposed findings of fact and conclusions of law have been duly considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following- FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent is a Delaware corporation engaged in the manufacture and distribu- tion of food products in the States of New York and Florida and various other States of the United States At all times material herein, Respondent has maintained and operated a plant at Dunedin, Florida, herein called the Dunedin plant where it is engaged in the processing of citrus juices and the fabrication of machinery In the conduct of its business at the Dunedin plant during the year 1953, which period is representative of all times material herein, Respondent purchased raw materials and supplies valued in excess of $500,000, 40 percent of which in value was pur- chased outside the State of Florida and shipped to Respondent at the Dunedin plant. During the same period, Respondent at the Dunedin plant sold finished products valued in excess of $1,000,000 more than 80 percent of which in value was sold and shipped to customers outside the State of Florida. The Respondent admits and I find that it is engaged in commerce within the meaning of the Act. Il. THE LABOR ORGANIZATIONS INVOLVED International Chemical Workers Union , AFL, and its Local 514, are labor or- ganizations within the meaning of Section 2 (5) of the Act 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. Background In or about July 1952 employees of the Respondent contacted Thomas T. Walker, International representative of the International Chemical Workers Union, AFL, with a view toward having the said organization represent the Respondent's em- ployees in collective-bargaining matters. At that time the Respondent was in con- tractual relations with the International Association of Machinists, Lodge 570, which contract was due to expire on October 1, 1952. Walker testified that because the employees were interested in transferring their affiliations to a rival organization in spite of the existing contract with the IAM, a meeting was held with a committee of the Respondent's employees, and membership cards distributed to them for the purpose of permitting the International to petition the Board for an election. Some 130 to 150 authorization cards were thereafter received from employees. On August 6, 1952, the International filed a petition for certification of representatives designated Case No. 10-RC-2023. A consent-election agreement was executed by the parties including the Respondent, the International, and the JAM on August 18, 1952. The appropriate collective-bargaining unit specified in the consent-election agreement was as follows: All production, maintenance, and warehouse employees including factory clericals, professional, and administrative employees, guards, and supervisors as defined in the Act, and specifically excluding the chief inspector, the rotary juice serviceman, laboratory employees, cafeteria employees, and all seasonal production employees. Pursuant to the consent-election agreement an election was held among the Respondent's employees on September 3, 1952, with the following results: Of the 212 eligible voters, 137 cast votes for the International, 49 for the IAM, and 5 against participating labor organizations There were three challenged ballots. On September 11, 1952, the Regional Director for the Tenth Region on behalf of the Board certified the International as the exclusive representative of all of the employees in the unit defined in the consent-election agreement for the pur- poses of collective bargaining. Prior to the date of the representation election there was no formal organization established among the Respondent's employees A temporary chairman had been elected by the employees to handle the organizational structure. In November 1952 Local 514 was issued a charter by the International. Officers of Local 514 were sworn in at the meeting held on November 25, 1952. The record also reveals that the per capita tax paid by all active local unions to the International did not start for Local 514 until March 1953. Even though as will be set forth in detail herein- after the bargaining committee of the employees made up of five plant employees and International Representative Walker started to bargain with the Respondent for a collective-bargaining agreement during October 1952 the Local did not come into compliance with Section 9 (f), (g), and (h) of the Act until April 1, 1953. It is the Respondent's contention raised at the hearing and in its brief that it had no duty to bargain with Local 514 prior to April 1, 1953, because of Local 514's noncompliance with the requirements of Section 9 (f), (g), and (h) of the Act. It is worthy of note that during the period from the inception of the request to bargain in October 1952 until the end of bargaining in December 1953 the Respond- ent met with the bargaining committee and never raised the question of Local 514's compliance with Section 9 (f), (g), and (h) of the Act. It was raised for the first time at the hearing and in its brief. Furthermore, it is clear that Local 514 was in the formative stage at the time of the representation petition and certification. It did not receive its charter or pay the per capita tax until several months after the Board certification There is no question but at the time of the issuance of the original complaint herein in August 1953, Local 514 as well as the International were in compliance with the Act. The doctrine expressed in the Supreme Court's opinion in the Dant & Russell case, 344 U. S. 375 is applicable here and I find the Respondent's contention to be without merit. See also, West Texas Utilities v. N L. R. B, 184 F. 2d 233 (C. A. 5). It might be well at this juncture of the report to discuss several other issues raised by the Respondent for the first time at the hearing herein. The Respondent con- tended throughout the hearing and in its brief that all categories of employees work- ing on the citrus product until it reaches a nonperishable state 2 are agricultural workers and are not protected by the Act. It was stipulated at the hearing that Respondent is one of the largest citrus pro- cessors in the State of Florida; that it owns in excess of 7,500 acres of citrus grove 2 The nonpei ishablr, stnte of the product, according to the Respondent is when the frozen juice is actually placed into the sealed can. CLINTON FOODS, INC. 247 land, that more than 50 percent of the fresh citrus fruit processed at the Dunedin plant is grown on its own grove land; and that all employees in the juice processing operation handled fresh citrus fruit until it reached a nonperishable state. The record reveals, however, that the employees who the Respondent contends are agricultural employees, handled the fresh fruit from its arrival to the time of freez- ing, in a plant separate and apart from the farm operations of the Respondent and did so on an assembly line There is no contention and it appears clear from the record that the Respondent's fruit processing operation is a separate commercial enterprise and not an incident to or in connection with its farming operations. It is also clear from the record that the juice processing employees performed no func- tions in connection with the planting, cultivating, or harvesting of the fresh fruit. All of the operations performed by them are on an assembly line in a plant separate and apart from the groves maintained by the Respondent. Such employees I find are not agricultural laborers within the meaning of the Act. See Stokely-Van Camp, Inc., 107 NLRB 1137; Geffen, Inc., 106 NLRB 764. Even though the Respondent in September 1952 consented to the inclusion of leadmen in the bargaining unit and did not object to their voting in the election conducted by the Board on September 3, 1952, it took the position at the hearing that leadmen were supervisors within the meaning of the Act and therefore not en- titled to its protection The record reveals that Respondent had in its employ at the times material herein a total of 26 leadmen in its citrus processing department and mechanical department.3 William Balfour, a leadman in the citrus processing department, testified that he had no authority to hire or fire. While on occasion he made a recommendation regarding the hiring of an employee, he stated that the Respondent did not pay any attention to it Balfour was in charge of some 26 employees employed on the assembly line in the citrus processing operation Balfour, as well as other leadmen, performed manual work the same as the employees on the assembly line at least 50 percent of his time. In the ordinary course of his duties, Balfour received orders from foremen and superintendents and relayed such orders to the employees in the department. He did not make work assignments. The leadmen were paid on an hourly basis Their rates of pay varied from $1.18 to $1 65 per hour. It appears also from the record that some of the leadmen in the mechanical department, who additionally were skilled mechanics, received the rate of $1.75 per hour. While it may well be that the leadmen in the Respondent's plant were delegated authority to take action necessary to obtain the required quality and quantity of work from the employees with whom they were working, the record is clear that they had no authority to hire or fire or effectively recommend such action. As noted previously, the Respondent's contention regarding the leadmen was raised for the first time at the hearing herein. It is also noteworthy that Respondent never took the position during the negotiation meetings that Balfour was ineligible to sit with the union bar- gaining committee because he was a supervisor within the meaning of the Act. I find from the above and the record as a whole that the Respondent's contention re- garding leadmen is without ment and they are not supervisors within the meaning of the Act. B. The general course of the bargaining negotiations `.,.;in October 1952 to March 1953 Although there appears a conflict in the evidence with respect to the discussions on the subject of insurance, which will be resolved heieinafter, there is no dispute as to the remaining facts concerning the course of the bargaining negotiations which are of chief significance to the resolution of the main issues in this proceeding At the opening bargaining session on October 1, 1952, the Union's bargaining committee consisted of Walker and employees George Dillard, George Parsons, Andrew Messiue, W. W. Kinsey, and Charles Brown Representing management were James Longacre, industrial relations director, W W. Clarke, plant superin- tendent, Kenneth Burton, personnel manager of the Dunedin plant, and Edward Burns, counsel to the Respondent The Union gave Respondent its contract proposal. The contract was discussed briefly, various clauses there were explained, and the Union attempted to answer questions put to it by the Respondent's representatives Thereafter the meeting broke up. Another meeting was set for October 6, Respond- ent stating it would submit a counterproposal at that time The Union's October 1 contract proposal contained clauses providing for the following: Recognition by the Company of the Union as the exclusive bargaining agent of all the employees in the appropriate unit at the Dunedin plant, and agree- s These names are all included in General Counsel's Exhibit No 2 in evidence 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment by the parties to bargain in good faith in accordance with the National Labor Relations Act, as amended; union security and checkoff of dues, a clause pertaining to "the hours of work" at the plant which included sections providing for reporting pay when no work was performed and call-out pay in cases of employees called out to do emergency work after their regular schedule of work; a clause providing for "overtime" pay for all work in excess of 8 hours in any 24-hour period and time and one-half for all work in excess of 40 hours in any one pay period week; the clause labelled "overtime" also contained a section providing for regular pay at the straight time hourly rate to employees who were not required to work on New Year's day, the Fourth of July, Labor Day, and Christmas Day if they had been working for 15 days prior to any such holiday; a "vacation" clause entitling any employee who worked 1,200 hours during any 1 year to I week's vacation with pay, if the employee was in Respondent's employ for 3 years-2 weeks' vacation with pay, if the employee worked 6 years-3 weeks' vacation with pay, with vacation pay in advance on the payday immediately preceding the vacation period. The vacation clause also provided that vacation schedules shall be arranged as near as possible to meet the approval of the individual employee with seniority prevailing in the event that two or more employees requested vacations at the same time; a clause pioviding that any employee relieving a supervisor shall receive a rate of pay 15 percent above the highest classification that he supervised during such period, a clause providing for "leaves of absence" for any valid reason including union business, the number of employees to be excused for such business not to exceed two, the "seniority clause" which was rather extensive provided that senior employees be preferred in layoff, rehiring, promotion, and transfer. It also called for plant seniority and departmental seniority so that in the case of a reduction in force the senior employee could roll back to a lesser job should he be laid off Departmental seniority was to prevail over plant seniority in cases of promotion and demotion whereas plant seniority was to prevail over departmental seniority in a layoff and in rehiring The clause also provided for officers, committeemen, and shop stewards of the Union to hold top seniority in case of a plant layoff; a "grievance procedure" clause whereby shop stewards and a grievance committee were to handle grievances The said clause also provided for a regular procedure within the bounds of the Company and arbitra- tion if agreement could not be reached in the first steps of the procedure This clause also contained a section providing for no strikes by the Union during the handling of a grievance, nor lockout by the Company during this period, a clause labelled "miscellaneous" provided that the Company comply with Federal and State laws and regulations applicable to the Company's operations. It additionally pro- vided for the safety and health of the employees, with the Company agreeing to furnish the necessary protective clothing and equipment. The Union also requested that it be permitted to designate an accredited safety committee consisting of one representative from each department, the function of said committee to be advisory. A final section of this clause provided for group insurance to be furnished by the Company but negotiated and agreed upon between the Company and the Union; the next clause entitled "bonuses" called for employees to receive a Christmas bonus, a longevity bonus, and a vacation bonus in addition to regular vacation pay; the "shift differential" clause provided for employees on the second shift to receive 10 cents per hour differential and the third shift employees to receive 20 cents per hour differential, the "apprentice" clause provided for an apprentice training program to be inaugurated, the details of which were to be worked out between the Company, the Union, and the United States Department of Labor; with respect to bulletin boards the proposed contract requested that the Company place at the disposal of the Union for its exclusive use, suitable bulletin boards placed in convenient loca- tions for posting of notices by the Union; in the "general provisions" clause the Union agreed that in case of a stoppage of production it would furnish from its ranks, if required by the Company, such men as selected by the Company for the operation of pump and other equipment. It also provided that supervisory em- ployees shall not do work commonly performed on any hourly rated job except in emergencies when regular employees were not available, in instruction or training of employees, and in relieving an employee at the employee's request, a clause also provided for a death benefit fund whereby the Company would deduct $1 from the earned wages of employees signing an authorization card; and in the event of the death of any member of the benefit fund such money was to be transmitted to the secretary of the local union and paid to the beneficiary of the deceased member; finally a "termination" clause in the regular form. At the opening of the October 6 meeting with the same parties present the Respondent handed out a prepared statement which it then read. In its statement the Respondent noted that it was amazed to find that there were in total 26 added CLINTON FOODS, INC. 249 cost items in the Union's demands and there were 33 proposed changes from the then current practices with respect to Respondent's employee procedures It further noted that not only was the number of changes extremely disturbing but more than that it stated that the attitude of the Union as shown in the- chat acter of the changes was particularly alarming. The Respondent went into some detail with respect to what it was then providing for its employees in the matters of wages, social insurance, vacations, safety programs, special considerations for employees, employee education, etc. It called attention to the fact that it found it impossible to believe that its employees had had very much to say in regard to the contents of the Union's proposal. It stated it knew its employees well, both as individuals and friends, over a long period of time and had expressions of faith and satisfaction with respect to management's consideration for its employees. It went on to say that since it could not find any basis on which the Union's demands were compatible with accepted fair bargaining practices it had to search elsewhere for the under- lying reasons for such "unreasonable and outrageous demands" presented in the union proposal. Such a search it stated led it into "disagreeable areas filled with suspicion that cannot fail to cause great harm in our long