J. H. Rutter-Rex Manufacturing Co., Inc.

388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ciation at their respective Kansas City, Missouri, and Kansas City, Kansas, establishments, and excluding all other employees and super- visors as defined in the Act. [Text of Direction of Election omitted from publication.] J. H. Rutter-Rex Manufacturing Company, Inc. and Amalgamated Clothing Workers of America , AFL-CIO. Cases Nos. 15-CA- 721 and 15-CA-723. February 13,1956 DECISION AND ORDER On July 29,.1955, Trial Examiner Lloyd Buchanan issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged and was engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (5) of the Act and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respondent and the General Counsel filed exceptions to the Intermediate Report and briefs.' The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following modifications. The Charging Union was certified as the exclusive representative of the Respondent's employees on February 2, 1954, and then met with the latter's representatives on three occasions in an attempt to negotiate a collective-bargaining contract. No agreement was reached; the employees went on strike on April 21, 1954; and the parties never met again. The principal issue presented here is whether, as alleged in the complaint, the Respondent refused to bargain with the Union in good faith, in violation of its obligation under the statute. The Trial Examiner found enough evidence in the events preceding the inception of the strike to prove the basic allegation of the com- plaint. In its exceptions, the Respondent insists that it honestly at- tempted to reach agreement with the Union when it met with its repre- sentatives before the strike, and that therefore the complaint should be dismissed. We agree with the Trial Examiner's ultimate conclusion in this case because, whether or not the Respondent's conduct before :'The Respondent also requested oral argument. In our opinion , the record , with the exceptions and briefs , fully present the issues and the positions of the parties . Accord- ingly, the request for oral arg.ale.,t is ncreby ue.iieu. 115 NLRB No. 61. J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 389 April 21 shows the commission of unfair labor practices, it is clear, on the record as a whole, that the Respondent thereafter unlawfully re- fused to bargain with its employees' certified representative and thereby violated Section 8 (a) (5) of the Act. As set out in detail in the Intermediate Report, even before the Janu- ary 1954 election in which the Union established its majority status, the Respondent's president, J. H. Rutter, made speeches to the em- ployees in which he threatened to refuse to bargain with the Union and to close the plants down instead. In February, Rutter, and also Franklinton Superintendent J. E. Rutter, made similar speeches. Such coercive statements were clear violations of Section 8 (a) (1) of the Act, and the Trial Examiner correctly so found. If the record showed nothing more than these facts, it is arguable, although we find it unnecessary to decide, that the overall refusal-to- bargain allegation would fail.' Also, had the Respondent continued to recognize its duty to meet and confer with the Union at the start of the strike and thereafter, this proceeding might never have been insti- tuted. However, the Respondent chose, instead, as it admits in its brief to the Board, to "abandon all efforts to bargain with the Union" as soon as the strike started. Accordingly, it refused to continue to recognize the Union as the statutory representative of its employees, despite the Union's telegraphic bargaining request received only 1 hour before the strike, stating the Union's readiness "to negotiate our differences at your convenience." I From the moment of the strike, the evidence of the Respondent's rejection of the very principle of collective bargaining is clear. As detailed -in the Intermediate Report, it sought to undermine the Union's representative status by repeatedly interrogating the strikers concerning their union activity and soliciting them to return to work. In malty instances, its representatives made threats of replacement, discharge, other reprisals, and even complete plant shutdown if they- refused to abandon the strike. They also promised various benefits as rewards to returning strikers. And finally, without consulting the 3 The record shows that at the last conference between the parties a company repre- sentative made an ill-advised remark reflecting upon the integrity of the union officers. We are all unwilling to police the language , sometimes overheated , that may be used at collective-bargaining conferences , and we therefore i elect the Tiial Examiner 's finding that this incident evidenced the Respondent 's bad faith and was an independent violation of Section 8 (a) (5) However , Member Peterson would find , in partial agreement with the Trial Examiner , that before the start of the strike the Respondent violated Section 8 (a) (5) by failing to grant the Union 's request for wage information , and also by limiting the authoiity of the private attorney whom it selected as its principal negotiator, Price. 3 The Respondent likewise made no answer to a second bargaining request, in an open letter received from the Union on June 28, 1954. We find no support in the record for the Trial Examiner 's finding that the Respondent was willing to meet with the Union in response to these requests , and we therefore do not adopt it we find instead , consistent with the Respondent's contention that it was no longer obligated to bargain , that it in fact refused to accede to the two requests 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union, the Respondent improved working conditions for those em- ployees who continued to work. Clearly, these facts, when considered in their totality, establish a refusal to bargain in violation of Section 8 (a) (5). The record does not support the Respondent's contention that its conduct was justified because the Union itself failed in its obligation to bargain in good faith, or struck in violation of its promise not to do so. No charge of unfair labor practices was filed against the Union, and we find no credible evidence that the Union failed to discharge its statutory duty to bargain on behalf of the employees. As to any al- leged promise not to strike, the testimony of Price, the Respondent's witness, was expressly discredited on this point by the Trial Exam- iner, who credited the denial by Union Representative Brazier. We see no reason for disturbing this resolution of credibility. In sum, we find that ever since the start of the strike, even though economic in origin, the Respondent has unlawfully refused to bargain exclusively with its employees' chosen representative, and thereby committed the basic unfair labor practice alleged in the complaint. There is little merit in the Respondent's argument that such a finding is based "in the main" on conjecture and on trivial and isolated inci- dents, or that it disregards the total context of "tense give and take negotiations." We cannot disregard the clear and admitted fact, es- tablished in this record, that with the start of the strike the Respond- ent absolutely refused to recognize or meet with the Union. We do not base our ultimate finding on the events that occurred during the nego- tiations for, as we said above, we find it unnecessary to decide whether the Respondent's conduct then was also violative of Section 8 (a) (5). By the same token, we are satisfied, as the complaint also alleges, that the strike became an unfair labor practice strike. The Respond- ent's clearly unlawful rejection of its obligation to honor the Board's certification by its refusal to recognize and meet with the Union after the strike started, even assuming its economic origin, had the reasona- ble effect of prolonging the strike and converting it into an unfair labor practice strike.4 For an illegal refusal to bargain during a strike concerning economic differences which caused the strike patently pre- vents a resolution of those differences and tends to prolong the strike beyond the time when it might have been settled had there been a con- tinuance of good-faith bargaining. In this connection, we note evi- dence, cited by the Trial Examiner, that when the Respondent so- licited various strikers to abandon the strike and return to work, they replied that they would not do so until the Respondent signed a con- tract with the Union. Maurice E-m broudery Works, Inc, 111 NLRB 1143, 1144, R J. Oil 6 Refining Co , 108 NLRB 641, 648. J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 391 ORDER Upon the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, J. H. Rutter-Rex Manufacturing Company, Inc., New Orleans and Frank- linton, Louisiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Amalgamated Clothing Workers of America, AFL-CIO, as the exclusive representative of all its employees in the appropriate unit with respect to rates of pay, wages, hours of employment; and other terms and conditions of employment. (b) Threatening to refuse to bargain with the above-mentioned Union or to close the plants or to discharge employees for striking, soliciting strikers to return to work, inquiring of strikers in an un- lawful manner concerning the Union's activities, promising benefits, or unilaterally granting benefits without consulting the Union. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a -condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Amalgamated Clothing Workers of America, AFL-CIO, as the exclusive representative of the employees in the appropriate unit, and embody in a signed agree- ment any understanding reached. (b) Upon application, offer immediate and full reinstatement to their former or substantially equivalent positions to all those employees who went on strike on April 21, 1954, or thereafter, without prejudice to their seniority or other rights and privileges, dismissing if necessary all persons hired on or after that date, and make such applicants whole for any loss of pay suffered by reason of the Respondent's refusal, if any, to reinstate them, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." 5 c We do not adopt the Tual Examiner's modification of our conventional order of affiima- tive ieniedial action foi unfaie labor practice strikeis1 See Buffalo Arms, Inc. 110 NLRB 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Preserve and make available to the Board or its agents upon request, 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. (d) Post at its plants in New Orleans and Franklinton, Louisiana, copies of the notice attached hereto and marked "Appendix A." 6 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by an authorized representative of the Respondent, be posted by the Respondent imme- diately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, includ- ing all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Fifteenth Region in writ- ing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBERS MURDOCK and BEAN took no part in the consideration of the above Decision and Order. 816 we refer particularly to the Tiial Examinei's attempt to provide for hypothetical future situations , such as the Respondent 's business situation after the close of the hear- ing when the strikers might apply for reinstatement, or the computation of vacation pay Such questions of compliance may not in fact ;u ise , but if they should they will be ad- justed at the compliance stage of this case ° In the event that this Order is enfoicod by d decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Older " the words "Pursuant to a Decree of the United States Coui t of Appeals , Enforcing an Order " ,APPENDIX A NOTICE To ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the Labor Manage- ment Relations Act, we hereby notify our employees that : WE WILL bargain upon request with Amalgamated Clothing Workers of America, AFL-CIO, as the exclusive representative of all employees in the bargaining unit described herein with re- spect to wages, rates of pay, hours of employment, or other con- ditions of employment, and embody in a signed agreement any understanding reached. The bargaining unit is : All production and maintenance employees at our three New Orleans plants, including truckdrivers and janitors, but ex- cluding professional employees, office clerical employees, mechanics, guards, and supervisors as defined in the Act. J. H. RUTTER-REX MANUFACTURING COMPANY, INC . 393 WE WILL NOT threaten to refuse to deal with the Union or to close the plant, solicit strikers to return to work, unlawfully in- quire of strikers concerning their own and the Union's activities, threaten to discharge strikers, or unlawfully promise or grant benefits. WE WILL NOT lit any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join or assist Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to ref rain from any or a]1 of such activities, except to the extent that such right 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. WE WILL, upon application, offer to all strikers immediate and full reinstatement to their former or substantially equivalent po- sitions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered as a result of any refusal to reinstate them upon such application. J. H. RUTTER-REX MANUFACTURING 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. INTERMEDIATE REPORT AND RECOMMENDED ORDER This hearing consumed all or a part of 16 hearing days. After several hundred allegations of violation and testimony relating thereto, it should suffice to report, with analysis of the salient evidence, that interference and refusal to bargain have clearly and repeatedly occurred. Where the evidence on a given violation alleged or on different violations of the same section of the Act is cumulative, as will be further indicated infra, only that minimum of the evidence pro and con will be recited (although all has been weighed) as will clearly determine the contentions of the parties and indicate the proper remedy. I shall in fact go beyond what I deem the necessary minimum of analysis of the evidence and reasons for the findings, conclusions , and recommendations made. But where the finding and conclusion are clearly indicated , neither the Trial Examiner, the Board, nor a court is to be a martyr at the stake of detailed recitals while licks of testimony, dancing and laughing, rise up to heighten the spectacle even if adding little to the effect of the basic conflagration. The complaint herein, as amended at the hearing , alleges that J. H. Rutter-Rex Manufacturing Company, Inc., has violated Section 8 (a) (5) and (1) of the Na- tional Labor Relations Act, as amended, 61 Stat. 136, by: (1) Interrogation concerning . and promises and solicitation to abandon and help break a strike and return to work; ( 2) interrogation concerning and threats because of union membership and activities ; (3) threats of refusal to bargain or sign a contract with Amalgamated Clothing -Workers, of America, CIO, and of, closingone of the-Com- 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany's plants; (4) granting benefits to induce employees to abandon a strike and otherwise repudiate the Union; (5) asking employees to bargain individually, at- tempting to undermine the Union as bargaining representative; (6) refusing to fur- nish the Union with information concerning wage rates; and (7) refusing to bargain collectively with the Union. The answer, as amended at the hearing, denies the allegations of unfair-labor practices, and alleges that the Union delivered an ultimatum to the Company and did not itself bargain in good faith, but improperly broke off negotiations; and that the Union violated a promise to negotiate further, and called a strike, which was characterized by mass picketing, threats, and intimidation. The complaint further alleges and the answer denies that a strike called at the Company's three New Orleans plants on or about April 21, 1954, was caused and prolonged by the Company's unfair labor practices. A hearing was held before me at New Orleans, Louisiana, on October 4 and 5, 1954, and, after a proceeding to enforce subpenas, on January 12 to 21 and March 1 to 8, 1955, inclusive. Counsel have been heard in oral argument and, pursuant to leave granted to all parties, briefs have been filed by the General Counsel and the Company, the time to do so having been extended. