Darlington Veneer Co., Inc.

DARLINGTON VENEER COMPANY, INC. 1101 dealing in the products of General Millwork Corporation and Haskelite Manu- facturing Corporation , in violation of Section 8 (b) (4) (A) of the amended Act. `IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, 'occurring in connec- tion with the operations of General Millwork Corporation, Haskelite Manufacturing Corporation, and Scholz Homes, Inc., described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States,_and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have violated Section 8 (b) (4) (A) of the Act, it will be recommended that they cease and desist therefrom and take certain affirmative action designed to`effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local 11, United Brotherhood of Carpenters & Joiners of America, AFL, and Cuyahoga, Lake & Geauga & Ashtabula Counties Carpenters' District Council af- filiated with United Brotherhood of Carpenters & Joiners of America, AFL, are-labor organizations within the meaning of Section 2 (5) of the Act. Frank Ailor is business agent of Respondent Local 11, and an agent of Respondent District Council within the meaning of the Act. 2. By applying Respondent District Council's constitution, bylaws, working rules, and trade rules or trade autonomy in such a manner as to induce and encourage, and by otherwise inducing and encouraging, employees of Wilford Decker and Calvey- Gunderman to engage in a concerted refusal in the course of their employment to handle or hang Hasco and Gemco doors, an object thereof being to force and require Wilford Decker, Calvey-Gunderman, Erie Building Company, and Scholz Homes, Inc., to cease using or otherwise dealing in the products of General Millwork Cor- poration and Haskelite Manufacturing Corporation, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Darlington Veneer Company, Inc. and Henry Rule Darlington Veneer Company, Inc. and Plywood and Veneer Workers Local Union No. 3043, United Brotherhood of Car- penters and Joiners of America, AFL Darlington Veneer Company, Inc. and Plyw%od and Veneer Workers Local Union No, 3043, United Brotherhood of Car- penters and Joiners of America, AFL. Cases Nos. 11-CA-788, 11-CA-785, and 11-CA-787. August 26, 1955 DECISION AND ORDER On April 21, 1955, Trial Examiner David London 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 it cease and desist therefrom and 113 NLRB No. 125. 1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. 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 In- termediate Report, the exceptions and brief,' and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, except to the extent noted below. We agree with the Trial Examiner's finding that the Respondent -violated Section 8 (a) (5) by insisting that any bargaining contract with the Union should contain ( a) a clause which provides that the contract shall become effective only after a secret ballot of employees in the bargaining unit and ratified by a majority of the employees voting in such balloting, and (b) a dues checkoff clause which pro- vides that "in the event the number of check- off authorizations be- comes'less than fifty -(50) percent of the number of employees in the bargaining unit this contract shall become null and void."' We do not agree with the Trial Examiner's finding that the Re- spondent violated Section 8 (a) (5) of the Act with respect to the Christmas bonus issue. Although the Respondent was of the erro- neous impression that it was not required to bargain about such matters,2 the record shows that the Respondent, during several meet- ings with the Union, did negotiate on this subject matter and mani- fested good faith in making concessions relating to the bonus which was considered by both parties together with other proposals relating to wages and holidays. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Darlington Veneer Company, Inc., Darlington, South Carolina, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating employees concerning their membership in, or activities in behalf of, Plywood and Veneer Workers Local Union No. 3043, United Brotherhood of Carpenters and Joiners of America, AFL, or any other labor organization, in a manner constituting inter- ference, restraint, or coercion in violation of Section 8 (a) (1) of the Act or surveilling any of their union activities. 1 Wooster Division of Borg-Warner Corporation, 113 NLRB 1288; N. L. R. B v. Cor- sicana Cotton Mills, 178 F. 2d 344, 347 (C. A. 5). 2 N. L. R. B. v. Niles-Bement-Pond Company 199 F. 2d 713 (C. A. 2), enfg. 97 NLRB 165; Century Cement Mfg. Co., Inc, 100 NLRB 1323. DARLINGTON VENEER COMPANY, INC. 1103 (b) Discouraging membership in any labor organization of its employees by discharging or in any other manner discriminating in regard-to the hire or tenure of employment of its employees or any term or condition of their employment. (c) Refusing to bargain collectively with Plywood and Veneer Workers Local Union No. 3043, United Brotherhood of Carpenters and Joiners of America, AFL, as the exclusive representative of all production and maintenance employees at its Darlington, South Caro- lina, plants Nos. 2 and 3, exclusive of office clerical employees, guards, watchmen, and supervisors as defined in the Act, with respect to rates of pay, wages, hours of work, and other conditions of employment, by insisting, as a condition of the execution of any agreement, (1) that it be ratified at an-election among the employees in said unit, and (2) that it contain a -checkoff clause providing, in substance, that in the event the number of checkoff authorizations falls below 50 per- cent of the number of employees in the bargaining unit the contract shall become null and void. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to join or form labor organizations, to bargain collectively through represent- atives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all of such activities except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment as author- ized in Section 8 (a) (3) of the Act as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Henry Hule immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Offer to the next named employees, who have not heretofore been returned to the positions held by them at the commencement of the strike on September 20, 1954, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole in the manner set forth in the section of the Intermediate Report entitled "The Remedy" : Johnny Slater Raleigh Boseman Robert Hill E. L. Bryant, Jr. James Hill Berkley James, Jr. Benjamin Gurley, Johnny Lunn 1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Willie Mayes Arthur McIver Howard Bruce Wilds Ezekiel Perry Taylor James Toney Venrow Williams, Sr. Anderson Flynn, Jr. Andrew Chambers Prince Taylor James Hudson Clifton Weatherford Jerome Barker William Hudson Charlie Pinkney (c) Upon request, bargain collectively with Plywood and Veneer Workers Local Union No. 3043, United Brotherhood of Carpenters and Joiners of America, AFL, as the certified exclusive representative of the employees in the above-described unit, without conditioning the execution of any agreement upon a vote of the employees in the unit, or insisting that in the event the number of checkoff authorizations falls below 50 percent of the number of employees in the unit the con- tract shall become null and void. (d) Embody in a signed agreement any understanding reached. (e) Preserve and make available to the Board or its agents upon re- quest, for examination and copying, all payroll records, social-security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due and the rights of employment under the terms of this Order. (f) Post immediately at its plant in Darlington, South Carolina, copies of the notice attached to the Intermediate Report, marked "Appendix A."' Copies of said notice, to be furnished by the Re- gional Director for the Eleventh Region, shall, after being duly signed by the Respondent's representative, be posted by it immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the said notices are not altered, de- faced, or covered by any other material. (g) Notify the Regional Director for the Eleventh Region in writ- ing, within ten (10) days from the date of this Order, as to what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent violated the Act by refusing to bargain with respect to its Christmas bonus plan. CHAIRMAN FARMER, concurring : I agree with the findings of my majority colleagues in this case. However, with respect to the Respondent's violation of Section 8 (a) a This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" in the caption thereof, the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pur- suant to a Decree of the United States Court of Appeals, Enforcing an'Order " DARLINGTON VENEER COMPANY, INC. 1105 (5) of the Act, I reach the same conclusion as they but only because -I have no doubt, on the record of this case, that the Respondent did not bargain in good faith with a sincere willingness to reach an agree- ment with the Union. That the Respondent was determined to avoid signing any con- tract is clearly revealed by its treatment of the dues checkoff issue. The Union first proposed a simple dues checkoff provision which should be irrevocable for a year. By way of counterproposal, the Re- spondent submitted a clause which made checkoff authorizations rev- ocable at any time and further provided that the entire contract should become void if, at any time during its term, the number of checkoff authorizations should decrease to "less than fifty (50) per- cent of the number of employees in the bargaining unit. . . . " At several of the bargaining negotiations, the Union argued that the Respondent's counterproposal was illegal; the Respondent argued to the contrary. Finally, on October 5, the Union withdrew its pro- posal for any kind of dues checkoff "in the interest of reaching an agreement." However, the Respondent refused to accept I the with- drawal. It persisted, instead, that it would not sign an agreement unless its "checkoff proposal in its entirety, or something to that effect, should be included...." A dues checkoff clause is of benefit only to the bargaining repre- sentative; it enables the union to collect dues from its members with a minimum of difficulty. Here, after extended negotiations, the Union announced that it would forego the Respondent's aid in making dues collections. Clearly, this decision was made to avoid the risk of sudden termination of the contract, a danger which the Respondent's cor- relative proposal made inevitable. The Respondent, however, in- sisted upon furnishing the now 'unwanted dues collection help to the Union. The record as a whole shows that the Respondent unques- tionably was aware that the Union would not agree to -a contract em- bodying the counterproposal on dues checkoffs. Thus the inference is inescapable that it was precisely for this reason that the Respondent was so insistent in pressing its demand for a'checkoff clause even after the Union had disclaimed any desire for help from the Respondent in this entirely internal union matter. I would therefore find that the Respondent did not bargain in good faith within the requirement of Section 8 (d).4 * Compare with the above my opinion in Wooster Division of Borg-Warner Corporation, 113 NLRB 1288, where I dissented from the majority's holding that it was per se a liolation'of Section 8 (a) (5) for an employer to insist upon ( 1) a particular version of a preamble clause and ( 2) a vote by employees before a strike was called . In Borg- Warner, the General Counsel conceded that the respondent had bargained in good faith and that the only issue was one of per se liability. In the present case, there is no such limitation of the issue. 