Cranston Print Works Co.

CRANSTON PRINT WORKS COMPANY 537 sufficient community of interest,to constitute an appropriate bargain- ing unit.' In determining the unit placement of employees in job classifications similar to the cameramen and video switchers, the Board has included them in units together either with the engineering department or program department personnel, depending on the organizational setup of the particular station involved' Here it is clear that the camera- men and video switchers are part of the program production depart- ment. Furthermore, these employees are not required. to have any technical knowledge as are the engineers. They are not as highly paid as the engineers, and they do not interchange with the engineers. In view of the foregoing we shall not include them in the unit with the engineering department employees. Further, as the cameramen-film editors and video switchers are a segment of the program production department, they do not by them- selves constitute a separate unit for bargaining purposes. We find that all engineering department employees at WTTV in- cluding the stockroom clerk, but excluding cameramen, video switch- ers, all othere employees, office clericals, guards, the chief engineer, and other supervisors as defined in the Act, constitute a unit appro- priate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] - ' 3 See Empire Coil Co., Inc, 106 NLRB 1069 4 See Columbia Broadcasting System, Inc., 108 NLRB 1468, 1472, and cases cited therein Cranston Print Works Company and Textile Workers Union of America, AFL-CIO. Cases Not. 11-CA-706 and 11-CA-765. February 27,1956 DECISION AND ORDER On January 6, 1955, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceedings, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed - exceptions to the Intermediate Report and a supporting brief.' Pur- e The Respondent also filed a motion to reopen the record to include among the exhibits a copy of a collective-bargaining agreement alleged to have been entered into after the hearing in this case This motion is opposed by the General Counsel. As the parties have not had opportunity to litigate the further facts surrounding the execution of such docu- ment, and as in any event we find the contract immaterial to our disposition of the issues hereinafter set forth, the motion is hereby denied. 115 NLRB No. 89. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suant to the Respondent's request, oral argument was held on Septem- ber 1, 1955, before the Board in Washington, D. C. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed.' The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, the oral argument, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, only insofar as they are consistent with this Decision and Order. Interference, Restraint, and Coercion The Trial Examiner found, and we agree, that the Respondent vio- lated Section 8 (a) (1) of the Act by : Plant Manager Gregory's threat to discharge employee Sexton if he heard of Sexton passing out any more union cards ; Gregory's statement to employee Hoots that "if the Union got in he would probably have to close the plant," and sub- sequent remark to Hoots that if the Union did get in he "would make it hard and fight it to the finish"; and Foreman Gambrell's offer to see that employee Bobo got-a desk job if Bobo would help the Respond- ent fight the Union a In the light of the Respondent's threats of re- prisal and promises of benefit, we also agree that Gregory's inquiry -whether employee Toney was going to be "agin him or for him" was likewise coercive and violative of Section 8 (a) (1). The Trial Examiner found that Foreman Gambrell offered to bet employee Barnett $100 that, if the Union came in the plant would close down within 2 weeks. He further found that shortly thereafter Foreman Parker inquired of Barnett as to what he and Gambrell had been talking about and, upon receiving Barnett's reply, said, "Well, you know he is right, the Company moved down here to get away from organized labor and if they come in here, they will move from here, too." These findings are based upon Barnett's testimony which the Trial Examiner has credited. However, the Trial Examiner has not mentioned, and apparently not considered, the testimony of two other witnesses, evidently relating to the same series of conversations with Foremen Gambrell and Parker, which discloses a somewhat dif- version of the first of these conversations from that given ferent by Barnett. Thus employee Hamilton, whose testimony the Trial Examiner has credited as to other matters, testified in substance that he initiated the conversation with Gambrell by asking him if he had not been going around offering to make a bet that the plant would close down if the Union came in, and that Gambrell replied that he 2 We find no merit in the Respondent's contention that the Trial Examiner was biased and prejudiced. 8 Bobo's testimony further reveals that Gambrell threatened that if Bobo rejected the offer he need not expect any favors from the Respondent. CRANSTON PRINT WORKS COMPANY 539 did not have money to put on it but still said that if the Union came in the plant would close down. Employee Higgins, likewise credited by the Trial Examiner in other respects, testified that he,was present when Hamilton asked Gambrell about wanting to bet, and also testi- fied, as did Hamilton, concerning Gambrell's reply. The three witnesses, Hamilton, Higgins, and Barnett, were substantially in agreement that Parker made a remark such as that quoted above, following the conversation which they testified they had had with Gambrell. We believe it to be evident that the testimony of these three witnesses, in fact, related to the same series of remarks by Foreman Gambrell and Parker.4 And we further are of the opinion that Hamilton's and Higgins' testimony more correctly reflects the sub- stance of Hamilton's conversation with Foreman Gambrell.5 Upon the entire record, We find that Gambrell reiterated to employees Hamilton, Higgins, and Barnett a statement that the plant would close down if the Union came in, and that Foreman Parker thereafter affirmed Gambrell's remark, adding in substance that the Respondent had come to this location to get away from organized labor and, if the Union came in, would move from this location too. We further find that by these remarks of Foreman Gambrell and Parker the Respondent violated Section 8 (a) (1) of the Act. The Trial Examiner further found, and we agree, that the Respond- ent violated Section 8 (a) (1) through certain statements appearing in a letter circulated by Plant Manager Gregory to the employees 3 days before the representation election. The letter's introductory para- graph called attention to the Union's organizational campaign with the statement that "Since this campaign has started, a lot of propa- ganda, rumors and statements have been made in and about our plant," and that "In order that you may know where you stand with respect to these various statements, I am going to point out to you which * we note that there is some disparity among these witnesses as to the time of these remarks, but we do not believe it is such as to impair their credibility or to indicate that they were not in fact testifying to the same conversations . Thus Barnett placed the date of these conversations as about 10 days before the election, Hamilton about 3 weeks, and Higgins "one morning just before" the election . However, Higgins testified, as above set forth, that be was present at Hamilton 's conversation with Gambrell, and Hamilton testi- fied that Higgins , Barnett, and himself were present at the conversations with Gambrell and Parker. 6 The record of Barnett's testimony indicates that he did not, in fact , purport to relate what he himself had heard Gambrell say, but rather what had been repeated to him by others. Thus he began his testimony on this subject by saying, "Some of the boys on the third shift remarked that Mr . Gamble [ sic] told the boys on the first shift. .. ." Then, although he was cautioned to relate what had been said to him, some brief argument ensued, and when he was again questioned concerning what Gambrell had said, be replied "I have not got to that yet Do you want me to give exactly what he said ?" and there- after testified that Gambrell had said he would bet $100 that if the Union came in the plant would close down. We do not believe that Barnett clearly comprehended the objec- tion to the hearsay nature of his testimony and are of the opinion that Barnett 's quota- tion of Gambrell 's alleged offer to bet did not, in fact, refer to what Gambrell had said during the conversation in Barnett 's presence, but rather referred to reports that Barnett had heard in continuation of his initial hearsay testimony. 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statements are true and which are false." The letter was cast in question-and-answer form. Question No. 2 and its answer were as follows : 2. Can the Union make Cranston run its plant and furnish you a job? No. The Union has no power, legally or otherwise, to force Cranston to operate its plant for one day, week, month or year. We agree with the Trial Examiner that this comment must certainly have derived its meaning from the context of the wide spread rumor that the plant would close if the Union calve in, supported by actual threats of this made by Gregory, Gambrell, and Parker, plus -the Union's reply by leaflet saying that the rumor had been circulated merely to scare the employees. Although the Respondent was well aware of this rumor and the statements which fostered it,6 the record does not indicate that the Respondent at any time sought to disavow it or to assure its employees that the plant would not close down if the Union should be successful in the election. In the light of all these circumstances, we conclude that by this question and answer the Re- spondent in fact sought to add further substance to reports that the plant might close, and that, 'viewed in context, the emphasis thus placed by the Respondent upon its power to close the plant was coercive. Further, as found by the Trial Examiner, the Respondent for some time prior to May 5, 1954, had included among its posted rules of conduct for employees a rule forbidding "Soliciting for contributions, membership in organizations, or for the benefit of other outside the plant activities, without first securing approval of the superintendent of the plant." This same rule was again included among a list of rules posted on May 5, but revised by omission of the provision for approval by the plant superintendent. We find, as did the Trial Examiner, that the effect of this rule, to the extent that it prohibits union solici- tation by employees on their nonworking time, is to deprive em- ployees of rights guaranteed by the Act and is thus violative of Section 8 (a) (7)? We do not agree, however, 'that, as the Trial Eaminer further found, the Respondent violated the Act by Foreman Gambrell's alleged threat to employee Marion Corn, during the course of the e As found above, the plant-closing rumor had been fostered by statements of Plant Manager Gregory and Foreman Gambrell and Parker , Plant Superintendent Cooney's testimony further reveals that the Respondent was aware of the prevalence of this rumor in the plant. Thus, in testifying as to the incident in the printrooin which led to the dis- charge of employee Whitmire, hereinafter discussed , Cooney said that when Paige in- quired what was meant by Whitmire's iefeience to closing down the plant, he informed Paige that there was soon to be a representation election and that "there has been a lot of talk in the mill about this and that." 7 Delta Finishing Conipaney, 111 NLRB 659 ; Republio Aviation Corporation v. N. L. R. B., 324 U S 793. CRANSTON PRINT WORKS COMPANY 541 strike, that the Respondent was going to hire new employees and that if Corn would come back to work he would not lose his job. We find, as more fully set forth hereinafter, that the strike in which Corn was engaged was economic in its nature. As the Respondent was priv- ileged to replace economic strikers, Gambrell's remark was no more than a statement of what the Respondent might lawfully do in these circumstances . As Gambrell's statement did not appear to convey a threat of reprisal against Corn for engagingin union on concerted activities, we find that the Respondent did not thereby violate the Act.,' 1. The discharge of Boyce A. Whitmire, Jr. The Respondent discharged Whitmire on the morning of April 15, 1954, allegedly because of a remark that he had made to a representa- tive of one of the Respondent's customers in the plant the preceding day. The Trial Examiner found that this was not the reason for the discharge, but was merely a pretext upon which the Respondent seized to rid itself of an outstanding protagonist of the Union during the Union's preelection campaign in the plant. The Respondent excepts to this finding, asserting in effect that Whitmire was discharged for cause. We find merit in the Respondent's exceptions. There is little factual dispute as to the incident which led to Whit- mire's discharge. The facts as found by the Trial Examiner are briefly these : The Respondent's business consists of printing color or patterns on cloth, on a commission basis, for various commercial customers. On the morning of April 14, Paige, a representative of Seneca Textile Corporation,. one of Respondent's customers, was present in the print department watching the first of a quantity of this customer's cloth being "struck off" to determine whether the colors and shading were right. During an interval when the machine was closed down, Whitmire, an employee in this department, ap- proached Paige and asked him what he was going to do when the plant shut down. Paige asked what he meant, and Whitmire replied, "Mr. Gregory said he was going to shut the plant down if the Union came in." Paige went in search of Plant Manager Gregory, but Gregory was out of the plant and Paige talked to Plant Superintendent Cooney instead. On the basis of Paige's description, Cooney identified Whit- mire as the employee who had spoken to Paige, explained to Paige that there was to be an election in the plant a week hence, that Whit- mire's remark had apparently arisen from talk in connection with the election, and then, after much further conversation, succeeded in reassuring Paige that the Respondent would be able to fulfill its obli- 8 McLean-Arkansas Lumber Company, Inc., 109 NLRB 1022, 1040. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gation to the customer. Later that night, Gregory returned to the plant and Cooney told him of the incident. The next morning Gregory discharged Whitmire for the reason, as stated on his dis- charge slip , of "jeopardizing business relations with customers." It is clear that, as found by the Trial Examiner, the Respondent was aware of Whitmire's active advocacy of the Union, and also that the Respondent was strongly opposed to the advent of the Union in the plant. However, we are not satisfied that the Respondent dis- charged Whitmire for reasons other than the prejudice to the Respondent's business interests that was inherent in Whitmire's questioning of its customer's representative. It appears not to be disputed that the Respondent's business with Seneca Textile, whom Paige represented, was substantial. There were approximately 300,000 yards of Seneca's goods on hand to be printed in the Respond- ent's plant at the time of the incident. It is also apparent that Paige was much disturbed by the possibility that the plant might close down before the customer's goods could be printed and delivered, and that it required much persuasion by Superintendent Cooney to re- assure Paige that the customer's interests would in fact be taken care of. These facts lend substantial support to the Respondent's asser- tion that it was concerned with the effect of Whitmire's action upon its business relations with its customer. The Trial Examiner, however, has discredited this contention as at variance with the actions of Superintendent Cooney and Plant Man- ager Gregory following disclosure by Paige of Whitmire's remark. Thus Cooney took no action himself against Whitmire but permitted him to remain at his job for the remainder of the day without being questioned as to his version of the incident. And Gregory, upon learning of the matter from Cooney, made no further effort to re- assure Paige although he immediately took steps to have Whitmire's card removed from the rack and to inform the plant guards that Whitmire was to wait the next morning until he, Gregory, came in. At the hearing, Cooney testified that his delay in taking action was because of his practice, in order to avoid the possibility of a conflicting decision by his superior, Gregory, to confer first with Gregory before taking action in disciplinary matters of a serious nature. Gregory offered no specific reason for not discussing the matter further with Paige. However, the record clearly indicates that Cooney had suc- ceeded in settling Paige's apprehension of loss to his employer. In the light of all the circumstances , we do not believe that Cooney's or Gregory's conduct in these respects was entirely unreasonable, or so inconsistent with the Respondent's asserted reason for discharging Whitmire as necessarily to deprive the latter of credibility. Accord- ingly, upon the entire record, we find that it is not established that CRANSTON PRINT WORKS COMPANY 543 the Respondent discharged Whitmire because of his union member- ship and activity, but rather that Whitmire was discharged for cause.9 2. The layoffs of Hamilton, Stepp, and Higgins The Trial Examiner found, and we agree, that the Respondent discriminatorily laid off Hamilton, Stepp, and Higgins with the in- tent of discouraging union membership and activity, contrary -to-Sec- tion 8 (a) (3) and (1) of the Act. As found by the Trial Examiner, these employees went to the home of Foreman Keith on Saturday morning, April 24,1954, to discuss a warning given by Keith to Stepp for some "horseplay" ( a water-squirting incident) that had occurred in the plant on the previous day. The Respondent asserts that the subsequent layoff of these three employees was a disciplinary layoff administered because in their visit to Keith's home they had intimi- dated a supervisor. Like the Trial Examiner, we find no merit in this contention. The record discloses a minimum of conflict as to what occurred during the visit of these three employees to Foreman Keith's home. Higgins, who had brought the other two in his automobile, remained in his car while Stepp and Hamilton talked to Keith at or near the steps of Keith's front porch. The testimony of the various witnesses reveals that the course of conversation was approximately as follows : Stepp informed Keith that he was upset about the incident that had occurred in the plant, and that he wished they could straighten out the matter of the water squirting and possible "pink slip." 10 Keith replied that there were authorities over him and he had a job to carry out (that he himself had in the past been guilty of horseplay), but that there were rules and they were going to be enforced. Hamil- ton said that Stepp was upset, and that he had known Stepp for a long time and thought he would like to talk to Keith and see if he could straighten the matter out. According to Keith, Hamilton at one point said, "We hear that you are trying to get rough out at Cranston." However, Keith and Hamilton both testified in substance that they argued about the "changes" being made at Cranston, Hamil- 0In his discussion of Whitmire's discharge, the Trial Examiner observed that Gregory himself was at least partly responsible for the spread of the plant-closing rumor in the plant, and apparently cited this as an additional reason why Whitmire 's discharge was not justified. We do not, of course, condone the instigation of a coercive rumor in viola- tion of Section 8 (a) (1) of the Act. However, we do not regard the Respondent's re- sponsibility for the rumor , nor the fact that Whitmire , as he asserted , approached Paige in a "joking" manner , as a sufficient defense to Whitmire 's conduct. Whitmire's action in thus approaching the customer's representative and invading the Respondent 's busiiu-" ielationship with the customer was outside his province as an employee engaged at work within the.department , was not legitimately related to any interests as an employee, and does not appear to have been justified by any other circumstances that might have made discussion with such representative a matter of his legitimate concern. 10 Stepp testified that he had heard reports that Keith might put a pink slip in his eni- ployment record The exact nature of a pink slip is not explained in the record , although Stepp testified that if he got enough of them it might cause him to lose his job. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ton asserting that there were not to be any changes made after the Union had won the election 11 and Keith saying that he had his job to run. According to Hamilton, Stepp and Keith eventually changed the conversation to another topic and, not being interested, Hamil- ton started back to the car and 2 or 3 minutes later Stepp followed him.12 Stepp testified that during the course of their interview he said to Keith, "I hope we have got everything straightened out and we won't have any more trouble." Hamilton testified that Stepp said to Keith, "All right now, we will forget the whole matter," and that Keith and, Stepp shook hands and agreed on it. Keith did not. deny that this: occurred. The following Monday, Stepp was called to an interview with Personnel Manager Hardee and Foreman Keith and Pearson. The water-squirting incident was discussed and in effect dismissed. Then Hardee mentioned the- visit to Foreman Keith's house and, accord- ing to Stepp's testimony, told Stepp that he was not going to put up with "your strong arm bunch" going to foremen's homes, and that anything to be settled must be settled at Cranston. Within the period of a day or two, Stepp was called to another interview with Hardee and Plant Superintendent Cooney, in which Cooney asked Stepp if he and his "strong arm bunch" had made a visit to Keith's house, and told Stepp, "I want to snake a check in for this; you will be off for a week." On the following Thursday, Hamilton and Higgins were interviewed by Hardee and Cooney. After they had related their version of the visit to Keith's home, Cooney said, "I don't intend for the supervisors to be intimidated. I am going to investigate this thing thoroughly and get to the bottom of it, and you two fellows are laid off until further notice to come back to work." Higgins protested that he had done nothing but drive the car for Stepp and Hamilton, but Cooney replied, "You were with the wrong crowd and just as guilty as they are for intimidating." Stepp was laid off without pay for a week and then returned to work. Hamilton and Higgins were like- wise laid off without pay, and were notified approximately 12 days later to return to work. Although Cooney had said that he was going to make an investigation, there is no evidence that he did. so and nothing 'further was said about the matter to these employees. We are satisfied, upon the entire record, that Hamilton, Stepp, and Higgins did not threaten or otherwise attempt to intimidate Foreman Keith. There is no direct evidence of such intimidation, and the interview at Keith's home appears to have ended amicably. Stepp and Hamilton testified, essentially without contradiction, that there were no threats of any nature and "no loud talking." Keith did not n The election had taken place 2 days earlier. 32 According to Stepp, Keith said that he was going to sell his home, that they walked down and Keith pointed out the boundary lines, and that he, Stepp , told Keith it was a pretty home and be should be able to sell it. CRANSTON PRINT WORKS COMPANY 545 assert that he had been threatened. As to Hamilton, he testified that "he was not storming out at me, anything like that, but he was speak- ing in a firm voice." 13 Keith also testified, "I knew that Hamilton and Stepp and Higgins were active in the Union, and I could not say, what their intentions were, I mean their attitude, them being at my home, I mean I didn't appreciate and I didn't know exactly how to take it...." Although he noted that all three of these employees had openly worn union buttons before the election in the plant, the Trial Examiner nevertheless concluded that the layoffs were a discriminatory reprisal directed primarily against Hamilton, who had been known as an open and outstanding- union leader. We find, in agreement with the Trial Examiner, that the layoffs were discriminatory, having been made to, discourage the union membership and concerted activities of these employees. We further note, however, that Foreman Keith's testimony above set forth specifically discloses that he was aware that all three of' these employees were active in the Union, and that quite evidently he attributed their activity in coming together to his home to that fact. We also note that both Hardee and Cooney-without justification, as- we have found-accused Stepp, in effect, of associating with a "strong arm bunch" and that Cooney accused Higgins of being "with the wrong crowd." Upon these facts, and the entire record, we find that Hamilton's, Stepp's, and Higgins' layoffs were directed in reprisal against the union membership and concerted activities of each of these- three employees. We further find that the Respondent thereby vio- lated Section 8 (a) (3) of the Act. 3. Refusal to bargain As the result of the election held on April 22, 1954, the Union was certified on April 30. The parties met for collective bargaining for- the first time on May 27, 1954. Seven bargaining meetings were held' during the period from that date until July 17, when a strike began which lasted for approximately 10 days, ending on July 27. The parties continued, however, to bargain, meeting twice during the strike- and again on various further dates before the hearing in this case- which began on October 11, The Trial Examiner found that the 13 Keith testified also that Hamilton had a knife ; that he asked Hamilton what lie was- doing with his knife out, and that Hamilton said he had been `cleaning his fingernails Hamilton testified that he carried a knife but did not recall having it out. Stepp testified that he did not see Hamilton having a knife in his hand. Neither Keith nor Hamilton, desciibed the size or kind of knife to which he referred As Keith did not assert that Hamilton actually threatened him with a knife and there is no other evidence to so indi- cate, we find it unnecessary to iesolve any disparity in the witnesses ' testimony concern- ing the knife 1; The dates of the bargaining meetings were as follows : before the strike on May 27,_ June 21 and 22, and July 13 , 14, 16, and 17 ; during the strike on July 19 and 23; and after the strike on July 30, August 13, September 22, and October 6 No contract had been. executed as of the time of the hearing. See footnote 1, supra. 390609-56-vol. 115-36 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent unlawfully refused to bargain by taking certain unilateral action after the Union had been successful in the election and before the parties met in their first bargaining conference. He also found that the Respondent refused to bargain by unlawfully assuming, or proposing and insisting upon, certain positions in the bargaining ses- sions which preceded the strike of July 17. These matters will be discussed seriatim. a. Unilateral changes in plant rules As found by the Trial Examiner, the Respondent, after the Union's selection as representative by the employees in the election, but without notice to or consultation with the Union, posted four new rules which changed previous practices in the plant, in substance, as follows : to 1. On April 27, a rule requiring each employee to report in advance if he was unable to report for work on his next regular shift. 2. On May 6, a notice that all smoking booths would be closed for 15 minutes before, and 1 hour after, the beginning of each shift. 3. Also on May 6, a rule that no employee was to enter the plant before 15 minutes of his regular shift. 4. On May 13, a rule requiring employee contributions for various purposes in the plant henceforth to be handled by placing donations in a box at the front gate. These rules, as shown by the dates set out above, were posted after the election and before the parties met for their first bargaining con- ference. Like the Trial Examiner we do not find that they were in themselves illegally restrictive of employee rights. However, the rec- ord indicates that each of them constituted a substantial curtailment of a previous employee privilege.18 The Respondent offered no sub- stantial reason why so many new and restrictive rules should have been imposed upon its employees during this particular period. Nor does the record indicate that such frequent postings accorded with any past practice in the plant." Therefore, and especially in view of Plant 16 The Trial Examiner also found that on May 5, after the election , the Respondent posted an entirely revised list of its rules governing the conduct of its employees in the plant. The record discloses that the list posted on May 5 was substantially identical to that previously in effect, the principal changes being that by a combination of certain parts the total number of rules was reduced from 22 to 20 . Therefore, we do not adopt the Trial Examiner 's finding in this respect . The specific rules set forth above , however, were not part of either the old or revised list, but were new rules posted separately on the dates herein stated. 1e Thus, for example, enforcement of the rule requiring advance reporting of absences appears actually to have worked some hardship. Employee McLaughlin testified that on a Friday night in June 1954 he was ill and unable to come to work. As he lived about a mile from a telephone lie could not report to the plant . On the following Monday, when he reported for work, he was given a disciplinary layoff despite his recital of the foregoing matters as an excuse 17 We do not agree with the Trial Examiner that the Respondent advanced in general no substantial or credible reasons to support the new rules as such. As to the smoking restriction , Gregory testified that it had been reported by insurance inspectors that more than the permissible number of persons congregated in the smoking booths at the beginning of each shift. As to the time for entering the plant, he testified that many employees had CRANSTON PRINT WORKS COMPANY 547 Manager Gregory's threat before the election, set forth above, that if the Union came in he "would make it hard and fight it to the finish," we find in agreement with the Trial Examiner that these new and re- strictive rules were imposed by the Respondent following the election in reprisal for its employees' designation of the Union as representa- tive, and constituted interference, restraint, and coercion within the meaning of Section 8 (a) (1).18 Like the Trial Examiner, we also find that the Respondent's unilat- eral posting of such rules changing conditions of employment was in derogation of its obligation to bargain with the Union as the newly certified collective-bargaining representative. The Respondent asserts that its action in posting the new rules was in good faith and without intent to bypass the Union. In support of this contention, it offered Gregory's testimony at the hearing that he had received no demand from the Union prior to the postings to discuss working conditions, and that he did not then know of any representative among the em- ployees having been appointed to discuss grievances or working con- ditions. The record discloses, as found by the Trial Examiner, that before the election the Union, by letters of March 19 and April 13, had demanded recognition and a bargaining conference. As the record contains nothing to indicate that the Union at any time thereafter abandoned its intent to negotiate with the Respondent, we find that these requests constituted sufficient notice of the Union's desire to bar- gain concerning working conditions. Moreover, the record shows, and the Respondent did not deny, that these and other communications received by the Respondent contained the names of representatives and other information sufficient to have enabled the Respondent to get in touch with the Union had it desired to do so prior to instituting changes in working conditions. Upon the entire record, we find that, by unilaterally inaugurating changes in plant rules after the Union's designation as representative, the Respondent failed and refused to bargain with the Union contrary to Section 8 (a) (5).11 b. Other changes in working conditions The Trial Examiner found that, as in the case of the plant rules, the Respondent unilaterally made certain other changes in working con- been coming in from 20 to 45 minutes ahead of shift change and had been punching the clock when they came in. He said that the Respondent "had to be very careful" about the wage and hour law, and hence did not want its employees to punch in so far ahead of time. As to the new method of handling contributions , he explained that solicitations had often been made of employees at work throughout the plant for causes such as sickness or death in an employee's family, and that there had been complaints that individuals who had no personal interest were nevertheless caused to contribute solely to avoid embarrass- ment. Gregory did not testify, however, that these matters had only recently come to the attention of management, or that there were any other circumstances specifically im- pelling , the posting of these rules changes during the interval immediately following the election. 