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT WITH REASONS THEREFOR 1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED It was admitted and I find that the Company, a Louisiana corporation with three plants and main office in New Orleans, Louisiana, and a plant in Franklinton, Louisiana, is engaged in the manufacture of work clothing, including work shirts and work pants made from khaki cloth and cotton twill; that during the year end- ing April 1954 it purchased raw materials valued at more than $250,000, of which 75 percent was shipped to it from places outside the State of Louisiana; and that during said period it manufactured and sold finished products valued at more than $500,000, of which products valued at more than $350,000 were shipped to points outside the State. I find that the Company'is engaged in commerce within the meaning of the Act. It was admitted and I find that the Union is a labor organization within the mean- ing of the Act. II. THE UNFAIR LABOR PRACTICES A. Credibility References hereinafter made to the evidence, not ascribed to named witnesses, represent uncontradicted testimony, or findings where conflicts have been resolved; findings are made herein on the basis of reliable, probative, and substantial evidence on the record considered as a whole and the preponderance of the testimony taken, and evidence in conflict with the findings which is not discussed has not been credited. All of the witnesses were intelligent; some highly literate. Yet, in determining credibility, I attach to their words the normal, if sometimes colloquial, meaning rather than any contrary technical significance which appeared plainly beyond their intent. To cite an instance, a witness declared that, at a meeting 2 or 3 days before the strike, she learned that the strike would be called. Whether, when she indicated 2 days, she was following the Biblical method of computation, I do not know. How 3 days were computed is likewise not clear. But she did refer to the meeting being held on Tuesday, and the strike on Wednesday. I will not rely on the 2-3 day declaration in the face of the more specific Tuesday-Wednesday state- ment. Nor do I consider the latter unreliable- it is direct, clear, and convincing Likewise bearing on credibility findings are those instances in which witnesses were readily led to agree with counsel's suggestions of what their testimony should be, differing from what they had earlier declared. One of these, thereafter asked by me to state what had occurred or what had been said, included both elements of her previous testimony; her explanation and manner appeared to me to be altogether reliable That some of the witnesses were easily confused is readily -understandable to anyone who saw them; but if some were nervous, they were never- theless truthful (with due allowance for error as herein noted). Asked direct ques- tions, they gave straightforward answers. There is no evidence that these answers had been suggested to them; yet, when questions with contrary suggestions were put to them, these witnesses followed the suggestions. J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 395 Wholly reliable evidence having been received without contradiction concerning various allegations, it is unnecessary to name those witnesses whose testimony, were it standing alone, might not support a finding.' Other witnesses, keener (whether innately so, better educated, or both), resisted efforts to confuse them, and intensive cross-examination served only to bolster their testimony and apparent reliability. With no intent to slight the painstaking efforts of counsel, I believe that it is quite unnecessary to create a major industry of analysis of each pertinent statement by the 50-odd witnesses, although I shall attempt to cover the various points raised by counsel in their oral argument and briefs. To analyze or discuss the testimony- in detail with the many instances of varied statements would in this case extend the report beyond the length of the transcript itself, and would serve no necessary purpose. It must suffice to summarize the testimony in various respects, grouping it according to subject matter and stating findings which in each instance will be based on consideration of all of the testimony received. Beyond this, each side points to the other's failure to call certain individuals as witnesses, and to the conclusion to be drawn from such failure. The testimony submitted sufficiently supports the findings made. Thus we shall not consider each of the 300-odd allegations of violation; nor recite the cumulative testimony received concerning many of them. Nor-need we analyze for credibility the testimony of each of the witnesses heard. On the latter point, .most of the General Counsel's witnesses testified to their recollection of the sub- stance of the remarks made. A few maintained that they were quoting these remarks verbatim. (One, Bruce, was exceptionally consistent as she repeated her account on both direct and cross-examination . There was no sign of memorization beyond the fact of repetition itself.) Whether or not they believed that they could repeat the words used a year before, their recollection of the substance could be correct and their reliability acceptable. That is to say that those who undertook to repeat the. very words previously used did not by that fact alone, and, even if they erred in the attempted repetition, discredit themselves as witnesses so that their testimony should be disregarded. The other witnesses, and most were in this latter group, differed with respect to the expressions used; but they agreed on the substance of what had been said, although all did not hear and remember all of the things testified to by each of the others. Such variation is natural. Had their testimony been identical, it might have been suspect; that it was not is thus itself no reason for discrediting it. Concerning, then, reliance on the substance in context of what was said as testified to by the General Counsel's employee witnesses, rather than on variances in the terms which they employed, the question is whether those witnesses individually and their testimony both individually and collectively are to be believed. They were exposed to rigorous cross-examination. Such examination, because it was rigorous and purposed to show that they were unreliable, helped rather, when it failed of that purpose, to prove their trustworthiness on the stand. Of course, what is here said in generality is supplemented or superseded by analysis, infra, of specific testimony. - I have not overlooked such objections to credibility or clarity of witnesses as, to cite one instance, was suggested in cross-examination of the witness Breaud where it was brought out that, when he was asked why he did not return to work and he replied that he would if some other men would, the supervisor did not ask him to see whether those others were "coming back to work," although he had so testified; rather, the supervisor had asked him to see what the others "were going to do." Whether this was elicited in connection with Breaud's reliability or the Company's responsibility, the context is clear and violation may properly and without speculation be found on the basis of the reasonable meaning of the language used under the existing circumstances. Again, the witness Jackson testified that she does not in fact know what contract J. H. Rutter, the Company's president, meant when he said that he would not sign the contract. Here too the context indicated the contract as being with the Union even if the witness was not familiar with any 'such contract; but even if the witness misunderstood the language used (and there is no evidence of this), I should find the Company responsible for the reasonable conclusion which employees drew from the speech. To cite just one more instance, employee Hall testified that J. H. Rutter, at the Franklinton plant in February, referred to a union leaflet as he spoke to the employees; he said that he had not signed several years before and he would N. L. R. B v. Howell Chevrolet Company, 204 F. 2d 79, 86 (C. A. 9), citing Dyer v. MacDougall, 201 F. 2d 265, 269 (C. A. 2). Cf. N. L R. B. v. Ray Smith Transportation Company, 193 F 2d 142, 146 (C. A. 5). 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not sign now. Although the leaflet mentions signing of union cards by employees rather than a union contract, there is no basis for discrediting the witness ' testimony that she thought Rutter was speaking of his signing a contract : she understood him to be referring , not to union cards although the leaflet did, but to what he would or would not sign. - As to whether J . H. Rutter and other company representatives referred at various times to the former's refusal to sign the contract or a contract, the attendant circum- stances are of material assistance in resolving the question of credibility and deter- -mining the facts. When these references to refusal to sign were made, neither the employees nor the company representatives stressed the terms of a given contract as proposed . The references were to a possible agreement of some sort ; certainly the majority of the employee witnesses could not, from my observation of them, detail the various terms of any contract. The denial was that there would be any agreement. But even if it were held that the Company 's refusal in the mind of some employees was limited to a specific contract and no other, and if we overlook the other attempts to circumvent the Union by direct appeal to employees , there is multiple uncontradicted proof that company representatives , from J . H. Rutter down, declared at various times to individual strikers that the company would not sign any contract with the Union . In this connection it should be remembered that the negotiations had been conducted by the Union , not by the respective employees as individuals although a few attended the negotiations as representatives . The Com-, pany knew that those negotiations concerned the signing of a contract to be worked out between the parties . There was no reasonable basis for company concern over the contract as originally submitted . (Not only were proposais in the contract submitted by the Union changed, but the Company was in advance notified that the document sent to it by the Union did not represent the latter 's demands . Further, as indicated in the defense and repeatedly emphasized at the hearing , the Company's attention was allegedly focussed on another deal or proposition earlier made by the Union, infra.) Hence, even if some employees 'knew only of the contract as pro- posed by the Union, and referred to the contract, whose terms were never fixed, I here make the credibility finding that the Company did not so unrealistically refer to that contract ; rather it referred to and declared its refusal to sign a contract with the Union . In other instances it appears from the credible testimony of many wit- nesses that the refusal was specifically stated to be of a or any contract. For what- ever further light it may shed on this point, J. H. Rutter's talk of May 26 to the employees in the plant, while emphasizing the Union 's inability to "make me [him] sign" rather than his refusal to do so, referred to a contract rather than the con- tract. ( I am more impressed by this admission than by the self-serving reference 1 month later to "the contract as presented .") The testimony that J . H. Rutter declared that he would not sign a or any contract with the Union is supported by his general interdiction of the Union and his intention not to sign a contract , noted infra. (The General Counsel cites an earlier proceeding , hereinafter mentioned , in further sup- port. ) With this finding, it is unnecessary to consider such uncontradicted testimony as that Assistant Superintendent Drake early in May told Roebuck: "Mr. Rutter is not going to have a union , he is not going to sign the contract. He just doesn't want it." It may also be noted at this point that, although most of the witnesses referred to various events as having occurred "after the strike," they were in fact alluding to a period after the beginning of but during the strike, which was still in progress at the time of the hearing. At the hearing the General Counsel requested that judicial notice be taken of the Intermediate Report issued on November 30, 1954 , in another proceeding brought against the Company and based on charges brought by the Union. I need not now cite authority in support of the position that judicial notice is not to be taken of a Trial Examiner's report. The Board on March 25, 1955,2 substantially adopted that report with its findings of interference, restraint, and coercion by threats , warning, and interrogation , and of discrimination by discharge and refusal to hire. Subse- quently, and simultaneously with the filing of his brief , the General Counsel re- quested that I take judicial notice of the Board's decision . Without suggesting lack of faith, credit, or respect for the Board, neither will I now take judicial notice of its decision . the evidence in the instant proceeding is ample. I recognize that it may be proper in some cases "for the Board to take account of the prior history of the Company's labor relations , as disclosed in the prior record of which the Board might take judicial notice . The ultimate issue whether the Company conducted its bargaining negotiations in good faith involves a finding of motive or state of mind 2J H ltvtter-Rex Manufacturi ng Company, Inc, 111 NLRB 1099 J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 397 which can only be inferred from circumstantial evidence." 3 But the mass of evi- dence here received indicates persuasively the findings which should be made, and that without recourse to the prior record. (The effect of prior =violation on the remedy to be applied here or in enforcement proceedings is not a matter which we need now consider.) B. Motions to correct the transcript Under date of March 22, 1955, counsel for the Company moved to correct the transcript in connection with certain remarks which he had made at the beginning of the January 14 session. The General Counsel had during the hearing filed a motion to correct the transcript, said motion listing 111 items; all of these except items numbered 17 through 21 were disposed of at the hearing. Since these latter 5 items are covered by the Company's motion, and since the General Counsel has advised me by letter dated March 25, 1955, that he has no objection to the Company's motion to correct, said items 17 through 21 in the General Counsel's motion are deemed withdrawn. The company counsel's letter to me, dated March 22, is received in evidence as Trial Examiner's Exhibit No. 1; the undated motion papers to correct transcript, minus the exclusion noted thereon and infra, which motion was verified March 22, 1955, is received as Trial Examiner's Exhibit No. 2; and the General Counsel's letter of March 25 is received as Trial Examiner's Exhibit No. 3. The transcript is hereby corrected by striking page 238, line 21, through the bottom of page 241; and inserting in lieu thereof all of the material proposed in Trial Ex- aminer's Exhibit No. 2 except the beginning of the third paragraph, beginning with the words "Prior to the convening" and through the words "for the charging Union," on the fifth and sixth lines of the following page. (I have, on the original exhibit, placed parentheses around and initialled the beginning and end of the portion so excluded; it is not part of the exhibit. For purposes of review, should that be sought, the excluded portion may be regarded as a rejected exhibit.) To the extent that Trial Examiner's Exhibit No. 1 may request an oral hearing, such request is denied. The portion-herein excluded from Trial Examiner's Exhibit No. 2 appears to be a hearsay statement by counsel for the Company concerning remarks attributed to an attorney who allegedly represents the Union, although not in this proceeding. The statement is not proof on the issue of the Union's good faith. Nor is it ma- terial to any other issue before us. After the statement had- been made, I struck the remarks concerning the attorney so that no prejudicial personal remarks would appear in the record and to avoid the indicated desire of the Union to reply. Later, and near the close of the hearing, the attorney so mentioned appeared, seeking to reply to what had been said about him; and the Union's counsel requested that the attorney be heard on the matter. I denied the request, pointing out that the previous remarks had been stricken, and that I sought to exclude the discussion, certainly to avoid prolongation. With a question arising concerning what was in fact said, I will not now help revive the matter and create an issue where none exists as far as this proceeding is concerned, or should exist, and after I have refused to permit a reply. For that reason, I have rejected the excluded portion of the motion to correct; it.is not part-of the exhibit received or of the record herein Whether the motion to correct, as herein granted, supports the Company's defense that the Union acted in bad faith is another question. I shall not posit as a bad-faith attempt to protract the hearing a refusal to submit affidavits instead of calling wit- nesses; as well find bad-faith prolongation on the Company's part where counsel cross- examined witnesses whose testimony it was in a position to but did not by other witnesses refute: I do neither. Further, when the General Counsel pointed out that he proposed to prove facts which were not covered in the affidavits and that the latter might not themselves indicate the proper remedy herein; there was no agreement or proposal to agree on any remedy. A letter from counsel for the Company, dated May 11, 1955, is received in