1106 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD MEMBER LEEDOM, concurring : I agree with the result reached' by the majority. In doing so, how= ever, I rely solely on the ground that the Respondent did not bargain in good faith with-respect ^to the matter of checkoff of union,dues:,-_ INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges duly filed, the General Counsel of the National Labor Relations Board caused a complaint to be issued against Darlington Veneer Company, Inc., herein called Respondent or the Company, alleging that the latter had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (1), (3), and (5), and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the charges, complaint, and notice of hearing were duly-served on the appropriate parties. With respect to the unfair labor practices, the complaint alleged, in substance, that: (1) Since June 9, 1954, Respondent refused to bargain collectively with re- spect to rates of pay, wages, hours of employment, and other conditions of employ- ment, with the duly certified bargaining representative of Respondent's production and maintenance employees; (2) on or about September 22, 1954, following a strike, alleged to have been an unfair labor practice strike, Respondent refused to reinstate 22 named employees though they had unconditionally applied for rein- statement; (3) on or about August 20, 1954, Respondent discharged Henry Hule because of his union membership and because he engaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection; (4) on or about April 28, 1954, Respondent engaged in acts of surveillance of its employees concerning their union activities, sympathies, and desires; i and (5) on or about April 29, 1954, Respondent interrogated its employees concerning their union membership, activities, and desires. By its answer duly filed Respondent denied it had committed any unfair labor practices. Pursuant to notice, a hearing was held from January 31 to February 4, 1955, at Darlington, South Carolina, before the duly designated Trial Examiner. All parties appeared, were duly represented, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to argue orally at the conclusion of the evidence. Respondent filed a brief on March 24, 1955, which has been duly considered. Upon- the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS'OF FACT 1. THE BUSINESS OF RESPONDENT Darlington Veneer Company, Inc., is a South Carolina corporation, maintaining its principal office and manufacturing plants at Darlington , South Carolina, where it is engaged in the manufacture and sale of plywood . In the course and conduct of its business operations during the year 1953 , which period is representative of all times material herein, Respondent manufactured and sold finished products valued in excess of $2,800,000, more than 95 percent of which , in value, was sold and shipped to customers outside the State of South Carolina . During the same period Respondent purchased raw materials , supplies, and equipment valued in excess of $1,250,000, more than 55 percent of which, in value, originated outside the State of South Carolina and was shipped in interstate commerce to the Darlington plant. Respondent admits, and I find , that it is engaged in commerce within the meaning of'Section 2 (6) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED .On May 10, 1954,2 following a Board-conducted 'election on April 20, Plyyvood • -- and Veneer Workers Local Union No. 3130, United Brotherhood of Carpenters and 1 Respondent's motion, at the hearing, to dismiss these allegations on the ground that no charge alleging surveillance was filed, and on which ruling was reserved, is hereby denied Osbrink Mfg. Co., 104 NLRB 42, enfd. 218 F. 2d 341 (C. A. 9) ; N. L. R. B. v. Dinion Coil Co., 201 F. 2d 484 (C. A. 2). 2 Unless otherwise specified, all further references to dates are to the year 1954. DARLINGTON VENEER COMPANY, INC. 1107 Joiners of America, AFL, was certified by the Board's Regional Director for 'the Eleventh Region as bargaining representative of Respondent's production and main- tenance employees. On August 2, the Board, after due notice to all the parties, amended the certification of representation aforementioned by substituting the name of Plywood and Veneer Workers Local Union No. 3043, United Brotherhood of Carpenters and Joiners of America, AFL, aforementioned, wherever the latter ap- peared-in the aforedescribed certification.3 Both of the aforementioned unions will in the following portions of this report be referred to as the Union. However, as to events occurring prior to August 2, 1954, the reference,is to Local 3130; after that date, the reference is to Local 3043. Both unions are labor organizations within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Violations of Section 8 (a) (1) and the discharge of Hule Organizational activities among Respondent's employees commenced in October 1953. Henry Hule signed an application to join the Union in the following month and attended all of its meetings thereafter. Prior to the election among Respondent's employees on April 30, 1954, at which a majority voted to designate Local 3130 as their bargaining representative, Hule talked about the Union in the plant to seven named employees and others whose names he could not recall and solicited their support in its behalf. On the Wednesday before the election, Hule's foreman, Raymond Cooke, asked him to "talk to the boys and tell them not to mess with the Union." At about the same time, Cooke asked employee Williams whether he was for the Union and informed him that if he was, he was going to fire him. Later in the same day, Cooke asked Hule what the boys had said and Hule answered that the Union didn't have "a chance." On the following day, the day before 'the election, Cooke asked Hule to go to the union hall to note how many were in attendance and to report back. to him. During the next morning, in response to Cooke's inquiry, Hule told him that only seven men had attended the meeting, which information Cooke passed on to Superintendent Patterson. On the following Monday, Cooke accused Hule of having lied because he (Cooke) had "heard" that more than seven were in attendance at the union meeting of the previous Thursday. Cooke admitted discussing with Hule the attendance of Respondent's employees at the union meeting alluded to above. He denied that he had instructed Hule to spy on the meeting, but claimed that Hule, without being questioned, had volun- teered the information that only 5 or 6 people had attended the meeting under dis- cussion. However, he did not deny that he had accused Hule of lying to him about the number of men who had attended the meeting. Hule and Williams, on whose testimony the above findings relating to Cooke's conduct" have been entered, impressed me most favorably as witnesses. Their demeanor and candor 4 left me with the distinct impression that their testimony was truthfully given. Cooke, on the other hand, did not inspire such confidence. On the entire record, and my observation of the witnesses involved, I find that Cooke interrogated Hule and Williams concerning their union activities, threatened Williams as above found, and instructed Hule to report to him concerning the union activities of Respondent's employees. By such conduct Respondent violated Section 8 (a) (1) of the Act. As heretofore indicated, Respondent is engaged in the manufacture of plywood. In the-course of its operations to obtain the finished product, logs are water soaked and then peeled into veneer of varying thickness. As the green veneer leaves the lathe, it has a moisture content ranging from 70 to 80 percent and is carted to a kiln or drier for the purpose of drying the veneer. The drier is 60 feet long and 14 feet wide, outside measurements. It has 4 tiers of horizontal rollers spread throughout the length of the drier about 16 inches apart vertically, each roller stretching across its approximate 'width of 14 feet. An operator, known as a feeder, places the green veneer sheets on each of the four tiers of rollers and thus starts the veneer on its journey through the kiln. The largest strip inserted is 98 to 110 or more inches wide, 'The facts pertaining to this substitution have been judicially noted from the Board's files in Case No 11-RC-597 (not reported in printed volumes of Board Decisions and Orders). 'Hole admitted on the witness stand that he-had lied to Cooke in reporting the num- ber of employees who had attended the union meeting. 1108 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD but is referred to as a 98-inch piece .5 Because the drier, however, has a width of approximately 168 inches, smaller widths ranging from 6 to 18 or 19 inches are avail- able for insertion on the rollers. The speed of the rollers throughout the length of the drier, which in turn determines the time during which the veneer remains in and travels through the kiln, is adjusted to the thickness of the veneer to be dried. Thus, in the case of 3/16-inch veneer, the speed of the rollers is adjusted so that it takes ap- proximately an hour before that veneer is sufficiently dried and ejected at the tail end of the kiln. Thinner veneer takes less time; thicker veneer moves through more slowly. Hule was employed by Respondent from February 1951 to August 20, 1954, when the complaint alleges he was discriminatorily discharged. During that entire interim, except for a period of about 3 weeks after he was first employed, Hule was engaged as a kiln feeder in plant No. 3. It is Respondent's position that he was discharged because he failed to keep the drier "reasonably" full as he had been instructed to do. Hule testified that on the day he was discharged he fed the kiln in the same,manner and to the same extent as he had always done. This, he testified, was to insert; what in general terms was called a 98-inch strip, on each of the 4 tiers of rollers, and an- other piece 18-19 inches wide. Though he admitted that veneer of smaller widths was available, he never inserted more than two pieces on the rollers. He further testi- fied that until the day of his discharge no one had ever instructed him to keep the dryer completely full to its entire width of approximately 14 feet 6 or had ever criticized him for his failure to do so. On August 20, according to Hule, when he returned from the drinking fountain and started feeding the kiln, Cooke instructed him to put another "little piece" on the rollers in addition to the two strips already placed there by him and he complied. A short time later, Cooke returned in the company of Patterson, the plant superintendent: The latter asked Hule whether he considered the kiln full and Hule replied he had been filling the kiln for 31/2 years and up to then