history of working out our problems with our employees on a man to man basis each reflecting the other's honesty and integrity." The Respondent then stated that "such outrageous de- mands" were not made with any idea of achievement but were for some not readily apparent purpose. Perhaps, it stated, such men would prolong negotiations until the Company found itself in a less favorable position to withstand a strike and that under a strike threat the Company would concede to demands that better judgment tells it are not sound either for the Company or the employees. It went on to say that perhaps that was not the reason and that it found itself in the unfortunate position whereby it had a small militant group among its employees who sold the majority of employees on a change and that this group "in its greed and avaricious- ness is saying to hell with the rest of the employees and their security, to hell with the Company and its security or its contribution to the welfare of the community, let us get all we can now-never mind the future and the devil take the hind most." The Respondent commented that perhaps it had to work with a union organizer who had just "put a feather in his cap," in capturing the Dunedin plant and that this organizer was not thinking of the situation in any other way than to use it as a springboard to bigger and better things for himself. It referred to the fact that it knew of five strikes all between the chemical workers and various mines. The Respondent also referred to the possibility that may be it had a "red cell" here whose sole objective was to create and maintain industrial unrest. It then stated that perhaps the suspicions were all wrong and it sincerely hoped so. It returned the union contract proposal and stated that it found it objectionable in over 90 percent of its contents and therefore rejected it in its entirety. In its place the Respondent stated it submitted the Company's proposal in conformance with accepted bargaining practice, and invited the Union to go over the said proposal item by item The Company's proposed contract of October 6, 1952, contained clauses in complete variance with the Union's proposed contract. In its purpose and scope clause there was a section providing for no union activity on company time or property. The hours clause provided for time and one-half after 40 hours. A separate Sunday- and holiday-pay clause provided for time and one-half pay for Sunday and 5 named holidays The wage clause set forth wage rates as con- tained in an attached schedule which were the same wage rates that the employees had been receiving for the previous year under the contract between the Respondent and the JAM, it also contained a section that new employees may be hired at a rate below the minimum wage rate for the job but not less than 75 cents per hour for not more than 30 days. In the reporting and call-in pay clause employees reporting on regular shifts without previous notice not to report, were to be given at least 3 hours of work or the equivalent pay; in emergency shutdowns, however, employees who report for work may be sent home without compensation The vacation clause provided that before an employee became eligible he had to have 1,750 hours of work since July 1 of the preceding year, and it provided further that the vacation period must begin on July 1 and end November 7 and all vaca- tions had to be taken during that time The grievance procedure clause recognized 1 department steward in each department for each shift and I chief steward for the entire plant to process grievances, it also provided for arbitration with 2 arbi- trators, 1 union and 1 company choosing the third arbitrator. The seniority clause provided for straight departmental seniority; the contract set out five different methods by which employees could lose seniority. The bulletin board clause permitted the business representatives of the Union to attend certain meetings between union and 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD management and also permitted a reasonable use of the plant bulletin board for posting the notices concerning meetings and functions of the Union but only after approval by the Company. The management prerogative clause provided for management control of the transfer and reclassification of employees and the mak- ing of reasonable rules; it also stated that foremen and supervisors may not regu- larly perform production and maintenance work except when instructing employees, in the case of a temporary emergency to relieve bottlenecks, and where profes- sional employees were making adjustments to equipment There was also contained in the contract a saving clause, a no-strike or lockout clause, and a duration clause. The October 6 meeting ran for several hours during which time the Company's proposed contract was discussed in detail. There were arguments back and forth by both sides into the various phases of the contract. Much time was spent on discussing the vacation clause, with Longacre making the statement that the Re- spondent would determine the vacation period because of the seasonal nature of the Respondent's operations. At the October 16 negotiation session most of the discussion related to money items such as vacations, paid holidays, and shift differentials. No agreement was reached on any of these matters. The Respondent maintained that it was unable to pay any wage increase whatsoever. A proposal of the Union set forth in its contract was that time and one-half be paid after 8 hours of daily work. The Respondent proposed that time and one-half be paid after 40 hours of work on a weekly basis. The discussion with respect to overtime pay centered around the fact that the Respondent was then paying its machine shop employees time and one-half after 8 hours because they were working on Government contracts, which came within the purview of the Walsh-Healey Act. The Union contended that since the Respondent was already paying time and one-half to such mechanical employees after 8 hours of daily work, there was no reason why such a clause should not be included in the contract. Longacre stated that if such a clause was inserted in the contract, the Respondent would be required to pay overtime in this manner even though its Government orders were completed. For that reason he insisted that it not be placed in the contract. On the question of seniority it was the Union's proposal that two types of seniority, namely plantwide and depart- mental seniority, be included in the contract The Respondent asked for strict departmental seniority. In the discussion on this matter the Union argued that where senior employees were affected in a layoff they be permitted to roll to various units of the plant where they could qualify for different jobs. The Respondent maintained that in case of a departmental layoff every employee in the department affected could be laid off and not exercise his seniority rights to roll to another department. No agreement was reached on the matter of seniority that day. Nor was agreement reached on the Union's proposal with respect to the grievance procedure. The Union requested that a five-man committee be permitted to function in the matter of grievances. The Respondent on the other hand stated that one man could handle the entire job. The meeting of October 16 closed with a statement by the Respondent that it did not want to mislead the Union, that it had made its proposal in the form of a contract dated October 6, and that it would not alter its position from that proposal. At the next negotiation meeting held on October 23, seniority was again discussed with the same results. As for vacations, the Respondent claimed it had a good vacation plan and did not propose to change it. The Respondent stated it would not consider the Union's proposal that where an employee was sick, such time out should be counted as time worked toward vacation. Furthermore, it would not agree with the union proposal that employees who had completed 3 years with the Respondent be entitled to 2 weeks' vacation. On the matter of safety and health of the employees, the Union's proposal that a joint committee be set up with management to investigate all of the safety features in the plant was rejected. Longacre, in behalf of the Respondent, stated that it had the safest plant in the industry, if not in the entire State of Florida, and therefore it would not agree to setting up a joint committee. During the discussion of safety and health Plant Manager Clarke made the statement that it was Respondent's responsibility to maintain the safety and health of its employees and that the Union would not have any "say-so" in this matter. The use of plant bulletin boards was talked about, with the Union taking the position that the bulletin boards be used to post the lines of authority in the plant with a view toward having the employees know supervisors to go to in case of a grievance. The Respondent said that the lines of authority were none of the Union's business and that if an employee had a grievance he could take it directly to management. Although Walker testified without denial that the Respondent did not agree with the Union's position regarding when supervisors could work on hourly paid production work and allegedly stated that whereas it CLINTON FOODS, INC. 251 did not want supervisors to work on such hourly paid work, it nevertheless would not put anything in the contract with respect to it, the record reveals that the Respondent's October 6 contract proposal, in the section "Management Prerogatives" provides that supervisors may not regularly perform production and maintenance work except in the following instances: (1) When they are instructing production and maintenance employees; (2) in temporary emergency situations to relieve bottle- necks; and (3) where professional employees are involved in making adjustments to equipment. It was at this meeting that the subject of insurance was raised for the first time. An employee member of the union committee stated that he heard that the insurance program for employees was being changed With that a dis- cussion ensued. Longacre remarked he was afraid that the subject of insurance would arise; that he hoped the problem would never arise; that the Respondent was changing its insurer; that it was also making modest changes in the plan; but that he was not allowed to bargain on the matter of insurance this year. Walker requested a copy of the new insurance plan which was not forthcoming. In spite of Longacre's remarks, further discussion was had concerning the respective rates being paid by the Respondent and the employees for the insurance, as well as in- formation on the changes that were being made in the plan. The Respondent's representatives also listened to the Union's statement of the employees' desires with respect to insurance and what the Union wanted incorporated into the hospitalization program. The outcome of this talk on insurance was that the subject could be discussed at great length, but that there would be no changes in the plan since the Respondent had negotiated a new contract with a new insurer on October 1, and Longacre was not allowed to bargain on the matter for the coming year. The major part of the time at the October 28 negotiation meeting was spent in talking about superseniority. At the outset, the Respondent would not accede to the Union's request set forth in the October 1 proposed contract, that officers, com- mitteemen, and shop stewards of the Union hold top seniority in the plant in the event of a layoff. The matter of promotions was then discussed with the Respondent taking the position that an employee's failure of promotion would be considered as a grievance in the regular grievance procedure up to the point of arbitration. It would not allow such a grievance to be processed in an arbitration proceeding. The Respondent also made the statement that it would determine who was to be promoted and that the Union would have no say in the matter of promotions When plant safety was again discussed at this meeting, Clarke reiterated the Respondent's posi- tion that it "wasn't anybody else's damned business." Clarke also stated that if any accidents occurred in the plant, the Respondent would take care of it at the appropriate time When the discussion reverted to superseniority the parties agreed to the establishment of a joint committee, which would include Personnel Manager Burton and members of the Union, to determine the key people who would be affected by superseniority. The Company's proposed contract of October 6 was then taken up section by section Agreement was reached on the Union's proposal that the unit set up in the recognition clause be changed so as to conform with the definition of the unit in the Board's certification The Union then requested that there be added to the recognition clause a section as follows: "The company and the union agree to bargain in good faith in accordance with the National Labor Relations Act as amended." The Respondent would not agree stating that it was required by law to bargain in good faith and therefore saw no reason why such a statement should be included in a contract. In the article labelled "purpose and scope" the Union proposed that there be added the words "to improve the working conditions in the plant" after the phrase "to secure prompt and equitable disposition of griev- ances " The Respondent commented it was not interested in improving the condi- tions of the plant and stated that the conditions were as good as they need be. When the Union referred to the machine shop as the mayor unit in the plant departmental- wise, Longacre disagreed and said that citrus production was the major unit, com- menting that Respondent did not intend to "let the tail wag the dog." Clarke then compared the machine shop and the citrus operations financially stating that Re- spondent could close down the machine shop easy enough and did not intend to "let the tail wag the dog " The meeting concluded with the Respondent's remark that it was bargaining in good faith, and it did not have to agree with anything so long as the matters were discussed with the Union Seniority and superseniority were the principal subjects discussed at the meeting held on October 30. The participants in the meeting selected Personnel Manager Burton to study the jobs of key people in the citrus operations to determine whether they should be considered permanent employees. The Respondent so considered them. Complete agreement was not reached on the number of union officers and stewards who would be designated as holding top seniority in case of a layoff. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The next meeting held on November 3 was given over to a discussion of seniority. The parties were attempting to find an area of agreement on the principle of seniority. Both union and respondent proposals relating to the subject of seniority were thor- oughly looked into with a view to finding mutual grounds on which to work. At the November 24 meeting, the Respondent submitted a revised seniority clause which it agreed to include in its contract proposal. It provided for plantwide seniority as well as departmental seniority as originally proposed by the Union. This was dis- cussed briefly by the Union without comment because it wanted time to study the proposal. The discussion then turned to the grievance procedure as set forth in the Union's proposal. Tentative agreement was reached by the parties on the first sev- eral steps of the grievance procedure except that the time within which a grievance had to be filed and other time lapses still had to be worked out. The Union also agreed to expunge its proposed section having to do with suspension prior to dis- charge. On the matter of a death benefit fund, the Respondent stated that while it had no definite reason for not agreeing to such a fund it did not care to be a party and participate in any type of fund. Even though the Union pointed out that be- coming a member of the fund was entirely voluntary and only those employees who signed authorizations permitting the Respondent to deduct monies to be paid over to the fund would be members, the Respondent did not care to give its approval and incorporate a clause providing for a fund in a contract. On the matter of hours and overtime the Respondent maintained its previous position that time and one-half would be paid only after 40 hours of work on a weekly basis and not after 8 hours of work on a daily basis as proposed by the Union. At the close of the meeting Plant Manager Clarke stated that the Respondent was going to continue to run the plant as it saw fit regardless of the Union and that it would not enter into any contract which made it change its position. The meeting of November 28 started off with a discussion of safety and health. The Respondent took the position that it would continue to furnish and expand when necessary the maintenance of protective clothing for the safety and health of the employees It refused, however, to comply with the Union's request that a clause on safety and health be included in a contract. Nor would it permit the Union to participate in the safety program. The Respondent contended that it would remain the sole judge in these matters. On further discussion, however, the Respondent changed its position and agreed that it would allow two employees to serve on a plant safety committee but without voice in its policy. The Respondent did not agree to permit a member of the Union to serve on the inspection team which inspected the plant to determine necessary safety measures. During the dis- cussion on safety the Respondent maintained that it had the safest plant in the in- dustry, that the matter of safety was strictly its business; and that it would handle these matters as it saw fit. The Respondent's insurance program was again taken up at this meeting. Walker testified that Longacre stated that the matter of insurance was closed, that the union bargaining committee could discuss it if it wanted to waste time talking about it. Testifying with respect to the discussion on the subject of insurance at this meeting, Longacre stated that he advised the union bargaining committee that