evidence as Trial Examiner's Exhibit No. 4; the motion papers to correct the record, enclosed therewith, are received as Trial Examiner's Exhibit No. 5, and the motion is granted. C. The affirmative defense In defense, the Company alleges that at the Union's reonest the latter's representa- tives, including Potofsky, its president, met with J. H. Rutter and other company 3N L R R v Reed if P,ince Manmfactur,np Co. 205 F 2d, 131, 189-140 (C A 1) See also N D Cass Company, 112 NLRB 402, footnote 4, where the Bo:ud cited and re- lied on an earlier case in which it had found "evidence of the Respondent's strong anti- union bias " 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representatives on January 28, 1954 (the Board conducted a collective-bargaining election on January 25, and certified the Union on February 2 as collective-bargaining representative for all production and maintenance employees in the three New Orleans plants); Potofsky offered Rutter an agreement or deal and, when Rutter replied that he would take it up with his lawyer, warned that if the Company did not at once take the offer or deal, it would have to take the whole contract just as the Union would write it; that the Union in offering such a choice itself refused to bargain in good faith; and that subsequent negotiations failed because the Union was intransigent, insisting on substantially all of the terms of a "standard contract" which it had sub- mitted although, while "maintaining the appearance of" such insistence, "it main- tained the attitude that it would accept in lieu thereof the Potofsky deal" without other substantial changes. Mass picketing, intimidation, and violence are also alleged in defense. (Other elements alleged in the defense, breaking off of negotiations and failing to arrange for further sessions, are considered infra, in connection with proof of the General Counsel's case and in a framework in which they can be more readily evaluated.) To strike the defense as requested by the General Counsel would be to say that it does not matter whether a union approaches the bargaining table in bad faith or pursues with violence its right to strike But the policy of the Act and public policy, as expressly declared and as set forth in the cases, indicate the materiality of the ques- tions raised by the defense. The defense is a proper one since, if the Union failed to bargain in good faith, a finding would hardly be made against the Company for its own failure. It must be home in mind that Section 8 (d) of the Act defines the duty to bargain collectively as a "mutual obligation ... to . . confer in good faith. .11 Although the Union's alleged refusal to bargain collectively is not charged as a violation of Section 8 (b) (3) of the Act, such refusal is properly a matter of defense. That earlier conduct is relevant to the issue of motive of good faith is well estab- lished; in fact, the General Counsel relies on that proposition in part at least when he cites earlier speeches by company representatives as indicating that the Company did not later bargain in good faith, as found infra. The Board has recently again held that earlier interference establishes "a pattern of coercive conduct," which was connected with a threat a year later.4 As to the relevance of "later" conduct, i. e., after negotiations were broken off, such conduct is material even to prove criminal intent.5 The defense is further material to the question of abuse of Board process by a union which allegedly engaged in violence and other illegal conducts With court sanction, the Board thus weighs responsibility as well as rights. Finally, in addition to the question of abuse of process' (although not itself reason for' permitting the defense if it were not otherwise proper), consideration of these matters may be help- ful in enforcement proceedings if it-be urged that the Company should not in any event be directed to bargain with the Union in the light of the acts here charged to it. Thus with bad faith charged against each of the principals (against the Company in the complaint and against the Union in the answer), we note the general proposi- tion that the conduct of either or both, even if not itself unlawful, may be considered as evidencing bad faith in the negotiations.? The defense, if sustained, would make it unnecessary to consider various phases of the testimony. It will therefore be considered first. E. J. Rutter, the Company's vice president in charge of production, and son of J. H. Rutter, testified that he attended the meeting with Potofsky in J. H. Rutter's office about a week after the collective-bargaining election of January 25, 1954; that the meeting had been arranged the evening before when Lampert, the Union's attorney, had called and suggested a meeting between Potofsky and E. J. Rutter (the latter suggested that J. H. Rutter attend also); that Potofsky declared at the meeting that within 20 minutes he and J. H. Rutter could reach a 5-year agreement which would call for no change in working conditions or pay, but only a union shop, checkoff, and part of the Union's insurance plan, and that the Company's competitors would be 4 Delta Finishvng Company (Division of J P Stevens & Co , Inc-Plant No 3), 111 NLRB 659 o LutmaA v U S, 344 U S 604, 617 See also N. L R B v Martin, 207 F 24 655. 658 (C A 9) ; Angwell Curtain Company, Inc. v N L. R. B, 192 F. 2d 899, 903 (C A. 7) ; N L R. B. v. Vail Manufacturing Company, 158 F 2d 664 , 666 (C A. 7). U Indiana & Miehngan Electric Company v N L. R B , 318 U S 9 , 19-20, et seq ?See Textile Workers Union of Ameitca, CIO (Personal Pioducts Corporation), 108 NLRB 743 , 746. While the violation there was of Section 8 (b) (3) of the Act, the Board's analysis and the underlying principles of public policy are equally applicable here J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 399 given less favorable terms; that, when J. H. Rutter mentioned the name of his lawyer, with whom he wanted to discuss the matter, Potofsky called the lawyer a union buster, and threatened. ". . . if you don't take what we are offering you now, you'll take the contract later as we write it and we'll strike your plant if we have to spend a quarter of a million dollars in doing it and you will either take this deal now or there is no deal"; and that the meeting continued without further incident and "ended with cordiality." (With so much emphasis on Potofsky to prove the Union's alleged bad faith, we may note the testimony by Brazier, a vice president of the Union and its thief negotiator, that Potofsky's presence in New Orleans was incidental to a trip through the South and some speaking engagements in Mississippi ) In the face of any suggestion of finality or ultimatum, E. J. Rutter testified further that when the arrangement was made for the first negotiation meeting on March 16, after the Union had been certified by the Board, Lampert said that he would mail to him the Union's standard cotton garment agreement; that he wanted the Rutters, father and son, "to understand that this was not the demands that were going'to be made of the Company, some of them were not, and for [them] not to be alarmed on receiving them, but it was a standard form to be used in the bargaining session. And he further wanted [E. J. Rutter] to know that the deal made by Mr. Potofsky was still open to the Company." On March 16 the parties began a reading and explanation of the clauses of the standard agreement. This meeting continued on March 17, when, according to E. J. Rutter, the union representatives declared their insistence on certain clauses. He believed that the Company's vacation plan then in effect would be substituted for that in the Union's proposal; other clauses were changed by "chang- ing a word around, or adding something to it." This testimony, in toto, negatives the charge that the Union was intransigent and did not bargain in good faith. As will be seen infra, when we consider the Company's attitude, the Union was still seeking information: whatever its position might have" proved to be in further negotiations, it had not yet reached the point of declaring any position with finality. Certainly it had not done so at the time when it sought information from the Company, and the latter was itself reserving various items for later discussion. In this connection, Price, the Company's chief negotiator and one of its attorneys, testified that near the' close of the second session Brazier declared: "We have made demands upon you people and now we want answers. Are you going to be ready to state the company's position?" This is no more proof of static minds, immutable and unlawfully made up in advance, than is Price's reply: "Mr. Brazier, of course, I'll be ready to state the company's position. As a matter of fact, I have been ready to state the company's position since the day I first walked into these negotiating sessions." Price at the same point testified that Brazier had said that the Union would not sign without arbitration, seniority, union-security, and checkoff clauses and grievance procedure. Yet opposed as the Company was to these proposals, Price gave no indication that he regarded Brazier's position as final or a bar to further negotiation. As pointed out infra in connection with the Company's failure to furnish information requested, Price testified that the negotiations at that point contained "no discussion about demands and counterdemands. The only discussion contained pure clarifying what the union's demand was ." Brazier testified that at the last negotiation session some points were left for further discussion, and Price said that, even where there seemed to be a meeting of the minds, actual agreement would take place only when the entire contract was completed and signed. In apparent agreement that no impasse had been reached in the negotiations, but blaming the Union for their termination, the Company's counsel argued that the Company had made concessions and that progress was being made. Similarly in its brief the point is made that "there is not even an indication in the bargaining that the Company had taken a fixed and final position on the subjects discussed." E. J. Rutter testified that at the end of the March 17 session the Company "had the understanding" that certain provisions favored by the Union "had to be in the con- tract," others having been discarded. (The Union wanted "some form" of an arbi- tration clause, for example, and he wasn't sure whether there was insistence on the seniority clause as first written.) Nevertheless, according to E. J. Rutter, at the third and last negotiation session, that of April 15, Price suggested that they "find out where [they] stood on the other phases of the contract before [they] tackle the phases of it that had any thing to do with the cost to the Company." [Emphasis supplied.] With respect to the Potofsky meeting, Price testified similarly that Potofsky had re- peatedly spoken of a deal i between the Company and the Union, with the suggestion, 8 Any implication, in the Company's eyes, of bad faith in Potofsky's alleged use of the term "deal" appeals to be lestiened by Piece's testimony that during the negotiations lie himself referred to any "deal ' which might be made 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as Price viewed it, that the interests of the employees were secondary; Potofsky warned that the Union "play[s] awful rough." But if there was a fiareup at any time, there is no suggestion that it was more than momentary;. Price did not contradict E. J. Rutter's testimony that the meeting ended "with cordiality." While testimony concerning the Potofsky meeting has been considered for its bear- ing on the issue, the issue here is the Union's good faith during the negotiation meet- ings. However much the Company or the Union may desire findings which might be pointed to as disproving or establishing Potofsky's concern for employees' interests and welfare, we are here interested only in such evidence as bears on the Union's good faith during the negotiations. The conclusions which the Company urges should be drawn from the Potofsky meeting and its sequel are that his "deal . . would have been of great advantage to the Union," and "fits exactly" with the Union's conduct in the negotiations and the strike. But the evidence concerning the proposed deal and the subsequent events do not lead to findings that the Union acted in bad faith. The evidence indicates that the Company did not during these negotiations regard the Union as intransigent; nor is there proof of intransigence. It appears, rather, that Price's description of his own attitude on April 15 can correctly be applied, to the Union on the basis of the evidence • The Company is "not at all adamant or dead set in [its] opinions, but [it is] open-minded, as of right now [it is] going to maintain [its] present wage practices. . . ... E. J. Rutter testified that the Company was hold- ing off cost items until last, but was not adamant on them According to Price, Brazier had earlier said that the Union's standard form was being used only as a guide. Such an attitude on either side at that point in the negotiations does not itself indicate an absence of good faith If, contrary to my finding that the Company has not supported its defense that the Union did not negotiate in good faith, it were found that some question of fact yet remains, such question must be decided against the Company after weighing this testimony against that of the union negotiators. Nor in this circumstance is it neces- sary even to detail all of the latter testimony; it is sufficient beyond any doubt. For example, 1 credit the denials by both Brazier and Lampert that either of them said that the Union would not sign any contract unless it contained each of the five clauses which, according to Price, the Union had insisted upon at the second session. Price repeatedly testified to his inability to recall various matters concerning which he was questioned. At one point, admitting that his recollection was hazy concerning post- ponement of a bargaining session which had been scheduled for March 30, he referred to his notes and testified to a telephone conversation on March 25; he continued that he thereafter checked his calendar and wrote a letter which is in evidence and is dated March 21! Having made this brief analysis in support of my general statement concerning the weight of the testimony, I deem it unnecessary to resolve the issue of credibility (and prefer to avoid it) between the attorney and the vice president of the Union and the attorney for the Company. Although consideration of all of the testimony points to a finding in this connection, I prefer to avoid calling any attorney (and identifying him) unworthy of belief. In sum, we need not find whether the Company's proof of bad faith, on the part of the Union is,insufficient in the light of the General Counsel's evidence. I have found that the Company has failed prima facie to prove the defense, and we can rest on the broader base: the defense has failed on this point, even aside from the weight to be given to contrary evidence. From all of the evidence, I can only agree with E. J. Rutter's suggested conclusion that Price's reference to the Potofsky meeting "caused the end of" the negotiations on April 15. It has not been shown that the Union's reaction, its earlier attitude, or its failure or refusal to negotiate thereafter was in bad faith. Further attack is made on the periodic reports made by the Union to its local members concerning the progress of negotiations. There were three such reports at membership meetings: The first was apparently made before the bargaining sessions of March 16 and 17; the second on April 12 or 13 (before the session of April 15) ; and the third on April 20. Decision to meet on April 20 had been made on the eve- ning of April 15, after the negotiation session earlier that day; whether a strike vote would be taken depended on authorization from the Union's national office, which authorization was not received in New Orleans until after the notice of meeting on April 20 was issued. When Brazier thought that Price had expressed agreement with Potofsky's proposal (Price denied that he had ever indicated such agreement), and after the meeting of March 17, Brazier told Youngdahl, the Union's regional direc- tor of organization, that he "felt good about it " But between April 8 and 15 Brazier began to doubt the Company's good faith, and later events were disappointing. Youngdahl himself was skeptical as he saw only "surface indications of progress, but . . . [no] factual proof." J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 401 It was suggested at the hearing that the failure of the union representatives to re- port at meetings of the members that progress was good and that it looked as if there would be a contract indicates the Union's bad faith in a purpose to discourage the members and arouse animosity against the Company. (Such purpose, if proven, might indicate that the negotiations themselves were not conducted in good faith.) Whether, if the object was to arouse animosity, its furtherance would be sought by