had received no complaint.? When Patterson told Cooke that the discharge of Hule was "up to [him]," Cooke asked that he be discharged. Patterson and Hule went to the office where the foreman okayed Hule's timecard and he was discharged. Cooke's version of Hule's work performance was in sharp conflict with that given by Hule. His testimony, however, not only was inconsistent but was given in an unconvincing manner. He first testified that he had warned Hule approximately 3-4 times within a period of 2 months before he was discharged, the last warning having been given 2-3 days before the discharge. On cross-examination, however,' when asked to specify the dates when he had given these warnings, he specified a date, 3 weeks before the discharge as the first time he had warned Hule, and that he considered the occasion of the discharge as the third and last time he had warned him. In its brief, Respondent contends that Hule "was discharged because he failed to, keep the dryer reasonabl[y] full of veneer to be dried." [Emphasis supplied.] On the entire record I find that the evidence does not sustain that contention. Cooke testified that when he first put Hule on the job he showed him how to feed the dryer by placing three pieces on the rollers having widths'of approximately 98 inches, 28 inches, and 12 inches. Hule denied that Cooke had ever so instructed him and testified in- stead that his initial instructions were given by one Lloyd. He further testified' credibly that from that time, the spring of 1951 to the date of his discharge in August 1954, he fed the kiln as he had been taught to feed it, by inserting one of the so-called 98 inch boards and another 18-19 inches wide. Venrow Williams, Sr., employed by Respondent for 23 years during 8 of which he fed the kiln, testified that he, like Hule, only fed two pieces of veneer into the dryer. Williams and two other employees, Mc- Daniel and Simon, testified credibly that Hule's successor filled the kiln in the same manner as Hule had filled it. Hule specifically denied that Cooke had ever warned' or criticized him for the manner in which he performed his work. For reasons here- tofore mentioned I credit that denial. On the entire record I find that during the entire course of his employment of approximately 31/2 years as a kiln feeder, Hule performed his work in a satisfactory manner and without criticism by his superiors. Cooke testified that Hule "was an ex- cellent dry kiln feeder up until about 21/2 months before he was fired." Plant Super- intendent Patterson did not testify. Plant Manager Schuman testified that he passed 5 Cooke testified that "sometimes 98 inch stock runs 108 or 110 inches . . . or more than that." Several other witnesses testified to the same effect. e Kiln Feeders Boseman and McIver also testified that they had received no such instruc- tions. 7 There was no denial of this testimony by Patterson who failed to appear as a witness- DARLINGTON VENEER COMPANY, INC. 1109 the feeding end of the kiln at least once or twice every day, and sometimes as often as 20 times a day, and while he saw Hule feeding the dryer, he never, criticized him for the way it was being fed. - By Cooke's own testimony, the origin of his dissatisfaction with Hule's performance originated sometime in June 1954, the month when Respondent commenced negotia- tions with a union committee of which Hule was a member. It was shortly after June 22 that Cooke was informed by Plant Superintendent Patterson that during a bargaining session on June 22- the Union had complained to Respondent's bargaining representatives that Hule had been instructed by Cooke to spy on the union meeting as detailed in earlier portions of this report. And it was from June 22 to the date of Hule's discharge that Cooke "treated [him] a little different." Respondent's defense having been discredited, the reason for its discharge of Hule after 31/2 years of satisfactory service must be sought elsewhere. It is to be found, 'I am persuaded, in Respondent's hostility to Hule's union activities and because he had falsely reported on union activity among its employees. Admittedly, the lapse of time to August 20 must cause one to pause before concluding that Hule was discharged, for those reasons. If he had been discharged in April, May, or June, the reasonable inference to be drawn from the events heretofore found would be that Hule was dis- charged in retribution for his union activities and because he had lied about the union activities of Respondent's employees instead of being a faithful spy for Cooke. How- ever, I am convinced that this lapse of time, when viewed in light of the entire record, cannot dispel my ultimate conclusion. Rather, I find that the interval was purposely tolerated by Respondent to add an aura of plausibility to its defense that neither Hule's activity in behalf of the Union nor his failure to truthfully report on the union activ- ities of the other employees were the motivating factors for his discharge. On the basis of the record as a whole, I conclude and find that by discharging Hule on August 20, 1954, Respondent discriminated in regard to his hire and tenure of em- ployment, thereby discouraging membership in the Union, and interfering with, re- straining, and coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. B. The refusal to bargain On May 24, J. A. Parker, International representative, and acting in behalf of the Charging Union, forwarded to P. Dalton Kennedy, counsel for Respondent, 2 copies of a proposed labor agreement containing 21 articles covering subjects gen- erally found in labor bargaining agreements. At the same time Parker requested a meeting with Respondent to begin negotiations for such a contract. The parties first met for the purpose above indicated on June 9. Thereafter bargaining sessions were conducted, sometimes several during 1 day, on June 22, 23, and 24, July 27 and 28, August 24 and 25, September 14, 15, and 16, October 5, and November 11. A committee of 3 or 4 union members was in attendance at all meetings but took no active part in the negotiations. Acting as spokesman for the Union at the first meeting was C. L. Deese, its International representative. At subsequent meetings, Parker acted in that capacity. Respondent was represented by Kennedy, who acted as its spokesman throughout the negotiations. Also in attendance for Respondent, but taking an inconsequential part therein, were J. S. Ramsey, Jr., its president, J. S. Ramsey, Sr., its vice president, and Joe Schuman,' plant manager. During the meetings aforementioned, every proposal and counterproposal was discussed. Because ultimate decision on this phase of the proceedings rests on the disposition of the specific issues hereafter discussed, I find it unnecessary to burden this report with a complete and detailed recital of the entire course of the negotiations covered by the transcript of 768 pages. As to those not' hereafter considered in detail, suffice it to say, and I hereby find, that though complete ac- cord was not reached on all such other issues, the parties negotiated in apparent good faith with respect thereto, and that the failure to enter into a binding agree- ment following- a breakdown,of the negotiations on November 11 was occasioned solely by Respondent's insistence that two of its proposals relating to checkoff and ratification of the contract by its employees, be incorporated in the agreement.8 Article IV of the Union's proposal submitted to Respondent on or about May 24 dealt with the subject of checkoffs for union dues. The article consisted of four sections, prescribed the form to be used, and detailed the manner in which the dues were to be deducted and transmitted to the Union. When the article 8 Parker testified that at the last meeting on November 11 these "were the principal items, on which there was a disagreement," together with the dispute concerning the Christ- mas bonus. 1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was reached for consideration at the first meeting on June 9 , it was discussed at some length and Kennedy announced that at, or prior to , the next meeting he would submit a proposal dealing with checkoffs . He informed the union representatives, however, that his proposal on the subject would include a proviso that at any time during the life of the agreement being negotiated if the checkoff authorizations fell below 50 percent of the total number of employees covered by the contract, the entire agreement "would become void." On June 15 Kennedy mailed to the Union five proposals , each dealing with a separate subject. The one dealing with checkoff consisted of 6 sections , the first 4 of which were identical with the Union's original proposal with the following ex- ceptions. The Union's proposal was that checkoff "assignment and authoriza- tion when properly signed shall be irrevocable during tenure of contract , but not to exceed twelve ( 12) months"; section 5 of Respondent 's counterproposal would make the checkoff authority revocable at any time . Section 6 of• the Company's proposal read as follows: "It is agreed that in the event the number of check-off authorizations becomes less than fifty ( 50) percent of the number of employees in the bargaining unit this contract shall become null and void." Another proposal submitted by Kennedy with his letter of June 15 was what is herein referred to as the "ratification clause." It read as follows: This contract is subject to, and shall become effective on the day and year first above written only after ratification by the employees of the Darlington Veneer Company, Inc., by secret ballot of employees in the bargaining unit and ratified by a majority of the employees voting in such balloting. The time and place of such ratification vote shall be arranged by agreement between the Company and the Union, and may be conducted on company premises. Respondent's proposal on checkoffs was discussed at the meeting of June 22. Parker voiced no "serious objection" to section 5, but stated "that it would be bet- ter to put some time element in there," which suggestion Respondent agreed to give further consideration . With respect to section 6 of the article , however, Parker stated that he considered it "highly irregular and . . . illegal ," and that the "clause would encourage or promote anti -union' interference." Kennedy, however, took the position that Respondent 's counterproposal on checkoff was conditioned upon acceptance of the entire article as it was proposed , and that section 6 could not be separately considered . After further discussion it was agreed that the article be passed over for the time being. The meetings of June 23 and 24 , July 27 , and part of that held on July 28 were devoted to consideration of other portions of the Union 's proposal with which we we are not presently concerned .9 On July 28 the parties agreed on article XXI of the Union's proposal entitled "Termination," and then gave consideration to Respondent's proposed ratification clause. Parker argued that the proposal was "unworkable and undemocratic"; that the Union had been certified by the Board as the bargaining agent and had a committee with full authority to act in its be- half; that the clause would have "the effect of by-passing the authority vested in the Union by the National Labor Relations Board; . . . that if there was any inclina- tion on the part of the Company not to sign a contract , that that clause in itself could 'be used to cause a majority of the people, through coercion and intimidation on the part of the supervisors , not to vote for the contract." However, when Kennedy remained steadfast in his position that the clause be incorporated , Parker suggested that it be passed. Respondent's checkoff proposal was discussed again at the meeting of August 24. At that time, Parker advised Respondent that the Union would accept sec- tions 1-5, inclusive, of Respondent's proposal but that it could not agree to sec- tion 6. After a brief discussion the article was again passed. At the August 25 meeting there was a discussion on holidays and Christmas bonus or gift. With respect to the latter, it appeared that Respondent had for 8-9 years, at Christmas time, given $25 to each employee who been employed a year or more. Those who had been employed less than a year were given "proportionate amounts." Kennedy stated that while there was no intention on the part of Respondent to dis- continue this practice, he did not consider that subject a bargainable issue but only as a gratuity, a position he adhered to at later meetings. The subject of checkoff came up for discussion once more on September 15 and Kennedy, at the outset, remarked that as he had previously stated, "this article has been tendered as a whole" and that the Union could not "accept a particular section u Respondent submitted a proposed wage scale on June 23 and the Union on July 27. DARLINGTON VENEER COMPANY, INC . 