he had taken the matter up with the Respondent's officials and found after some study that the Respondent's present plan was considered ade- quate. With regard to the life insurance section Longacre stated he told the com- mittee it had a very liberal schedule. They then talked about hospitalization, the surgical schedule, and hospital extras at some length. Longacre pointed out that the plan embraced all Florida employees of the Respondent and that it would be difficult to make any changes without considering the employees in the Respondent's other plants in the State of Florida. Longacre then told the committee that the Respondent would continue its study of the insurance plan and hoped that in another year it could offer improvements in the benefits. Longacre specifically asked the Union to consider this proposition and requested the Union to go along with the plan as it was then written for the remainder of the year. Longacre testified that the union bargaining committee indicated its satisfaction with the life insurance section. With respect to Longacre's request that the Union go along with the plan for the remainder of the year he stated that Union Spokesman Walker replied that it was agreeable to the Union Longacre further testified that the subject of in- surance was not discussed again after this meeting of November 28. On cross- examination Longacre was not certain who on behalf of the Union made the state- ment that the matter of insurance could go over for a year . He admitted that he was aware of the fact that the union committee had to refer matters back to the membership before final approval could be given on any matters. Walker denied that the Union and the Respondent were in agreement that the matter of insurance should be deferred for the remainder of the year. In fact Walker testified that at a later meeting on February 9, 1953, the Union again took up the subject of in- CLINTON FOODS, INC. 253 surance. Walker's testimony was corroborated by Dillard and Kinsey, union com- mittee members who were present during all of the negotiation meetings. I do not credit Longacre's testimony and find that the Union did not agree to defer the matter of insurance at the November 28 meeting, nor that insurance was discussed for the last time at the said meeting. At the meeting on December 1, discussion centered around the money items in the different proposals. The parties talked about wages, paid holidays, shift differ- entials, job adjustments, hours of work, overtime, and rate ranges. With respect to the rate ranges the Union requested the establishment of an automatic progression system whereby an employee would go from the bottom of the range to the top in a given period of time. The Respondent did not agree. The Union thereupon requested that a joint committee be set up to investigate each employee as he came in at the bottom of the classification and that periodic checks be conducted on the employee to determine when he should be entitled to an increase. The Respondent would not agree. The Respondent contended that when an employee was given an increase within the rate range it was in the nature of a merit increase and that it was its prerogative to grant such merit increases and the Union would have no voice in these matters There was no provision in the Respondent's contract proposal for shift differentials. When the matter was discussed at this meeting, the Respond- ent agreed that where an employee had seniority and requested a day shift, but was denied it, he would be paid a token shift differential. The amount of such differential was not arrived at. With respect to wages, Longacre stated that the Union need not expect to receive any more than 5 cents per hour which Respondent's Auburndale, Florida, plant employees had received. When asked if such amount could be con- sidered as the Respondent's proposal for a wage increase, he laughed, shook his head affirmatively, and answered yes. Sometime in the middle of January 1953, Personnel Manager Burton came into the plant and told employee Dillard 4 that Longacre and Clarke would like to meet with the committee that afternoon. At about 2 p in. a union bargaining com- mittee consisting of Dillard, Kinsey, Parsons, and McKenzie met with Respondent's representatives, Longacre, Clarke, and Burton. The Respondent inquired if Dillard knew where Walker was and if he could be reached, stating that the negotiations had dragged on for quite a while and it wanted to wind up such business.5 The Respondent also inquired if Dillard could go forward and negotiate a contract with it. Dillard replied that he didn't know of anything to stop him; that he would rather not do it, and that he would still have to obtain the approval of the International before any contract could be entered into since Local 514 was under its supervision. Longacre remarked that he didn't see any reason for having an International, that the Respondent had gotten along in the past and saw no reason why it could not get along in the future. The Respondent asked why the Union had not presented any grievances and wanted to know if it had any. Thereupon a discussion on pro- motions ensued Dillard stated that in the course of the discussion he remarked that he understood it was the Respondent's policy, which had been repeated time and again, to promote the senior employees in the plant and inquired why that policy was not being followed Dillard gave some examples of employees who were promoted to the job of inspector, leadman, and foreman, who were not senior employees in the plant. The Respondent stated that it was not aware of the fact that the promotions were being made in that manner and would look into the problem. The meeting broke up with Longacre stating that it was merely informal, was not called for bargaining purposes, and requested Dillard to try to reach Walker so that the parties could get on with the contract negotiations. The Respondent's representatives appeared at the February 4, 1953, negotiation meeting with a new contract proposal, herein called the second contract proposal, which bore the date of February 2, 1953. It was distributed to the Union's bargain- ing committee. The second contract proposal contained various changes from the original contract proposal, including some changes which had been discussed at pre- vious negotiation meetings and requested by the Union's bargaining committee. The meeting was devoted to a review of each article of the second contract proposal. Article I, labelled "recognition" was changed so that the unit of employees for which the Union was the recognized bargaining agent was specifically defined as con- tained in the consent-election agreement previously entered into between the parties. After some discussion with respect to the said changes and a request by the Union 4 Dillard was the president of the Local Union and a member of its bargaining com- mittee 6It appears that Walker was engaged in negotiations for the International in States other than Florida and Dillard had not seen him for a number of weeks 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for a further change whereby the word "citrus" would be added between the words "seasonal" and "production," agreement was reached by the parties on the said article A slight change was made in article II, labelled "purpose and scope," by the elimi- nation of certain language. The prohibition against union activity on company time or property, however, was retained in the second contract proposal. The Respondent took the position that this clause was not designed to cause people a loss of employ- ment, but was merely a stopgap to prevent employees from congregating in the plant The Respondent stated affirmatively it would not attempt to stop shop stewards from proselytizing for the Union with new employees and obtaining authorization cards from such new employees in the plant. Nor was the prohibition of union ac- tivity on company property proposed to stop employees from processing grievances in the regular grievance procedure. The Union pointed out that such a clause was discriminatory in that employees had always been permitted to participate in other affairs on company property such as, collections for charities and other events. The Respondent, nevertheless, was not convinced, with the result that there was an impasse on the said article. Article III-"deduction of union dues and checkoff" was changed to benefit the Union -During the discussion on this article the Respondent agreed to a further pro- posal of the Union for automatic renewal of employees' authorization of checkoff of union dues and the article was then mutually agreed to Article IV labelled "hours" was revised in the second contract proposal and two new sections added The first provided for payment of wages to injured employees for hours lost on the day of injury due to inability to work, and the second required Respondent to divide overtime among all employees as equally as reasonably practi- cal. These additions, with slight modifications of language, were taken from the Union's original contract proposal. The discussion resulted in partial agreement with some matters passed over for further discussion. There was complete disagreement with respect to article V, labelled "Sundays and holidays" which was not changed from the Respondent's original contract proposal. Article VI-"wages," article VII-"reporting and call-in pay," and article VIII- "vacation," all had to do with money items and were passed over for the day It should be noted however, that the article dealing with vacations reduced the num- ber of work hours required before an employee could be eligible for 1 week's vaca- tion from 1,750 to 1,500 hours There was also added to the article on vacations a provision that each employee would receive vacation pay in advance. This had previously been requested by the Union. Although article IX-"discharge for cause" was the same as previously set forth in the original contract proposal, upon discussion the Respondent agreed to strike out certain language having to do with good and sufficient cause for disciplinary action and the parties agreed to the section as changed. Article X-"grievance procedure" was changed so as to include the handling of grievances by shop stewards as well as a general grievance committee selected by the Union, the latter to handle with management such grievances as the shop stewards could not resolve in their department. This had previously been suggested by the Union in the course of the discussion on this article in negotiation meetings. Partial agreement on this article was reached at this session. Article XI-labelled "seniority" was changed so that seniority was broken down into two classes, plantwide and departmental. The article also provided for super- seniority for union officials and the posting of job openings. With certain other changes agreed to by the parties in the course of the discussion on this article, partial agreement was reached. Agreement however was not reached on that section of the article which proposed that the Respondent at the time of the closing of the juice processing season could retain a total of 18 employees and could transfer the citrus plant production foremen and supervisors who had been excluded from the bargain- ing unit to jobs within the bargaining unit without regard to seniority The Union contended that supervisors should not be permitted to do the work of unit employees because the number of supervisors retained would be replacing people in the unit who would have to be laid off. The Company indicated it had a problem with re- spect to retaining such supervisors and foremen of the juice processing department during the off season and wanted to provide for them in the manner as set forth above With respect to article X11-"Union representatives and bulletin boards" the dis- cussion revealed that it was the Respondent's request that the grievance committee consist of 3 committeemen and 1 officer. The Union argued for a five-man commit- tee and the matter was set aside for further discussion. The remaining sections of this article were approved as written. CLINTON FOODS, INC. •255 Article XIII-"apprentices" was agreed to with tha provision that if it should be decided in the future to institute such a program it would be negotiated on. Article X[V-"leave of absence," was agreed to by the parties with the Respondent advising the Union that there would be no trouble when leaves of absence were re- quested for union business particularly to attend International conventions. Article XV-"management clause" was not agreed to. The Union contended that the section dealing with the work to be performed by foremen and supervisors conflicted with a similar section in the "seniority" article. It stated that the entire matter of foremen and supervisors performing the work of people in the production and maintenance unit should be confined to one section. Article XV1-"the saving clause" was discussed with the Union requesting more time so that it could consult its general counsel on the legal implications of the section Article XVI[ was denoted "no strikes or lockouts." The Union agreed with the article as set forth in the proposed contract, but felt there should be more protection for the Union in case of wildcat strikes. The Respondent advised that it would look into the matter further and report back. With respect to article XVIII-"the duration clause," the Union requested more time to check on the number of years that it wanted the agreement to run. While the discussion at the next negotiation meeting on February 9 had to do primarily with wage items which were passed over at the previous meeting, several other items were also discussed. The Respondent agreed to strike out certain words in article 11, section B, which the Union requested, and agreement was reached on the said section. The Union again took up the Respondent's prohibi- tion against union activities on company time or property. Longacre, on behalf of the Respondent, stated that it would consider striking out that section but would not agree to it at that meeting. In the further discussion of the grievance procedure in article X, it was mutually agreed to change the language so that it would read "the chairman or his designated representative and three shop stewards" were to handle grievances with management. In the Respondent's two proposed contracts to date, the starting wage of new employees set forth was to be 75 cents an hour. The Union in the discussion on wages proposed that new employees be hired during the probationary period at a rate of 10 cents an hour less than the prevailing wage rate for the job. Longacre agreed to the 10 cents an hour less and wanted time to work the clause into proper language and resubmit it to the Union. The Union then requested increased benefits in both surgical and daily hospital rates. The Respondent reiterated that the discussion on hospitalization insurance was a closed subject as far as it was concerned. The meeting broke up on that note. At the next negotiation meeting held on February 12, 1953, the Respondent ad- vised the Union that it wanted to discuss the seniority provisions of the proposed contract again for the reason that it had a problem in the plant which came up annually at about this time, because of the midseason layoff of citrus processing employees.6 Several witnesses testified that they were laid off from the juice proc- essing line in the middle of February 1953. For the purposes of discussion the Respondent suggested that instead of the seniority being divided into plantwide and departmental as previously agreed to, that it now be broken down into sec- tional seniority and departmental seniority. The sectional seniority to be further broken down into the two sections of the plant, namely, the citrus producing section and the machinery production section. The union representatives urged the Re- spondent not to change its position because it had already obtained approval from its membership on the seniority proposal previously submitted by the Respondent and argued that it was then a closed issue As noted, the Respondent was throw- ing the matter out to the Union solely for the purpose of discussion and did not submit any formal proposal during this meeting. The Respondent did agree at this meeting to eliminate from its proposed contract the clause on waiver of seniority suggested by the Union. The matter of hospitalization insurance was again discussed at this meeting with Walker doing a great deal of talking on the improvements that the Union wanted in this regard. The reply of the Respondent was that it was a closed subject, that the Union could discuss it all it wanted to, but the subject was closed to the Respond- ent for this year. It appears also that both Walker and Longacre in the course of their lengthy discussion on hospitalization insurance were interested in the best possible insurance that could be obtained. Longacre closed the discussion repeat- 6 A stipulation between the parties reveals that the 1953 midseason orange processing operation ran from December 15, 1952, to February 25, 1953. 256' DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing the statement that he was not allowed to negotiate on the matter, that it was a closed subject. The next negotiation meeting was held on February 19, 1953. The Respondent handed the Union a new proposal on seniority calling for sectional and depart- mental seniority as opposed to plantwide and department seniority which it had previously agreed to. The Respondent maintained that it could not operate its plant under the previously agreed to seniority provisions . The Union during the course of the discussion on the new seniority proposal contended that sectional seniority in effect meant a complete reversal of Respondent 's previously agreed to position. The parties then talked about an across-the-board wage increase. The Union stated that it was its understanding that at the December 1, 1952, meeting the Respondent offered a 5 -cent wage increase . The Respondent's representatives contended that it made no such statement with respect to a wage increase , that even if it had made such an offer it was nevertheless not going to grant a wage increase at this time . The Union dropped its demand for 6-paid holidays to 5. The Re- spondent refused to comply with the Union 's request that there be inserted in the contract a clause with respect to time and a half pay after 8 hours per day for em- ployees in the machine shop operation separate from the citrus producing operation. At the February 26, 1953, negotiation meeting the union committee submitted a list of 14 points to the Respondent stating the Respondent would have to agree to this list in order to arrive at a contract . The union committee referring back to the Respondent's February 4, 1953, contract proposal went down the proposal article by article and talked about the 14 points it wanted. With respect to wages the union proposal, included in the 14 points , was an across-the-board increase of 16 cents per hour, shift differential , and job adjustments . On insurance the Union agreed that the employees continue to pay the same amount they were then paying, however, it called for increased benefits. Discussion was had on all of the Union's proposals . Respondent definitely would not agree to add a clause to the "recog- nition" article that the Company and the Union agree to bargain in good faith in accordance with the National Labor Relations Act, as amended . The Respond- ent stated it would take the 14 points submitted by the Union back to manage- ment to further discuss them. It also made the statement that its position with respect to wages had been made clear previously and there was no change to be expected. The Respondent called for a negotiation meeting on March 4, 1953, at which time it gave its answer to the Union's 14 points , in the form of a new contract proposal (its third contract proposal ). The third contract proposal contained a number of changes some of which had been requested by the Union during the course of the discussions in the various negotiation meetings heretofore described , as follows: (a) Insertion of the word "citrus" in the recognition clause to more fully describe the seasonal production worker; (b) elimination of the phrase "on the part of each employee" from the clause on maximum productivity ; (c) changed "majority of the employees scheduled hours for that day" to "less than 4 hours" in the clause on wages to be paid employees temporarily transferred to other jobs; (d ) altered the vacation clause in a minor respect whereby an employee out of work for over 60 days would not thereby become ineligible for vacation ; (e) eliminated the defini- tion of good and sufficient cause for discharge ; (f) accepted a 5-man grievance committee as proposed by the Union, 3 members of which would be shop stewards; (g) provided for the referral of grievances to the personnel department when the department superintendent was unavailable to handle them ; (h) in the matter of grievance handling, it provided that the majority decision rather than the unanimous decision of the arbitration board shall be final and binding on both parties; ( i) deleted the waiver of seniority clause from the article on seniority ; (j) provided for leaves of absence for reasons of personal business; (k) deleted the phrase "decree of a court of competent jurisdiction" from the saving clause and added a provision that in the event any portion of the contract should be invalidated by governmental action such portion should be subject to prompt negotiation ; and (1) inserted a protective pro- vision for the Union in the event of wildcat strikes. With respect to the Union's proposal on wages, the Respondent stated that it was firm in its position that there would be no increase whatsoever . The Respondent then made the statement that the third proposed contract submitted to the Union at this meeting was its final firm proposal and if it was rejected at the March 6 membership meeting of the Union, it would be withdrawn? Although as noted above the new contract proposal afforded 7 It appears that prior to this meeting the union bargaining committee asked Longacre to submit to it it completed contract proposal so that it could be taken to the membership meeting and voted on there. CLINTON FOODS, INC. 257 certain protection to the Union in the case of wildcat strikes, discussion was had on this change, with the Union disagreeing and a resultant impasse on the change. At the conclusion of the meeting Longacre in a private conversation with Walker and Dillard said that it appeared to the Respondent that there would be a strike. Longacre inquired if the Union would permit a number of employees to come into the plant and care for the refrigeration, the boilerhouse, and the general safety. Walker replied that he was sure the Union would not object and asked for a list of the people the Respondent wanted for this purpose. Walker told Longacre that the Union had scheduled a special meeting for March 6 and asked if Respondent would permit a "shutdown meeting" so that all the employees could attend to discuss the contract and take the necessary action. Longacre replied that the employees could not be paid for time off, that they could go whether he stopped them or not. Longacre also stated that no action would be taken against the employees for attending the meeting. Shortly after the meeting concluded the parties reconvened at the request of the Union. The Union asked the Respondent to supply it with a list of all em- ployees in the bargaining unit, their classifications and wage rates, as well as the rate ranges, and an indication of how merit increases were granted. Longacre told the Union it could have this material but that it would take several days to work it up. On the matter of rate ranges, Longacre told the union committee that each employee is periodically examined and judged with respect to merit increases and that a copy of the method of judging would be given the Union. At the March 6, 1953, negotiation meeting there were present Commissioners Duncan and McAllister of the Federal Mediation and Conciliation Service in addi- tion to the union bargaining committee and the Respondent's representatives. The Union presented to the commissioners points of difference between itself and the Respondent which it contended were still at issue, as follows: (a) Hours of work and overtime; (b) holidays; (c) wages; (d) seniority; (e) rewording of manage- ment clause; (f) saving clause; (g) no-strike or lockout; (h) bulletin boards; (i) a clause granting back pay to an employee reinstated under the grievance procedure; (j) safety and protective clothing; and (k) union activity on company time and prop- erty. After some discussion it appears that agreement was reached on several of the points of difference such as the rewording of the management clause, the no-strike or lockout clause, bulletin boards, and the clause granting back pay to an employee reinstated under the grievance procedure. On the matter of protective clothing, the Union agreed to a clause whereby the Respondent would continue and expand when necessary to maintain safety clothing and equipment in the plant. Through the conciliation commissioners the Union then asked the Respondent whether it would do anything with respect to the wage question that it had not previously done and whether it would put in writing the matters agreed to at this meeting. The answers to both questions were no. About 2:20 p. in. the union committee left the negotiation meeting to attend the union membership meeting scheduled for 3 p. m. About 2:30 p. in. practically all of the employees on the first shift whose tour of duty ended at 3 p. M.8 left the plant for the purpose of attending the union meeting at a hall located in Ozona, Florida, several miles away from the plant. The parties stipulated at the hearing that if called to testify most of the foremen would testify that they did not authorize the employees to leave the plant before their tour of duty finished.9 It appears that employees on the three shifts attended the union meeting. Walker presented the Respondent's third contract proposal to the membership. He read the contract completely, noted the changes which were made in the third contract proposal and thereafter a vote of the membership was taken. The membership re- jected the Respondent's third contract proposal. Upon the rejection of the Respond- ent's contract a secret ballot of the membership was taken to determine whether or not the employees wanted to go out on strike. They voted to strike on March 9 if in the interim agreement was not reached on a contract.1° The votes to reject the contract and to go on strike took place at about 4 p. in. After the first shift employees left the plant at about 2.30 p. m. to attend the union meeting, it appears that the plant gates were locked and employees reporting for work on the 3 p. m. shift were unable to gain admission. Thus Luther Emanuel, lead maintenance man on the second shift, testified without contradiction that on 5 Only the leadmen woiked until 3 30 p in 9 The General Counsel adduced evidence from William Balfour , a leadman, who testified that Superintendent Mobley permitted him to leave the plant at 2 • 30 p in Employee Wallace J Teal testified he received permission from his foreman Jack Wallace to take his personal tools out of the plant and was given a pass for that purpose 10 The vote to strike was 200 and some odd in favor with 20 against 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or shortly after 3 p. m. on March 6, he found the south gate of the plant closed. He usually entered this gate to go to work. He then attempted to enter through a smaller gate and was stopped by a guard who told him he had orders not to allow anyone into the plant Emanuel inquired about his paycheck and was told to obtain it at the north gate. Emanuel further testified that after this incident he returned to the union meeting. Lester Myers testified without contradiction that on March 6 between 2 45 and 3 p. m. he was returning to the plant from Tampa, Florida, in a company truck when he saw a group of employees standing out in the street in front of the plant. The guards allowed Myers to enter the gate with his truck He stated he saw some 25 to 50 people standing around on the outside of the plant. Upon leaving the plant by the south gate, Myers stated he saw only the guard stationed there and that no employees were present. Similarly employees Kenneth MacWatters and J. B. Worsham, who reported for work on the third shift at I i p m., testified that they found the gates locked and the plant not operating. Both were refused admit- tance to the plant. As previously noted the vote of the membership to reject the contract and to go out on strike was taken at 4 p m Balfour, a union bargaining committee member, who attended the union meeting testified that after the contract was read it was about 20 minutes to 4 or after that, and some of the men started to "squawk" about being locked out. The General Counsel however did not adduce any other evidence from employees that they spoke to the gathered membership, before the actual strike vote was taken at the union meeting regarding the fact that they were unable to gain admittance to the plant. At about 5 p m. Walker informed Personnel Manager Burton of the action taken at the union meeting, namely the rejection of the Respondent's third contract pro- posal and the strike which would take place on March 9 if the Respondent and the Union did not reach an agreement in the meantime Walker also told Burton that the employees were ready to go back in the plant at that time. Burton replied that "it's not necessary for them to come back in." On March 7, Walker and Dillard in behalf of the Union met with Longacre and Clarke and Federal Mediation and Conciliation Service Commissioners McAllister and Duncan at the Hillsboro Hotel in Tampa, Florida. The Union and the Respond- ent stated their respective positions to the conciliation commissioners. No ground for settlement was found by either side. The Respondent thereupon stated that all of its contract proposals previously submitted were withdrawn. On March 9, the Union began picketing the plant. C. Events subsequent to the inception of the strike On or about March 11, 1953, the parties met again. In addition to the regular Respondent's representatives, Personnel Director Wallace entered the negotiations for the first time. Representatives of the Federal Mediation and Conciliation Service were present and explored the possibility of a settlement. The parties stated their positions. No ground was found for settlement and the meeting adjourned. On April 1, 1953, the Union filed its original unfair labor practice charge with the Atlanta Regional Office of the Board. Sometime after the filing of the charge and before the negotiation meeting of April 17, Mitchell, in a telephone conversation with Longacre, requested that the Respondent meet with the Union to continue the negotiations. Longacre remarked that the Union had filed unfair labor practice charges and that the Respondent would not meet with it until the charges were withdrawn. Mitchell implored Longacre to meet with the Union "anyway" which Longacre refused to do. The record reveals that a withdrawal request of the unfair labor practice charges was filed by the Union under date of April 16, 1953. On April 17, 1953, while the strike was still in progress the parties again met. In addition to the representatives of management previously noted there were in attendance Mark Candee, Respondent's vice president and general counsel, and one Chell The union bargaining committee was augmented by the presence of Walter Mitchell, International vice president. Representatives of the Federal Mediation and Conciliation Service also attended. The record does not reveal whether the April 17 meeting was scheduled before or after the filing of the April 16 withdrawal request of the unfair labor practice charges previously insisted upon by the Respond- ent before it would again meet with the Union in a negotiation session. The April 17 meeting was opened by the conciliation commissioner. Mitchell, according to Walker, made the statement that it was his understanding that no meeting could be held until the unfair labor practice charges had been withdrawn. He thereupon asked Candee if that was right and Candee replied yes. A stipulation CLINTON FOODS, INC. 259 received in evidence sets forth that after the opening of the meeting by the United States conciliator, Mitchell held a copy of the withdrawal request in his hand, that upon seeing said copy in Mitchell's hand, Candee requested the copy which Mitchell gave to him; that Candee made no other comment or remark with respect to said withdrawal request The meeting then proceeded with the parties outlining their differences with a view to reaching agreement. Seniority, union activity on com- pany time and property, wages, rate ranges, and a strike-settlement clause were discussed. Respondent stated that it believed there was "a definite basis for explora- tion in the end of the season layoff" and suggested a "different yardstick" for within season layoffs. With respect to the clause "no Union activities on Company time or property" the Respondent thought that it could submit a clause which would be acceptable to both parties With respect to wages the Respondent made the state- ment that it was a "tough issue" and it did not think it would be able to do anything about it at that meeting. On rate ranges the Respondent promised to explore the possibility of establishing an automatic progression system instead of the existing merit system. With respect to the strike-settlement clause the Respondent made the statement that it would be hard on "the people the Company had hired" and asked for a suggestion from the Union. During the course of the meeting the Respondent voluntarily gave the Union a schedule of comparative wage rates in the citrus industry including the Respondent's plant. The meeting then adjourned. On April 27, Walker handed Plant Superintendent Clarke the following letter- On this 27 day of April 1953 Local 514, International Chemical Workers Union makes unconditional application for return to their jobs of all employees indi- vidually and collectively. Those employees who have not been informed of this action will make unconditional application upon notice. Very truly yours, T. T. WALKER, International Representative International Chemical Workers Union. Walker asked Clarke after handing him the letter if it was sufficient Clarke answered in the affirmative. Clarke then inquired of Walker if "that" means there would be no more meetings. Walker stated that the Union stood ready and willing to meet at any time and that he assumed meetings would continue. On or about April 24, Mitchell orally requested the Regional Office of the Board to rescind the Union's withdrawal request of the unfair labor practice charges pre- viously filed on April 16 John Getreu, Regional Director of the Board's Tenth Regional Office advised Mitchell by letter dated April 24 that in accordance with his oral request the Regional Office of the Board was considering the recision of his recently filed request for withdrawal of the charge and reassigning the case to a field examiner for the completion of the investigation. On May 6, the parties met again in a negotiation meeting in the presence of the Federal Mediation and Conciliation Service commissioners. Comment was made by Wallace, on behalf of the Respondent, that since the unfair labor practice charges had been iemstated by the Union it threw a cloud over the meeting and nothing could be gained by such a tactic. He stated further that the purpose of doing it was for collective bargaining. The Union responded with the comment that the unfair labor practice charges were not reinstated with a view to gaining the upper hand in the collective-bargaining relationship and that the Union was still ready to reach an agreement with the Respondent The parties were then separated by the conciliation commissioners and the Respondent submitted a 14-point proposal to the Union as follows No wage increase, time and a half only after 40 hours, no paid holidays and no additional holidays; no shift differentials, no checkoff of union dues, no reporting time