discouraging reports or by periodic encouragement with a sudden letdown-is, how- ever, a subject for interesting debate and speculation; but where either procedure can be claimed as evidence of violation, neither proves a violation. In fact there was no agreement on the major points discussed at the negotiating meetings. As part of the "basic report" on the various negotiating meetings, it was reported to the members on April 29 that the Company had agreed to recognize the Union as bargaining agent and had met with it, and that a limited agreement had been reached on a bulle- tin board in the plant. (Youngdahl testified "that the very fact that the company had met with [the Union] was considered progress by" him, but beyond the discus- sion of the various items he did not tell the employees that there had been some progress or no progress in the negotiations.) Report was also made on elements which the Union considered unsatisfactory; because it was so limited, the so-called progress was hardly considered such. I find no element of bad faith in failure to call a meeting to inform the local mem- bers of Price's alleged statement of agreement with Potofsky's proposal. Then, when the next union meeting was called on April 12 or 13, any favorable aspect had been "cancelled" in Youngdahl's mind by the frequent postponements (although Brazier did not charge bad faith in that connection). Youngdahl testified that he "wanted to have the people know what was going on in the negotiations, and be prepared at any time for any action that the negotiators felt would be a wise action." This pre- sumably included strike action. (At that earlier April meeting he "had to work very hard to keep the people from having a strike vote that very night.") The testimony indicates that the union meeting of April 20 was called to report on the negotiations and, although after Brazier had arranged to go to New York, before the Union's national committee authorized a strike, as noted supra. ' To base-on this evidence a finding of bad faith on the part of the Union would be to attempt to set detailed rules governing its contacts with members and to police such rules. This is not to say that the Union's conduct of its internal affairs may under no circumstances be considered on the issue of its good faith. But the evi- dence before us of the dealings between the Union and its members does not show that the Union bargained in bad faith. (I have not overlooked the testimony that Youngdahl told the employees at the union meeting on April 20 that J. H. Rutter had been quoted by Price as saying that the employees wouldn't know a pay raise from a cut and that Brazier had reported Price's statement to Youngdahl. In the face of this, Brazier testified that he did not recall telling Youngdahl that. Neither did he recall whether Price made such a state- ment, although he did testify to a vague ". . . these people wouldn't know this or that.. ." From such testimony I cannot draw the jointly necessary conclusions which the Company seeks: that Youngdahl falsified to incite the employees, and that such a deed would prove the Union's bad faith during the negotiations.) As noted supra, the defense also alleges mass picketing, intimidation, and vio- lence. These, it is declared in the amended answer, "characterized the commencing of the strike," and they are cited to explain some of the Company's subsequent acts: telephoning and writing to nonworking employees and providing transportation and food for those who worked during the strike. Drake testified that when he arrived at the plant 9 about 7:30 a. in. on April 21, 1954, he "saw quite a crowd of people standing around with signs, and they were standing all around the sidewalk in front of the plant, and so [he] made [his] way through the crowd and entered the plant." Remarks were passed to him "about there being a strike on, and so forth." He explained that 40 or 50 employees are usually waiting at 7:30 for the main door to open, and that the majority get there between 7:30 and 8 a. m. According to Drake, he went back to the door between 7:30 and 7:45 and found Youngdahl in front of it with arms extended and saying, "Don't let anybody get in"; 50 or 60 girls "with their arms on each other's shoulders" were walking in front of the door "in a chain effect," and 4 or 5 hundred people were standing in the street, on the sidewalk, and on the sidewalk across the street; when some older employees tried to get in, Drake asked Youngdahl to get out of the doorway and let them in, but Youngdahl stayed there and "advised the girls not e "Plant" refers to the main plant unless otherwise indicated. 890609-56-vol. 115-27 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to let them through"; Drake then pushed Youngdahl out on the sidewalk, and the former had to push his way inside again through the chain of girls who had gotten behind him; he then had the office door opened and those few employees entered there before the "gang" covered the door; about 5 employees got into the plant that morning; by this time there was a large number of girls across the street with their lunch,10 and there was shouting , "Well, they have to come out some time, they can't sleep in there all night . . . . We'll get them when they come out." The girls in the chain , whether employees or not, were directed by Youngdahl and other union representatives. How many of the others in front of the plant or across the street were strikers or even employees, we do not know. In fact, Drake declared that "to know exactly who was a striker and who wasn 't [he] couldn't ex- actly say:" When the police came, sometime between 10 and 11 a. in ., a group of people was milling around within the block and picket signs were being carried. There were only 8 or 10 pickets at that time . (Youngdahl testified that at the request of the police he thereafter limited pickets to two at each plant door.) Drake also saw "a large group and singing " at the small plant, a block from the main plant. He testified also that for 6 or 8 weeks after April 21, a union organizer with 10 to 15 strikers was posted at each of some 5 bus stops near the plant; 1 employee, Hunter, was attacked by 2 strikers, Gross and L. Smith (whom Drake had seen on the picket line), at one of the stops. But this incident was placed at some 6 months after April 21, and no "other" union representatives were present. None of the employees involved testified. No more probative of union violence is Drake's testimony that between 3 and 6 months after April 21 another employee, Congress , was chased from a bus stop by 5 or 6 strikers . Drake first stated that Youngdahl and Becker , a union representa- tive under Youngdahl, stood on the corner "observing what was happening to this girl," but made no attempt to restrain the strikers involved ; later, he did not recall just where Youngdahl was; then, that "Becker saw the incident and Youngdahl was present," and finally only that both "were present." Aside from denials by Young- dahl and Becker, I will not ascribe any such violence to the Union on the basis of this uncertain testimony and failure to prove the Union's -responsibility for the alleged acts . Drake testified similarly and no more convincingly concerning other alleged incidents and without connecting them with the Union. E. J. Rutter testified that before 8 o'clock one morning about the end of June 4 or 5 employees came running toward the corner of the street where the plant is located, chased by 3 girls whom he identified by name and as having carried picket signs, and by 3 to 5 other girls, all of them "waving clubs and bricks and bottles and stuff"; E. J. Rutter , Youngdahl, other union representatives , and strikers were on the 4 corners of the intersection . Three or four of the chasers stopped halfway down the block, but two proceeded almost to the corner; one of them threw a stick which sailed over the heads of Youngdahl and the strikers on his corner, and she then "waved and laughed at" Youngdahl and ran back. I do not know whether such episodes and the entire proposition were omitted from the Company's brief because of the infirmities apparent : no evidence of union authoriza- tion, approval , or condonation . (In the instance last described, did a laughing "at" Youngdahl indicate harmony in action? Did Youngdahl wave and laugh? If one running by' at a distance waves and laughs at or toward a group on a corner, on what basis is it declared that her attentions were fixed on a certain one among the group?) As noted infra, the Company in its brief points to the testimony that Youngdahl told the union members "that he didn't want any violence around the plant.. . " That such an instruction was given was denied ; but the incidents described would have violated it . (Witnesses for both the Company and the Union testified that at a union meeting a clergyman admonished the employees to stick together in a stake but td commit no violence.) While he testified generally that strikers and organizers collected around employee entrances in the morning and in the afternoon , and milled daily around the corners, shouting, cursing, screaming, and throwing rocks when girls approached the plant by themselves, E. J. Rutter cited no specific instances or individuals and he admitted that he did not see any employees prevented from entering the plant. In fact, there is no evidence that any were so prevented, or from leaving. Drake and others got in, and there is no proof of detention , delay, or other difficulty in entering or leav- io From the testimony we know that some employees came to work and remained to picket--or to scoff from across the street . Whether to work or to picket, these brought their lunch. J. H. RUTTER-REX MANUFACTURING COMPANY, INC . 403 ing beyond Drake's testimony that "around five" employees, whom he did not identify (although details were called for) were compelled to go to another door. Counsel for the Company argued that evidence need not be offered of specific instances of violation where a practice is established. This may be so where a practice has in fact been proved: evidence of intention or of many specific instances may indicate such a general practice as to tie in other instances which might other- wise not be connected or fully proven. But there is here no evidence to establish the practice or pattern in the first place. I am not persuaded by the argument that various or many instances, themselves not proving the Union's culpability, establish a pattern which in turn connects those very instances with the Union. (The question of violence by individual strikers, not chargeable to the Union, is not before us.) The proof of violence offered by the Company was not persuasive and was denied. It did not approach in extent or gravity the general references to violence made from time -to time at the hearing, and while I do not condone violence or disorderly conduct, even the direct evidence of such conduct is slight and insufficient to show the Union's responsibility therefor; much less does it prove not only violence by the Union but the Union's bad faith in bargaining. The failure of proof in this connection is the more marked as Drake testified that he did "make it a practice to be outside the plant some part of every day . . . in the morning before the workers came in it was to see that they weren't accosted on their way from the bus line to work." We have here again the difference, as the little boy said, between a result and a consequence." It has not been shown to be either as far as causa- tion by the Union is concerned. The evidence was slight and particularly so when considered in the light of the allegations of the defense and the number of strikers (and employees) allegedly involved in such violence. Many and repeated attempts were made to elicit testimony to support the defense during the cross-examination of the General Counsel's witnesses in the course of his case-in-chief and his rebuttal; here questions were declared to be directed in the alternative to proof of the defense or to the witnesses' lack of credibility, which would be shown, it was promised, by the contrary testimony of the Company's witnesses. There was an absence of any similar effort 12 to prove the defense, by recalling General Counsel's witnesses or otherwise, when the Company presented its own case. Nor are these items of alleged violation which have been alleged as a defense covered in the Company's brief. I do not assume that this portion of the defense has been abandoned, but neither do I have the benefit of an analysis by the Com- pany's counsel of such evidence of violence. The brief is limited in this connection to the Potofsky meeting and proposal and, in the course of its analysis of the strike, an incidental reference to alleged violence. In that sole reference to union violence, the Company's brief notes that the State court enjoined violence and picketing. The reference cited is to the testimony of Thompson, a company witness and former striker, who testified that at a union meeting (whether the night before the strike was called, or earlier, is not clear) Youngdahl told the members "he didn't want any violence around the plant because we have an injunction signed against us but what we did away from the plant was up to us, our business." We have no knowledge of the basis for the injunction and cannot accept it as proof of the defense. As for testimony which suggests incitement to acts which are not here charged, such as "stripping girls naked," such incitement (as distinguished from acts of violence) is not alleged. Becker, who was charged with making the "stripping" statement a few weeks or a month after the strike commenced, denied making it. The testimony on this point does not prove bad faith on the Union's part during the negotiations. Omitting for the present any consideration of the Union's conduct during the nego- tiations (this will be joined with the evidence concerning the company's refusal to bargain, infra), it has not been shown that the Union was guilty of bad faith or has abused Board process. D. The alleged independent violation of Section 8 (a) (1) Where the testimony concerning certain events appeared to me to be unduly cumulative, I limited the General Counsel in his presentation. With the benefit of 20/20 hindsight, and since some of the testimony has not been contradicted, it is now clear that the presentation might have been further limited. It will suffice to u Harrison Steel Castings Company, 109 NLRB 1381, 1387. "I do not slight counsel's efforts on direct examination of the Company's witnesses, but they did not approach the attempts made during cross-examination of the General Counsel's witnesses. 