1111 or sections of it and not accept the whole thing." When Parker repeated that he considered the proposed section 6 to be an illegal condition, Kennedy stated that if he could be shown a decision to that effect he would reconsider his position. Parker replied that he was not qualified, or obligated, "to furnish legal advice to the Company," and Kennedy closed the discussion on that subject by remarking that Respondent would stand by its "proposal for the time being unless [Parker] could show him a case where it had been held illegal." During the same day, the parties resumed discussion of the ratification clause and each repeated its position previously announced. Kennedy argued that "the employees would have the right to vote on any contract that was given." Parker formally rejected the clause on the ground that the Board's certification "clothed the Union with full authority to enter into an agreement with the Company and that [it was] not required to submit it to outsiders for approval or disapproval." Near the close of the meeting on the following day, September 16, the parties recapitulated the areas of agreement and disagreement at that point. Parker stated that though no agreement had been reached on several other matters, the "basic and insurmountable" difference between the parties was the Union's objection to sec- tion 6 of Respondent's counterproposal on checkoffs and the Company's proposed ratification clause. He further informed Respondent's representative that he would refer the matter to the union membership for consideration and determination, but his "feelings were that it was almost impossible to reach an agreement so long as the Company maintained that as a barrier to an agreement which, in [his] opinion, was an illegal condition and did not constitute a showing of good faith." Kennedy stated he would "check further on section 6 and if he found it to be illegal that he would withdraw it, but that his inclination at [that time] was to rest on the ratifica- tion clause." The session adjourned without arrangements for any further con- ference. At a union meeting held on Saturday, September 18, Parker reported the status of the negotiations to the membership and advised them that the Company was not bargaining in good faith and was not attempting to reach an agreement. After he concluded, the membership voted to go on strike in protest against "the Company's refusal to bargain" and Respondent was so advised by telegram on the following day."' The telegram also expressed willingness to meet further with the Company at ,its convenience for the purpose of concluding an agreement. The strike com- menced on Monday, September 20, and was terminated late in the afternoon of September 21 when the Union advised Respondent that the men would report for work unconditionally the following morning. After an exchange of further correspondence, Kennedy wrote Parker on September 24 expressing a willingness to meet again with the Union's committee . The letter concluded as follows: In the meantime , the Company requests that you prepare and submit a counterproposal with reference to the Company's ratification proposal. We further request on behalf of the Company that you furnish us with any authorities or citation that you may have with reference to the alleged "il- legality" of the Company's subsection 6 proposal. In view of the Union's position with reference to the Company's ratifica- tion proposal, it would seem that a counterproposal by the Union, or at least an indication by the Union that it is willing to discuss and negotiate the Com- pany's proposal , would be necessary to provide a basis for further negotiation. Parker acknowledged the foregoing letter on September 27 and restated the Union's reasons for rejecting the two proposals under consideration. On September 29 Kennedy answered, in part, as follows: In view of the fact that you state that you do not agree to the Company's "ratification" and "section 6" proposals, and do not propose to offer any counterproposal as to either of these meetings , it is difficult to see how a further negotiating conference would be advantageous. The Company is, however, willing to meet with the Union to bargain collectively in good faith, and to make every reasonable effort to reach a mutually agree- ment contract. At the outset of the next meeting between the parties on October 5, there was con- siderable jockeying between them, each 'endeavoring to secure an equivocal and final statement from the other as to whether or not the negotiations would have to be abandoned unless Respondent's checkoff and ratification proposals were accepted by the Union, or were to be withdrawn by Respondent. Parker, without abandoning his objections to the proposals, stated that the Union "would consider anything that 379288-56-vol 113-71 1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Company had to offer," while Kennedy "stated that he did not see much use wasting time unless the Union was inclined to accept these proposals." Kennedy repeated the views lust expressed upon Parker's suggestion that the meeting con- sidered other items upon which agreement had not been reached. When Parker informed Kennedy that if the Union could be convinced that Respondent's check- off and ratification proposals "were legal and necessary in an agreement that the Union would certainly consider them in good faith," Kennedy stated "that he saw no burden or responsibility" to prove their legality. At Parker's suggestion, the parties again recapitulated the areas of disagreement to that point which showed that total agreement had not yet been reached on the follow- ing matters: (a) The right of the Union to solicit membership on company property; (b) the checkoff provision; (c) wages; (d) holidays; (e) Christmas bonus as claimed by the Union, or gift as claimed by Respondent; (f) call-time; (g) rest period; (h) hospitalization insurance; (i) the ratification clause; and (j) absenteeism. While the foregoing list was being prepared, Kennedy asked Parker whether the Union had a counterproposal to Respondent's ratification clause and Parker replied that it did not. The parties then discussed the foregoing items in seriatim. After a conference between Parker and the other union committee members present, they announced their acceptance of Respondent's proposal on item (a) of the last recapitulation. When the parties began discussing item (b), the checkoff clause, Parker asked Kennedy if Respondent's proposal with reference thereto "meant that if the check-off authorization in the hands of the Company at any given time fell below 50 percent, would that mean that the Union in effect would no longer be recognized as a collective bargaining agency by the Employer, which would . have the effect of nullifying the certification." Kennedy replied that it would not, but that "it would be a signal that the employees were dissatisfied with the agreement as it existed and it would mean that [the parties] should sit down and see what was the matter with it and see if [they] could work out another agreement that would be satisfactory." Parker asked Kennedy if the Company insisted upon the inclusion of the disputed section 6 in any agreement which might otherwise be reached and Kennedy replied that it "should be a part of any agreement, but he would not unquali- fiedly and categorically insist upon this part of the agreement before- an agreement was signed." Parker answered that he did not understand Kennedy's position, "inasmuch as in one instance he would say that it should be a part, and that they would not move away from it, and in the next breath he would say that they would not insist on it being a part of the contract before the contract was signed." Kennedy replied that, as he had advised the Union at the beginning of negotiations, Respondent's counterproposal had been offered as an entity, could not be considered separately by sections, "and that that would be the way it would have to be accepted." Parker replied "that in view of the Company's insistence on the inclusion of section 6 of article 4, that the Union had no other alternative in the interest of reaching an agree- ment except to advise him . . . that the Union [was] formally withdraw[ing] any proposal that it may have made in connection with it." When Parker repeated that his last proposal meant that the Union was totally withdrawing its request for any kind of checkoff, Kennedy replied that he and the other representatives of management "would have to give the matter some thought" and they retired from the room. Upon their return, Kennedy rejected the Union's offer to conclude an agreement without the checkoff and repeated the Company's position that Respondent's "checkoff proposal in its entirety, or something to that effect, should be included in the agreement." Upon that tone, further discussion of checkoff at that time was abandoned. Items (c), (d), and (e) of the recapitulation, dealing with wages, holidays, and Christmas bonus or gift, were then discussed. The Union's current position thereon not having been reduced to writing, Respondent suggested that further consideration of these matters be postponed until the Union had done so and Parker promised to prepare such writings. Item (f), the Union's proposal for a proviso on call-time, was next considered and rejected by Respondent. When Parker asked whether Respondent would make any counterproposal with reference thereto, Kennedy declined to do so. Parker then stated, "again in the interest of reaching an agreement, that the Union would with- draw" its request for such a provision. Items (g) and (h), rest period and hospitalization insurance, were taken up and discussed together. Respondent rejected the Union's proposal on both items Parker asked whether Respondent would make a counterproposal on either or both subjects. When Kennedy declined to do so, Parker once more stated that in the interest of reaching an agreement he was withdrawing the Union's proposal on these matters. Agreement was reached on item (j) dealing with absenteeism. DARLINGTON VENEER COMPANY, INC. 1113 A brief discussion ensued concerning the effect of Respondent's proposal on ratifi- cation, item (i). Parker advised that it would be impossible "to get a contract signed" if the Company insisted upon such a condition and that "the Union member- ship rejected any such proposal." Parker asked Kennedy if they could agree on a tentative date for a future meeting but Kennedy declined to do so. Kennedy stated, however, that the Union could submit its written proposals on wages, holidays, and Christmas bonus and that after receiving and reviewing them he would give consideration to another meeting and advise Parker. On October 12, Parker mailed Kennedy the Union's second written proposals on the subject last mentioned. They read as follows: Article VIII-Holidays and Xmas Bonus or (Gift) (Union's Second Proposal) 1. The Company agrees to grant Labor Day as a holiday to all employees and agrees that those employees who have been in the continuous employment of the Company for a period of 1 year or more shall receive straight pay for said holiday. 