38 Thomason Plywood corporation, 109 NLRB 898, enfd . 222 F. 2d 364 (C. A. 4). 39 Cf. Thomason Plywood Corporatwn, supra. 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ditions between the time of the election and the parties' first bargain- ing conference and that these were likewise violative of Section 8 (a) (1) and (5). 'The record discloses the following evidence con- cerning these matters : Increased workload in the color shop: Employee Bobo testified that around the time of the election 1 of the hands in the color shop was transferred to another department, and on the Monday after the election 1 of the washboys was taken off. This threw more work on the other employees, including Bobo, who were working in color on the second shift. Employee Hamilton, who worked in this department as a mixer preparing color for the machines that print the cloth, testi- fied that before the election five print machines were running full time and the sixth only part of the'time. On the Monday after the election, the sixth machine also began to run full time. Hamilton further testi- fied that he called Foreman Parker's attention to the fact that this was resulting in an increased workload for the color mixers, but Park- er replied that they were not going to get any more help. Discontinuance of relief help in the packing room: Employee Hoots,, a cloth handler in this department, testified that he had observed that before the election each of the packers would get a 15-minute relief period in the morning and another in the afternoon. Reliefs were taken in rotation and a substitute would take the place of each packer in turn. Then a week or two after the election, the relief man was taken off and the packers were told to smoke whenever they got caught up. Employee Hill, a packer, also testified that the packers had pre- viously been given regular breaks. The Trial Examiner appears to have credited the testimony of Hoots and Hill rather than that of Foreman O'Stein, who denied that there had been any fixed practice as to relief. Apparently, however, in any event some idle periods occasionally occurred during the normal course of the packers' work. Hoots, who was not a packer, did not testify as to the extent to which the discontinuance of specific relief periods affected the packers' op- portunities to take a break., Hill, the only packer to testify concern- ing this subject, did not testify that he was adversely affected by the discontinuance of regular relief periods, but instead complained that as a nonsmoker he was no longer permitted during idle periods to go into the smoking booth and had to remain near his machine. Reduction of overtime in aging: Employee Jackson, who worked in the aging department, testified that it was the custom in that depart- ment for each of the 3 shifts in rotation to work 8 hours of overtime on Saturday at cleaning the machine. 'He further testified that on the second Saturday, after the election, his shift was permitted to work only 5 hours, but this was not time enough to get the machine all cleaned. He further testified that such reduction of the over- CRANSTON PRINT WORKS COMPANY 549 time work occurred only on this one Saturday and that thereafter the full 8 hours of overtime was resumed. Increased workload in folding : About the end of April 1954, the Respondent installed a new tying machine in the folding department. It is essentially undisputed that the installation of this machine elimi- nated the jobs of several women who had been sewing stickers on cloth. It also resulted, however, in giving the folders some new tasks, consisting of putting the customers' labels and certain "hang tickets" on the cloth. The folders were given a 5-cent hourly wage increase because of this addition to their duties. Plant Manager Gregory testified without contradiction that both the new machine and the pay raises had been under consideration as early as December 1953 and that the machine had been ordered in January 1954. We are not satisfied that the foregoing facts are sufficient to support a finding either that the Respondent instituted changes in working conditions in reprisal for the Union's selection by the employees in the election or that the Respondent failed to bargain with the Union con-- -cerning working conditions. Unlike the case of the Respondent's posting of new and restrictive rules, the record is not such as to persuade us that these changes in working conditions were substantial, or such as to form the basis of a remedial order against the Respondent. As to the increase in workload in the color shop and discontinuance of fixed periods for relief in packing, their timing might render them subject to suspicion. However, the record contains little to indicate that these matters were abnormal or unusual and, especially as to the packers who clearly were not thus deprived of opportunity for relief, the record discloses little as to the effect of the changes, if such they were, upon the working conditions of the employees. The reduction of overtime in the aging department likewise amounted, at best, to 3 hours of 1 shift on a single day and, upon complaint, was immediately restored. The change in the folders' duties, compensated by an in- crease in pay, was clearly the result of equipment change according to decision made and set in motion before the Union's initial demand for recognition which preceded the representation proceeding. We find that the Respondent did not violate the Act by instituting unilat- eral changes in working conditions. c. Alleged further refusal to bargain concerning plant rules and changes in working conditions The Trial Examiner found in substance that the Respondent further refused to bargain concerning plant rules and changes in working conditions by persisting until after the date of the strike in refusing to recognize the Union's right to present grievances concerning newly posted rules and changes in working conditions, and by insisting on 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a right unilaterally to make new plant rules. The facts concerning these matters are essentially as follows : Alleged refusal to recognize the Union's right to present grievances involving existing rules and changes in working conditions: At the first bargaining conference on May 27, the parties agreed that Hamil- ton, who had a number of employee grievances to present, should put them in writing and give them to Personnel Manager Hardee for in- vestigation and reply. It was further understood that if the answers were not satisfactory the matters were to be discussed at the next meeting on June 21. Thereafter, between June 2 and 8, Hamilton, as chairman of the Union's grievance committee, prepared and presented to Hardee 17 grievances on various subjects including, among others, all but 1 of the changes in plant rules and working conditions here- inbefore discussed2° On June 11 Hardee replied by a letter, addressed to the grievance committee, as follows : In reply to alleged grievances Nos. 1 through 14, the Company does not recognize the fact that any part of grievances Nos. 1 through 14 are a proper matter for a grievance, and does not rec- ognize the authority of the committee to raise these questions. The answers are given out of a spirit of cooperation and for in- formation. The Company has not made an [sic] changes in rules or policies because of a result of the election, except those necessary to main- tain a more efficient operation. With this letter were a number of enclosures setting forth separate answers to each of the first 14 grievances. As to the new rules re- stricting the tines for visiting the smoking booths, requiring donations to be placed in a box at the gate, and prohibiting early entrance to the plant, these separate answers consisted simply of the following statement : This is a matter of Company Policy and Procedure. - We do not consider this a proper matter for a grievance. In a number of other instances, including a grievance involving the rule requiring advance reporting of absences and three of the griev- ances relating to changes in working conditions discussed supra, the Respondent furnished a separate answer concerning the merits of the matter at issue, but appended a further statement likewise indi- cating that it did not recognize the matter as properly subject to a grievance. In a letter dated June 21, Hardee gave similar answers to the remaining 3 of the 17 grievances. Thereafter, as found by the Trial Examiner, at the next bargaining meeting on June 21, the Union expressed its dissatisfaction with the ' The matter of the reduction of Saturday overtime in the aging department was not included. CRANSTON PRINT WORKS COMPANY 551 Respondent's answers and asked to have a discussion of the grievances. Owens, the Respondent's industrial relations director, replied that he was not prepared to discuss the grievances at that time but would do so later 21 During a further discussion of contractual provisions on the following morning, June 22, Union Representative Lisk objected to a provision in the Respondent's proposed contract which stated that as of the date of the contract there were no pending grievances. Lisk inquired how Owens could insist on having this section in the con- tract and at the same time -not discuss and settle those grievances. Owens replied that he wanted to start off with a clean slate.22 On July 17, Lisk asked for a discussion of grievances, and Owens replied that he was not prepared to discuss the grievances unless the terms of the contract had been agreed upon. When Lisk again pointed out the inconsistency between that position and at the same time insisting on a provision in the contract specifying that there were no unsettled grievances, Owens explained that he did not consider the statements filed by the Union as subject matter for grievances. The Respondent's minutes 23 disclose that the Union objected again on July 30 to such a statement in the contract, and that at the meeting on August 13 both parties indicated their willingness to get together to discuss the pend- ing grievances. At the bargaining meeting on September 22, the Union requested and the parties held a grievance discussion, and all but 4 out of approximately 20 pending grievances were settled."4 Upon the basis of these facts, the Trial Examiner found that the Respondent failed to bargain with the Union, first by Hardee's letter of June 11 rejecting the statements submitted by the Union as not pertaining to proper subjects for grievance, and thereafter by persist- ing in this position until after the beginning of the strike on July 17. Upon the entire record as above set forth, however, we are not satisfied n The Trial Examiner also found that on June 21 Owens insisted that all future grievances must be signed by the employees who consideied themselves aggrieved. It is not disputed that the Union immediately agreed to this request and that this became the practice as to grievances thereafter submitted . It further appeals likewise to be undis- puted that the Respondent did not reject any of the grievances submitted before June 21 because they were not signed by the individual employees who were involved. ra As found by the Trial Examiner, Owens also said , at one point in this meeting, that he had to leave and that if the union representatives wanted to do so they could stay and discuss grievances with Hardee , but that Hardee had already given his answer and had no authority to change it za The Respondent's personnel manager , Hardee, made handwritten notes of the negotia- tions at each bargaining meeting , from which either he or Industilal Relations Manager Owens later dictated typewiitten transcriptions . Puisuant to an agreement made at the June 21 meeting , the Respondent thereafter furnished the Union at various times with copies of such transcriptions . Except for a criticism of certain statements in the type- written transcription of the May 27 meeting , which the Respondent had posted on its plant bulletin board , the Union does not appear to have questioned any of the statements contained in these transcriptions. E4 The Respondent's minutes of this meeting disclose that among the 4 grievances re- maining unsettled there were none which concerned the new rules and only 2 which con- cerned the changes in working conditions above discussed The latter were the grievances involving the allegations of increased workloads in the color and folding departments, and were left for a further check of the matters to be made by the Respondent 552 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD that the Respondent in fact failed or refused to deal with the Union as to the pending grievances concerning plant rules and changes in working conditions. Thus, despite Hardee's asserted rejection on June 11 of the Union's statements as not involving a proper subject matter for grievance, he simultaneously provided answers on the merits to many of the grievances. Likewise Owens, who similarly purported to deny the Union's right to present these matters as griev- ances, nevertheless agreed to meet with the Union and discuss the grievances, and eventually did so. And despite its position as to the subject matter of the grievances, the record does not disclose that the Respondent at any time rejected outright the Union's request to discuss them; rather the evidence discloses at most that it delayed entering into a grievance discussion. We are not convinced, under the circumstances of this case, that the Respondent's delay in dis- cussing grievances until September 22 necessarily demonstrates lack of good faith or a desire to evade the bargaining obligation. The parties were also engaged, during this period, in negotiations for a first bargaining contract, involving numerous areas of disagreement. Lisk, in testimony concerning the June 21 meeting, denied that he had expressed a desire to discuss these other matters rather than griev- ances, but conceded that "there were two questions before us at the time, and as I recall the question was which one we were going to dis- cuss first, or which one we were going to start with, the contract or the grievances." 