pay, call-in pay for 3 hours of straight-time pay; no grievance committee as agreed to previously but in its place an employee with a grievance could process the same through a shop steward; sectional seniority, no union activity on company time or property, leave of absence based on individual requests but none for union business, termination date of contract to be as of the certification date September 11, 1953; no automatic restoration of employees, ii and iiAt the March 6 negotiation meeting the Union requested a clause granting back pay to an employee reinstated tinder the grievance procedure A conipromise was ieached on this agreement during the March 6 meeting 369028-5 6--v of 112-18 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a strike-settlement clause.12 The Union then counterproposed with the following: ,(1) Seniority on a plantwide and departmental basis, ( 2) 7 percent wage increase ,across the board; ( 3) 5 paid holidays , straight time if not worked and double time if worked ; (4) shift differential of 4 cents for the second shift and 6 cents for the third shift; ( 5) automatic progression on wage ranges based on time factors as discussed in the meeting of April 17 , 1953 , ( 6) contract tentatively agreed to on March 6, 1953 ; ( 7) either eliminate entirely the no-union activity on company time or property clause or qualify the same in accordance with discussion of the negotia- tion meeting of April 17, 1953, and ( 8) a strike-settlement clause which would in- clude the return of strikers to jobs without discrimination , correct any discrimination in effect at the present time, back pay for all employees "locked out," back pay for all lost wages from date of application by the Union , adequate time to report for work after notice the job is available to all employees out of the area. The conciliation commissioners then called the respective parties back into joint session at which time they discussed their individual proposals and were unable to reach agreement. Another meeting was called for and held June 12 , 1953. It was presided over by the commissioners of the Federal Mediation and Conciliation Service. Respond- ent after studying the proposals of both sides reported to the meeting that it had scraped the barrel and offered no changes in its position taken in the meeting on May 6. It explained that it wanted to clarify the "strike-settlement clause " and that it did not intend to have such a clause confused with the unfair labor practices charges which were pending before the Board. Mitchell on behalf of the Union stated that if there was no change in the Respondent's position the Union did not change its position with the result that the meeting was recessed. No further meetings were held to discuss a proposed contract as a whole. Or or about September 12, Personnel Manager Burton spoke with Walker and requested that the Union 's representatives attend a meeting with the Respondent to discuss bonus and incentive payments. At the June 12 meeting the Respondent ex- plained that it wanted to put into effect a production bonus plan . It related that the details had not all been worked out and a discussion then ensued on such plan. The Union read a prepared statement in which it expressed its opposition to any bonus plan for the reason that it would be available to only part of the employees and would discriminate against employees in the bargaining unit. The Union gave several other reasons for its opposition to the bonus plan. In the course of the further discussion Mitchell inquired what would be done if the Union decided that the proposed bonus plan would be a bad thing and made a request that it not be put into effect. Wallace stated that it would be put into effect anyway , that Respondent was not thereby taking anything away from the employees but was trying to help them. The Respondent indicated that it would be willing to bargain on the produc- tion quotas under the proposed bonus plan. Similar meetings to discuss the pro- posed bonus plan were held between the parties on October 10 and December 15, 1953. The parties were unable to agree on any proposed bonus plan at the said meetings. At the last meeting held between the parties on December 15, 1953, the Respondent offered a 3 -cent an hour wage increase . At some later date which the witness was unable to recall, the Union stated it would accept 8 cents an hour and no agreement was reached on the matter of a wage increase No further meetings were held between the parties. Conclusions Regarding the Bargaining Engaged in During the Period October 3, 1952 13 and March 1953 , the "Lockout" on March 6, 1953; and the Strike It is the General Counsel's contention that the Respondent refused to bargain collectively in good faith with the Union, and that that was a cause 14 of the strike which took place on March 9, 1953. In addition the amended complaint spells out 12 specific instances of alleged per se refusals to bargain (set forth in detail in 19 On direct examination Walker testified that the Company through the conciliation service requested a "full settlement clause" which would settle all outstanding issues between the Respondent and the Union including the unfair labor practice charges before the Board On cross-examination however Walker stated that he understood the strike- settlement clause to relate only to back -pay claims , reinstatement claims, and not to the unfair labor practice charges pending 13 The original unfair labor practice charge in this matte, was served on the Respondent on April 3, 1953 The Section 10 ( b) date therefore is October 3, 1952 14 The other cause according to the General Counsel was the alleged lockout of the em- ployees on March 6, 7 , and 8 , 1953, which will be discussed hereinafter. CLINTON FOODS, INC. 261 the statement of the case ) some of which occurred before the strike , and which, according to the General Counsel were contributing factors in causing the strike. The General Counsel further contends in his brief that in spite of the many meetings, extended discussions , and concessions by the Respondent in the course of bargaining , "there can be no doubt that the strike was an unfair labor practice strike and not an economic strike," because of the numerous instances of per se refusals to bargain. We turn our attention therefore to the refusals to bargain which the Respondent allegedly engaged in before the strike and which have been characterized as per se by the General Counsel. The first of such per se refusals to bargain alleged in the amended complaint is that Respondent on and after October 23 , 1952, refused to bargain concerning a group insurance plan for its employees. The Union's proposed contract of October 1, 1952, contained a clause that group insurance be provided by the Respondent for its employees , such insurance to be the subject of negotiation and mutually agreed upon by the parties. I have found above that at subsequent bargaining conferences when the subject of insur- ance and hospitalization was raised by the Union , the Respondent in each instance replied that it was a closed matter,15 that the Respondent had changed plans, that no changes would be made in the insurance plan this year , and that he (Longacre) was not allowed to bargain on the matter. True, the Respondent did discuss the subject of insurance but with its mind made up that no changes would be made and only after it placed the Union on notice that such discussions would in effect be a waste of time. The record reveals that in spite of the Respondent 's persistent statements that it could not change its insurance plan and that it was not allowed to bargain on the matter , the plan which became effective October 1, 1952, was unilaterally revised in certain respects as of January 1, 1953.16 That group insurance is a subject on which Respondent is required to bargain collectively is too well established to require discussion. Standard Oil Company, 92 NLRB 227; Inland Steel Company , 77 NLRB 1 , enforced 170 F. 2d 247 (C. A. 7), cert. denied 336 U. S. 960. Indeed, the Respondent admitted its responsibility to bargain on group insurance on at least one occasion in the course of the bargaining negotiations. Even though Respondent discussed group insurance with the Union on several occasions it did so with a "closed mind" that there would be no change in its plan. On other occasions it declined outright to bargain on the subject. Accordingly, I find that by such action and by its unilateral action in amending the group insurance plan there was a refusal to bargain by the Respondent within the mean- ing of Section 8 (a) (1) and ( 5) of the Act. The amended complaint next alleges as a per se refusal to bargain that through- out the negotiations the Respondent refused to bargain concerning merit wage in- creases and promotions for employees within the bargaining unit and on and after February 26, 1953, refused to furnish information concerning the factors con- sidered in granting merit wage increases to employees. I have found that the matter of promotions was discussed at negotiation sessions on October 28 and December 1, 1952. The Respondent took the position that such matters were solely its responsibility, but that any unit employee feeling him- self aggrieved by such decision could resort to the grievance procedure up to but not including arbitration. In American National Insurance Company, 343 U. S. 395, the Supreme Court held that bargaining for a management functions clause which contained language on promotions similar to what Respondent proposed to the Union herein was not per se violative of the Act. It is clear from the record that the Union made its request for a list of all employees in the bargaining unit, their classifications and rates of pay, and informa- tion as to the method used by Respondent in determining merit increases within the rate range, on March 4, 1953, and not before . The Respondent agreed to 16 Under date of September 24, 1952, the Respondent filed an application with the Travelers Insurance Company for a group accident and sickness policy for its employees at several of its plants including the Dunedin plant. It also gave Travelers a $500 check as a binder for said policy The policy, while not executed until January 23, 1953, was made effective as of October 1 195)2 ii The only change in the policy between these dates was an increase in the "additional hospital expense benefit" which was raised to 15 times the daily room and board benefit from 10 times, at no extra cost to the employee 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD furnish it, and on March 9 gave the Union a list of all the employees in the unit showing classifications and rates of pay.17 The Respondent also explained to the Union that its procedure on merit increases was informal , that employees were judged periodically and that increases were granted upon the recommenda- tion of supervisors and foremen after review by the plant manager and personnel director.18 Upon the foregoing I find that prior to the date of the strike the Respondent did not refuse to bargain per se on promotions and merit increases nor on the furnish- ing of information on classifications, rates of pay, and methods of determining merit increases. The refusal by Respondent on and after November 28, 1952, to incorporate in any bargaining contract, a clause concerning the safety and health of its em- ployees, despite the fact that it agreed to comply with the provisions of the proposed clause is also alleged as a per se refusal to bargain. I have found above that during the first month of bargaining (meetings of October 23 and October 28) the Respondent stated that safety and health of the employees "wasn't anybody else's damned business" and it would not agree to a joint committee as the Union requested. At the November 28, 1952, meeting while it would not agree to a safety and health clause in a contract, it did agree to continue to furnish and maintain protective cloth- ing and equipment for the safety and health of the employees and expand this service when necessary. It also agreed to the participitation of two union representatives on the existing plant safety committee, but without "voice" in the formulation of policy. At the March 6, 1953, meeting the parties agreed to a contract clause covering safety and protective clothing. Thus it is obvious that as negotiations progressed the Respondent granted concessions on the safety and health clause as demanded by the Union. The law is clear that it is a violation of the Act for a party to refuse to execute a written contract incorporating any agreement reached by the parties in collective- bargaining negotiations . Section 8 (d) of the Act. H. J. Heinz Co. v. N. L. R. B, 311 U. S. 514. Indeed, if we had merely to consider Walker's testimony , that after reaching agreement on additional items including the safety and health clause at the March 6 negotiation meeting the Respondent did not agree to include them in a written contract, there would be no problem . However, the record reveals that the negotiation meeting had already adjourned , the Respondent's representatives left the meeting place, and it was at this point that Walker requested Commissioner McAllister of the Federal Mediation and Conciliation Service to inquire if Respondent would put into writing the clauses which were mutually agreed upon at the meeting . Commis- sioner McAllister , according to Walker, came back with the answer "no." Thus it is clear that there is no probative evidence that the request was ever communicated to the Respondent either by Commissioner McAllister or the Union and we are left only with Walker's hearsay testimony , on which I will not base a finding. On the other hand, the record reveals that when Respondent submitted its second and third contract proposals to the Union , there was included in writing the changes in various clauses agreed to by the parties in the intervening bargaining sessions between the writ- ten proposals . Based on such actual experience there is no reason to believe that if final agreement was reached by the parties the Respondent would not have incorpo- rated same in a written contract . Upon the foregoing I find that Respondent did not refuse to incorporate a safety and health clause in a written contract as alleged in the amended complaint. It is the General Counsel's contention as set forth in his brief that there are many instances throughout the bargaining negotiations of the Respondent withdrawing cer- tain proposals made by it, in some instances already agreed upon by the parties. The amended complaint specifically alleges as a per se refusal to bargain the withdrawing by Respondent on February 19, 1953, from an agreement previously reached by it with the Union on a seniority clause to be incorporated in a proposed collective- bargaining agreement. The Union's original contract proposed a combination of plant seniority and de- partmental seniority. Plant seniority was to prevail over departmental seniority in layoffs and rehiring, whereas departmental seniority was to prevail over plant seniority in promotions and demotions . The Company's original proposal provided only for 17 Previously the Respondent had attached to its contract proposals a list of the rate ranges for each classification. 18 It is noteworthy that at the April 17, 1953, negotiation meeting when the subject was again discussed the Respondent stated it would investigate the Union's suggestion of the establishment of an automatic progiession system within the rate range. CLINTON FOODS, INC. 263 departmental seniority . The seniority clause was perhaps one of the most thoroughly discussed issues between the parties throughout the course of the bargaining negoti- ations. After protracted discussions the Respondent capitulated to most of the Union's demands on this issue and at the November 24, 1952, meeting submitted a new seniority clause wherein seniority was broken down into plantwide and depart- -mental. Thereafter the Respondent's second contract proposal of February 1953, which contained the November 24, 1952, seniority clause was discussed and the parties were for all practical purposes in agreement. This picture changed however when the Respondent at the February 12, 1953, meeting told the Union that it was faced with a problem on seniority and desired to discuss it further. The record reveals that at about this time the Respondent was laying off people engaged in the citrus juice processing operation because the midseason juice processing was about to end. The season actually ran from December 15, 1952, to February 25, 1953 Some of the employees were transferred to the me- chanical operation . The Union urged Respondent not to change the position pre- viously agreed upon particularly since its membership had been apprised of it and it was acceptable to them. The Respondent appeared at the February 19, 1953 , meeting with a new written proposal on seniority which did away with plantwide seniority and in its place sub- stituted sectional seniority The Respondent explained that because its mechanical operation 19 was so completely different and separated from the citrus processing operation , it could not operate under plantwide seniority . After further discussion on this issue the Union also changed its position and at the meeting asked for plantwide, departmental, and sectional seniority to be applied differently to temporary layoffs and indefinite layoffs As heretofore found the Respondent's third contract proposal of March 4, 1953 , provided only for sectional and departmental seniority. While under certain circumstances an employer 's change of position may be indicia of bad faith in collective bargaining , N. L. R. B. v. National Shoes, In., 208 F. 2d 688 (C. A. 2), N. L. R B. v Taormina Co., 207 F. 2d 251 (C. A. 5), I am unable to find any cases which hold it to be a per se refusal to bargain . Furthermore , in the instant situation the Respondent explained its reasons for its change in position and from all that appears in the record such reasons were bona fide and not made with an intent to avoid reaching agreement Indeed , the Union also changed its position on this issue to include sectional seniority among other