2. The Company agrees to grant Christmas Day as a holiday without pay. 3. Provided, however, the Company may require any or all employees to work on these holidays by paying them time and one-half for time worked. 4. The payment of a Christmas bonus (or gift) to employees at Christmas time by the Company, which has come to be an established practice, will be continued by the Company on the same basis as has been the practice in the past. (Note: The above proposal on holidays and Xmas bonus or gift as it is known, is proposed to continue the present practices of the Company with regards to both of these items as a part of the labor organization during the term thereof.) Respondent's second proposal on holidays and Christmas gift had been submitted on September 15 and read as follows: Article VIII-Holidays (Company's Second Proposal) 1. The Company agrees to grant Labor Day and Christmas Day as holidays to all employees, and agrees that those employees who have been in the con- tinuous employment of the Company for a period of 1 year or more shall re- ceive 8 hours straight time pay for each of said holidays. 2. Provided, however, the Company may require any or all employees to work on these holidays by paying them time and one-half for time worked. 3. The Christmas gift which has been paid in the option of the Company in the past will be discontinued. The parties met on November 11 and began discussion of the proposals last noted. Kennedy stated that the Company was willing to continue the "past practices pro- cedure in regard to wages and holidays," but there was disagreement as to what the practice had been. Kennedy stated "that the Company in the past had had the privilege without restriction on raising and lowering of wages but that in the Com- pany's original counterproposal that they were willing to revise that unrestricted right that they had before to the extent that they were only asking that they have the right to raise and lower wages within the classifications that they had proposed." He added, however, that he was unwilling to agree to Parker's "proposal to write into the con- tract that the present wages would be continued during the term of the contract with the exception of the merit increases, . . . land] that the Company did not feel that they could be bound by such an inflexible clause." With respect to holidays "Kennedy stated that the Company was willing to go along with what their practice had been . . . to give one paid holiday or to give, or not to give, holidays in the exclusive option of the Company." He further stated that the Christmas bonus was not a bargainable issue, and the contract should contain a clause that the Christmas bonus will not be given, "which would in effect leave the matter of determining whether or not a bonus would be given . . . in the exclusive option of the Company." When Parker remarked that Respondent was "not willing to contract to continue the bonus but [was] willing to contract to discontinue [its] payment," Kennedy stated that he was acting pursuant to orders, but that he "did not at [that] time offer or insist on anything as a condition to a contract." Parker remonstratingly told Kennedy that he "was at a complete loss to understand what he meant, out of one side of the mouth he said that they did not insist on anything as a condition to a contract, and out of the other'side of his mouth he said that he would insist on certain things." Kennedy replied "that he did not necessarily mean that 1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [they] had to use the exact words that he had proposed but ... he insisted that the intent be retained." Parker suggested another recapitulation of the items upon which no agreement had been reached which disclosed that "there were three principal items on which there was disagreement," section 6 of the checkoff, discontinuance of the Christmas bonus and the ratification clause. In the course of the conversation that ensued Parker asked Kennedy "if the Company still maintained that the contract should con- tain a check-off provision and Mr. Kennedy's answer was yes." Parker asked "if this continued to be true in face of the Union's withdrawal of any check-off provision" and Kennedy again answered affirmatively, and added that all company proposals or the remaining unresolved issues "should be contained in any agreement signed." Parker asked Kennedy whether he would make a counterproposal to the Union s last proposal on wages and Kennedy stated "that the Company had the right to raise or lower wages at the Company's discretion." After a futile attempt by Parker to secure a written proposal from Respondent as to the status of "existing practices" with respect to wages, the apparent obstacle to agreement on this subject, and another counteroffer pertaining to holidays and the Christmas bonus or gift, the discussion turned to the ratification clause. In response to Kennedy's inquiry as to the Union's position on that proposal Parker replied that the Union still rejected it and had no counterproposal on the subject. Parker asked Kennedy "if he still insisted that this be a part of the contract and Kennedy stated that he felt this was reasonable and proper and should be a part of the contract." Parker repeated his arguments for rejecting the Company's proposal and stated "that the Union felt that it should [not] be any concern of the Company insofar as the approval or disapproval of the contract was concerned as long as they were sure that they were furnished with a committee with full authority to act in the matter, and [Parker] had previously assured and confirmed to them that,that was the case." No question had ever been raised as to the union committee's authority to negotiate an agreement. After agreement was reached on another item , Parker asked Kennedy if he had any sugeestion for resolving the balance of their differences. Kennedy answered that he didn't know. Parker asked "if the Company would be unwilling to enter into an agreement until or unless the essence of [Respondent's proposals concerning checkoff, discontinuance of the Christmas bonus, and employee ratification] was included." Kennedy's reply was that the parties had "been over that before, . . . that they should be included and that he didn't know but one way to decide that, that is in the charge which [the Union had previously] filed." 10 Shortly thereafter Kennedy suggested that the negotiations be adjourned sine die, but that if either party changed its mind on the disputed items the other party would be contacted. No further meetings were held.li Concluding Findings As shown above, it was Respondent's adamant insistance that its proposals con- cerning checkoff and ratification, and its position on the Christmas bonus, be ac- cepted which caused the bargaining negotiations to collapse. Almost from the instant the Company announced its proposals or position on these subjects, the Union's opposition thereto was made known to Respondent in the plainest and strongest terms. The events of the last several meetings as heretofore found demonstrate Respondent's full awareness that the inevitable consequence of adherence to its position would be disruption of the negotiations, and that unless the Union acqu'esced in the Company's demands on these subjects solution of the problems could not be had by further negotiations, but only by resort to the Board.12 10 The Union, on September 22, 1954, had filed a charge with the Board alleging that Respondent had violated Section 8 (a) (5) of the Act by "proposing and insisting .. . upon acceptance of arbitrary and Illegal conditions." It The findmas concerning the bargaining negotiations, except those of June 9, are based on the undenied, credited testimony of Parker Kennedy, who acted as spokesman for Respondent thi ougliout all the meetings, did not testify. 12 There is no flier it to Respondent's contention that it did not adamantly Insist upon its position with reference to the subjects under consideration Though Respondent invited counterproposals, on at least two occasions Kennedy informed the Union that the contract -would have to include "something to [the same] effect" and "insisted that the intent be -retained " I further find that Respondent's Invitations aforementioned were not advanced in the hone that some agreement might be reached through further bargaining , but were made solely to make it appear that it was the Union and not the Company who was re- sponsible for the breakdown. DARLINGTON VENEER COMPANY, INC. 1115 Considering first Respondent's position-on the Christmas bonus-while it is true that Respondent's proposal submitted on September 15 appears, on its face, to trade off that bonus for an additional holiday , at subsequent meetings on October 5 and' November 11, Kennedy returned to the position previously announced that Respond- ent would not consider that subject to be a bargainable issue. In that view , Kennedy was mistaken . Section 8 (d) of the Act requires the employer to bargain with the duly chosen representative of the employees as to "wages, hours, and other terms and conditions of employment ," and Section 9 (a) provides for the selection of employee representatives "for the purposes of collective bargaining in respect to" the same subjects. The Christmas "bonus constitutes 'wages' and is therefore a subject encompassed within the Respondent's statutory obligation to bargain , and by refusing to bargain thereon, Respondent violated Section 8 (a) (5) and (a) (1) of the Act." Niles-Bement-Pond Co., 97 NLRB 165, enfd. 199 F. 2d 713 (C. A. 2); Century Cement Manufacturing Co., Inc., 100 NLRB 1323. In considering Respondent's conduct with reference to the ratification and checkoff clauses certain fundamentals must be kept