25 Upon the entire record, we find that the Respond- ent did not unlawfully refuse to bargain with the Union as to pend- ing grievances concerning new plant rules and changes in working conditions. Alleged insistence on the right to make rules: The Respondent's initial contract proposals contained, under the heading of "Discharge or Discipline of Employees," 29 a list of 17 shop rules, preceded by the following provision : The maintenance of discipline of the workforce is the responsi- bility of Management. (a) If an employee covered by this agreement violates any of the following rules he shall be subject to immediate discharge and said discharge shall not be subject to arbitration... . The section also included a further list of seven rules violation of which would be ground for suspension, with provision that a second violation of these rules should be cause for discharge, and with a fur- ther provision that such a discharge should be subject to arbitration, limited, however, to the question of whether the discharged employee 21 Lisk also testified that he did not recall whether he expressed an opinion as to which one he wanted to talk about first. ^ Section 2 of the Respondent's ai title xV, "Management Rights and Discipline of the Workforce." CRANSTON PRINT WORKS COMPANY 553 had in fact committed the alleged act, and with the burden upon the Union to prove beyond a reasonable doubt that he did not do so. Lisk testified that at the meeting on June 21, the Union objected to this proposal on the ground that in effect it gave the Respondent the sole right to impose rules and discharge employees, and no right to the Union to make a grievance or go to arbitration over it. In place of the Respondent's proposal, the Union offered its own contract provision which specified that all shop rules should be- mutually agreed upon in writing and signed by the Respondent and the Union, posted on-the company bulletin boards, and copies furnished to all employees and the Union. Owens, however, replied that the Respondent reserved the right to formulate such rules as in management's opinion were necessary. On July 13, the Respondent submitted a counterproposal retaining and elaborating the provision that rulemaking was a man- agement function but extending to all discharges the provision for arbitration, limited to the question of whether the employee had com- mitted the alleged act. As noted by the Trial Examiner, Lisk then inquired if the Respondent wanted to negotiate rules and make them part of the contract and Owens replied that it was the Company's privilege to set up and administer rules and regulations. Lisk testi- fied that on July 17 Owens said that the Respondent had not changed its position in this respect. He also testified that after the strike the Union and Respondent reached agreement by revising the language relating to rules for suspension to read, "It is agreed between the parties that a violation of any of the following rules, but not neces- sarily limited thereto, shall be considered as a reasonable cause for suspension. . . ." [Emphasis supplied.] We believe that three things are apparent from the course of bar- gaining above described : (1) That the Respondent stated as its posi- tion in bargaining that it reserved the right unilaterally to make plant rules; (2) that the Respondent nevertheless proposed to embody numerous plant rules in the contract, and bargained with the Union concerning these rules; and (3) that the parties reached an agreement as to contractual language involving a concession to the Respondent's position. These facts present only a single issue-whether the Re- spondent might lawfully assume, as a bargaining position, that it should have the right to formulate and enforce plant rules?' Under the circumstances of this case, and especially the fact that during con- 21 we are not at this point confronted with a situation such as that discussed earlier in this decision , wherein the Respondent had made certain rules curtailing existing em- ployee privileges without notice to or consultation with the Union In those instances, as set forth above, we have found the Respondent's unilateral action to constitute an unlawful refusal to bargain All that appears to be involved here is a position assumed by the Respondent in bargaining for its own contract proposal and against that proposed by the Union Here, as at other points in the bargaining negotiations hereinafter dis- cussed, the record does not show that the Respondent insisted to the point of adamancy on its proposal. 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tract negotiations the Respondent of its own volition proposed plant rules and bargained concerning them, we find that the Respondent did not violate its obligation to bargain under the Act merely by advancing the proposal in bargaining that it should have the right to initiate and enforce plant rules. d. Proposal of "Management Rights" provision The Trial Examiner found that the Respondent also violated its duty to bargain, during the negotiations preceding the strike of July 17, by refusing to accord the Union its legal right to'notice and con- sultation as to future changes in wages, hours, and working conditions, as shown by its proposal and insistence upon the following provision : 28 The right to hire, to maintain order and efficiency, to promote or to demote, to transfer and to relieve employees from duty because of lack of work or other reason is vested exclusively in the Com- pany. The Union recognizes other rights and responsibilities belong- ing solely to the Company, prominent among which, but by no means wholly inclusive are the rights to decide the number and location of plants ; the scheduling of shifts and hours of work; machines and equipment to be used; the products to be manufac- tured; the methods of manufacturing; the planning, scheduling and processing of material and the establishment of incentives, bonuses or job rates, and the operation, administration and con- trol of the Cranston Print Works pension plan. The above matters shall not be subject to arbitration unless such action is specifically authorized by this agreement. [Emphasis supplied.] This provision appeared in the Respondent's original proposed con- tract submitted to the Union on June 11. Lisk testified that at the next following meeting on June 21 he objected to this provision on the ground that it would in effect nullify the contract-would give the Re- spondent "a blanket right to do most anything they wanted to, ir- regardless [sic] of what the contract said." However, he further testi- fied that he told the Respondent's negotiator, Owens, that he would have no objection to writing in a management prerogative section if it would contain the additional language "except as otherwise provided in this contract." Thereupon, according to Lisk, the Respondent's representatives replied that they would consider such language and saw no reason why they should not put it in the contract. This same conversation took place again at two, subsequent meetings. Owens ^ Article XV, section 1, entitled "Management Rights" in the Respondent's contract proposals. The portions upon which the Trial Examiner has relied are indicated by emphasis. CRANSTON PRINT WORKS COMPANY 555 testified without contradiction that on July 16 the Respondent orally agreed to insert the Union's proposed language. And such language appears as part of this provision in the text of the Respondent's pro- posed contract submitted to the Union on July 26. The Trial Examiner has found that, after the Union voiced its ob- jection to the above contract proposal, the Respondent, nevertheless, continued to insist on its inclusion. In so finding, the Trial Examiner relied on Owens' admission that it was not until after the strike that he made a concession and agreed to give the Union "reasonable notice" before putting into effect job rates and changes in work shifts. The context of Owens' testimony in this respect discloses, however, that at this point he was not referring to the contract provision quoted above, but rather to a separate and different provision entitled "Adjustments and Establishment of Rates, Bonus or Incentive Plans," also a part of the Respondent's contract proposals. This latter provision, concerning which the parties likewise disagreed, in substance provided that the Respondent might initially establish new job rates or make adjust- ments in rates or wage rate plans, as required by changing techno- logical or manufacturing conditions, for specified trial periods, following which such rates or plans would become subject to negotia- tion through the grievance procedure, culminating in arbitration 29 The record discloses, in conformance with Owens' testimony, that dispute over this latter provision was eventually settled in accord with the Union's request by the addition of a provision for "reasonable notice" to the Union. Thus the record shows that the Respondent offered no opposition to the Union's suggested revision of the Respondent's proposed "Man- agement Rights" provision, and the matter was adjusted upon the basis of the Union's suggestion. The Trial Examiner did not find, nor do we, that the Respondent's proposal and bargaining upon the contract provision relating to the establishment and adjustment of rates was necessarily improper, and the dispute as to this provision likewise was subsequently adjusted upon the basis suggested by the Union. We find, therefore, upon the basis of the entire record, that the Respondent did not violate the Act by proposing and bargaining concerning a "Man- agement Rights" provision 30 e. Alleged refusal to furnish names of employees to accompany wage rates The Trial Examiner found in substance that, following its certi- fication, the Union by letters dated May 10 and 13, 1954, requested ao This provision appeared as article IX of the Respondent's June 11 proposed contract. We note, inter aha, that the overall effect of this article appears to differ substantially from that of article XV, supra, which omitted any reference to trial periods and specifi- cally forbade resort to arbitration 30 Cf N. L R B v. American National Insurance Company, 343 U. S. 395. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent to furnish it with information concerning wages; that at the first bargaining meeting on May 27 the Respondent gave the Union a list showing classification code numbers together with corre- sponding wage rates; that at this meeting and again on June 21 and July 13 the Union requested the names of all employees to accompany this information but was given, on the latter date, a report showing the names to accompany wage rates of only 8 out of the more than 200 employees; and that it was not until August 13, 1954, after the strike• had taken place and after the Respondent had been served with the Union's charge of refusal to bargain, that the Respondent finally pro- vided the Union with the desired information in the form of a list giving employee names and classifications. The facts surrounding this matter are in general not disputed. An issue arises, however, by virtue of the Respondent's denial that the Union at any time requested the names of the Respondent's hourly workers. The Respondent asserts that the only employee names requested by the Union to accompany wage rates were those of its piece-rate employees, which it furnished. The Trial Examiiler,s resolution of this issue adversely to the Respondent derives from his resolution of the conflicting testimony of Lisk and Owens, which in turn is based upon his evaluation of certain surrounding evidence hereinafter discussed. For the reasons hereinafter set forth, we do not agree with the Trial Examiner's findings and conclusion. The Union's letter of May 10, addressed to Plant Manager Greg- ory and written primarily for the purpose of securing a bargaining conference, contained the following request : In the meantime, I would appreciate your sending me a copy of your wage scale, showing hourly rates, piece rates and average hourly earnings of the piece-rated employees. The May 13 letter, addressed to Personnel Director Hardee, referred to the previous request and asked that Hardee forward the desired wage scale. In neither of these letters did the Union specifically request that the Respondent furnish the names of hourly rated em- ployees to accompany the wage rates. Lisk testified that at the May 27 meeting, after the Respondent had furnished a list of classifica- tions and wage rates, he asked for the names of hourly workers and also for the names and average hourly earnings of the piece-rate employees. On June 21, according to Lisk, he repeated these re- quests, and on July 13, when he reminded Owens of his requests for wage information, Owens gave him a typewritten sheet showing the hookers' job classification and average hourly earnings." Accord- ai The hookers are paid on a basic hourly rate plus a production bonus computed at varying rates which depend upon the type of goods handled. It is clear that they were the only employees receiving pay on a piece -rate basis As of the time in question, there were only eight of them employed in the plant CRANSTON PRINT WORKS COMPANY 557 ing to Lisk, lie then told Owens that-he wanted the hookers' names to accompany this information, whereupon Owens took back this sheet and gave him one that had the hookers' names on it. Lisk's own testimony thus discloses that the Respondent's action in furnishing the names of its eight piece-rate employees was not taken as a mere partial response to a general request for names to accompany wage information but consisted, in fact, of compliance with a request for this specific information. The Trial Examiner's rejection of Owens' denial that Lisk re- quested the names to accompany rates of hourly paid employees is, however, based principally upon his conclusion that the Respondent's position in this respect is refuted by the Respondent's original draft of minutes of the June 21 meeting. The minute entry upon which the Trial Examiner relies is as follows : 8. Wage information. The Union suggested that the Com- pany furnish it with the low, high and average earnings of all piece workers. This would be the hookers only. The Company took the position that it was not willing to divulge personal earn- ings and that it was of the opinion that the hooker operators fully realized how their piece rate was determined and that it expected that if they had a grievance they would take it up to the regular channels. [Emphasis supplied.] It is apparent that this minute is specific in its reference to the nature of the request for information, and that the request referred to was limited to the names of the hookers. Neither at this point nor else- where do the Respondent's minutes disclose a request by the Union for the names of other employees. As found by the Trial Examiner, the Respondent did furnish the Union, on August 13, with a list including all its employees' names and classifications. Contrary, however, to the Trial Examiner's char- acterization of this as a delay of nearly 3 months in providing the wage information requested by the Union, the record does not dis- 'close that such a list was furnished in response to any request for names as part of wage information. Rather Lisk testified that at the meeting of July 14, during discussion of a contractual provision re- lating to seniority, he asked for, and the Respondent agreed to fur- nish, a seniority list. He stated that he wanted it "to determine the seniority status of the various employees in the plant." The docu- ment furnished to the Union on August 13 was labelled a "Seniority Report" and contained three items of information-name, job classi- fication, and date for determining job seniority-as