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recast several events with a summary of the testimony of many witnesses, omitting entirely reference to other alleged violations. Approximately a week before the election conducted by the Board on January 25, 1955, J. H. Rutter told his assembled employees in both the main plant and the small plant (the "downtown plants") in New Orleans that as long as the plant was under his name, there would be no union there and he wasn't going to have a union. Such statements constitute restraint and interference in violation of the Act. He also told them that no union was going to come in and tell him how tb run his factory; before he'd let the Union run his shop, he'd close it up. If this reference, before the election, to telling him how to run his shop referred to contract negotia- tions, it was certainly an anticipatory refusal to bargain and a restraint on the employees' organizational activities; the interference was just as great if Rutter was here suggesting that negotiations would necessarily deteriorate into a union attempt to dictate policy. There is further uncontradicted testimony that some 3 weeks prior to the election J. H. Rutter was responsibly reported to have said he would not sign a contract. In February, after the election, he told the employees at the Frank- linton plant that he would not sign with the Union. On the latter occasion, his nephew, J. E. Rutter, who is superintendent of that plant, also made a speech and, when asked by an employee whether the plant would shut down if the Union came in, replied that in his opinion it would. After the strike began and at least into July, E. J. Rutter and other supervisors made substantially similar remarks to striking employees, generally citing J. H. Rutter as source and authority. (Such remarks are considered infra among threats and promises of benefit in violation of Section 8 (a) (5).) These remarks, which violated the Company's duty to bargain, further exemplify the extent to which it interfered with, restrained, and coerced employees in violation of Section 8 (a) (1) of the Act. J. H. Rutter's advice to his employees during the course of his speeches to the effect that they could vote as they please did not justify these other statements; it is to be evaluated as mere lip service to the policy and purposes of the Act.13 As for variances in the testimony offered, none of the company officers or other super- visors denied or attempted to explain these apparent violations, which stand out clear in the welter of testimony and the maze of argument. Other instances of interference with employees' organizational activities are found infra to constitute violation of the Company's obligation to bargain, and are cited in the next subsection. On the other hand, some of the instances cited by the General Counsel are not violative. For instance, aside from the matter of inducing employees to return, which is considered infra, J H. Rutter did not transcend the bounds of lawful expression in his speeches of May 4, 14, and 26. His reference to possible loss of jobs appears to be a mere prediction of a possibility which might eventuate lawfully, not a threat of unlawful action on his part. E. The alleged violation of Section 8 (a) (5) 1. Failure to furnish information It is admitted and I find that after a Board-conducted election on January 25, 1954, the Union was, on February 2, 1955, certified on behalf of the Board as the exclusive representative of the following employees for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All of the Company's production and maintenance employees at its three New Orleans plants, including truckdrivers and janitors, but excluding professional employees, office clerical employees, mechanics, guards, and supervisors as defined in the Act. Bargaining between the parties was in an early stage when it was terminated on April 15; there is no question of an impasse. Price testified that "during the first two days there was no discussion about demands and counterdemands. The only discussion was pure clarifying what the union's demand was..... Such demands were thus recognized and treated as bargainable. As noted supra, there had been little beyond reading and preliminary discussion of various clauses proposed by the Union. Price, at that last session, had suggested that they "find out where they stood on the other phases of the contract before [they] tackle the phases of it that had any thing to do with the cost to the company." Aside from later acts alleged as violations, our first question here is whether prior to and on April 15 the Company "Magnolia Petroleum Co. v. N. L. R. B., 200 F. 2d 148, 150 ( C. A. 5) ; Richards and Associates, 110 NLRB 132. J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 405 refused to bargain in good faith. Contrary to the General Counsel's contention, I do not find that this early suggestion by Price to postpone consideration of cost items is an "indication" of the Company's bad faith. It had not matured into any adamant and unreasonable position. While such a suggestion may reflect bad faith, it is also consistent with good faith: I see no basis for finding that it "indicates" one rather than the other. Brazier testified that shortly before the close of the March 17 session he asked for certain piece work and hourly wage rates and average hourly earnings; that Price declared that he would not furnish such information; and that, when he pointed out that he was entitled to it under the law, Price replied, "Well, we will see about that later." Price testified that Brazier conditioned agreement to meet on March 30 on a promise by the Company to furnish, in the meantime, earnings and wage or piece (which of these, he was not certain) rates; as far as any condition was con- cerned, Price refused "to trade dates"; that Brazier then agreed upon the date, stated, "We still want this information," and asked whether Price was going to supply it before the March 30 meeting, and that the latter replied that he would "take [the] request under advisement." It was now incumbent upon the Company to act. As noted, the next meeting was in fact held on April 15. Neither before March 30 nor since has the Company supplied the information requested. Aside from the question of any original refusal, as Brazier testified, the Company admittedly failed to comply with the request for information. There is no evidence that the Union, not in good faith but to harass, sought the information although the amended answer includes such an allegation. The defense alleges that "the request and demand were [stated to be] premature." But prematureness is not a defense; in the language of Chairman Farmer in his concurring opinion in the Whitin Machine Works case,14 "... wage and related information pertaining to employees in the bargaining unit should, upon request, be made available to the bargaining agent without regard to its immediate relationship to the negotiation or administration of the collective bargaining agreement." Contrary to the defense of prematureness is the suggestion in Price's testimony that Brazier's request for information was belated and unnecessary: "We told you that we wanted a ten-cent increase before we asked you for this information, and we still want this information." Whether in Price's opinion, premature or belated, the request should have been honored. The Company's failure to do so constituted a refusal to bargain. While the basis for a finding of bad faith goes back, as will shortly be seen, to the January speeches, these speeches preceded the post-certification request to bargain; the Company's bad faith appears to have been made manifest first in the temporizing response of March 17 to the Union's request for wage information. (The testi- mony that the speeches at Franklinton were made late in February, after the Union's request to bargain, is almost incidental. While it might support a finding of refusal to bargain in February, I do not make such a finding.) Price's explanation to Brazier after the session of April 15 was insufficient-he had told J. H Rutter, "We'll cross that bridge [furnishing the information] when we come to it"-and too late. He "hadn't even approached this subject with J. H. Rutter with the idea of getting this information." Whatever this discloses as to whether Price "was sincere in [his] handling of the wage matter," it does not justify the failure to furnish the information. While the Company was entitled to reasonable time to "cross that bridge," i. e., gather and furnish the information, the parties had "come to it" when the request was first made on March 17. Yet a month later Price indicated that he had not yet attained the approach to the bridge: he "hadn't even approached this subject with J. H. Rutter.. ." What the Com- pany in its brief refers to as "Price's deferment of wage information," if not "an absolute refusal," became and was a failure to make the information available to the Union. The refusal to bargain is found to have occurred with the first "defer- ment" on March 17. 2. Authority of the bargaining representative On the question of authority of bargaining representatives, Price testified that he opened the first session by saying, inter alia, "I had the authority to set down any agreement we reached in writing and sign the same." He tried to lead his side in the negotiations, and told Brazier to direct questions to him and not to E. J. Rutter or other company representatives, whether those questions concerned further meetings or any phase of the system followed at the plants. This was supported by Brazier's testimony that Price declared at the beginning of the March 16 ses- 1* Whitin Machine Works, 108 NLRB 1537, 1541. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lion "that he had a clear understanding with the firm that he had the complete authority to reach an agreement with our organization in behalf of the Rutter-Rex Manufacturing Company, and he said that he would not have taken the job of representing the Rutter-Rex Manufacturing Company unless he obtained the pro- vision from the firm which he stated that he had." Price testified further that he brought up the request for wage information in Brazier's hotel room on the evening of April 15 and told Brazier, as noted, that he "hadn't even approached this subject with J. H. Rutter with the idea of getting this information." Price "had been very leery of talking to Mr . Rutter about the union's wage demands. [He] didn't know what was going to come out of that. [He] deliberately shied away from having a long discussion with him about it. First of all [he] wanted to get it ironed out in [his] mind just exactly what the union was and was not going to demand of J. H . Rutter before [he] approached him on that matter, and [he] stated to Mr. Brazier that night that [he] was sincere in trying to do that, [he] was very reasonable and [he ] told him that [he] was." When, at that late point, Price mentioned certain possibilities for agreement, these were not offers; in fact, he had not even discussed them with the Company. From his observation of J. H . and E. J. Rutter, these constituted a "rock-bottom proposi- tion"; if they were "agreeable with Brazier," "then [Price ] would have gone to Mr. Rutter and tried to sell him on that proposition." It thus appears that it was for the Company and its officials to evaluate Price's ad- vice and to accept or reject it. Talking with Brazier, Price did not speak for the Company. His original assertion of authority was therefore misleading, to say the least, and an impediment to that good -faith collective bargaining which the Act requires . If, on the other hand, Price had the authority which he claimed on March 16 and it was then reduced to the extent that he later declared it, such limi- tation during the course of the negotiations , without explanation, warning, or com- pensating increase elsewhere , would likewise militate against proper bargaining and be a violation of the Act . In any event , if we accept Price's appraisal of his posi- tion on April 15 and before, that he could only try to persuade J. H. Rutter after the Union indicated agreement, and then go "back in the bargaining table and start negotiating . . ." (in the meantime hesitating to ask for the wage information sought), we have indeed a bleak prospect for any negotiator , and a failure to bargain within the meaning of the Act.15 3. Propaganda at the negotiations We come now to the termination of the bargaining session of April 15. As in the previous subsection , we can here largely rely on Price's testimony and thus per- haps avoid any issue of credibility in this connection . He testified that Brazier, after erroneously charging the Company with turning down all of the Union's re- quests on "money matters ," erred further in claiming that Price had earlier said that they might arrive at an agreement on the basis of what Potofsky had offered in the way of a contract . After making his denials , Price asked for a recess ; a "caucus" was held. He testified further as follows: I went out and as a result of that caucus and conversation I came back in and I said, "Now you have seen fit to bring up the Potofsky meeting and the Potofsky conversation and some of the deal that was made there , and I want to set the record straight by stating exactly what did happen in the Potofsky meeting," and I said, "At the Potofsky meeting, Mr . Potofsky didn't offer- Mr. Potofsky offered a contract to the company , a strictly backdoor deal where everything for the union, nothing for the employees and the company would maintain their practices just like they are and the union would take advantage of this backdoor deal and have a union shop for the checkoff and the employees would lose." And Mr. Brazier jumped up, slammed his briefcase closed, the others around the negotiating table began to get their stuff ready to go, and Mr. Brazier said, "I am not going to sit here and let you propagandize my committee. As far as we are concerned I want to talk to my people, but as far as we are con- cerned right now, this meeting is at an end, and when and if we want to meet again, we'll let you know," and I said, "Well," I said that "I am not the only one making propaganda speeches here." I picked up my briefcase and put 15 G-ittlin Charlotte Bag Company, 95 NLRB 1159 ; Valley City Furniture Company, 110 NLRB 1589 , and cases there cited . Cf. Lloyd A . Fry Roofing Company v N. L. R. B., 216 F. 2d 273, 275 (C A. 9 ). The overt acts are sufficient regardless of purpose or intent, although the latter is shown elsewhere. J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 407 my stuff in it and Gene Rutter handed me his notes and I stuck them in my briefcase, and out the door we went. Brazier's references to "agreement" and "contract," as related by Price, are in clear contrast to Price's emphasis on a "backdoor deal." It is neither argued by the Company nor can we properly find that the word "deal" was used in an in- nocuous sense. Lampert and Brazier, chief representatives for the Union at the negotiation sessions, were present at the hearing, as were Price and, less frequently, E. J. Rutter. Not only does "deal" as used tend to irritate and antagonize, but that it did in fact was readily apparent at the hearing. (E. J. Rutter appreciated this terminology. He himself testified that Lampert spoke of Potofsky's "deal." But when asked directly how Lampert had referred to it, he thought "his words were . . . the proposals made by Mr. Potofsky.") Whatever the advantage sought or the benefit imagined in referring to another's proposal as a deal, or in otherwise "needling" an adversary at a hearing (this is not to say that such conduct was one- sided, nor to rate relative frequency), I do not evaluate such conduct at the hearing with the offenses alleged. But employed at a conference called for collective bar- gaining, it is itself evidence of bad faith on the part of the negotiator, indicating an intent to antagonize and repel rather than to reach an agreement. Harassing tactics which exericse strong economic pressure indirectly indicate bad faith in negotiations and are "irreconcilable with the Act's requirement of reasoned discus- sion in a background of balanced bargaining relations upon which good faith bar- gaining"must rest." 16 What shall be said then of remarks which are plainly an- noying and "directly indicate an intent to lower the bargaining representative in the esteem of those whom it represents? Passing over the element of winning friends, such remarks could not influence people as an indication of good faith. Price's remarks were not a necessary part of any pending discussion. The sub- ject had previously been taken up with Potofsky, and the defense of bad faith in that connection has not been sustained. Price had now denied Brazier's claim of agreement, and there was no epithetical or rancorous crisis. A recess had been taken, and only after deliberation and consultation did Price now speak. Whether Price had in fact indicated possible agreement based on Potofsky's pro- posals we need not determine. E. J. Rutter testified that, before the parties went into the negotiation sessions, Lampert told him "that the deal made by Mr. J. H. Rutter and myself with Mr. Potofsky still stood. . . [Emphasis supplied.] On the other hand, we have Brazier's request for "answers" in the face of this testimony by E. J. Rutter and Brazier's own that there already had been agree- ment., But it must be noted that the "agreement" or "accord" which Brazier men- tioned was not to any identifiable contract but to "proposals for an agreement made by Mr. Potofsky" or "with the proposed basis of the collective bargaining agreement that Mr. Potofsky made to Mr. Rutter in his office." Any such accord, if arrived at, was hardly definitive; it would require further negotiation and therefore "answers." The absence from Brazier's notes on the March 17 meeting of any reference to such an agreement is not helpful on this point: He twice referred to agreement "at one of [the] earlier negotiation meetings," and his notes on the meeting of March 16 were admittedly incomplete. I am unable to find, as claimed by the Company, (a) that Brazier's statement of agreement by Price was false, and (b) that it was calculated to evoke such a response as would in turn justify the Union in terminat- ing the meetings. We need not at this point consider an employer's right to communicate directly with its employees. This meeting was held to bargain with the Union, not with employees directly. It was not a forum for criticism, recrimination, or charges that the Union was willing to ignore the employees' interests. The references to back- door deal and lack of advantage for the employees were an appeal over the head of those conducting the negotiations for the Union. (One can distinguish between a circular or advertisement distributed as a report after certain events, and a critical report foreign to the immediate issue and made when the parties are ostensibly en- gaged in collective bargaining.) It is not claimed that Price's remarks were but replies in kind to union attempts to portray the Company as seeking to make a surreptitious or backdoor deal at the expense of the employees. With Price's denial that there had been earlier agreement, whatever differences the Union indicated, its committee of employees could see that these were above-board differences in attitude or opinion. But now 1°Textsle Workers Union of America, 010 (Personal Products Corporation), 108 NLRB 743, 746-747, citing Phelps Dodge Copper Products Corporation, 101 NLRB 360, 368. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' was injected the charge of double-dealing at the expense and in the presence of the very employees whom the Union represented. Later that day, after the meeting broke up, Price called Brazier and had a con- versation with him . The former testified concerning this as follows: Well, I telephoned Mr. Brazier . . . and I told Mr. Brazier that I was sorry that he had taken my speech over there as a propaganda speech and that I felt like the matter was entirely too important for any ill chosen words on the part of John Price to break up the negotiating meeting and that I felt like we were both probably under the influence of wanting to say and talk the one way in front of the people that we were representing when in fact I felt like if he and I could get together we could very quickly see exactly where we stood with respect to this contract , and I requested a private audience of him in order to do that, and I'said-he said, well, he says , "Of course, I didn't want you up there talking to these people about my-about our president," and I said, "Now, don't misunderstand me, Mr. Brazier, I want you to clearly understand this, I am not saying that what I said that Mr. Potofsky said was wrong, I just want you to understand this, that I feel like I chose a pretty sorry place to tell what it was and I used the word backdoor deal and all and I was sorry that I had used those and that I felt like that it had been more of a propaganda speech than anything worthwhile , and so forth, and that I felt - like it was much too important for that ill choice of words on my part to break up a negotiating meeting like that and couldn 't we get together and see if there wasn't someway we would resolve the issues in the case . He said why sure, he would be glad to meet with me. The question 17 is not whether Price is to be forgiven his choice of place and words. Rather, what was his attitude when he made that choice? Price 's reference to and criticism of Potofsky's attitude during a bargaining session 3 months later and in the presence of employee union representatives certainly could not further the prog- ress of the negotiations . Nor is it to be overlooked as a mere personal transgression by Price. Aside from the Company's responsibility for his acts , this was an allo- tropic manifestation of the Company's intent not to bargain in good faith, as earlier indicated by J. H . Rutter, and is itself evaluated as "a propaganda speech," whose intent was to wean employee support away from the Union rather than to bring agreement nearer. This evaluation of the Company 's attitude and intent is further based on the very statement by Price and also on the Company's propensity, as declared by J. H . Rutter and found supra, for opposing the Union and refusing to countenance one in its plants. To place an ancient phrase in a different context, it may be said , "Thy speech betrayeth thee." Here we would refer to speeches.18 I find this pervading motivation a dominant element in the Company 's attitude; it runs like a single thread through the events covered by the record in this case. (It is a continuation of the interference and violative attitude found in the prior case. Like a main thoroughfare which runs through a city and beyond , even into and through another, it is recognizable as the same road, whether under the same or an- other name. As noted supra, however, I find it unnecessary even in part to base any present finding of violation on the findings in the prior proceeding .) The failure to bargain in good faith and the Company's attitude , as noted herein , serve to explain why Price had not, as late as April 15, sought the requested information from J. H. Rutter, and "had been very leery of talking to Mr. Rutter about the union's wage demands." The finding herein made against the Company of bad faith at the April 15 bar- gaining session defeats that portion of the defense which charges the Union with bad faith for breaking off the negotiations . As was recently declared in the Bewley Mills case,19 We find that the Union was justified in not pursuing negotiations any further, because the entire pattern of those negotiations shows that the Respondent ap- proached the bargaining table not "with an open mind and purpose to reach an 17 Since the issue has been raised , I find from the testimony concerning the conversa- tions over the telephone and in Brazier's room that, if he was not offering an "apology," Price later showed a "conciliatory attitude" within the limits indicated by the quotation from his testimony just noted But his words did not overcome the proof of bad faith and refusal to bargain established in the Company's earlier and later acts. 18 See N. L R . B. v. Warden Mfg Co , 217 F. 2d 567, 570 ( C. A. 5). 19 111 NLRB 830 J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 409 agreement," 1 but rather, with an intention to protract the negotiations until they collapsed. Accordingly, we find that the Respondent did not bargain in good faith with the Union and that it thereby violated Section 8 (a) (5) and (1) of the Act .2 1 Mature Transport Co v. N. L. R B., 198 F. 2d 735, 739 (C. A. 5). 2N L R. B v The International Furniture Conpawy, 212 F. 2d 431, 433-434 (C: A. 5). 4. The Union's and the Company's failure to arrange for further negotiations According to Price, after Brazier "jumped up, slammed his briefcase closed," in apparent outrage at Price's remarks at the April 15 session (whether or not Brazier indicated that the meeting was over or intended that it should be, his actions spoke loudly and were clear enough; it is agreed that the company representatives there- upon left), Brazier said, ". . . when and if we want to meet again, we'll let you know"; further, in Brazier's hotel room that evening, after Price made three "pro- posals" (as noted supra, these were proposals for action by Price vis-a-vis his prin- cipal, not proposals from the Union to the Company), Brazier said that he was going to meet with the Union's top officers (its national committee) on April 20, that if there was agreement on Price's proposals, Brazier would telephone him and Price would meet with the Rutters on April 26 or 27; but in any event Brazier and Price would meet on the 28th and no strike would be called before. Two points are clear: after the close of the bargaining session on April 15, E. J. Rutter feared that a strike would be called the following day, and Brazier wanted to and did discuss with his national committee the advisability of a strike. Brazier denied telling Price that the Union would not strike before they met again. He testified that he would negotiate further if his national office so advised; that he left New Orleans for his home in St. Louis on April 16; that he met with the national committee in New York on April 20; and that the committee, concluding that the Company had been stalling and that it was useless to continue the negotiations, sanc- tioned a strike if the employees voted for it. (It was testified that the local nego- tiating committee had wanted to strike.) If a credibility finding be necessary here, it appears unlikely that Brazier would so conveniently 20 have promised, even while terminating the negotiations under the cir- cumstances described, to let the Company know about resuming the bargaining. (E. J. Rutter testified that Brazier, after objecting to Price's propagandizing the Union's negotiating committee and after declaring the meeting ended, said that he would see whether the employees wanted further negotiations and that the Company would "hear from us.") Nor do I believe the testimony that Brazier promised there would be no strike before he met with Price on April 28. (Brazier testified that they agreed to meet on that date if the national committee directed further negotiations.) Cer- tainly, nothing on April 15, at the bargaining session, over the telephone, or in Brazier's room, pointed to such a self-imposed limitation. In any event, it is doubt- ful that a finding that the Union had failed to communicate with Price and had, at a meeting arranged prior to its national committee's strike authorization, called a strike after a promise to meet first, together with the other evidence submitted by the Com- pany, would prove-the Union's bad faith in the negotiations. Where the Company's bad faith is clear, it is not bad faith for the Union to refuse or fall to notify it concern- ing further meetings, as we have seen. With the calling of the strike, the Union notified (the telegram was received ap- proximately 1 hour before the time set for the commencement of the strike) the Company that it withdrew its request for union security and that it was requesting further negotiations. That the reference to union security was included on the ad- vice of counsel to meet a Louisiana statute which forbids strikes for union security does not alter the position, rights, or obligations of the parties herein. The earlier request for a union-security clause was lawful. The negotiations did not break on that issue, and the strike was not called because of it. The Company did not reply to this notice that the Union "stands ready" to negotiate further. It may be that the niceties of the situation would have been met by a "So do we" telegram to the effect that the Company also stood ready to negotiate. The occasion did not call for coy- ness on either side, and the Union's message was hardly importunate. In any event, the refusal to bargain having been found, I make no further finding of refusal by the Company here. (The Company's failure to bargain in good faith relieved the Union of any obligation to proceed. It is therefore unnecessary to evaluate the telegram 90 Cf. h'oerens Motor Company, 106 NLRB 652, 661. 410 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD as an attempt to arrange further meetings .- As much, or little, can be said of the Union's open letter of June 28.) The General Counsel points to a more realistic effort later to arrange further meet- ings through the intermediary efforts of the United States Mediation and Concilia- tion Service. But here testimony was barred as hearsay and later by refusal of the Company's attorney to testify concerning conversations which he had. In addi- tion to this claim of privilege , I noted at the hearing the question of public policy arising from- any limitation on the usefulness of the service if counsel were com- pelled to testify concerning such a conversation with one of its representatives. "Hav- ing indicated my own appraisal of the situation , I . . . nevertheless direct [ed] the witness to answer . This [was] done after consultation with counsel and in order to present this matter to higher authority for any conclusion which may be drawn from the refusal to answer and for decision on the merits ." It was further agreed that there was "no question here of any willful or contumacious refusal beyond the fact of refusal for the reasons stated." To base a finding of refusal to meet on a request, if so proven, by a Federal conciliator, would result in impairment of the functions of conciliators and emphasis on the indirect approach . In this connection, I find no refusal to bargain. - To the extent that the General Counsel relies on the telegram of April 21 and- other alleged efforts to arrange meetings, I find no refusal by the Company to meet. On the contrary, I find that the Company was willing to meet d outrance, but that such willingness does not exculpate it from failure to negotiate in good faith. 5. Solicitation and interrogation of strikers Since the Company was under obligation to deal and bargain with the Union,21 the appeal for the strikers' return in the Company's letter of June 25 (which was sent to all employees who were on strike or were not on the payroll for any other reason) and the postal card poll on their desire to continue or end the strike, taken 1 month later, all part of the illegal pattern found and done to undermine the Union,22 and in the light of the evidence that the Company sought individual rather than collec- tive bargaining 23-such appeal and poll violated Section 8 (a) (5) and ( 1) of the Act. similar violations were committed by various supervisors , as (again without listing all violations described ) when they requested strikers to return to work in connection with threats and promises of benefit, noted infra. (It does not appear that the plants were shut down at any time. ) Along with these oral requests to return, supervisors inquired of strikers concerning their activities and those of the Union. That these inquiries were not casual is clear not only from their number but also from the strained relations which then existed between the Company and the Union. Such interrogation in the context of the other interference found was likewise viola- tive of the Act. 6. Threat of discharge In its letter of June 25 to the strikers, the Company stated: "Those of you who do not return to work on Monday, June 28th will be listed by the company as deciding to remain on strike indefinitely. Beginning shortly thereafter your places will be filled by new employees which the company will hire as replacements." Whatever might be technically argued about the phrase "remain on strike indefinitely" as a mere description of fact without effect on the strikers' status, the term "indefinitely" would suggest finality and irrevocability to these strikers. This was no mere state- ment of fact by the Company to be considered apart from its effect on the strikers; it referred to future listing by the Company, i. e., something which it would do with respect to those who continued on strike. If the Company regarded the phrase as a description of fact, the fact is that all who had been on strike for the preceding 2 months had decided to remain on strike to that time. As to the indefinite future, the decision rested with the strikers, not with the Company. An employer may not suggest that its employees must remain on strike indefinitely; it may only note that, with respect to time elapsed, the employees have been strikers. (This, of course, is not said in limitation of any existing right to replace strikers.) The threat of such "listing" and replacement was an unlawful strike-breaking technique, constituting 21 American Rubber Products Corp., 106 NLRB 73, 77 22 The Texas Company, 93 NLRB 1358, 1361; The Stanley Works, 108 NLRB 734, 736. 23 Cf. Efco Manufacturong, Inc, 108 NLRB 245, 247; McLean-Arkansas Lumber Com- pany, Inc, 109 NLRB 1022, 1040-1041. J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 411 coercion of employees to abandon the strike,24 and violation of the obligation to bargain with the Union.25 It does not appear, however, that the Company has in fact discharged strikers, lessened their seniority, or otherwise discriminated against or interfered with them in this respect. Although an anticipatory remedy is recommended infra, there has been no proof of loss of pay or rights to returning strikers because of the letter of June 25 or otherwise. 7. Grant of benefits A few days after the commencement of the strike, the Company began to provide transportation for employees to and from the plant; lunch was also provided free for those at work. The Company would justify these benefits by pointing to alleged violence by the strikers and fear among those who wanted to work. According to E. J. Rutter, the Company based these steps on information which it received from employees. But on the question of the reliability of such information and the neces- sity for the transportation (less attention has been given to the lunches: they evidently just followed), evidence by a company official that an employee so told- him is hearsay. Of the witnesses who were interrogated on this point, there is virtually no evidence that these were unwilling or even reluctant strikers, coerced by the Union or other- wise succumbing to fear. (Armelin answered in the negative when asked whether he didn't feel that transportation constituted enough protection; he wanted protection after working hours also. But then he testified that he "wasn't worried about protec- tion"; he "didn't want to get involved with nobody." Certainly an employer may not provide what would otherwise be unlawful benefits to undermine a collective-bargaining representative and break a strike by merely accepting statements of fear and without obtaining evidence which would reasonably indicate and support such fear. While the Company's testimony concerning reports of violence and employees' fear would not prove either, being hearsay, it stands as an indication of the basis for the Company's provision of transportation and lunch. Nevertheless, although permitted so to testify, the Company did not meet the proof that it was not in fact motivated by such reports in acting as it did or even that the reports constituted a reasonable basis for its acts. The tesimony concerning fear of violence is one element of the evidence; it is considered with the other evidence in arriving at a finding concerning the Company's motivation. Not only is the refer- ence to employees' expression of fear extremely limited; not only has the Company shown its own purpose to undermine the Union by threats and refusal to bargain, and to win employees over by unilateral provision of benefits (the latter as hereinafter found); but such transportation and other benefits were cited to strikers who did not express any fear and in fact denied that they were afraid. Such evidence in the record outweighs and overcomes the Company's statement of its reason, which I find was a mere pretext, and proves the Company's unlawful motivation. The Company utilized these benefits, not as a necessity, but as an inducement.28 The record as a whole does not warrant a finding that the Company had "an honest belief" that the fear of violence made necessary the steps which it took; further, from the testimony received on the issue of misconduct, "it affirmatively appears that such misconduct did not in fact occur." 