in mind . The underlying purpose of the Act is to minimize industrial conflict "arising out of differences as to wages , hours, or other working conditions " by encouraging collective bargaining over "the terms and conditions . . . of employment" (Section 7 of the Act). To this end, the Act requires the employer to bargain with the duly chosen representative of the employees as to "wages, hours, and other terms and conditions of employment ," and to incor- porate agreement reached thereon into a contract governing working conditions in the bargaining unit . In the course of bargaining negotiations the parties may reach an impasse on certain "terms or conditions of employment ." Thus, an employer after bargaining may flatly refuse to agree to a contract which contains a wage increase, or a union after bargaining may flatly refuse to agree to a contract which does not contain a wage increase. Both parties are free to insist upon their terms , and in such event, the result is no contract. However, "the subject matter of compulsory bargaining within the meaning of the Act" is restricted to "rates of pay, wages, hours of employment, or other conditions of employment." Inland Steel v. N. L. R. B., 170 F. 2d 247, 250 (C. A. 7), cert. denied 336 U. S. 960 . It follows that neither an employer nor a union is obliged to bargain upon matters other than terms or conditions of employment , for collective bargaining under the Act is limited to agreeing with the employer on rates of pay, wages, hours of employment, and other conditions of employment , together with adjusting grievances between employees and the employer . Hence, while the parties may negotiate about extraneous subjects , neither party insist thereon to the point of impasse. One such latter subject, for example, concerns the reduction of the agreement to writing. An employer during negotiations may ask that the union agree to accept an oral contract ; he may not, however, insist thereon . H. J. Heinz Co. v. N. L. R. B., 311 U. S. 514, 523-526. Similarly, a union may ask that the employer agree to produce a new and different product, it may not, however, insist thereon to impasse. The difference between those matters which may be insisted upon to the extent of a breakdown of negotiations, and those which may not be insisted upon, is that the former concern "terms or conditions of employment"-as to which the statute makes bargaining compulsory-whereas the latter concern matters outside the rights and duties of the employment relations , albeit matters in which both parties may have some interest and invade areas in which the parties may contract but as to which they are not required to bargain. Accordingly, although a union and an em- ployer may reach an impasse on "terms and conditions of employment "-the matters as to which bargaining is compulsory-and hence fail to reach a contract , neither party may insist to such point upon the acceptance by the other of some proposal in the area outside the "terms or conditions of employment " as to which bargaining is not compulsory. As the Court of Appeals for the Fifth Circcuit held in N. L. R. B. v. Dalton Tele- phone Co., 187 F. 2d 811, 812, cert. denied 342 U. S. 824: "The Act requires the employer to bargain with the duly chosen representative of the employees as to 'wages, hours, and other terms and conditions of employment .' In the course of bar- gaining negotiations, the parties may reach an impasse on certain terms or conditions of employment, and the courts may not compel them to agree. There are certain things about which the parties may bargain or negotiate , but which cannot be insisted upon as a condition precedent to the making of a contract. The present case presents such a situation. Respondent, by insisting that the union become an entity amend- able to suit in the state courts, left the sphere of 'terms and conditions of employment,' 1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and conditioned his willingness to sign the agreement on a matter outside the area of compulsory bargaining." 13 The logic of this position becomes apparent when it is realized that if a party had a right to insist to the point of impasse upon a matter other than a term or condition of employment, the other party would be under a reciprocal duty to bargain thereon. The necessary effect, of course, would be that if the latter refused to consider or discuss a matter not a term or condition of employment he would never- theless violate a statute the bargaining requirement of which is specifically limited to "terms and conditions of employment." Congress should not be deemed to have intended such an anomalous result. The Act's declaration of policy (Section 1) well attests the evils which flow from the disregard of the collective-bargaining process in respect to terms and conditions of employment. It attempts to correct these evils by requiring bargaining as to terms and conditions of employment. The history of the Act's administration equally attests the many and varied problems which arise from this requirement. The pro- cedure of collective bargaining, concerned as it is with the relative shares the con- tending parties seek from the enterprise, already entails a myriad of difficulties in the way of reaching agreement. Broadening the field so as to embrace matters beyond the area of terms and conditions of employment would necessarily and unduly add to the strain of the collective-bargaining process. The scheme of collective bargain- ing envisioned by the Act cannot tolerate the breakdown of negotiations over such extraneous matters. Respondent, in its brief, argues that "the phrase 'terms and conditions of employ- ment,' as used in Section 8 (d) of the Act was intended by Congress to embrace the myriad of subjects appropriate for inclusion in collective bargaining agreements which concern an employer-employee relationship under the Act." The bounds of any such rule proposing to so extend the bargaining area are, however, too broad. To say that the field encompasses any proposal which "concern an employer-employee rela- tionship" is meaningless for it is beyond the realm of probability that either party would ever propose a matter which does not "concern the employer-employee rela- tionship." Thus, in every case cited above where the Board and the courts held insistence in the negotiations to constitute a refusal to bargain, the particular clause insisted upon concerned the employer-employee relationship in some way. In each case, had the other party yielded, the clause could validly have been incorporated into the agreement. A party is free to comply with the other's request that it withdraw a pending charge, or post an indemnity bond, or change its structure, or, if a union, that it register under a State statute, or obtain a license, or call off a strike, or organize competitors in the industry. Thus, all of the cases cited fit into the Company's criteria, quite as much as its proposal herein. The vice found in each of the cases must therefore have resided in the fact that the clauses insisted upon did not involve "terms and conditions of employment," for if they had, they could have been insisted upon, as has been indicated above. Accordingly, there must be some matters which while they "concern the employer-employee relationship," are nevertheless outside the limits of "terms and conditions of employment." Both of Respondent's ,proposals presently under considerations fall within the latter category. Respondent's ratification clause laid down as a condition to the effectiveness of the agreement that it be ratified by a majority of the employees participating in an election to be conducted among the employees in the unit. It is clear, therefore, that the clause intrinsically has no reference to terms or conditions of employment, but merely prescribes a nonstatutory manner of determining whether the terms and conditions fixed in the agreement should become operative; in short, a nonstatutory condition precedent to the operation of the terms and conditions of employment However, as the Board has held, ". . . collective bargaining as contemplated by the Act is a procedure looking towards the making of a collective agreement by the employer with the accredited representatives of his employees, concerning wages, hours of service, and other working conditions. It must be presumed that when the 13 The Board and the courts of appeals have uniformly held that adamant insistence of either party on matters other than "terms and conditions of employment" constitutes a refusal to bargain. See N. L R. B. v. George P Pillong d Son Co, 119 F. 2d 32, 38 (C A, 3) (employer's insistence that union organizer competitors in the industry) ; N. L. R. B, v. Aidora Mil18, 180 F. 2d 580 (C A. 5), enfg. 79 NLRB 1, 2 (employer's re- fusal to sign a contract until the Umon*chartered a local organization) ; American Laun- dry Machinery Co. v. N. L. R B, 174 F. 2d 124 (C A. 0), enfg 76 NLRB 981, 982-983 (employer's refusal to deal with union spokesman and insistence on withdrawal of pend- ing charges and calling off of strike) ; N. L. R B. v. Todd Co, Inc., 173 F. 2d 705, 707 (C. A. 2) (employer's insistence on union's consent not to put agreement in writing). DARLINGTON VENEER COMPANY, INC. 1117 Respondent's employees: chose the Union as 'their-representative 'for"the purpose of collective bargaining they did so for the purpose of having it make a collective agreement for them with the Respondent. Employees' designation of a collective bargaining representative and the Board's certification thereof would be futile and meaningless , could an employer, shortly thereafter, at any designated stage of the bargaining procedure, demand proof that the exclusive representative was acting in accordance with the desires of the employees." Union Manufacturing Co., 27 NLRB 1300-1306. And, as the Board recently repeated, both it "and the courts have held, the vice in such conduct is that the employer thereby attempts to de- tract from the authority of the chosen bargaining agent and, in effect, refuses to accord the majority representative of the employees that exclusive recognition which the statute makes mandatory." Allis-Chalmers Manufacturing Company, 106 NLRB 939. In my reliance upon the rationale above expressed, I am mindful that those views are not in accord with the opinion of the Court of Appeals for the Seventh Circuit (213 F. 2d 374), which denied enforcement of the Board's decision and order in the Allis-Chalmers case. Apart from the fact that I respectfully disagree with that de- cision, in view of my status as an arm of the Board, I deem myself bound to ahere to its interpretation of the Act,14 approved as it has been on this subject by other courts of appeals some of which have heretofore been cited. Most significant of these decisions is the case of N. L. R. B. v. Corsicana Cotton Mills, 178 F. 2d 344 (C. A. 5). There, the employer had insisted on a provision to the effect that nonunion em- ployees should have a right to vote upon the provisions of the contract negotiated by the Union as bargaining agent. The court held that, though the provision may have been advanced in good faith, such a position cannot be "rightly taken or .. . maintained [for], to the extent that [the company's