to each of the Respondent's employees. As both this document and the information furnished earlier contained a listing of job classifications, it ap- parently would have been possible for the Union , by comparing the 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lists, to ascertain in most instances the wage rates paid the individual employees. However, as there is no evidence to indicate that -this later document was in fact furnished to supplement wage informa- tion,32 we must assume that it was provided in response to the Union's admitted request for the information which it contains, i. e., the seniority standings of the employees. In the light of the entire record, it is apparent that the context of evidence upon which the Trial Examiner has relied does not contra- dict but in fact confirms and supports the Respondent's assertion that no request was made by the Union for the names of hourly paid employees. In these circumstances we are impelled to the conclusion that there is merit in the Respondent's contention. Accordingly, we find that the Respondent did not fail and refuse to bargain with the Union by failing to comply with a request to supply the Union with the names of employees as part of wage information. f. Proposal of clause excluding the Union from the first step of grievance procedure As more fully set forth in the Intermediate Report the Respond- ent's first proposed contract submitted to the Union on June 11 con- tained provisions for a grievance procedure in which the first step was set forth as being "between the employee and his supervisor," no provision being made for opportunity for the Union to be present at this step. In discussion of this provision on June 22, Lisk protested this provision as a deprivation of the Union's statutory right to be present at the adjustment of grievances. On July 13 the Union sub- mitted a written counterproposal containing the provision which it desired, couched substantially in the language of the proviso to Sec- tion 9 (a) of the Act. Although Owens asserted at the hearing that on that date he agreed to withdraw the Company's proposal and to recognize the Union's right to be present at the first stage of the grievance adjustment, the Trial Examiner has credited Lisk's testi- mony that it was not until July 23, in oral discussion during the strike, that the Respondent in fact receded from its original position. We adopt the Trial Examiner's resolution of this issue and find that .it was not until July 23 that the Respondent agreed that the Union might be present at the first step of the grievance procedure 33 32 That such was the purpose of this list was suggested by the General Counsel ' in com- menting on the nature of certain of the General Counsel's exhibits . No witness, however, so testified 33 The Respondent excepts to the Trial Examiner's finding, asserting that the Respond- ent's minutes of the July 13 meeting support Owens' version rather than Lisk's as to the date when the Respondent conceded the Union's right to be present at the first step of the grievance procedure. Thus the Respondent points to its original handwritten notes of •the afternoon'session of July 13 in which, in discussing the grievance procedure, Owens is quoted as referring to "Employee , Shop steward and supervisor ," following which the discussion turned to , the language of another section of the contract to which the Union CRANSTON PRINT WORKS COMPANY 559 We do not agree, however, that the Respondent thereby violated Section 8 (a) (5) of the Act. The Trial Examiner's finding of such violation is based essentially upon the fact that the Respondent per- sisted in its original proposal until a few days after the beginning of the strike. The Trial Examiner apparently has interpreted this as meaning that the Respondent thus had forced the Union to an impasse concerning a matter upon which it was not lawfully entitled adamantly to insist. However, we have found, as more fully set forth hereinafter, that the strike resulted from the Union's failure in bar- gaining to obtain any concessions as to its principal, largely-economic, demands and was not caused by an impasse in negotiations over de- mands unlawfully insisted upon by the Respondent. The record dis- closes that although the parties may have reached an impasse in respect to principally economic issues, the process of bargaining was not otherwise interrupted and the parties continued during the strike, and thereafter, to meet in bargaining sessions in an endeavor to narrow the area of their disagreement. It is apparent that the Union, on its part, did not rest simply upon its objection to the grievance provision but continued its course of effort through negotiations to obtain specific contractual recognition of its right to be present at each state of the grievance procedure. This effort, moreover, was successful as shown by the Respondent's withdrawal from its position at least as early as July 23, a few days after the strike began. Conversely, the agree- ment thus reached demonstrates that the Respondent on its part did not adamantly insist upon denying the Union its right to be pres- ent at the first stage of the grievance procedure. Especially is it apparent that the Respondent here did not condition the execution of a contract upon the Union's capitulation to its demand for such a contract provision 34 We find that the Respondent did not, by con- tinuing until July 23 to advocate a provision which in effect excluded the Union from the first step of grievance procedure, thereby violate its obligation to bargain under the Act. g. Proposals of less desirable working conditions Among the Respondent's contract proposals were four provisions which the Trial Examiner found to embody working conditions less desirable than those already existing. He also found that, under the circumstances of this case, the Respondent's advancement of such pro- was also objecting as an encroachment upon the Union's right of representation. The Respondent argues in effect that this turning of the conversation demonstrates that the Union had gotten its way as to the grievance procedure and was then concerned only with a related problem presented by another contractual provision. It is apparent, however, that,the minutes are at this point somewhat cryptic and, as noted by the Trial Examiner, they nowhere expressly disclose that the Respondent had then receded from its original position . In consideration of the record as a whole, we see no reason to disturb this resolution of credibility. 31 Cf. Wooster DivisiJon of Borg-Warner Corporatwn, 113 NLRB 1288. ,560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD posals and insistence upon them until and during the strike was demonstrative of bad faith in bargaining. The record discloses the following facts concerning these provisions : Proposal of lower minimum wages : Included among the contract proposals submitted by the Respondent to the Union on June 11 was a provision fixing minimum wage rates at 75 cents per hour for women and 80 cents for men. At the following bargaining conference on June 21, the Union expressed disappointment at the proposal of such low minimum rates in view of the fact that the Respondent had informed the Union that the existing minimums were $1.02 and $1.12. Accord- ing to Lisk, Owens replied that the Respondent proposed these amounts because it might want to hire some new employees and start them at these rates. Owens testified that on June 21 or 22, after some discussion, he realized that due to a misunderstanding he had quoted proposed figures for the starting or initial probationary rates rather than the minimum established job rates which the Union desired to discuss.35 According to Owens, he then informed the union represent- atives that he would negotiate the minimum job rates with them, but thought they should be lower than the existing established minimums in order to provide for a lower wage to be paid in certain special in- stances, as where goods came into the plant not properly threaded and it was necessary to hire employees on a part-time basis to cut off the threads with scissors. Accordingly, at the next meeting on July 13, the Respondent submitted in writing a proposed contract clause pro- viding for a minimum job rate of $1 for women and $1.10 for men. The evidence indicates that as of the beginning of the strike on July 17, the Respondent was still adhering to its proposal of minimums in these amounts, but that at some time during or after the strike the par- ties reached agreement on the basis of the existing minimums. Proposal of a new requirement to qualify for vacation: In the pro- posed contract submitted by the Respondent to the Union on June 11, there appeared, among the vacation provisions, a requirement that an employee should have worked 1,500 hours or more during the preced- ing year in order to receive a vacation. At the next bargaining meet- ing on June 21, the Union objected to this provision as being a new requirement, added to those previously in effect. The Respondent ad- 9e Copies of the Respondent's job progression schedules, which were among the various items of information furnished by the Respondent to the Union following the first bar- gaining conference on May 27 , show that the existing starting or probationary rates were S9 cents for women and 94 cents for men. Although the Respondent asserts that its bar- gaining position on wages was that of attempting to maintain the existing wage scale, it gave no explanation for the discrepancy between these existing starting or probationary rates,and the minimums for, such rates that it originally proposed to the Union: In any event,' however; it does not appear that there was any further discussion of the starting rates. Rather it appears that beginning on July 13, as above indicated , the parties dis- cussed the Respondent's proposal of established job rate minimums, which were but 2 cents per hour less than the existing minimums for such rates. CRANSTON PRINT WORKS COMPANY 561 hered to its proposal, and the 1,500-hour requirement appeared again in the succeeding contracts submitted by the Respondent to the Union on July 26 and August 9. However, at the meeting on July 13, the Re- spondent submitted a written proposal which in effect modified the re- quirement by providing that an employee who qualified for a vacation in every respect except that he had not met the 1,500-hour requirement should nevertheless receive vacation pay in an amount equal to a given percentage of his total straight time earnings during the yearly pe- riod36 And in its contract proposals of July 26, the Respondent added a new provision which was admittedly more favorable to the employees than the existing practice in the plant. This was a provision that em- ployees who had been in the Respondent's employ for as much as 3 years but less than 5 years should receive 60 hours of paid vacation." Proposal of change in seniority practices: Among the items of in- formation furnished by the Respondent to the Union following the first bargaining meeting on May 27 was a copy of the Respondent's "Principles for Handling Seniority Problems," which showed that it had been the practice for layoffs resulting from lack of work to be made on a departmental basis, the last person in the department being the first to be laid off and the last to be recalled. In its letter forward- ing this material the Respondent stated, however, that it was its intention to propose "something quite different" in any contract with the Union. Accordingly, in its proposed contract submitted to the Union on June 11 the Respondent, among other provisions relating to seniority, advanced the following provision : Departmental seniority shall concern such matters as layoffs, and recalls for lack of work. When factors 1 and 2 are relatively equal, in the opinion of the Company, Departmental seniority shall govern the order of layoff and recall. These factors are : 1. Knowledge, training, ability, skill, adaptability to do other work in the department and overall efficiency. 2. Physical fitness. It is evident that both parties in the course of bargaining regarded this provision as substantially negating the Respondent's responsibility for adherence to seniority in determining the order in which employees should be selected for layoff and recall. This matter was discussed at the July 16 bargaining meeting, but despite the Union's opposition a similar proposal appeared again in the proposed contracts submitted by the Respondent on July 26 and August 9. 30 Two percent in case of an employee with 1 to 5 years ' service, and 4 percent for an employee with 5 or more years ' service, as The Respondent had previously proposed , apparently in accord with its customary practice , that employees with from 1 to 5 years' service be given 40 hours , and that em- ployees with 5 or more years' service be given 80 hours, of paid vacation 390609 -56-vol 115-37 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Proposal of a requirement that absences be reported in advance: As previously set forth, the Respondent on April 27 posted a new rule requiring an employee to inform the Company in advance if he would be unable to report for work on his regular shift. At the first bargain- ing conference on May 27, the Respondent explained that this rule had been promulgated because of the prevalence of absenteeism in the plant, amounting to as much as 1,300 working hours during the month of March. In the Respondent's first proposed contract submitted to the Union on June 11, there appeared a provision that if an employee were absent from work without prior authorization, because of illness or any other reason, and failed to notify the Respondent 6 hours prior to starting time of his shift, he should be subject to disciplinary action consisting first of a written warning, then of a week's layoff, and finally discharge for subsequent violations of the rule. The Union objected to the clause on the ground that it might not be possible for an employee in case of illness to give the required notification. This same provision was included among the proposals submitted by the Respondent to the Union on July 26. Owens testified that, in negotiations after the strike, an agreement was reached in which the time required for advance notice to be given was reduced to 2 hours and an understanding was reached that the provision was not intended to be applied to employees failing to notify the Respondent in case of sudden illness. It is apparent that as to two of the foregoing proposals-those in- volving minimum wages and the new requirement to qualify for a vacation-the Respondent did not insist upon any severe restriction of existing benefits. Thus as to minimum wages, the Respondent promptly withdrew, its original proposal, substituted another which was only 2 cents less than existing rates, and the matter was eventually settled upon the basis of existing rates. The Respondent also substan- tially modified its original proposal as to vacation requirements, and subsequently added a provision more favorable to the employees than the existing practice. The Respondent likewise modified its proposal for advance notice of absences by agreeing that it should not apply to certain hardship cases. Only in its proposal of seniority provisions did it persist in seeking a revision of practice in a manner substan- tially adverse to the Union's position-by reserving a greater area of discretion to itself in determining the order of layoffs and recalls.