27 Certainly there is no testimony of violence or fear of violence from any such number of employees whose expressed fear would warrant the general practices adopted by the Company. On all of the evidence, I find the fact that the Company provided transportation and lunch, not to meet the fear of working employees, but in an attempt to break the strike. The legal ground for such action by the Company did not exist. If a promise to provide transportation is unlawful in a pattern of illegal opposition to the purposes of the- Act,28 then the actual performance thereof is indeed so. Provision of transportation and lunch violated Section 8 (a) (1) and (5) of the Act. Without consulting the Union, the Company, in May 1954, instituted 10-minute midmorning and midafternoon rest periods. There had been no such breaks for at least a year before. Early that month, and shortly after the beginning of the strike, 24 Kerrigan Iron Works, Inc, 108 NLRB 933, 935. 25 American Rubber Products Corp., supra 20 As noted supra, many witnesses testified that they brought lunch to work. How many, if any, nonstrikers had previously bought lunch does not appear ; no more does the neces- sity for providing it generally even if there had been violence and fear of it. n Rubin Bros Footwear, Inc., 99 NLRB 610, 611. 28 Clearfield Cheese Company, Inc, 106 NLRB 417, 418, 437. On the issue of unilateral changes generally as violative of Section 8 (a) (1) and (5), see infra. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD soft drink machines were installed. There had been no such machines in the plant since at least January 1953. One of the strikers, a witness for the General Counsel, testified that when these items were mentioned to E. J. Rutter while he was soliciting return to work, he explained that enlargement of the plant had made this possible. (While the question covered both items, the reply as testified to did not refer to the rest periods; nor can we thus understand the former installation of soft drink ma- chines. The explanation was also offered that the machines had been removed because drinks were taken to the work; it is not apparent that there was assurance that this would not be repeated.) In any event, the action was taken unilaterally. E. J. Rutter testified that industrial engineers consulted by the Company recom- mended various changes for "practical, efficient plant operation." Notice of changes was not given to the Union, he declared, because the Company "felt it futile to bargain"; the Union "had broken off negotiations" with the Company; "they had broken an agreement on a non-striking verbal contract not to strike." (This alleged justification has been considered supra.) On July 9, 1954, J. H. Rutter announced various changes to main plant employees. The changes went into effect generally on July 12. Base pay rate is a piece rate computed as a minimum rate per hour and paid to all operators who meet the Company's production standard on given operations. The rate had previously been 821/2 cents per hour, but was changed, effective July 12, to 90 cents. A new bonus plan eliminated the previous attendance requirement. As a balanc- ing factor, the rate was changed from 15 percent to 5112 percent. For present pur- poses, it-is sufficient, without detailing the plan, to note that this premium was now to be computed on a basis more favorable to employees. (J. H. Rutter "had long since felt that the [old] plan was too strict.") E. J. Rutter testified further that there had been machine delay time prior to July 12, but that it was now for the first time "spelled out and set apart." Whatever the prior practice, employees now for the first time had a basis for computing such pay. In addition, as explained in his testimony, the change prevented loss to employees who otherwise earned more than the minimum. Similarly with transfer pay, while there had been such before, "there was never anything you could put your hands on and say this is our policy on transfer." The new provision called for separate computation on transfers so that employees' bonus earnings would not be affected. Reporting pay and payment for waiting time were now instituted. There had been no such benefits or payments before. The base period for computation of vacation pay is the year ending May 31. Formerly, a 1-week vacation was granted in July, the employee receiving 2 percent of his earnings during the base period provided he had been employed at least a year. Those with continuous employment with the Company for 5 years or more received their 2 percent in the summer vacation week and an additional 2 percent at the Christmas holidays. (The term "vacation pay" thus includes pay during the summer vacation period and pay or bonus, where earned, payable at or near Christmas.) Changes were made at the end of June, E. J. Rutter testifying that the decision to make such changes was reached several months before; he did not know exactly when. The 1-year requirement was now omitted, and a minimum of $7.50 established. (Whether any relief is to be granted in this connection is considered under "The Remedy," infra.) I find that the various changes made, as hereinabove noted, were bargainable. These unilateral changes were in derogation of the Company's obligations under the Act.29 Here, too, the Company had during the negotiations said that it would not agree to any increase in cost or, as Price testified, money matters were reserved for later discussion. The refusal to bargain is underscored by the subsequent volun- tary and unilateral grants.30 (This is not a case where changes were made uni- laterally after an impasse . As seen supra, the parties had never stated their positions with finality; and Price's request on April 20 for a further meeting indicates that these items had not been disposed of by either agreement or conclusive disagreement.) ^ N. L. R B. v. Crompton-Highland Mills, Inc., 337 U S. 217, 223; N. L R B. v C. & J. Camp, Inc., 216 F. 2d 113, 115 (C. A. 5) ; Armstrong Cork Manufacturing Co., 211 F. 2d 843, 847 (C. A. 5) ; Valley City Furniture Company, 110 NLRB 1589. In the recent case of Santa Clara Lemon Association, 112 NLRB 93, there had been no discussion of wages during the negotiations ; in the instant case, there was a specific reservation of the question. 30 N. L. R. B. v. International Furniture Company, 212 F. 2d 431, 432 (C. A. 5). J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 413 8. Threats and promises of benefits Approximately 1 week after April 21, when the strike started, Supervisors Drake and Miano drove up to Woodrick's home, and the former told Woodrick and Dunn (spelled Vunn in the transcript), both strikers, that they had better come back while the employees were getting free lunches and transportation. Another promise was indicated at about the same time or a_ week later, when Drake called Reeves and promised her an increase from 75 cents to 90 cents an hour if she returned to work. Again, after receipt of, the Company's letter of June 25 and "after the time that [they] had to go in," Drake called Reeves and told her she "would still" get her vacation if she came in. Early in May, E. J. Rutter promised a vacation to Seaton if she returned to work although, as she testified, she had previously been refused vacations if she had been out more than 5 days. In June, Miano promised Jackson $40 per week if she re- turned to work. Early in September, Drake solicited Williams' return with a promise of a job which she had previously performed but which she had been denied although she had asked,for it. In that same month, Drake called Merridith and offered her $1.25 per hour instead of the $1.15 to $1.20 which she had previously been paid. Of threats, Drake told striker Taplin over the telephone in May that before he would "sign for the union" J. H. Rutter would take his business out of town to Franklinton. If "undermine" means anything, such statements tend to undermine a union, as does the statement that the Union might "pick up overnight and leave [them] holding the bag.... and that it wouldn't do any good for [them] to have [a union] ... because [they] wouldn't get anything out of it." Drake called Taplin again about a month later and told her that he had the names of the girls on the picket line "and they were the ones that were going to catch it when we went back to work." About the middle of June, E. J. Rutter named 4 strikers (another witness testified that he named 5) who would not be taken back. If valid reason or explanation for their ex- clusion was at that time offered, it has not been indicated. In the absence of explana- tion, the tendency of such announced refusal to reemploy is clear: it is to interfere with organizational activities of employees.31 Also to be mentioned is the letter of June 25 and its reference to vacation pay. As mere notice of entitlement, posting in the plant, or delivery to those who were working would have sufficed. But the letter was sent to strikers also: it was no mere notice, but an appeal over the head of the Union as bargaining representative. In addition to the interference found in J. H. Rutter's earlier statements, his intent not to bargain was testified to by Youngdahl, who mentioned occasions in July, August, and September when Rutter declared that he would not sign a union con- tract or consider having a union in the plant. Such threats and promises violated both Section 8 (a) (1) and (5) of the Act.32 As in the case of violations of Section 8 (a) (1) only, supra, it is unnecessary to de- tail or consider other violations of Section 8 (a) (5). The evidence of interrogation, such as by J. E. Rutter at Franklinton in February, is not impressive; most of the later interrogation is merged in the solicitation or other violations found. In any event, consideration of other allegations could not lead to reversal of the findings already made; it could but supplement those findings, for which there is now sufficient basis.33 In the panorama which hindsight thus affords, the violations having been found, the additional allegations and findings thereon become redundant. Whether the same act constitutes a violation of several sections,34 or whether different acts violate the same section, the remedy here will be the same and will fully effectuate the policy of the Act. Nor, avoiding meaningless if graceful gyrations, do I see prejudice to any party if these "surplus" matters are neither found nor formally dismissed. If findings, conclusions, and remedy are clear, it can serve no useful purpose to cite instances which are repetitious or those which are not probative. "It is not meet that every nice 31 Kerrigan Iron Works, Inc., supra. 32 See footnotes 21-23, supra. 33 Cf. Frank W. Hake, 112 NLRB 1097: 1 1. . . the extensive violation findings of the Trial Examiner, which we have adopted, and the warrant they provide for the broad remedial order we shall issue herein, render unnecessary any decision with respect to the foregoing incidents, which the Trial Examiner either passed upon or failed to pass 11 upon.... 34 Cf. N. D. Cass Company, 112 NLRB 402, where the Board, declaring that a remedial order based on its finding of discriminatory refusal to reinstate would be sufficient, found it unnecessary to determine whether the refusal also violated another section of the Act; the latter allegation was therefore dismissed. -414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD offense should bear his comment ." 35 Citing reason andcauthority 36 for passing over various items in the record, I am aware that the Board may find it unnecessary to consider all that are herein mentioned. On the other hand, to insure the proper remedy, the Board has recently held that it is necessary to "detail the specific respects in which the Respondent violated" the Act although the respondent there conceded that the record supported a finding.37 Enough "specific respects" have here been de- tailed to indicate the remedy; at any rate, neither the law nor the evidence offered has been overlooked. F. Economic or unfair labor practice strike The complaint alleges and the answer denies that the strike at the Company's three New Orleans plants was caused and prolonged by the Company's unfair labor practices. Despite the issue raised by the pleadings, it might be argued that there is no present reason for making any finding or recommending any remedy in that respect, and that we should not anticipate any possible claim which is not before us, based on the nature of the strike and the respective rights and obligations arising there- from. It would seem that, on the authority of Brown and Root, Inc.,38 the 6-month statutory limitation would not, if discrimination should later be claimed, bar con- sideration of the nature of the strike at its inception and thereafter. Possible pro- ,cedure here is suggested by that case where, after an earlier finding 39 of violation of Section 8 (a) (1) and (5), the Board now found, when the issue became material, that the earlier strike had been an unfair labor practice strike, and ordered the proper remedy. In Monroe Feed Store,40 the Board has recently declared: Always, when a complaint alleges the unlawful discharge of an employee, the ultimate objective of restoring the status quo by means of a Board Order making the employee whole for loss of earnings and restoring him to his em- ployment, is an inseparable part of the case. Indeed, the very purpose of all unfair labor practice proceedings before this agency, is to remedy conditions which follow the commission of unfair labor practices. While the instant case does not allege unlawful discharge, the Board has gone further in considering the situation as it exists in a case of refusal to bargain. Its decision in this repect is clearly set forth in its adoption of the following language: 41 While the Trial Examiner expressed doubt as to the efficacy or propriety of such findings in this proceeding, in the belief that they were beyond the scope of the refusal to bargain issue implicit in the Section 8 (a) (5) . . . violation alleged in the complaint, reference to pertinent Board precedents reveals not only the necessity here for these findings but recommendation of an appropriate order pursuant thereto. Indeed, in the City Packing Company case,42 the Board found merit in the exception taken to the Trial Examiner's omission of a provision requiring reinstatement upon application, and payment of back pay, to unfair labor practice strikers. Certainly, this report must be as far reaching in its recommendations as the proceeding is extensive in its scope. In the absence of authority, it might be maintained that that scope is not so extensive as to support the remedy of reinstatement. But on the authorities cited, I am constrained to consider the nature of the strike and the anticipa- tory remedy of reinstatement and back pay if applicable, and to follow the pattern in my recommendations, infra, and the proposed notice to be posted. What kind of strike, then, was this? If, as Brazier testified, Price had during the negotiations turned down any increase in cost, such rejection at most contributed to the termination of the negotiations which occurred when the Company attempted w, Tulius Caesar, act 4, scene 3, line 7. 46 American Newspaper Association v N. L R. B , 193 F 2d 782, 798-799 (C. A. 7) ; L. C. Products, Inc., 112 NLRB 872; Santa Clara Lemon Association, 112 NLRB 93; Oak Flooring Company, Inc, 111 NLRB 906, Armstrong Tire and Rubber Company, Tire Test Fleet Branch, 111 NLRB 708, Richards and Associates, 110 NLRB 132; Stilley Plywood Company, 94 NLRB 932, 933 34 San Angelo Standaid, Inc, 110 NLRB 1091. 98 99 NLRB 1031, 1035-1036. 9 86 NLRB 520, 521. 40 112 NLRB 1336. 41 Buffalo Arms, Inc, Division of Frontier Industries, Inc., 110 NLRB 816. 