types , an indication that it recognized such a problem existed. I find that Respondent did not refuse to bargain per se by withdrawing on February 19, 1953, a seniority clause previously agreed to by the parties. As found above the three proposed contracts submitted by the Respondent to the Union in the course of negotiations prior to the strike contained a clause prohibiting union activity on company time or property . The amended complaint alleges that the Respondent's insistence upon incorporating such a clause in any contract with the Union was a per se violation of Section 8 (a) (5) of the Act. I am unable to conclude on the basis of this record that even though Respondent incorporated the clause prohibiting union activity on company time or property in each of its contract proposals, its demands on this issue were beyond the negotiation stage and that an impasse had been reached on such proposal . The fact is that when this issue was discussed at the February 4, 1953 , negotiation meeting , the Respondent explained that the clause was not designed to cause anyone to lose his job, but was for a preventive purpose , namely, to stop employees from congregating in the plant dis- cussing union organization The Respondent made clear to the union representatives that it would not attempt to stop shop stewards from obtaining union authorization cards from new employees ,20 or prevent employees from talking to designated union officials about grievances within the scope of the grievance procedure . Further indi- cation that this issue was not beyond the negotiation stage appears from the fact that at the bargaining session held on April 17 , 1953, Respondent told the Union that it thought it could give it a clause acceptable to both parties. There is not a scintilla of evidence in the record to show that Respondent con- tinued to include the clause in each of its proposed contracts to favor antiunion employees as against union adherents. It is the Respondent's contention set forth in its brief that it was merely bargaining for the inclusion of the said clause in a contract which it had the right to do under the law. Indeed , the Board has previously given its sanction to bargaining contracts in It was then engaged in building pontoon bridges under Government contract. Dillard, president of the Union , testified that quite often vv bile at work be was handed signed union application cards and money by new employees . No one in management spoke to him about such activities 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which prohibit union activities by nonsupervisory employees on an employer's prem- ises during employees' nonworking hours. Fruitvale Canning Company, 90 NLRB 884; May Department Store Company, 59 NLRB 976; North American Aviation, Inc., 56 NLRB 959 I find based on the above and the record as a whole that the Respondent did not refuse to bargain per se by including a clause prohibiting union activities on com- pany time or property in its three proposed contracts. It is further alleged that the Respondent's attempt in or about January 1953, to persuade the union bargaining committee to withdraw from the Union and bargain unilaterally with it was a per se refusal to bargain. I have found above that the January meeting with the union committee was called by Respondent in an attempt to carry on negotiations and wind them up if possible. No negotiations however took place after Dillard remarked that whereas he did not know of anything to prevent him from negotiating, he would rather not do it in the absence of the International representative. True, Longacre stated that he saw no reason for having the International since Respondent had gotten along in the past and he saw no reason why it could not do so in the future. I do not construe such statement by Longacre as an attempt at unilateral bargaining with the three members as contended by the General Counsel in his brief. This is particularly so when we view the statement in context for shortly thereafter Longacre requested Dillard to reach Walker so that the parties could pro- ceed with the contract negotiations on the same level as previously. At most Long- acre's statement was an expression of opinion within the purview of Section 8 (c) of the Act. I find that Respondent did not attempt to persuade the union bargaining commit- tee to withdraw from the Union and bargain unilaterally with it. Having disposed of the alleged per se refusals to bargain prior to the strike, the next issue for decision is whether the totality of Respondent's negotiations during this period constitutes bad-faith bargaining within the meaning of the Act Within this framework, an important question to decide is whether Respondent's actions with regard to wages were indicia of bad-faith bargaining. While it does not appear from the record that the Union at the outset of the nego- tiations demanded any specific amount of wage increase, the question was discussed, with the Respondent taking the position that it would not grant a wage increase The Respondent's position remained firm until the December 1, 1952, negotiation meeting. As heretofore found, during the general discussion of money matters at the latter meeting, Longacre told the Union that it need not expect to receive any more than the 5-cent per hour across-the-board wage increase given the Respondent's Auburndale plant employees. Longacre was asked if that amount could be con- sidered as the Respondent's proposal. He laughed, said yes, and shook his head affirmatively. There is no evidence in the record that the Union accepted or rejected the offer at that time. The next across-the-board wage increase discussion was at the February 19, 1953, meeting at which time the Respondent changed its position. It denied to the Union that it had made an across-the-board wage increase offer at the December 1, 1952, meeting, and stated that even if it had made the offer, it was in effect retracting it and would not grant a wage increase. At the February 26, 1953, meeting the Union made its first specific demand for an across-the-board wage increase. It proposed a 16-cent per hour increase as one of the items in a 4-point wage program. The Respondent did not shift its position At the March 4, 1953, meeting the Respondent made a slight concession and offered a wage-reopening clause for October 1953, which the Union rejected. It appears clear from these findings and the record as a whole that the parties. were at all times from October 1952, to the date of the strike, negotiating in an at- tempt to arrive at an agreement in the matter of wages. Under these circumstances the Respondent's December 1 offer which was neither accepted nor rejected by the Union was not a settled matter 21 upon which it could not change its mind at a later bargaining conference. As the Board stated in its recent decision in R. J Oil & Re- fining Co., Inc., 108 NLRB 641, "Regardless of whether hasty or unreasonable with- drawals of specific concessions painstakingly achieved indicate bad faith in bargain- ing in a particular context, it does not follow that a party to collective bargaining is, in all contexts, rigidly bound to each and every tentative decision reached." 51 That it was not is borne out by the Union's subsequent demand for a 16-cent per hour increase CLINTON FOODS, INC. 265 I find that Respondent's retraction of its December 1 wage increase offer when viewed in the context of all of the bargaining sessions from October 1952 to the date of the strike does not indicate bad faith. The relevant mandate of the Act with respect to the duty to bargain is simple in language, but broad in its import. Both sides are required to "meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question aris- ing thereunder.. ' 22 While the duty to bargain "does not compel either party to agree to a proposal or require the makings of a concession," 23 it is well settled that the Act requires the employer to bargain in good faith with respect to the subjects, above mentioned and with a sincere desire to reach agreement. Willingness to meet, or merely meeting with a union does not satisfy the statutory obligation to bargain On the other hand, Respondent's failure to make concessions or the fact that an im- passe was reached on matters within the scope of compulsory bargaining do not, standing alone, establish the bad faith which is violative of the Act. The real issue is whether or not Respondent was dealing in good faith or engaged in mere surface bargaining without any intent of concluding an agreement on a give-and-take basis. N L. R. B. v Whittier Mills Co., 111 F. 2d 474 (C. A. 5); N. L. R. B. v. Athens Manufacturing Co., 161 F. 2d 8 (C. A. 5); N. L. R B. v. Tower Hosiery Mills, Inc, 180 F. 2d 701 (C. A. 5). The standards of good-faith bargaining must be applied to the facts of each case rather than by broad rules and prohibitions. N. L. R. B. v. American National In- surance Co, 343 U. S. 395. Where, as in this case, there has been no outright refusal to meet or bargain with the Union, but a series of meetings over a period of months without final agreement, the problem is a complex one. As the court said in N. L. R. B. v. Reed & Prince Manufacturing Company, 205 F. 2d 131 (C. A. 1) cert denied 346 U. S. 887, "in such a case the question is whether it is to be inferred from the totality of the employer's conduct that it went through the motions of negotiation as an elaborate pretense with no sincere desire to reach an agreement if possible, or that it bargained in good faith but was unable to arrive at an acceptable agreement with the Union." There is no evidence in the record from which it can be found or inferred that the Respondent approached the bargaining table with a fixed determination not to reach any agreement. As set forth in detail above the Respondent met with the Union in some 18 bargaining conferences prior to the date of the strike, submitted three bargaining contracts to the Union, and engaged in extended discussion not only on its proposals but on the Union's proposals as well. Furthermore, in the course of bargaining, the Respondent as found above did make concessions. True, the concessions were primarily as to noneconomic issues and with the exception of meeting the Union's demands for payment of wages to injured employees, equal distribution of overtime work, employees on probation to be paid not less than 10 cents below the minimum rate for the job on which he works, a reduction in the number of hours of annual work from 1,750 to 1,500 for vacation eligibility, and vacation pay in advance, no other economic concessions were made by the Respondent. However, as the Fifth Circuit Court of Appeals recently stated in Texas Foundries, Inc. v. N. L. R. B., 211 F. 2d 791, ". . . the failure of an employer to agree to terms deemed reasonable by the board is not a proper basis for finding that an employer has been guilty of bargaining in bad faith." The rule relative to good- faith bargaining is well stated in N. L. R. B. v. Cherokee Hosiery Mills, 196 F. 2d 286 (C. A. 5), as follows: "It is true that the parties were unable to reach an agreement, but that of itself does not constitute a refusal to bargain Not capitulation but bona fide effort is the criterion." In spite of the finding previously made that Respondent refused to bargain on the subject of insurance, I find based on the above and the substantial evidence in the record as a whole, that Respondent during the period October 1952 to the date of the strike, bargained hard but did not fail to bargain with the Union in good faith. Was the shutdown of the plant on March 6, 1953, an illegal "lockout" as alleged in the amended complaint? The Board has held in certain circumstances that if it was in reprisal for or to checkmate the threatened strike activity of the employees, the Act has been violated. See Spalding Avery Lumber Co., 103 NLRB 1516; Continental Baking Co., 104 NLRB 143. The burden of proof is upon the General Counsel to establish his allegations by a preponderance of the evidence. I have found above that at the conclusion of the March 4 negotiation meeting Longacre told Walker and Dillard that it appeared to the Respondent there would 22 Section S (d) of the Act. ' Ibut. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be a strike and requested the union representatives to agree to maintenance coverage of the plant. Walker and Dillard did not deny that there would be a strike nor did they attempt to disabuse Longacre's mind of the imminence of a strike. On the contrary they readily agreed to Longacre's request. In addition to the above noted conversation it appears that the Respondent had other notice of the imminence of a strike from the general talk around the plant. Thus Johnie Bowden, a third shift employee testifying as a witness for the General Counsel, stated that about a week before March 6, employees working around him, who were union members, told him the Union was going to have to call a strike. The walkout of the plant employees at 2:30 p. m. on March 6, before the com- pletion of the first shift, resulted in a complete shutdown of the plant so far as the first shift was concerned. Since the union meeting was called for 3 p. m. and it was expected that employees on all shifts would attend, it was not unreasonable for Respondent to assume that the second shift employees would also attend In view of these circumstances and the imminence of a strike of which Respondent had notice, I can only infer that the shutdown was the result of the exercise of reasonable business prudence by Respondent. Upon the conclusion of the union meeting Walker informed Personnel Manager Burton of the membership's action and that the strike would commence on the morning of March 9, if the parties were unable to reach agreement on a contract in the interim. It will be recalled that at the negotiation meeting that day Re- spondent gave the Union its final contract proposal and indicated it would withdraw the proposal if the same was rejected by the Union. Walker advised Burton that the employees "were ready to go back in the plant at that time." 24 Burton stated it was not necessary for them to come in. It must be borne in mind that this was a Friday afternoon, and Respondent had notice of the strike to take place Monday morning; the mid-season juice processing operation was shut down on or about February 25, 1953, and did not commence again until about April 13, 1953; and that only a small percentage of the employees worked on Saturday or Sunday.25 In effect what the Union was asking for when it stated the employees were ready to go back in the plant on Friday at 5:30 p. m. but would be out again on strike on Monday morning if agreement on a contract was not reached in the meantime, was that Respondent accommodate several shifts of employees who were willing to work until the strike became effective. Under such circumstances I do not think it was unreasonable for Respondent to have kept its plant gates closed to await the strike on Monday morning. Of significance is the fact that no evidence was adduced by the General Counsel to show that the shutdown of the plant was motivated by union animus or that it was in reprisal for the threatened strike. Of further significance is the fact that there is no proof in the record that during the course of bargaining up to March 6 Respondent engaged in antiunion conduct. On the basis of the above and the record as a whole, it is my opinion that the General Counsel has not sustained the burden of proving that the shutdown of the plant on March 6 was discriminatory, in violation of Section 8 (a) (3) of the Act. In view of my conclusions that the General Counsel has not proved that the Respondent failed to bargain with the Union in good faith up to March 6, 1953, and that the plant shutdown was not discriminatorily motivated, it follows that the strike of the employees which commenced on March 9, 1953, was an economic strike and I so find. In arriving at this conclusion I have considered the finding previously made that Respondent's refusal to bargain with the Union on insurance and hospitalization was violative of the Act. However, since this was the only unfair labor practice prior to the strike it must be determined whether such conduct was the causal relationship to the strike. On the basis of the record as a whole, I am convinced that there was no causal relationship between the Respondent's refusal to bargain on insurance and the strike. Thus it appears that at the March 6 negotiation meeting, the Union did not include insurance as one of the essential issues before agreement on a contract could be reached. Moreover, it appears clear that strike action was taken by the Union because of its failure to obtain a complete collective-bargaining agreement and not because of the isolated action of Respondent in refusing to bargain on insurance. See Jordan Bus Company and Denco Bus Lines, Inc., 107 NLRB 717. 