- Contrary to the Trial Examiner, we do not find in these facts sufficient reason to conclude that as to these matters the Respondent did not bargain in good faith with the Union. h. Proposal of strike-referendum provision The Trial Examiner found that by injecting into negotiations on July 13, and thereafter insisting upon, a contract proposal limiting CRANSTON PRINT WORKS COMPANY 563 the Union's right to strike by conditioning the exercise of this right upon approval by the employees voting in a secret-ballot referendum, the Respondent failed and refused to bargain in good faith. Specifi- cally the Trial Examiner found that the Respondent's repeated pro- posal of a contractual provision to this effect, in the face of the Union's consistent refusal, amounted to a plain indication that it would not sign a contract unless the Union agreed to the inclusion of such a clause. We do not agree with this conclusion. The facts relating to the course of bargaining on this subject are essentially undisputed, and are in substance as follows : Both the Union's and the Respondent's original contract proposals, as revealed by the parties' exchange of contract drafts prior to their second bargaining meeting on June 21, contained general no-strike, no-lockout provisions. Both contracts also provided for wage reopen- ings. The Union's proposal was for a midterm reopening at a date to be determined, whereas the Respondent's proposal limited such re- opening to a 60-day period prior to the contract's anniversary or ex- piration date. The Union's proposal made no exception to the no-strike clause, but provided that if the reopening resulted in an unsettled wage dispute, it might be taken to arbitration. The Respondent's proposal, on the other hand, specifically forbade arbitra- tion but provided that in such case the parties would be free to resort to strike or lockout. These conflicting proposals were discussed at the meeting on June 21 and the Respondent's proposal was apparently again briefly discussed on the morning of June 22. At the next meeting, on July 13, the Respondent presented to the Union a substitute proposal for that portion of its wage-reopening provision which related to the Union's right to strike,38 providing in substance that if the parties were not able to reach an agreement within 60 days after they first met in response to a notice to renegotiate wages, the Union should have the right to strike provided a majority of the employees voting in the bargaining unit should have voted in favor of such strike in a secret-ballot referendum held under the supervision of an impartial State or Federal agency designated by the Union. Together with this, the Respondent presented a similar proposal, quoted in the Intermediate Report, for incorporation in the contract's termination provision. According to Lisk, the Union stated that it could not agree to these provisions because such a vote was a matter within the local Union's own prerogative and not something to be put into the contract. Owens replied that a Federal circuit court had ruled that this was a subject matter for negotiation.39 Lisk also testi- fied that the Union reiterated its position concerning the strike vote 38 Paragraph 2 of the Respondent 's article IV entitled "wage Adjustments" 19 Lisk further testified that at this point he "told Mr. Owens many courts had held many things were subject to negotiations , but his Company was not bargaining with the Union over these matters." 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the July 16 meeting, and that Owens then replied that if the Union wanted to reserve the right to strike he would have to insist on this type of proposal. Both the July 26 and August 9 contracts submitted by the Respondent contained strike-referendum provisions identical to those proposed by the Respondent on July 13 40 Owens testified, however, upon cross-examination by the General Counsel, that after the strike the parties reached an agreement as to the wage-reopening and termination clauses, and in both instances the provision for a strike referendum was omitted. The date when such agreement was reached is not disclosed, but Owens' testimony in this respect is not contradicted. In the light of the record facts above set forth, including the course of negotiations involving the strike-referendum proposal and the Re- spondent's ultimate capitulation to the Union's objection to the inclu- sion of suc1.provisions, we do not find that the Respondent unlawfully insisted upon these provisions.41 As we have found the record insuffi- cient in most instances to support the other allegations of unlawful refusal to bargain with which the Respondent is herein charged, we cannot therefore agree with the Trial Examiner's conclusion that the Respondent's other conduct compels the conclusion that the Respond- ent was not motivated by good faith in proposing that the Union agree to strike-vote provisions in a contract. We find, accordingly, that the Respondent did not, by proposing and advocating contractual provisions for a strike referendum, thereby violate its obligation to bargain under the Act. 4. The strike and nonreinstatement of strikers As set forth above, the Union was certified on April 30, 1954, and the Union and Respondent met in their first conference on May 27. Thereafter they exchanged copies of proposed contracts and met again to discuss these proposals on the afternoon of June 21 and morning of June 22. Most of the provisions of a contract appeared to be in dis- pute. A number of bargaining sessions were held during July, and 40 The Respondent's minutes of the afternoon meeting on July 13 comment on the strike- vote proposal as in the nature of a counterproposal to the Union's request for a midterm ieopening , and report Owens as having said that the Respondent preferred to close up the contract on wages for a year, but would not object to the reopening provided a vote be taken to determine whether a majority wished to strike in case of an impasse . In addi- tion to the strike-vote provisions , both the July 26 and August 9 contracts submitted by the Respondent contained a provision for reopening after 4 months upon 60 (lays ' notice The Respondent 's witnesses at the hearing (lid not testify concerning the Respondent's reasons for submitting the strike-referendum proposals However, it is apparent that the Respondent adopted the Union's proposal for an early wage ieopenmg at or about the time when it also advanced its proposals for a strike referendum 41 Cf Wooster Dwision of Borq-Warner Corporation, 113 NLRB 1288, where the Board found that the employer had adamantly insisted to the point of impasse-in that case by requiring acceptance of its proposal as the condition of executing an agreement-upon contractual agreement to a strike -vote referendum Here, unlike that case, the Respond- ent did not insist to the point of impasse upon such provision CRANSTON PRINT WORKS COMPANY 565 the parties met again in August, September, and October prior to the beginning of the hearing herein on October 11.4' During the course of these negotiations agreement was reached on various portions of the contract, but a number of provisions, including the Union's prin- cipal economic demands, remained in dispute. On July 17, following a vote taken at a union meeting, the employees began a strike which lasted until July 27. On the latter date, the Union notified the Re- spondent that the strike was called off and most of the striking em- ployees reported to the plant. Believing it probable that not all the strikers might have been notified of the end of the strike, the Respond- ent gave those who had not reported an additional period in which to report back for work. However, the Respondent had hired a num- ber of replacements during the strike, most or all of them having been put to work on the first shift. Among the returning strikers, some 39 whose places had thus been filled on the first shift were assigned to other shifts, and approximately 62 others were not immediately re- instated but were placed on a 6-month preferential hiring list to be recalled when and if vacancies occurred. The Trial Examiner found that the strike was an unfair labor prac- tice strike, having been caused by all the antecedent unfair labor prac- tices for which he had found the Respondent to be responsible. He further found, therefore, that as participants in a strike induced by unfair labor practices, all the strikers were entitled to immediate re- instatement upon demand, and that in the case of the strikers rein- stated to other shifts and those placed on the preferential hiring list, the Respondent, by failing to offer them immediate reinstatement to their former positions, had discriminated against them in violation of Section 8 (a) (3) of the Act.43 As it is not alleged that the Respondent discriminated in the order of the strikers' recall, or otherwise than by the nonreinstatement of those who had been replaced as above set forth, the issue of unlawful discrimination against the strikers thus turns upon the nature of the strike. In the light of the entire record, we do not find that the strike was caused by Respondent's unfair labor practices. The strike oc- curred in July, midway during the course of collective bargaining. The earlier instances of interference, restraint, and coercion, and the layoffs of 3 employees herein found to have been discriminatory, occurred at or near the time of the election, some 3 months before the strike and a month or more before the parties met in the first collec- tive-bargaining session. Not only were these instances somewhat re- 42 For the dates of these bargaining meetings , see footnote 14, supra 43 The Trial Examiner also found that by "unilaterally selecting the individuals and the shifts for reinstatement , after a strike caused by its own unfair labor practices" the Respondent further failed to bargain in good faith with the Union . In view of our con- clusion that the strike was not caused by unfair labor practices , we find it unnecessary to pass upon , and do not adopt, this finding. 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD moved in time, but the record does not appear otherwise to indicate that there was any causal relationship between these incidents and the strike. The instance of unlawful refusal to bargain for which we have found the Respondent to be responsible consisted of the uni- lateral posting of new plant rules, and occurred from 2 to 21/2 months before the strike and more than 2 weeks before the first bargaining session" The record of the bargaining conferences, which continued essentially uninterrupted during the strike, indicates that the strike was caused, not by these matters nor by the Respondent's advocacy of various propositions in bargaining, heretofore discussed, upon which it might not have been lawfully entitled to insist to the point of impasse, but rather by the Union's failure to obtain concessions from the Respondent as to its principal and most significant demands, chiefly economic in nature. Thus Lisk testified that at the July 14 meeting he "told the Company that there was certain things in the contract that he would like to have their answers on." These were the Union's demand for a wage increase, two additional paid -holidays, additional vacation benefits, and provision for a checkoff. Lisk testified that he did not recall whether, in addition to this list, he -also mentioned additional in- surance benefits, but that he did mention the no-strike clause and the discharge and discipline clause. He further testified : I told Mr. Owens that unless we could reach an agreement that I was afraid we had a strike; and among those things that were involved, and I named four or five things there that were major issues, and I told him I did not cherish a strike, but I was afraid if we did not reach an agreement that the people may vote a strike.45 At the next meeting on July 16, Bamford, a union official who had attended the first bargaining meetings but who had not been present at the meetings on July 13 and 14, asked if the Respondent and the Union had agreed on anything. Lisk testified that he then told Bam- ford that "a few things had been agreed to, but there was several major issues that were still in dispute." Lisk conceded that he may i* It is true, however, that as set forth earlier in this decision, the right of the Union to present grievances concerning these plant rules was among the subjects discussed during the bargaining conferences. 95 At the meeting of July 14 the Union transmitted to the Respondent through the auspices of a Federal mediator a "package proposal," of which the full contents are not disclosed by the record, but which specifically included the matters of wages, holidays, checkoff, and insurance benefits. Lisk at first testified that when this package proposal was presented to the Respondent he told Owens that "some of these items people have a very definite opinion about" and "I am afraid if we don't come to an agreement on some of these items the people may vote to strike." On being pressed as to the specific matters to which he referred , he replied, "I was referring to all the unresolved issues we had." However, previously , apparently also in reference to these proposals , Lisk had testified, "I asked him [ Owens] to consider some of our economic demands along with some of the other contract demands we were discussing." CRANSTON PRINT WORKS COMPANY 567 have named, as such issues, the matter of wages, paid holidays, check- off, insurance, seniority, and the discharge and discipline provisions. The Respondent's typewritten minutes of the meeting on that date confirm the fact that Lisk enumerated substantially the list of issues named above. These minutes further disclose that near the close of the meeting on that date Bamford informed the Respondent in sub- stance that he believed the Union and Respondent could work out satisfactorily their differences on all but the monetary allowances and the checkoff, but that he must report to the employees a deadlock on these matters. The strike began on the evening of the next day, July 17, after the bargaining meeting of that day. Upon the entire record we are satisfied that the strike of July 17 to 27 was caused by the Union's failure to achieve its major demands which were principally economic in nature, and did not result from the Respondent's unfair labor practices. In these circumstances, the Respondent was legally entitled to protect and continue its business by hiring permanent replacements to fill the places of strikers.46 As the replaced strikers were economic rather than unfair labor practice strikers, they are not entitled to an order of reinstatement. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Cranston Print Works Company, Fletcher, North Carolina, its officers, agents, suc- cessors, and assigns, shall : 1. Cease and desist from : (a) Discouraging concerted activity or membership in Textile Workers Union of America, AFL-CIO, or in any other labor organi- zation of its employees, by discriminatorily laying off employees, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment. (b) Threatening its employees with reprisals or promising them benefits to discourage concerted activities or union membership or activities. ` (c) Issuing or enforcing a rule prohibiting its employees from soliciting union membership on company premises during the em- ployees' nonworking time. (d) Interrogating employees concerning their union affiliations or intent to vote in a Board election, in a manner constituting inter- ference, restraint, or coercion in violation of Section 8 (a) (1). (e) Refusing to bargain collectively with Textile Workers Union of America, AFL-CIO, as the exclusive representative of all em- 46 N L R. B. v. Mackay Radio & Telegraph Co., 304 U. S 333, 345-346. 