negotiator] insisted on so doing, Respondent withheld recognition from the Union as bargaining agent." By Section 9 (a) of the Act, the Union herein is the "exclusive representative" of Respondent's employees and the company is thereby required to so recognize it. How employees are represented, or to what extent final authority is vested in the duly certified representative, is of no concern to, or a problem of, the employer. In any event, every representative system necessarily involves entrusting the representative with discretion not subject to review by the principals as to each exercise thereof, particularly at the instance of an outside party. Thus, in the field of government, absent a provision for referendum, legislation by our duly elected representatives is not subject to review by the electorate. And, could it be contended that the United Automobile Workers, in its negotiations with General Motors, could insist that the agreement being negotiated must be submitted to General Motors' stock- holders for ratification or approval.15 To compel the Union to submit the contract for ratification as proposed by Re- spondent would also violate the well-established principle that where the em- ployees have designated a representative as provided in the Act, the employer may not deal directly with the employees. Medo Photo Supply Corporation v. N. L. R. B., 321 U. S. 678; May Department Stores Co. v. N. L. R. B., 326 U. S. 376. It follows, therefore, that the employer may not insist on a contractual right, in effect, to bypass the exclusive representative as the Company seeks to do in this case. Not only is the ratification clause in derogation of the Union' s status as exclusive bargaining representative, it likewise constitutes an intrusion into an essential in- ternal union matter. The ratification clause is wholly inconsistent with the scheme of collective bargaining through labor organizations which the Act envisages. Unions are private membership organizations having their own laws, rules, and regula- tions, defining the rights and obligations of its members. The concept of collective bargaining embodied in the Act follows the pattern traditionally followed in the labor relations movement in this country. As the Supreme Court pointed out, the Act has been considered to absorb and give statutory approval to the philosophy of bargaining as worked out in the labor movement in the United States." -* Stylecraft Furniture Company, III NLRB 930, decided after the circuit court deci- sion in Allis-Chalmers In Stylecralt, a union representative conducted the negotiations in behalf of the employees The employer insisted that the contract include a provision requiring signature thereto by "a duly authorized committee of the employees," finally reduced to a committee of one The Board found that by such conduct the employer vio- lated Section 8 (a) (5) of the Act ie "In the political and business spheres, by an election the voters are bound by their choice for a fixed time This promotes a sense of responsibility in the electorate and needed coherence in administration These considerations are equally relevant to healthy labor relations " Ray Brooks v N. L It B , 348 U S 90 1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' American National.lnsurance Company v. N. L. R. B., 343 U. S. 395. Under the practice of collective bargaining as thus developed, it is customary to leave the decision (1) as to the demands to be made upon the employer, (2) the sanctions to be resorted to in support of their demands, and (3) the content of the contract ultimately entered into, up to the membership of the Union which is the majority representative, to be resolved in accordance with the internal procedures of the Union. Under this well-established practice, those employees in minority who unsuccess- fully oppcsed the selection of the particular organization chosen, if they wish to have a voice in the negotiation of the agreement, must join the organization. But if those employees chose to remain outside the union, the Act, by making the majority organization the exclusive representative, operates to exclude them from the negotiation of the agreement. The legislative history of the Act as it was origi- nally enacted makes it abundantly clear that Congress was fully aware of all the implications arising out of writing the majority rules principle into the Act. To permit nonmembers to intervene after the employer and the union have reached agreement, is to invite dissension and in many instances might well result in the loss of everything accomplished in the entire course of negotiations. It is, of course, possible for a majority in the union to join with the nonmembers and defeat the contract desired by a majority of the union. Permitting any such disruptive inter- ference at the crucial stage of the negotiations would encourage, rather than dis- courage, industrial strife. By insisting that any contract to be executed include a provision that it be submitted for ratification, or rejection, by the employees rep- resented by the Union, Respondent failed in its duty to bargain with that organiza- tion, and by doing so, violated Section 8 (a) (5) of the Act. For substantially the same reasons detailed above, Respondent also violated Sec- tion 8 (a) (5) of the Act insisting that the contract contain a provision "that in the e,,ent the number of check-off authorizations becomes less than 50 percent of the number of employees in the bargaining unit , [the] contract shall become null and void." In its brief, Respondent argues that by this proviso "the Company sought to arrive at a contract which would not only be satisfactory to the Union and the employees at the time of its execution , but which might be modified from time to time, if neces- sary, in the event that employee dissatisfaction arose after the execution of the con- tract." How a withdrawal of checkoff authorization, without more, necessarily constitutes a "signal" showing employee dissatisfaction with the existing contract, rather than something else was not established by the record. 16 Other reasons might prompt such action and yet under Respondent's proposal, the employees would be left without a contract, at least, for an undetermined period. In any event, and assum- ing arguendo, that withdrawal of checkoff authorizations may be interpreted ex- clusively as showing employee dissatisfaction with the existing contract, by seeking to prescribe the method by which such dissatisfaction is to be established , Respondent is meddling into, and interfering with, the internal affairs of the Union, the exclusive statutory representative of all the employees in the unit. It is not to be presumed that the Union's constitution and bylaws forclose, or fail to provide, opportunity for giving expression to employee dissatisfaction over existing terms and conditions of employment. Respondent denies that it would construe the checkoff withdrawals as termination of the Union's authority to negotiate for the employees and asserts that it would merely declare the old contract at an end and seek to negotiate a new agreement with the Union. Let it be assumed that shortly after the execution of the contract , check- off cancellations are presented to Respondent signed by a small, dissident, minority group of union members together with a sufficient number of nonunion members to constitute a majority of all the employees in the unit. Let it be further assumed that a majority of union members have voted to abide by the existing contract and in- structed its officers to resist cancellation or modification thereof. With whom would Respondent negotiate ? The Union or the dissident unorganized group. If the former, as the Company pleads it would, the gesture would be unavailing because 19 In Heaton Furniture Company, 111 NLRB 342 , the record showed "that the Respond- ent and all concerned treated and considered the revocation slips as more than a revo- cation of dues checkoff authorisations previously furnished the Respondent by the em- plovees but also as signed documents signifying the intent of the employees to 'get out of the Union.' " Because no exception was taken to the aforementioned evaluation of the cancellations made by the Trial Examiner in that proceeding , the Board accepted that evaluation It observed , however, that "ordinarily such cancellations are not the equiva- lent of withdrawal- from the union 11 DARLINGTON VENEER COMPANY, INC. 1119 a majority of its members had voted to adhere to the existing contract without modi- fication. If the latter group , Respondent would , in violation of the Act, be negotiating with another than the duly certified representative of all the employees . To allow such 'a situation to come about would be to encourage , rather than to discourage, industrial strife and warfare. C. The refusal to reinstate the strikers Having found that Respondent on and prior to September 16 adamantly'insisted on imposing conditions outside the area of collective bargaining, I further find and conclude that the strike which commenced on September 20 was occasioned by that conduct and was therefore a strike provoked by Respondent's unfair labor practices. This means, of course, that Respondent was required on September 22 to return all strikers to their former positions following their unconditional request for rein- statement, notwithstanding that replacements may have been hired in the interim. N. L. R. B. v. Remington Rand, Inc., 130 F. 2d 919 (C. A. 2). This, Respondent failed to do.17 At the hearing, the parties stipulated that all of the 22 employees named in paragraph numbered 11 of the complaint alleged to have been discriminatorily denied reinstatement on September 22, together with Venrow Williams, Sr., and William N. Hudson, "were replaced by new hires . on September 20 and 21, 1954," with the following exceptions: "Employees Robert Hill and James Hill's jobs were filled by Tim Posten and Ellis Lynch, who were employees of the Com- pany on September 19, 1954 . . . and that no replacements were hired for .. . Howard Bruce and Frank Jacobs." The fact that the jobs of Robert Hill and James Hill were filled by the transfer of other employees does not mean that each of them was "not replaced, . for a laid off employee may be as effectively replaced, as here, by the transfer of an employee to perform his duties as he would be by the hiring of a new employee for this purpose." Supreme Bedding and Manufac- turing Co., Inc., 93 NLRB 1616, 1618 (enforcement denied on another ground 196 F. 2d 997 (C. A. 5) ). With respect to Bruce and Jacobs, it was stipulated that both were returned to work at their same job and rate, Jacobs on September 22, and Bruce on September 23. Accordingly, it will be recommended that the allega- tions of the complaint pertaining to Jacobs be dismissed. As to the remainder of the 21 employees named in paragraph numbered 11 of the complaint, together with Venrow Williams, Sr., and William N. Hudson,18 it is concluded that in denying their unconditional request for reinstatement on September 22, Respondent violated Section 8 (a) (3) and 8 (a) (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connec- tion with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the sev- eral States, and tend to lead to labor disputes burdening and obstructing commerce in the free flow of commerce. 