24 It was then 5 30 p in Although Kinsey a maintenance worker , testified he worked on Saturdays and Dix, an emplovee in the receiving department testified he was scheduled to report for work on Saturday March 7, to help unload sonie freight cais, it does not appear front the record that production employees worked on Saturdays or Sundays CLINTON FOODS, INC. 267 Conclusions Regarding the Bargaining During the Pendency of the Strike and Thereafter Requiring the Union on or about April 15, 1953, to withdraw an unfair labor practice charge filed against Respondent with the Board, as a condition precedent to further contract negotiations is alleged in the amended complaint as a per se refusal to bargain. The General Counsel also contends in his brief that such insist- ence by the Respondent of the withdrawal of the charge as a condition to execution of a bargaining contract or further bargaining meetings converted the economic strike into an unfair labor practice strike. I have found above that subsequent to the strike but sometime prior to April 17, 1954, Mitchell requested Longacre to set a conference with the Union to resume bargaining negotiations Longacre replied that the Union had filed unfair labor practice charges with the Board 26 and Respondent would not meet until the charges were withdrawn. Mitchell asked that the parties meet in spite of the filing of the unfair labor practice charges, but Longacre refused. A withdrawal request of the unfair labor practice charges was thereafter filed with a Board field examiner under date of April 16, 1954. The parties met in a negotiation meeting on April 17, 1954.27 There is a conflict in the record as to the remarks of Mark Candee, Respondent's vice president and General Counsel, at the opening of the meeting 28 which I find unnecessary to resolve in view of the finding hereinafter made. The meeting pro- ceeded amicably and the record establishes that the parties bargained in good faith. As heretofore found the discussions related to seniority, the "no union activity on company time or property," rate ranges, strike settlement clause, and wages. The Respondent also gave the Union a comparative schedule of rates for the different citrus plants in Florida. On April 27, the Union terminated the strike upon the submission of a letter (copy set forth in detail above) by Walker to Clarke. It is a well-established principle that the filing or pendency of unfair labor practice charges does not relieve an employer of his duty to bargain. See N. L R B. V. Taormina Co., supra; The Borden Company, 108 NLRB 807. Thus, by Longacre's refusal of Mitchell's request to set a bargaining contract for the resumption of nego- tiations with the Union, the Respondent violated Section 8 (a) (5) and (1) of the Act, and I so find. We turn next to the General Counsel's contention that by the commission of this unfair labor practice, the strike then in force, which I have found to be economic was converted to an unfair labor practice strike. As the Board stated in its decision in Harcourt and Company, Inc., 98 NLRB 892: It is well established that an employer's unfair labor practices during an eco- nomic strike do not per se convert it into an unfair labor practice strike, absent proof of causal relationship between the unfair labor practices and the pro- longation of the strike.2i nAnchor Rome Mills. Fnc, 86 NLRB 1120; De Soto Hardwood Flooring Co, 96 NLRB 382 In the Anchor Bonk Malis, Inc, case the employer wrote to three striking employees stating that they would be discharged if they did not apply for their jobs by a ceitam (late The Board found the letter to be a violation of Section 8 (a) (1) as an attempt to undeimine the union's representative status, but refused to adopt the Trial Pxaminei's finding that thereby the employer prolonged the stiike and con- verted it to an unfair labor practice strike It was also found that threats, assaults, and other acts of violence by the eniployei's agents upon pickets and strikers while constituting a violation of Section 8 (a) (1) did not prolong the strike and convert it to an unfair labor practice strike See also illijcrs Product Corporattion, 84 NLRB 32, 51. where the employer's conduct in terminating the employment relationship of strikei s during a strike n as found not to prolong the strike Cf De Soto Hardwood Flooring Co . 96 NLRB 382, where the Board found that the strike, econoinic in its inception. had been converted into an unfair labor practice strike by the withdrawal of the union's recognition (a per so violation of Section 8 (n) (5), the refusal to bargain with the Union thereafter coupled with its inaugura- tion of wage increase, and by the solicitation of stokers; Old Town Shoe Co, 91 NLRB 240, where the employer i efused to bargain with the Union during a lawful strike ° It will be recalled that such charges were filed on April 1, 1954, and served on the Respondent by iegisteied snail on April 3, 1954. 2i The iecord does not disclose the date of scheduling of the April 17 meeting. 18 Walker testified that 'Mitchell stated it was his understanding that no meetings would be held until the unfair labor practice charges were withdrawn to which Candee replied, 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the instant situation, the General Counsel did not adduce any evidence to show that the conduct which I have found unlawful above, in fact, prolonged the strike. The parties met on April 17, bargained in good faith, but did not reach agreement on the terms of the contract on that day. Indeed, the more reasonable inference is that the impasse over the inability to reach agreement on the terms of a collective- bargaining contract which caused the strike on March 9, and the continued failure to reach agreement at the April 17 meeting was responsible for the continuance of the strike until April 27. Upon the above and the entire record I find that the March 9 strike which I have found economic in its inception, was not converted into an unfair labor practice strike by the Respondent's conduct in refusing to continue negotiations with the Union until the withdrawal of the unfair labor practice charges. It is further the contention of the General Counsel that the Respondent engaged in unfair labor practices by its attempt to deal with individual strikers during the strike and by that means "break the strike by going around the Union and unilater- ally bargaining with the strikers." In this regard I find based on the credible testimony of employee Roy Holder which stands uncontradicted in the record that Jim Mobley, Respondent's plant superintendent, approached the picket line on a Sunday about 2 or 3 weeks after the commencement of the strike to talk with another employee, Emanuel. Holder heard Mobley tell Emanuel he would put him on a straight salary basis providing Emanuel woud first come back to the plant by ringing his card in as an hourly paid 'employee. Mobley also told Emanuel working conditions would be better. Employee Adrian Langford testified without denial that Mobley and Burton came to his home about a week after the commencement of the strike, talked generally about the strike, mentioned that the Respondent was in need of help at the plant, and inquired if he would come back to work. Langford stated he would not come back until "things straightened out " About a week later Mobley again called at Lang- ford's home on a Sunday morning and asked if he would consider a salaried job at the rate of $4,200 per annum and come back to work.29 Mobley told Langford he would have to punch in his card as an hourly paid employee for 1 day and then he would be shifted to a salaried basis. Upon Langford's inquiry why that proce- dure was necessary, Mobley replied that Langford would have to cross the picket line voluntarily and punch in his regular card so as "to keep from getting caught for unfair labor practices." It should be noted that at about the time of the first visit of Respondent's repre- sentatives, Burton and Mobley, to Langford's home, the Respondent posted a notice on its plant gates advising its employees that the plant was operating in all depart- ments in two shifts and those who wished to work should report to their foremen ,on their respective shifts. I find that the acts of solicitation of striking employees, Emanuel and Langford, to return to work which were accompanied by promises of benefits were violative of Section 8 (a) (1) of the Act. However, I do not agree with the General Counsel's contention that such acts were also violative of Section 8 (a) (5) and converted the economic strike to an unfair labor practice strike. The record shows that only 2 striking employees of approximately 600 were so solicited and at a time when the Respondent placed a notice on its plant gates which in effect invited all striking employees to return to work. These solicitations hardly seem intended as part of a campaign to under- mine the Union, as the strikers' collective-bargaining representative. Nor do they demonstrate that the Respondent sought individual rather than collective bargain- ing. Indeed, Respondent continued to meet with the Union in bargaining negotia- tions during the strike and on a number of occasions, months after the strike ended. Moreover, the record does not disclose that these acts of solicitation constituted an integral part of a pattern of illegal opposition to the purposes of the Act as evidenced by Respondent's entire course of conduct "Yes." Candee then requested a copy of the withdrawal and stated that he assumed the meeting could proceed On the other hand a stipulation between the parties received in evidence sets forth that Mark Candee, if called to testify, would have testified that dur- Ing the first portion of the April 17 meeting which was opened by a Federal mediation conciliator, Mitchell held a copy of the withdrawal request in his hand That upon seeing said copy, Candee requested the same, and Mitchell gave it to him. That at said meeting Candee made no other comment or remark with respect to the said withdrawal request. 20 Langford earned $3.200 as an hourly paid employee the previous year CLINTON FOODS, INC. 269 Another alleged per se refusal to bargain after the employees voted to strike is the withdrawal by the Respondent on March 7, 1953, of all offers and contract pro- posals previously made to the Union. I have found that at the conclusion of the March 4 negotiation meeting the Respondent told the union representatives that if its third contract proposal was rejected at the March 6 union membership meeting, it would be withdrawn It was rejected It has also been found that on March 7 the parties again met and in the presence of two Federal Mediation and Conciliation Service commissioners stated their respective positions regarding the terms of the collective-bargaining agree- ment. Since the parties were unable to find ground for agreement and since Re- spondent's final firm proposal 30 was rejected by the Union, the Respondent stated that its previous proposals were being withdrawn. I find in view of the Union's rejection of Respondent's final proposed contract and its decision to strike because of failure to obtain a contract, that Respondent was thereby relieved of whatever obligation it may have been under to adhere to the bargaining concessions previously made by it. 1 further find that in withdrawing its proposed contract it did not thereby violate the Act See Celanese Corp. of America, 95 NLRB 664, Cathey Lumber Co, 86 NLRB 157. Having found that the strike of the employees which began on March 9, 1953, was economic in nature and having further found that it was not converted to an -unfair labor practice strike up to April 27 when the Union notified the Respondent that it was abandoning the strike, it follows that Respondent's refusal to reinstate certain strikers named in Appendix A of the amended complaint did not violate Section 8 (a) (3), of the Act, as replacements had been hired for those employees who were not reinstated 31 In view of the finding above made, the unconditional request of the strikers for reinstatement set forth in the letter from Walker to the Respondent dated April 27, 1953, and his conversation with Clarke, is of no avail. As economic strikers they had been replaced before the demand to be reinstated to their jobs was made. Conclusions Regarding the Negotiations After the Abandonment of the Strike I have found above that subsequent to April 27 when the Union abandoned the strike, the parties met on May 6, June 12, September 12, October 10, and December 15. 1953, and continued their discussions, among other things, on contract proposals, bonus and incentive payments, and an increase in wages. It is alleged in the amended complaint that Respondent's insistence at the May 6 meeting on (1) a contract clause providing for the withdrawal of the pending unfair labor practice charges, (2) a clause terminating any contract entered into at the expiration of a period of 1 year after the certification of the International, and (3) the refusal to furnish the Union with information concerning the employees in the unit are pep se refusals to bargain in violation of Section 8 (a) (5) of the Act. At the May 6 meeting, as I have found above the parties exchanged contract proposals, discussed the various proposals, but were unable to reach agreement. It appears that during the meeting which was held under the auspices of the Federal Mediation and Conciliation Service, Respondent's representative, Wallace, made some comment to the effect that he understood the unfair labor practice charges had been reinstated, that as a result there was a cloud over the negotiations, and further the reinstatement of the unfair labor practice charges must have been done for bargaining purposes 32 In addition, while there was some talk of the pending unfair labor practice charges during the discussion of the Respondent's proposal on a full strike settlement clause it appears clear from Walker's testimony on cioss-examination that it was with ref- erence to back pay and reinstatement claims and was not to be confused with the pending unfair labor practice charges. No other evidence was adduced by the Gen- eral Counsel in support of this allegation. I find that Respondent did not on May 6, as alleged in the amended complaint, insist on a contract clause providing for the withdrawal of the pending unfair labor practice charges. One of the Respondent's 14 proposals at the May 6 meeting was that the termina- tion date of a contract be September 11, 1953, the anniversary date of the certifica- -10 will be recalled that this proposal contained concessions agreed upon by the parties at previous meetings 21 It was stipulated at the hearing that there were 621 hourly paid employees on the 3 shifts for the week ending March 7. 1953 During the week ending April 27, 1953, there were 627 hourly paid employees working at the plant ^ This finding is based on the uncontradicted testimony of Mitchell which I credit, 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of the International. This proposal as well as the 13 other proposals was dis- cussed during the meeting. True, no agreement was reached but the General Counsel did not adduce any evidence to show that Respondent's insistence on such a clause was the only difference between the parties and was the basis for the failure to reach agreement I find that the General Counsel has failed to adduce the necessary proof to sustain this allegation of the amended complaint. See also The Hinde & Dauch Paper Company, 104 NLRB 847. With respect to the Respondent's refusal to grant the Union information concern- ing employees in the bargaining unit, it appears that at the May 6 meeting Mitchell re- quested the Respondent to supply the following: (1) A list of employees promoted to salary jobs, the jobs to which they were piomoted, and whether such jobs previ- ously existed; (2) the jobs eliminated from the baigaining unit; (3) list of em- ployees who made application to be reinstated to their jobs and who have not been given their jobs, (4) list of employees who returned to work, their present jobs, and rates of pay; and (5) list of present classifications, rates of pay, and rate ranges for said classifications. Under date of May 15, 1953, Candee advised Mitchell by letter that he found after study of the requests that they were not relevant to the issues between the parties. The Respondent did not give the Union the requested information. Previous to this date Respondent gave the Union information on job classifications, rates of pay, rate ranges, and a comparative schedule of rates of pay in the different citrus plants in the State of Florida. Since the receipt of such information however, the employees engaged in a strike, some returned to their old jobs, others to new jobs, and new jobs were created So that it appears clear that the new information requested by the Union was necessary not only for effective bargaining but for the full development of collective-bargaining negotiations which were thereafter to fol- low. It does not appear that the Union's request was made for the purpose of harassing the Employer, as contended by the Respondent in its brief I find that Respondent in refusing to supply the information requested at the May 6 meeting violated Section 8 (a) (5) and (1) of the Act See Whitin Machine Works, 108 NLRB 1537, and cases cited therein. D. The alleged discriminatory discharges of George Dillard and Wallace Teal, the refusals to reinstate seasonal employees George Dillard was employed by the Respondent from October 1948 to August 1953. He was a premium mechanic receiving an hourly rate of $1 65. Dillard was president of the local union and a member of the negotiating committee. He attended all of the negotiation sessions and participated in the discussions Dillard left the plant at 2 30 p. in on March 6 with other members of the negotiating com- mittee to attend the union meeting He went out on strike with the other employees on March 9. Dillard applied for reinstatement on April 28 and was told to report for work the next morning at his old job with the same salary. Prior to the strike, Dillard in his job of fabricating machinery was handed blue- prints, told by a supervisor what had to be done, and left alone to complete the job He had the use of a welding machine and acetylene generator. On occasion other employees on Dillard's shift used the machines when he was not using them. He also had a locker and a space cleared where he did his work. Upon his return to work following the strike Dillard stated he was not assigned a welding machine or acetylene generator. He would have one I day and be required to look for another the next day if he had need of one He was not assigned a regular area to work in but was required to clear a space where he could perform his job. On August 17 Dillard returned to the plant from a 2-week vacation. He was handed a set of blueprints to fabricate an evaporator. After studying the prints, Dillard talked with Foreman Kling about the method of building the parts and as- sembling them. Dillard told Kling that the shell which had previously been rolled in Tampa, Florida, and brought to the plant, would just have to lie around, in the way, if it was assembled before the parts were built. Kling agreed with him. The following morning Dillard cleared a space and started to lay out some of the evaporator parts preparatory to assembling them when Supervisor West came by and told Dillard that he wanted the shell put together first. Dillard explained that he was crowded for space, that there was no other place in the plant that he could work, and that he could not lay out the parts simultaneously with putting down the shell. 