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees in the appropriate unit with respect to wages, rates of pay, hours of employment, and other conditions of employment. (f) 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 Textile Workers Union of Amer- ica, AFL-CIO, or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in other concerted activities for the purpos'es of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as-a condi- tion 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 Textile Workers Union of America, AFL-CIO, as the exclusive representative of the employees in the appropriate, unit, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Rescind immediately its rule forbidding employees to solicit membership in organizations insofar as it prohibits its employees from soliciting union membership during the employees' nonwork- ing time. (c) Make whole Stepp, Hamilton, and Higgins in the manner set forth in the Intermediate Report in the section entitled "The Remedy" for any loss of pay they may have suffered by reason of the discrim- ination against them. (d) Upon request make available to the National Labor Relations Board, or its agents, for examination and copying, all payroll records, social-security payment records, timecards, personnel records and reports, and all other records necessary for a determination of the amounts of back pay due under the terms of this Order. (e) Post at its plant in Fletcher, North Carolina, copies of the notice attached hereto marked "Appendix A." °7 Copies of said notice, to be furnished by the Regional Director for the Eleventh Region, shall, after being signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the Eleventh Region in.writ- ing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. 41 In the event that this Order is enforced by a decree 6f a 'United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Deci ec of the United States Court of Appeals, Enforcing an Order " CRANSTON PRINT WORKS COMPANY 569 IT IS FURTHER ORDERED that the complaint, insofar as it alleges that -the Respondent violated the Act by conduct other than that found to be unlawful in this Decision and Order, be, and it hereby is, dis- missed. MEMBER MURDOCK, concurring in part and dissenting in part : I concur in the main opinion to the extent that it affirms findings by the Trial Examiner of violations by the Respondent of Section 8 (a) (1), (3), and (5) of the Act; but to the extent that it dismisses certain other conduct found by the Trial Examiner to be violative of Section 8 (a) (5) of the Act, I am in partial disagreement with it. Specifically, I dissent from the majority's conclusions that the Re- spondent did not also violate Section 8 (a) (5) by refusing to bar- gain on grievances, by proposing less desirable working conditions, and by insisting upon employee strike-ballot referenda as a condition to the Union's right to strike. I shall discuss these issues in order. We are unanimous in finding that the Respondent violated Section 8 (a) (5) by unilaterally instituting changes in plant rules after certi- fication of the Union as bargaining representative on April 30, 1954, without notice to or consultation with the Union. Thereafter, between June 2 and 8, Hamilton, as chairman of the Union's grievance com- mittee, prepared and presented to Personnel Manager Hardee 17 grievances on various subjects including, among others, all but 1 of the changes in plant rules and working conditions. _ On June 11 Hardee replied by a letter addressed to the-grievance committee, as follows : In reply to alleged grievances Nos. 1 through 14, the Company does not recognize the fact that any part of grievances Nos. 1 through 14 are a proper matter for a grievance, and does not recognize the authority of the committee to raise these questions. The answers are given out of a spirit of cooperation and for information. The Company has not made an [sic] changes in rules or poli- cies because of a result of the election, except those necessary to maintain a more efficient operation. With this letter were a number of enclosures setting forth separate answers to each of the first 14 grievances. As to the new rules restrict- ing the times for visiting the smoking booths, requiring donations to be placed in a box at the gate, and prohibiting early entrance to the plant, these separate answers consisted simply of the following state- ment : This is a matter of Company policy and Procedure. We do not consider this a proper matter for a grievance. In a number of other instances, including a grievance involving the rule requiring advance reporting of absences and three of the griev- 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD antes relating to changes in working conditions discussed supra, the Respondent furnished a separate answer concerning the merits of the matter at issue, but appended a further statement likewise indicating that it did not recognize the matter as properly subject to a grievance. In a letter dated June 21, Hardee gave similar answers to the remain- ing 3 of the 17 grievances. As late as July 17, when the strike began, Respondent was still maintaining that these matters were not a proper subject for griev- ances. Eventually, after the strike, on September 22 the Respondent finally bargained on these matters. Plainly the Trial Examiner cor- rectly found that by the foregoing conduct prior to the strike on July 17 -there was a refusal to bargain on grievances violative of Section 8 (a) (5). This case is not, as is suggested by the majority, one involving the question whether mere "delay" in discussing grievances until Septem- ber 22- demonstrates "lack of good faith." It is a case of outright refusal to discuss over an extended period based upon an erroneous legal premise that these involved matters of management prerogative and hence were not "proper matters for grievance." Particularly where the matters on which bargaining is sought involve conditions of employment which have been unilaterally and unlawfully in- stituted there should be a special obligation promptly to honor a re- quest for bargaining. The majority's reliance in finding no refusal to bargain, on the stated fact that with reference to some of the grievances the Respondent "provided answers on the merits" even though reject- ing them as not proper subjects for grievances, is erroneous as a matter of law. Simply stating a reason for the adoption of a rule, with the simultaneous statement that it is not a proper subject for a grievance, is obviously not negotiating thereon-it closes the door on negotiation. Furthermore, it is well settled that even where, unlike here, there is actual discussion, "an employer who takes the erroneous position that a particular subject matter is not bargainable `can hardly approach the discussion of this subject with an open mind and a willingness to reach an agreement."' N. L. R. B. v. Reed c€ Prince Mfg. Co., 205 F. 2d 131, 136 (C. A. 1), enfg. 96 NLRB 850, 857. Moreover, there still re- main the various grievances on which not even a reason for the unilateral action was provided. I likewise can find no sound reason to disturb the Trial Examiner's finding that Respondent's action in advancing and insisting in col- lective bargaining upon provisions for working conditions less desira- ble than those currently existing, in the important field of wages, vacations, seniority practices, and advance reporting of absences, demonstrated bad faith in bargaining. Viewed collectively, and against the background of Plant Manager Gregory's threat to "make -it hard" if the Union was voted in, the more reasonable inference is CRANSTON PRINT WORKS COMPANY 571 that in advancing and insisting on agreement by the Union on less de- sirable conditions of employment even to the point of a strike, the Re- spondent was implementing this threat rather than making a sincere effort to reach a reasonable agreement with the Union. Although cur- rent minimum wage rates were $1.02 and $1.12 per hour for women and men, respectively, Respondent's contract proposal was 75 and 80 cents. Accepting Owen's testimony that through mistake figures for intended probationary rates had been submitted instead of for mini- mum established rates, the fact remains that the proposal was 14 cents below current probationary rates. Furthermore, as of the time of the strike, Respondent was still insisting on minimum wage rates which cut existing rates 2 cents per hour. Although current practice re- quired only completion of the probationary period for a vacation,' Respondent's proposal was 1,500 hours' work (or about 9 months) as a prerequisite. In place of the current departmental seniority rule for layoffs, Respondent insisted up to and during the strike on a provision which deprived employees of this protection and to all intents and purposes in effect gave the Employer the right to pick and choose on layoffs. Finally the Company proposed a rule requiring 6 hours' advance notice of absences under penalty of a warning, a week's lay- off, and finally discharge for the first, second, and third.offense. De- spite the fact, as the Union pointed out to Respondent, this would probably be impossible in many cases of illness, Respondent insisted on such a harsh and obviously unworkable rule up to and during the strike. It is true that the Respondent eventually settled the strike for existing wages and modified versions of the other provisions re- ferred to except for departmental seniority which the Union never regained. That the Respondent after the strike ultimately receded on these points does not, as my colleagues suggest, negate the reason- able inference that in insisting to the point of a strike that the Union agree to this series of less desirable working conditions in the context of this case, the Respondent was not engaged in good-faith bargaining. The majority's reversal of the Trial Examiner's finding that the Respondent violated Section 8 (a) (5) by injecting into the negotia- tions on July 13 and thereafter insisting upon contract proposals con- ditioning the Union's right to strike upon approval by a majority of all the employees voting in a secret-ballot referendum, represents a serious error of law unless the majority intend to overrule recent precedent. The Union had originally proposed a general no-strike-no-lockout provision without exceptions. However, Respondent's original con- tract proposal, although containing a general no-strike clause, uncon- ditionally permitted a strike or lockout in case of wage reopening. Respondent's substitute proposal for the "Wage Adjustment" clause on July 13, however, was more restrictive by conditioning the right 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to strike in a wage reopening on an employee referendum. I do not believe that the maintenance of such a proposal was proper under the precedents, even as an amendment to the "Wage Adjustment" clause. Whether or not the insistence on this part of Respondent's July 13 proposal is deemed unlawful, however, no conceivable justifi- cation can be found for the second part. That was a wholly separate proposal for the duration clause of the contract under which the Union was bound not to strike for 60 days after the expiration of the con- tract, and, if no new agreement could be reached within 60 days, its right to strike thereafter was conditioned upon a majority vote in an employee referendum. In the recent case of Wooster Division of Borg-Warner Corporation, 113 NLRB 1288, the Board held that such employee strike-ballot proposals are not subjects on which a union is obligated to bargain and that an employer therefore is not entitled to force bargaining on such proposals and to insist on their inclusion in an agreement. The majority purports to distinguish Borg-Warner on the basis that there the Employer had adamantly insisted to the point of impasse-in that case by requiring acceptance of its proposal as the condition of executing an agreement-upon contractual agreement to a strike-vote referendum. Here, unlike that case, the Respondent did not insist to the point of impasse. I fail to understand their use of the term "impasse," which they ap- parently equate to successfully requiring acceptance of a proposal as a condition to executing an agreement.- Heretofore "impasse" has been used by the Board to describe situations where parties fail to ar- rive at a contract because neither party will recede from opposing posi- tions. It has also been recognized that strikes break impasses and the fact that following a strike parties ultimately agree, does not mean that an impasse did not exist before a strike. In Borg-Warner the union went out on strike because of inability to reach agreement on a number of issues. Thus there was an "impasse" as that term is ordinarily used. But this was equally true in the instant case and the majority's statement that here "the Respondent did not insist to the point of impasse" is incorrect. These proposals were one of the important stumbling blocks which prevented the parties here from arriving at an agreement, as a result of which the Union went out on strike. The strike broke the impasse and the parties eventually agreed upon a contract. Thus, even assuming, arguendo, that insistence to the point of an impasse is a prerequisite to finding an 8 (a) (5) viola- tion, such a condition is here met. The majority's attempt to dis- tinguish the Borg-Warner case on the ground that there the union ultimately capitulated on this issue after the strike, while here it was the Employer who ultimately receded in the contract made after CRANSTON PRINT WORKS COMPANY 573 the strike, misconceives the controlling legal principles. The sug- gestion that "requiring acceptance of its [the employer's] proposal as the condition of executing an agreement" is a prerequisite for find- ing an 8 (a) (5) violation incorrectly states the Board law on this subject. This question was first dealt with in Allis-Chabners Manu- factwring Company, 106 NLRB 939. There, despite the Trial Ex- aminer's finding that the employer had not "refused to contract unless the Union consented to the disputed clauses," the Board adopted the Trial Examiner's finding that the employer violated Section 8 (a) (5) because it insisted on continuing to bargain on these clauses with other subjects, thereby causing a breakdown of negotiations. The Board's decision stated : "We find, like the Trial Examiner, that the Respondent by insisting upon discussing its proposed clauses XIII and XIV, and by such, insistence causing the bargaining negotiations with the Union to cease, refused to bargain with the Union and thereby violated Sec- tion 8 (a) (5) of the Act." [Emphasis supplied.] In the later Borg- Warner case, the Board reconsidered and restated at length the legal principles governing this issue, and made plain that neither employer insistence to the point of impasse nor requiring acceptance of a pro- posal as a condition to executing a contract are prerequisites to find- ing a refusal to bargain. In Borg-Warner the Board made very clear that while the mere making of a strike-ballot proposal was not im- proper, and that by mutual consent it might be discussed and agreed upon, nevertheless, such a proposal was not one of the "obligatory subjects" for collective bargaining. Hence a union cannot be re- quired to bargain on it if it does not wish to, and an employer cannot utilize the bargaining process to require continued bargaining on such a subject." On the basis of the admitted facts set forth in the majority opinion, it is plain that the Respondent here refused to accept the Union's protest that-the strike-referendum proposals involved a matter of the Union's own prerogative and did not belong in a contract. Respond- ent insisted on treating them as a proper subject matter for negotiation and maintained its insistence on including them in the contract even after the strike. Thus, it retained the provisions in both the July 26 and August 9 contract versions which it submitted to the Union. This course of conduct clearly violated Section 8 (a) (5) under the Borg- Warner decision and the fact relied upon by the majority that ulti- mately the Respondent capitulated on these proposals after the strike is irrelevant. Only by ignoring or misinterpreting the Borg-Warner +a As the decision stated . The Respondent 's liability under Section 8 (a) (5) turns not upon its good faith , but rather upon the legal question of whether the proposals are per- missible subjects of collective bargaining For, if the proposals are permissible statutory demands, the