17 In its brief, Respondent urges only two defenses on this phase of the case : "A. The strike was not caused or prolonged by any unfair labor practice on the part of the Com- pany. B. Assuming, arguendo, that Respondent is guilty of refusing to bargain as re- quired by the Act the strike did not result from such refusal to bargain " Both defenses have been rejected in preceding portions of this report. Respondent' s refusal to reinstate the strikers was not predicated on any other ground than its "right . . . to replace economic strikers," a category, however, in which the strikers did not belong 180n. January 20, 1055, after the complaint was issued herein, an amended charge was filed and served charging that Williams, Sr., and Hudson were also discriminated against on September 22 The complaint, however, was never amended to include them as such alleged discriminatees although during the hearing it was announced that this would be done "at the proper time " The failure to make the amendment during the course of the hearing was attributed to the then existing vacancy in the office of General Counsel for the Board and the opinion of the attorney prosecuting the case that, so long as such vacancy existed, he had no authority to amend the complaint. However, the facts per- taining to the alleged discrimination against these two employees was litigated and made the subject of the foregoing stipulation. I have therefore included them in these find- ings. Clearfield Cheese Company, Inc., 106 NLRB 417, 424, enfd., as mod., In another respect 213 F. 70 (C. A. 3). 1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative ac- tion in order to effectuate the policies of the Act. It has been found that Respondent interrogated and surveilled its employees with respect to their union membership and activities. It will, therefore, be recom- mended that Respondent cease and desist from such interrogation and surveillance. Having found that Respondent discriminatorily discharged Henry Hule on August 20, 1954, it will be recommended that Respondent offer him immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of such discrimination by the payment to him of a sum of money equal to that which he normally would have earned as wages from the date of discrimination against him to the date of offer of reinstatement, less his net earnings during such period. Pursuant to a stipulation, an exhibit was received in evidence showing the" job held by and the rate paid just prior to the strike to each of the 24 strikers under con- sideration, the date when each was returned to work, at what job, and at what rate. That stipulation discloses that Perry Taylor and Charlie Pinkney "refused jobs." No order pertaining to their reinstatement will therefore be recommended. As to the remainder, however, while the stipulation discloses that all were at some time returned to employment with Respondent, a number of them were not re- turned to the same or substantially equivalent positions they held at the time they went on strike. As to them, it is recommended that Respondent offer each such employee immediate and full reinstatement to his former or substantially equiv- alent position without prejudice to his seniority or other rights and privileges. The record also discloses that each of said 24 strikers, except Frank Jacobs, suffered some loss in wages as the result of Respondent 's discrimination. As to them, it is recommended that Respondent make each such employee whole for any loss of pay he may have suffered by reason of Respondent's discrimination against him by the payment of a sum of money equal to that which he would normally have earned as wages from September 22, 1954, to the date of offer of reinstate- ment to his former or substantially equivalent position , less his net earnings during that period. All computation of back pay herein shall be made in accordance with the rules and methods laid down by the Board in Crossett Lumber Company, 8 NLRB 440, and F. W. Woolworth Company, 90 NLRB 289. It having been found that Respondent failed and refused to bargain collectively with the Union, it is recommended that it bargain with the Union upon request and, if understanding is reached, embody such understanding in a signed agreement. With regard to Respondent's checkoff and ratification proposals , it is specifically recommended that the Company , in collective-bargaining negotiations with the Union, cease insisting upon said proposals, any similar proposals having the same effect, or any other proposal not involving conditions of employment , or conditions outside the area of collective bargaining, to the point of breakdwn in negotiations. With regard to the allegations of the complaint heretofore found not sustained, it is recommended that they be dismissed. Because of Respondent's unlawful conduct as heretofore found , and its under- lying purpose, I am convinced that the unfair labor practices found are persuasive- ly related to the other unfair labor practices proscribed by the Act and that the danger of their commission in the future is to be anticipated from the course of Respondent's conduct in the past. The preventive purpose of the Act will be thwarted unless the recommendations are coextensive with the threat . In order, therefore, to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and to minimize strife which burdens and obstructs commerce, and thus to effectuate the policies of the Act, it will be recom- mended that Respondent cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Plywood and Veneer Workers Local Union No. 3130, United Brotherhood of Carpenters and Joiners of America, AFL, and Plywood and Veneer Workers Local DARLINGTON VENEER COMPANY, INC . 1121 Union No. 3043, United Brotherhood of Carpenters and Joiners of America, AFL, are labor organizations within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees at Respondent's Darlington, South Carolina, plants Nos. 2 and 3, excluding office clerical employees, guards, watch- men, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. From April 30, 1954, to August 2, 1954, the aforementioned Local Union No. 3130 was the certified exclusive representative of all the employees in the above- named unit for the purposes of collective bargaining within the meaning of Sec- tion 9 (a) of the Act. Since August 2, 1954, Local Union No. 3043 above de- scribed has been such exclusive representative. 4. By adamantly insisting to the point of breakdown in negotiations that the labor bargaining contract include its checkoff and ratification proposals, or any similar proposal having the same effect, Respondent violated Section 8 (a) (5) and 8 (a) (1) of the Act. 5. By discriminating with regard to the hire and tenure of employment of its em- ployees who went on strike Respondent violated Section 8 (a) (3) and 8 (a) (1). 6. By interrogating and surveilling its employees concerning their union activities Respondent violated Section 8 (a) (1) of the Act. 7. By discriminating in regard to the hire and tenure of employment of Henry Hule, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and 8 (a) (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2 (6) and (7) of the Act. 9. Respondent did not discriminate against Frank Jacobs. [Recommendations omitted from publication.] APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT interrogate our employees concerning their membership in, or activities on behalf of, Plywood and Veneer Workers Local Union No. 3043, United Brotherhood of Carpenters and Joiners of America, AFL, or any other labor organization , in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. WE WILL NOT engage in surveillance of the union activities of our employees. WE WILL NOT discourage membership in Plywood and Veneer Workers Local Union No. 3043, United Brotherhood of Carpenters and Joiners of America, AFL, or in any other labor organization of our employees, by discriminatorily discharging any of our employees, or in any other manner discriminating against them in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL bargain collectively with Plywood and Veneer Workers Local Union No. 3043, United Brotherhood of Carpenters and Joiners of America, AFL, for the appropriate bargaining unit named herein, with respect to rates of pay, wages, hours of employment, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. WE WILL NOT insist, as a condition to the execution of any agreement, that (1) it be ratified at an election among the employees in the hereafter described unit and (2) that it contain a checkoff clause providing, in substance, that in the event the number of checkoff authorizations falls below 50 percent of the number of employees in the bargaining unit the contract shall become null and void. WE WILL offer to Henry Hule immediate and full reinstatement to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination. WE WILL offer to the employees named below, who have not heretofore been returned to the positions held by them at the commencement of the strike on September 20, 1954, immediate and full reinstatement to their former or sub- stantially equivalent position without prejudice to their seniority or other 1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rights and privileges, and will make result of the discrimination. Johnny Slater Robert Hill James Hill Benjamin Gurley Raleigh Boseman E. L. Bryant, Jr. Berkley James, Jr. Johnny Lunn Willie Mayes Howard Bruce Perry Taylor Venrow Williams, Sr. them whole for any loss suffered as a Andrew Chambers James Hudson Jerome Barker Charlie Pinkney Arthur McIver Wilds Ezekiel James Toney Anderson Flynn, Jr. Prince Taylor Clifton Weatherford William Hudson WE WILL NOT in any other manner interfere with , restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist Plywood and Veneer Workers Local Union No. 3043, United Brotherhood of Carpenters and Joiners of America, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of 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 a condition of employment as authorized in Section 8 (a) (3) of the Act. All our employees are free to become , remain, or refrain from becoming mem- bers of the above-named Union, or any other labor organization, except to the extent that the right to refrain may be affected by an agreement in conformity with Section 8 (a) (3) of the National Labor Relations Act. The appropriate bargaining unit is: All production and maintenance employees at our Darlington, South Carolina, plants Nos. 2 and 3, excluding office clerical employees , guards, watchmen, and supervisors as defined in the Act. DARLINGTON VENEER COMPANY, INC., Employer. Dated---------------- By---------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof , and must not be altered, defaced, or covered by any other material. Southeastern Motor Truck Lines and Warehouse and Distribu- tion Workers, Local 688, affiliated with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL. Case No. 14-CA-1274. August 926,1955 DECISION AND ORDER On March 23,1955, Trial Examiner Alba B. Martin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed ex- ceptions to the Intermediate Report and a supporting brief. 113 NLRB No. 126.