33 West told Dillard "he didn't give a damn whether the parts were together or Dillard testified that if he put the shell down it would have required more space than he had just cleared. CLINTON FOODS, INC. 271 not." and insisted that the shell be assembled Dillard admitted that he disagreed with West's instructions on how to proceed and thereupon "I guess I lost my temper, and I quit." It is the General Counsel's contention set forth in his brief that Respondent's treat- ment of Dillard following the strike was one of constant harassment, calculated to bring about Dillard's constructive discharge I disagree. While Dillard 's working conditions subsequent to the strike were such that his assigned tasks may have become slightly more difficult to perform and less to his liking, I cannot agree that the said conditions were onerous and made for the pur- pose of provoking his resignation Rather, it is clear that Dillard was displeased with Supervisor West's instructions to him on the method of fabricating the evaporator, and in his own words "lost [his] temper, and [he] quit." Accordingly it will be recommended hereinafter that the allegation in the amended complaint that Dillard was forced to resign from Respondent 's employ because of his membership in and activities on behalf of the Union be dismissed Wallace Teal commenced his employment with the Respondent as an electrician in October 1952 He was a member of the Union and participated in the strike of the employees on March 9 Subsequent to the abandonment of the strike , Teal sent a registered mail letter to the Respondent applying for reinstatement to his job. In June 1953 he was given employment as a machinist 's helper at $ 1.01 per hour.34 He was assigned to fixing electrodes on welding machines and taking care of cables. In August or September 1953 , Teal was told to report to the personnel office where he was interviewed by Personnel Manager Burton and Supervisor West. Burton reading from a little red book 35 told Teal that union activity on company time or property was prohibited . Teal inquired if Burton objected to union member- ship and the latter replied "no, more power to you." Before releasing Teal, Burton added that he was being warned. On December 31, 1953 , Teal was again notified to report to the personnel office. He saw Burton and West, was handed his pay, and told he was being terminated for engaging in union activities. It is clear from the record that subsequent to the abandonment of the strike, conversations about the Union in the plant were engaged in by most employees because as Teal testified "ii was a current event." Teal testified without contradiction that whereas he participated in conversations where union organization and activity was mentioned, he did not initiate them nor did he solicit union membership on company time . He stated further that after Burton "warned him" he made every endeavor to avoid conversations regarding the Union while he was at work. It is noteworthy that Respondent permitted solicitation for various causes, church, charitable, and personal on company time. It does not appear from the record that any other employees were ever discharged or otherwise disciplined for engaging in any activity on company time. In fact the Respondent did not offer any evidence in defense of its discharge of Teal. That Teal was discharged for engaging in union activities remains undisputed in the record. By reason of the disparate treatment aforenoted I find that by discharging Teal on December 31, 1953, Respondent thereby violated Section 8 ( a) (3) and (1) of the Act. The amended complaint alleges a violation of Section 8 (a) (3) in that on or about April 27, 1953, a group of seasonal employees ,36 who had previously been ''" As an electrician piioi to the strike, Teal received $1 30 or $1 35 per hour " This book was hitei identified and received as an exhibit in evidence It is a printed agreement between the Respondent and International Association of Machinists Lodge No 570 in existence fioni October 29, 1951, to October 1952 Tt contains a clause as fol- lows . "The Union agrees that neither it nor any of its officers or members of the bargain- ing unit will engage in any union activities on company 1 mie or piopeity except as herein provided " J6 The group listed in Appendix B of the amended complaint consists of the following Lucile Osteen , Gladys Boyd , Eva Roach , Betty LeF.ivour, Louise Emanuel , Tassie Emanuel, Joyce Scarbrough, Bessie Andrews , Alma Sapp, Dorothy Ammons, Florence Elden, Elina Baxter , Ruby Mercer, Annie Pi ivette Gladys Geigei, Alice Balfour , Loraine Tucker, Geoigia Smith , Retlia Morrison , Thelma Collins , Gladys Black, Nancy Conn , Iva Myers, Susie Deas, Louise M Kolilmeyer, Beitie E Moore, and Helen B Sandeison At the hearing the amended complaint was fuither amended without objection to delete Thelma Collins and .to add Maude Powell to Appendix B 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD temporarily laid off, applied to Respondent for reinstatement to their former or substantially equivalent positions which was refused them because of its belief that they were members of the Union and had engaged in activity on behalf of the Union and particularly that they had engaged in the strike previously described, and further because of the union membership and activity of the husbands and relatives of said employees and particularly because the husbands and relatives of said employees had engaged in the strike. It was stipulated at the hearing that with the exception of Louise Kohlmeyer, Bertie Moore, and Helen Sanderson all of the employees listed on Appendix B were in a laid-off status when the strike commenced and requested reinstatement following the strike. No evidence was offered by the General Counsel regarding Kohlmeyer, Moore, and Sanderson to identify them as employees against whom discrimination in violation of the Act was allegedly committed. Under the circum- stances it will be recommended that the allegation of the amended complaint as to them be dismissed. Laid-off employees Osteen, Boyd, Roach, Andrews, Sapp, Ammons, Tucker, Morrison, Black, Myers, and Deas did not appear at the hearing to testify. Nor did the General Counsel adduce any evidence regarding the said employees indi- cating that they were members of the Union,37 or that they were associated in any manner with the strike or picket activities. An employer has the right to lay off, discharge, or refuse to rehire employees for any reason or no reason so long as the termination is not brought about because the employee has engaged in an activity protected by the statute. Associated Press v N L R. B., 301 U. S. 103. Since the General Counsel has offered no evidence to prove discrimination against Osteen, Boyd, Roach, Andrews, Sapp, AmmQns, Tucker, Morrison, Black, Myers, and Deas it follows that the allegation in the amended complaint as to them must be dismissed and it will be so recommended hereinafter. The record reveals that laid-off employees Betty LeFavour, Louise Emanuel, Tassie Emanuel, Joyce Scarbrough, Florence Elden, Elma Baxter, Ruby Mercer, Annie Privette, Nancy Conn, and Maude Powell engaged in picketing activities at Respondent's plant during the strike. While Alice Balfour and Georgia Smith did not walk the picket line during the strike, their husbands did, and as previously noted William Balfour was a member of the Union's bargaining committee and a leader in union activity at the plant. As previously found, picketing by the striking employees started at the plant gates on the morning of March 9. On or about March 17 Respondent posted on the plant gates a "Notice To All Employees" advising them that the plant was operating in all departments on two shifts and informing those who wished to work to report to their foremen on their respective shifts. It was stipulated at the hearing that the Valencia orange processing season started on April 13. None of the 12 seasonal employees who had walked the picket line or whose husbands were pickets reported at the plant to work when the Valencia season started. They did not apply for their jobs again until April 27 when the Union abandoned the strike and when most of the other striking employees applied for reinstatement. By that time, however, the record reveals there were 38 new graders in the Re- spondent's employ, either newly hired or hired as replacements. Even assuming, as the General Counsel contended, that laid-off seasonal workers were usually called back at the beginning of each juice processing season,38 since the picketing seasonal employees chose to cast their lot with the striking employees and remain out of the plant while the strike was in progress and indeed join the striking employees on the picket line, the Respondent while such conditions continued to exist, owed them no duty to notify them that the processing season started and to report for work. By the activity above described the seasonal employees clearly displayed to the Respondent that they did not intend to work while the strike was going on. Moreover, it is hardly conceivable that they should be in any better position than the striking employees whose jobs were filled by replacements during the economic strike. Since the jobs of graders were filled by replacements prior to April 27, 17 it should be noted that the amended complaint specifically excludes seasonal employees from the appiopilate unit represented by the Union herein "'Three is a conflict in the record on this point Four witnesses testified that imme- diately prior to the processing season they would advise the personnel department of their- availability to work and thereafter they would receive a telephone call or be notified by mail, when to report Five witnesses testified that Mien the season started they were- notified to report for iaork either by telephone or mail. CLINTON FOODS, INC. 273. Respondent's refusal to give them employment at that time was not violative of the Act and I so find. It has been found that neither Balfour nor Smith walked the picket line but that their husbands were active strikers and on the picket line . They did not apply for their jobs until after the abandonment of the strike on April 27 . Replacements al- ready filled their jobs. In view of the fact that their husbands were on the picket line and they did not report for work when the processing season opened on or about April 13, it was reasonable for Respondent to assume that they , like their spouses, did not choose to cross the picket line . They, therefore , were in a similar position_ to those seasonal employees who walked the picket line and were replaced by other employees I find no violation of the Act in Respondent's refusal to give Balfour and Smith jobs as seasonal graders on or about April 27. The record reveals that Baxter, Elden, Conn, Mercer, and Powell were given employment for about a week or 10 days towards the end of the processing season in June. Balfour and Smith were offered employment at about the same time on the second or third shift which, they refused to accept . Privette was not offered employment. It is the General Counsel 's contention raised in his brief that in spite of the fact that many of the seasonal employees listed on Appendix B made personal applications for jobs in the fall of 1953 ,39 they were discriminatorily denied employment The General Counsel adduced evidence from Mercer, Conn, Privette , and Baxter that they applied for employment in November 1953. The record is silent as to applications for employment in November 1953 by the other employees . Nor did the General Counsel adduce any evidence regarding the number of seasonal employees actually working in November 1953, or whether jobs were available for the above-noted employees who applied There is a slight suspicion of discrimination raised as to, Baxter who testified that she was advised by Sally Marsden , a personnel assistant in the Respondent's employ, to look for another job However, the burden is on the General Counsel to prove not only that there were jobs available for these seasonal, employees but in addition that in refusing them employment it was for discriminatory, reasons This I find he has failed to do . Consequently this allegation in the amended complaint must be dismissed because of failure of proof. Gladys Geiger, the last of the laid-off seasonal employees listed in Appendix B, was offered her job back during the strike. She refused it, because she did not care to cross the picket line She was replaced . I find no violation of the Act as, to Geiger. She was offered employment in June which she refused. She was not thereafter employed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection, with the operations of Respondent described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free_ flow of commerce. V. THE REMEDY Since it has been found that Respondent has engaged in certain unfair labor prac- tices it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent has refused to bargain with the Union as the. exclusive representative of its employees in the unit found herein to be appropriate within the meaning of Section 8 (d) of the Act on the subject of insurance and hos- pitalization, and upon its insistence on the withdrawal of pending unfair labor prac- tice charges, and by its refusal to supply information concerning rates of 'pay, job classifications, and rate ranges. It will therefore be recommended that-Respondent continue to bargain with the Union and not exclude insurance and hospitalization from the subject of negotiations, also not insist as a prerequisite to the renewal of bargaining negotiations on the withdrawal of unfair labor practice charges, and on request, supply information to the Union concerning rates of pay, job classifications, and rate ranges to enable the Union to carry on its duties as the employees' collective- bargaining representative. It has also been found that Respondent discriminatorily discharged Wallace Teal. It will be recommended that Respondent offer him immediate and, full reinstatement - to his former or substantially equivalent position without prejudice_to seniority or, 39 The 1954 juice processing season started November 9, 1953. 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other rights and privileges, and make him whole for any loss of pay he may have suffei;d by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of the discriminatory discharge to the date of Respondent's offer of reinstatement, less his net earnings, during that period (Crosset Lumber Company, 8 NLRB 440, 497-8), said back pay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. The Respondent upon request shall make available to the Board its payroll and other records to facilitate the determination of the amounts .due. It has further been found that Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by the Act by soliciting striking employees to return to work. In view of the nature of the unfair labor practices committed, particularly the dis- criminatory discharge of Teal, there appears an indication of intention by the Re- spondent to defeat the fundamental purposes of the Act and the self-organization of its employees. In order to insure the employees here involved their full rights guar- anteed by the Act it will be recommended that Respondent cease and desist from in any manner interfering with, restraining, and coercing its employees in their rights to self-organization. See May Department Stores v N L R. B., 326 U. S. 376 Upon the basis of the foregoing findings of fact, and upon the record as a whole, I make the following: CONCLUSIONS OF LAW 40 1. International Chemical Workers Union, AFL, and its Local 514, collectively referred to as the Union, are labor organizations within the meaning of Section 2 (5) of the Act. 2. All production, maintenance, and warehouse employees of the Respondent at the Dunedin plant, including factory clericals and inspectors, excluding office clerical ,employees, professional and administrative employees, guards, and supervisors as defined in the Act, and specifically excluding the chief inspector, the rotary juice serviceman, laboratory employees, cafeteria employees, and all seasonal production employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. The Union was on September 11, 1952, and at all times since has been the exclusive representative of all the employees in the appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act 4. By refusing to bargain on the matter of insurance and hospitalization and upon its insistence on the withdrawal of pending unfair labor practice charges, and further by its refusal to supply information concerning rates of pay, job classifications, and rate ranges, the Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8 (a) (5) of the Act. 5. The Respondent has not violated Section 8 (a) (5) of the Act in any other respects as alleged in the amended complaint. 6. By discriminating in regard to the hire and tenure of employment of Wallace Teal, thereby discouraging membership in the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 7. By the foregoing conduct and by soliciting the striking employees to return to work the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has thereby ,engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act 9 The Respondent has not engaged in unfair labor practices by locking out and laying off its employees on March 6, 7, and 8, 1953; failing and refusing to reinstate the employees named in Appendix A of the amended complaint on or about April 27, 1953, constructively discharging its employee George Dillard; and refusing to reinstate the employees named in Appendix B of the amended complaint. [Recommendations omitted from publication.] 40 The Respondent submitted "proposed findings of fact and conclusions of law" to the Trial Examiner which have been duly considered Those proposed findings of fact and conclusions of law which are consistent with the findings and conclusions made in this report are accepted, the remainder are rejected