42 98 NLRB 1261. J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 415 to propagandize the employee representatives. The negotiations had not been terminated, nor was the strike called, on the rejection of cost items. Price testified that money matters had been earlier reserved and that just before the last session ended he said that the Company was "open-minded" on money matters; its answer was not "No" on such items. E. J. Rutter testified similarly that at that time Price said that "he wanted Mr. Brazier to understand that whereas we were holding [cost items] off until last, we were not adamant on" them. The Company had to this point suggested what appeared to it to be better procedure and, as noted supra, it was not thereby guilty of a violative refusal to discuss various matters. Neither side was adamant; neither position had crystallized. It cannot be said that there was no room for further discussion of the items involved. There is no basis for finding that the negotiations were terminated or that the strike was called because of disagreement on economic issues. E. J. Rutter's fear when the bargaining session was ended on April 15, as testified to by Price, suggests that the Company at that time realized that a strike would be called, if at all, because of the manner in which the negotiations had been conducted; and this, as has been found, constituted an unfair labor practice. Certainly the Union had not called or recommended a strike when the Company had indicated that it wanted to postpone consideration of economic issues; the Company's failure to agree upon and grant economic benefits was therefore not the causative factor in the decision to strike. If it was contributory, there was a supervening element, the proof of the Company's bad faith. Turning now from evaluation of the testimony concerning the surrounding circum- stances to the direct testimony on the Union's reason for calling the strike, we have already noted Brazier's testimony that the Union's national committee sanctioned strike action after concluding that the Company had been stalling and that it was useless to continue negotiations. Youngdahl testified that on the evening of April 20 some 450-500, most of whom appeared to be employees, attended a union meeting, that reports were made on the various negotiation meetings, that a member of the local negotiating committee moved that a strike be called the following morn- ing, and that the motion carried by an apparently unanimous standing vote. The dis- cussion between the parties was covered point by point at the meeting; items agreed upon by the Company were noted, as were the other items, and it was "pointed out to the meeting that the company had in effect broken off the meeting by making extremely serious accusations against the union representatives." Youngdahl further testified that it was reported to the meeting "that the company had made, after saying that they were not willing to grant any of the economic benefits which was set at the end, economic benefits were saved to the end of the bargaining, said that the company had stated its position on those economic things and after that, further- more accused the union representative of selling the people down the river, and making accusations that were extremely serious and calculated to break off negotiations." (The portion last quoted suggests on the one hand that the Company had definitely refused to grant economic benefits, and on the other that there was no finality in this since "the end of the bargaining" had not been indicated prior to the actual breakup.) Thompson and Singleton, called by the Company, attended the meeting. Neither contradicted the evidence offered by the General Counsel concerning the discussion of the bargaining negotiations, which led up to the strike vote. Whatever the motives of individual strikers (witnesses called by the General Counsel testified that their motive was at least in part economic), the strike was called not by individual employees but by the group as a whole through their col- lective-bargaining representative, i. e., the Union, as distinguished from its individual members. If employees were motivated by economic considerations, their joining in the strike did not convert it into an economic strike. A joint effort by definition, the strike was determined as to its nature by the joint representative acting on be- half of all and by the attendant circumstances. The very terms, "unfair labor practice strike" and "economic strike" indicate that the decision concerning these concerted activities is not personal but institutional: it is made by a group of em- ployees acting directly in concert or by the representative, in this case the Union, authorized to speak for them. Here, distinction may be made between motive in joining a strike to achieve economic benefits and the reason for calling a strike. The latter may be based on unfair labor practices while the aim remains to obtain economic benefits. (Counsel for the Company has argued: . what the em- ployees themselves had in mind at the strike meeting we don't know. . .... ) Absent unfair labor practices, negotiations might continue to agreement or even to an economic strike. If individual employees sought a better bargain in the form of economic benefits, they were denied the possibility thereof by the Com- pany's refusal to bargain. There would thus further be consistency between their 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony and that of the union representatives. Nor should we overlook the testimony that employees, asked by the Company to return, said they would when a contract was signed. The Company's declared intention not to deal -with the Union and its subsequent acts which bore out such declarations persuaded the Union and employees in part at least that the negotiations had been perverted and would not provide the good- faith bargaining to which they were entitled. I find that there would have been no strike authorization by the national committee, no strike vote by the local, and no strike but for the evidence, reported to the national committee and the employees, that the Company had not bargained in good faith; that this was an unfair labor practice strike, and that its character as such was not changed by the presence of economic desires and issues. As the Court declared in N. L. R. B. v. Stilley Ply- wood Company, Inc.: 43 As said by Judge Goodrich in Berkshire Knitting Mills v. N. L. R. B. 3 Cir. 139 F. 2d 134, 137: "Where the causes contributing to a strike consist of un- fair labor practices and employee desires for wage betterments, the latter should not excuse the employer from the legal consequences that flow from its con- duct which transcends the permissible legal bounds under the National Labor Relations Act." Further, "where the refusal to bargain is one of the causes of a strike, the burden rests upon the employer, so refusing to bargain, to show that the strike would have taken place even if he had not refused to bargain." 44 We need not therefore detail the issues of conversion of the strike, had it been an economic one in its inception, to an unfair labor practice strike, or of prolonga- tion of the strike by the Company's subsequent unfair labor practices beyond not- ing, as found, should doubt remain on this point, that unfair labor practices were committed after the strike began and particularly that strikers were told that the Company would not sign a contract, to which they replied that they would not return until it did sign. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section II, above, occurring in connec- tion with the operations 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. IV. THE REMEDY Since it has been found that the Company has engaged in and is engaging in certain unfair labor practices affecting commerce, I shall recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the purposes of the Act. It has been found that the Company refused to bargain collectively with the Union thereby interfering with, restraining, and coercing its employees. I shall therefore recommend that the Company cease and desist therefrom and also, upon request, bargain collectively with the Union with respect to wages, hours, and other terms and conditions of employment, and embody in a signed contract any understanding reached. It has been further found that the Company, by threats of refusing to deal with the Union and of closing the plant, interfered with, restrained, and coerced its employees in violation of Section 8 (a) (1) of the Act; and by failure to furnish information concerning earnings, withholding authority from its negotiator, solicit- ing strikers to return to work, inquiring of strikers concerning their own and the Union's activities, threatening to discharge strikers, and promising and granting 43 199 F. 2d 319, 320-321 (C. A. 4). 44 N. L. R. B. v. Barrett Co., 135 F. 2d 959, 961-962 ( C. A. 7). Spitzer Motor Sales, Inc, 102 NLRB 437, 452. Cf Clinton Foods, Inc , 112 NLRB 239, the strike being found to be economic where the employer bargained for a long time in good faith and consistently except for its refusal to bargain on insurance, L. C Products, Inc., 112 NLRB 872, where the union had not been recognized and could not enforce recognition through Board proc- esses, it being held that the strike was called for recognition and was therefore not an unfair labor practice strike. J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 417 benefits, has further violated both Section 8 (a) (1) and (5) of the Act. I shall therefore further recommend that the Company cease and desist therefrom. The unfair labor practices found herein indicate a purpose to limit the lawful concerted activities of the Company's employees. Such purpose is related to other unfair labor practices, and I find that the danger of their commission is reasonably to be apprehended. I shall therefore recommend a broad cease and desist order, prohibiting infringement in any manner upon the rights guaranteed in Section 7 of the Act. It has been further found that the strike herein was an unfair labor practice strike, caused by the Company's refusal to bargain. For the reasons stated, supra, I shall therefore further recommend that the Company offer, upon application, immediate reinstatement to their former or substantially equivalent positions,45 without prejudice to their seniority and other rights and privileges, to all 46 of the strikers, dismissing, if necessary, any replacements hired; those strikers for whom no employment is available because of any change in the Company's operations shall be placed on a preferential hiring list for all jobs for which they are qualified, with priority deter- mined among them by such system of seniority or other nondiscriminatory prac- tice as heretofore has been applied in the conduct of the Company's business, and thereafter in accordance with such list shall be offered reinstatement as positions become available and before any other persons are hired for such work.47 'The Company shall also make whole such strikers for any loss of pay they may have suf- fered by reason of the Company's refusal, if any, to reinstate them, by payment to each of them of a sum of money equal to that which he would normally have earned, less his net earnings,48 during the period from 5 days after the date on which he applies for reinstatement to the date of the Company's offer of reinstatement. Loss of pay shall be computed 49 on a quarterly basis. It is also recommended that the Board order the Company to make available to it, upon request, payroll and other records to facilitate the determination of reinstatement rights and the amount of back pay due 50 The recommendation for back pay herein does not include vacation pay, sought by the General Counsel, which might have been received by the strikers but for the strike. Entitlement to such pay is not established by the mere grant thereof to those who were working and denial thereof to the strikers.51 That distinction does not per se indicate discrimination 52 against the strikers or interference with their concerted activities. Nor does this appear to have been done except in normal course of business. In the absence of evidence that vacation pay was used to under- mine the Union or otherwise in violation of the Act, there is no basis for finding that it was paid or withheld unlawfully. Even where there is no question of violation of a no-strike clause,53 an employer may pay all emoluments to those who are working and withhold them from those who do not work. Was the vacation pay, then, a proper emolument, or was it discriminatorily awarded? There is no basis, in the mere payment to those who were working, for a finding of discrimination against those who were not working and did not receive vacation pay. 4s The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 4e Whatever question may arise because of alleged violence by individual strikers, not chargeable to the Union, is left for future determination since it is not within the issues before us. 47 Central Kentucky Broadcasting Company, 93 NLRB 1298, 1299, 1309. 98 Crossett Lumber Company, 8 NLRB 440. See also Republic Steel Corporation v. N. L. R. B, 311 U.S 7. 'IF W Woolworth Company, 90 NLRB 289, 291-294. su Id , at 294. 51 There is no evidence of departure from this practice despite the testimony noted supra of a promise to modify it, made by Drake to Reeves. E. J. Rutter testified that it applied to nonstrikers who were not working, and a striker who returned to work after the sum- mer vacation period but before Christmas testified that she was not paid for the former but did receive her Christmas bonus portion. 52 Cf. Anheuser-Busch, Inc, 112 NLRB 686, which involved disparate treatment of work- ing employees 68 Cf. Wagner Electric Corporation, 105 NLRB 1 ; Cities Service Refining Corporation, 105 NLRB 797. 390609-56-vol. 115-28 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The strikers were entitled to "the status which they had achieved prior to the strike," no more, no less 54 They were not discriminated against by the benefits to working employees. Here their proper status was recognized since vacation pay to strikers who returned before the vacation dates set forth was based on the full period of em- ployment, both before the strike and thereafter to the end of the base period; 55 it was not based on any regard of the strikers as new employees. As for nonallowance of vacation pay to those who continued on strike, although the base year on which vaca- tion pay was computed ended on May 31, a reasonable condition for such pay is that employees be on the payroll or in a working status at the time of such payment. While striking, they were not entitled to any form of pay, whether regular, overtime, holiday, premium, bonus, or vacation.56 Nor was any distinction made on the basis of union membership: those at work were paid, while those not at work were not paid. Neither, as noted, was there distinction on the basis of union activity: whether strikers or, as E. J. Rutter testified, nonstrikers, those who were not on the job did not receive vacation pay any more than they received wages. I find no discrimination in the pay- ment of vacation pay to those who were working when those payments were made. (If strikers incurred no compensable loss here, widening of eligibility by omitting the 1-year requirement, and establishment of a minimum of $7.50 cannot benefit them.) But aside from identity of individual recipients, was the distribution discriminatory because made at that time or because of other factors beyond that of "mere payment"? Of this, there is no evidence. Certainly there is no suggestion that the vacation dates were discriminatorily set, it appearing that approximately the same period was selected as in other years. Vacation pay had been due on a condition, and the condition was not changed. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Amalgamated Clothing Workers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All of the Company's production and maintenance employees at its three New Orleans plants, including truckdrivers and janitors, but excluding professional em- ployees, office clerical employees, mechanics, guards, 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. Amalgamated Clothing Workers of America, CIO, was on February 2, 1954, and at all times since has been the exclusive representative within the meaning of Section 9 (a) of the Act, of all employees in the aforesaid unit for the purposes of collective bargaining. 4. By refusing to bargain collectively with Amalgamated Clothing Workers of America, CIO, as the exclusive bargaining representative of the employees in the ap- propriate unit, J. H. Rutter-Rex Manufacturing Company, Inc., has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By such refusal to bargain and specifically by threats of refusing to deal with the Union and of closing the plant, soliciting strikers to return to work, inquiring of strikers concerning their own and the Union's activities, threatening to discharge strikers, and promising and granting benefits, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] rA Wheeling Pape Line, Inc, 111 NLRB 244. 56 No issue has been raised concerning strikers, if any, who returned before July 9 but after June 28 The promise of vacation pay was to eligible employees "who work during the period June 28 to July 9." (In 1954 the Company's plants remained open, vacation pay being received as extra pay I attach no significance to the fact that the eligibility period for receiving vacation pay was "stretched" from 1 to 2 weeks.) 66 Wheeling Pipe Line, Inc., supra.