Respondent was privileged to adamantly insist upon bargaining as to them and the Union could not refuse to so bargain , on the other hand , if they were not, the cone se is ti ne " [Emphasis supplied ] 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decision can the majority reverse the Trial Examiner and find no viola- tion on admitted facts. MEMBER BEAN took no part in the consideration of the above Decision and 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 National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT discourage concerted activity or membership in Textile Workers Union of America, AFL-CIO, or in any other labor organization of our employees, by discriminatorily laying off any of them, or in any other manner discriminating in regard to their hire or tenure of employment. WE WILL NOT threaten with reprisals or promise benefits to dis- courage concerted activity or union membership. WE WILL NOT issue or enforce any rule prohibiting employees from soliciting union membership on their own time on company property. WE WILL NOT interrogate employees concerning their union affiliations or intent to vote in a Board-conducted election, in a manner constituting interference, restraint, or coercion in viola- tion of Section 8 (a) (1) of the Act. WE WILL NOT refuse to bargain collectively with the above- named labor organization as the exclusive representative of all employees in the following appropriate unit : All production and maintenance employees at our Fletcher plant, excluding all executives, supervisors, clerical and professional employees, and guards, as defined in the Act, and all printers and printers' apprentices. WE WILL NOT in 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 the above-named or any other labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. CRANSTON PRINT WORKS COMPANY 575 WE WILL make Clarence N. Stepp, Evans S. Hamilton, and William B. Higgins, whole for any loss of pay suffered by reason of the discrimination against them. WE WILL bargain collectively in good faith, upon request, with the above-named labor organization as the exclusive representa- tive of all employees in the above-described appropriate unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. All our employees are free to become, remain, or refrain from becom- ing or remaining members of the above-named labor organization, or any other labor organization, except to the extent that such right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. CRANSTON PRINT WORKS COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Charges having been duly filed and served in Cases Nos. 11 -CA-706 and I1-CA- 765, complaints and notices of hearing thereon having been issued and served by the General Counsel of the National Labor Relations Board, an order consolidating the two cases having been issued by the Regional Director for the Eleventh Region, and answers having been duly filed by Cranston Print Works Company, a hearing in- volving allegations of unfair labor practices in violation of Section 8 (a) (1), (3), and (5 ) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, was held in Hendersonville , North Carolina , from October 11 to 20, 1954, before the duly designated Trial Examiner. In substance, the complaints allege and the answers deny that the Respondent: (1) Discriminatorily and to discourage membership in Textile Workers Union of Amer- ica, CIO, discharged employee Boyce A. Whitmire , Jr., on April 15, 1954, and laid off for a period of a week, on April 29, 1954, employees Clarence N. Stepp, Evans S. Hamilton, and William B. Higgins ; (2) on and after May 27, 1954, refused to bar- gain collectively with the Charging Union as the exclusive bargaining representative of its employees in an appropriate unit ; ( 3) by its unfair labor practices caused em- ployees to go on strike on July 17 and 19 , 1954 ; (4) upon their unconditional offer to return to work on July 27, 1954 , discriminatorily refused to reinstate certain strikers and assigned others to less desirable shifts; (5) unilaterally changed plant rules and working conditions; (6) threatened economic reprisals and promised bene- fits to discourage union membership ; and (7 ) by the aforesaid and other conduct interfered with, restrained, and coerced employees in the exercise of rights guaran- teed by the Act. At the hearing all parties were represented and were afforded full opportunity to be heard, to examine and cross-examine witnesses , to introduce evidence rerti- nent to the issues, to argue orally upon the record , and to file briefs and proposed findings of fact and conclusions of law. Briefs have been received from the General Counsel and the Respondent. Disposition of the motion to dismiss, made by the Respondent at the close of the hearing and upon which ruling was then reserved , is made by the following findings, conclusions, and recommendations. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Cranston Print Works Company, a Rhode Island corporation , maintains a plant at Fletcher, North Carolina, where it is engaged in the bleaching , printing, and dye- ing of cotton goods. During the year 1953 it manufactured and sold finished prod- ucts valued at more than $650,000, more than 98 percent of which, in value, was sold and shipped to customers outside the State of North Carolina. During the same pe- riod it purchased raw materials , supplies, and equipment valued at more than $240,000, more than 50 percent of which, in value, was shipped in interstate com- merce to its Fletcher plant. The Respondent is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED Textile Workers Union of America, CIO, is a labor organization admitting to membership employees of the Respondent at its Fletcher plant. III. THE UNFAIR LABOR PRACTICES A. Background events and issues All of the events in issue took place in the spring and summer of 1954. Histori- cally, however, they stem from organizational efforts begun by the Respondent's em- ployees back in 1951. That year, and again in 1953, the Board conducted elections at the,plant. At both of these elections 2 labor organizations (1 the Charging Union in this case ) were on the ballot. Neither won, and on each occasion the Board issued certification to that effect. Also, in the fall of 1953, the Respondent was involved in a complaint case (Case No. 11-CA-539) which was disposed of informally by a settlement agreement with the Board and the Charging Union, pursuant to which the Respondent posted notices notifying its employees that it would not interfere with rights guaranteed them by the Act. In the spring of 1954 a third election was held, and this time the Charging Union was certified as the bargaining agent of the employees. Coincident with the 1954 election the Respondent discharged and laid off, respectively, 2 employee leaders in that and the 2 previous organizing campaigns-Whitmire and Hamilton . This action is in issue. The election and the discharge-layoff action took place following the spread of a management-inspired rumor that if the Union came into the plant it would close down. Supervisors engaged in interrogation of employees as to their union sympa- thies and made promises of benefit-conduct which the General Counsel claims to have been interference, restraint, and coercion of employees in the exercise of rights guaranteed by the Act. Immediately after the Union won the election and before negotiations for a collec- tive-bargaining agreement were begun , management posted many rules, unilaterally, bearing upon employees' conduct and working conditions. After negotiations began management summarily rejected the Union's submission of some 14 grievances, stat- ing in a document in evidence that they were not "a proper matter for a grievance," and that management would "not recognize the authority of the committee to raise these questions." It is General Counsel's claim that this adamant stand taken by the Employer, as well as other positions taken by it during negotiations-more fully described below-constituted a refusal to bargain in good faith with the Union, and "that this refusal, among other unfair labor practices, caused the employees to go on strike on July 17, 1954. The strike was called off 10 days later and the strikers sought unconditional rein- statement . It is General Counsel's contention that many such strikers , named spe- cifically below, were either denied reinstatement or were transferred to less desirable shifts. This alleged discrimination is one of the main issues. B. Interference, restraint, and coercion As context for the issues of discrimination and refusal to bargain , the coercive con- duct of management representatives should be considered. The incidents involved were neither isolated nor confined to conduct of minor supervisors, nor may management reasonably maintain that they occurred in an at- CRANSTON PRINT WORKS COMPANY 577 mosphere of chance or ignorance. But a few months before the spring campaign of the Union, and by way of a settlement of a Board case, management had posted a notice agreeing not to engage in illegal interference. In mid-February the Union, in a letter to Resident Manager Gregory, claimed that both interrogations and threats had been made and urged that they be stopped. During the latter part of the same month, however, Gregory himself threatened an employee with discharge if he heard of his "passing out any more Union cards." The employee was James F. Sexton. Gregory, as a witness, admitted the incident, did not specifically deny making the threat, but said that he told Sexton on that occasion: "We have a no-solicitation rule . you are not allowed to do that while you are working on the job." The Trial Examiner does not credit Gregory's testimony that he cautioned Sexton only about soliciting on the job. His own description of a re- port made to him which he said prompted him to reprimand Sexton, makes no refer- ence to this point. The plant rule, identified by Gregory himself as being in effect at that time, makes no such qualification. That rule reads: Employees will be subject to disciplinary action . . . for .. . 22. Soliciting for contributions, membership in organizations, or for the benefit of other outside the plant activities without first securing approval of the superintendent of the plant. Nor would it be reasonable to imply that management meant, but did not say in this rule, that it was limited to while "working on the job " Other rules in the same list do not lack such specificity. For examples, "horseplay" was limited to "company property"; the use of alcohol or drugs to "company property"; and idling in the washrooms to "working hours." Since the Trial Examiner has found that Gregory did not say anything to Sexton about any rule, no finding is here made as to the legality of the rule itself. (That rule, as later amended, will later be discussed in this report.) It is concluded and found that by Gregory's threat to discharge Sexton if he ever heard of his "passing out any more Union cards," topmost management of the Respondent at the plant inter- fered with, restrained, and coerced employees in the exercise of the rights guaranteed by the Act. It is undisputed 1 that 2 or 3 days before the election, on April 22, Gregory asked employee W. D. Toney if he was going to be "agin him or for him." The context of an otherwise innocent, perhaps, inquiry cannot be ignored. As noted below, the dis- charge of the Union's most openly active leader had been effected by Gregory just a few days before his interrogation of Toney. And on about the same day of the in- quiry Gregory, under his own signature, sent to every employee a 3-page antiunion letter concluding with the statement: "If you vote NO in the coming election, I will consider it a continuing vote of confidence." Under the circumstances here described, the Trial Examiner concludes and finds that Greogory's interrogation of Toney was plainly intended not to seek information because of a bargaining request, but to coerce an employee in the exercise of rights guaranteed by the Act. Any other inter- pretation must avoid both reason and reality. Gregory and his subordinate supervisors instigated and fostered forecasts that the plant would close if the Union won the election. About a month before the election the manager told employee Donnell L. Hoots that "if the Union got in he would probably have to close the plant," according to Hoots' credible testimony, and later said that "if it did get in, he would make it hard and fight it to the finish." The Trial Examiner does not credit Gregory's equivocal denial. He admitted talking to Hoots about the Union, and then said: I never ever said I would close that plant down; if it ever came up about any- thing like that it was in line with wages; I told Donnell if the Union demanded, when they came in and demanded that, I felt we were paying wages that were competitive, and I would not be able to meet them, if they won out I would try to run our plant as best we could, but if the people didn't come I would natu- rally have to close the plant down, I could not do anything else. Foreman Capers Gambrell openly offered to bet employee James Barnett $100 that if the Union came in the plant would close down within 2 weeks. Foreman W. C. Parker saw the employee and Gambrell in conversation and asked Barnett what they had been talking about. Barnett told him. Parker then said, "Well, you 1 As a witness Gregory said only that he did not recall it 390609-56-col 115-38 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD know he is right, this Company moved down here to get away from organized labor and if they come in here, they will move from here, too." The finding is based upon Barnett's credible testimony. Gambrell's denial is not credited. Parker was not ques- tioned about this specific conversation with Barnett; he merely denied generally that he had ever told any employee that the plant had moved south to get away from or- ganized labor. This general denial is not credited. As quoted specifically in the section below relating to Whitmire's discharge, Parker's own testimony establishes that Gambrell's offer to bet was sufficiently well known to him so that he made no comment when Whitmire raised the question in his presence. The record contains much credible evidence that Gambrell's offer to bet that the plant would close be- came almost common knowledge in the plant and that Parker, in effect, told em- ployees it was a reasonable forecast. It persisted, despite the Union's attempt to ridi- cule the idea. In an obvious effort to "accentuate the positive" threat to close, insti- gated by himself and perpetuated by his subordinates, Gregory, on the very eve of the election, sent to every employee the letter above described, containing the following question and answer: Can the union make Cranston run its plant and furnish you a job? NO. The Union has no power, legally, or otherwise, to force Cranston to oper- ate its plant for one day, week, month or year. The forceful denial of the negative, in a letter urging employees to vote against the Union, was plainly designed as coercive. It would have been meaningless in any other context than that of the company-sponsored rumor that it would close, and of a union leaflet distributed at the plant gate to all employees 2 or 3 days earlier, which said in part: You all know that this kind of rumor has been circulated to scare us, only it hasn't scared us and our union has grown stronger day by day. More simply summarized, the picture presented by the facts is this: Management circulates a rumor that it will close if the Union wins the election; the Union deprecates the threat and urges that it is only used to "scare us" into voting against the Union; and the Company counters with the pontifical protest that the Union cannot make it keep open I day longer than it wants to. Foreman Gambrell also used another method to interfere with the employees' rights under the Act. About 2 weeks before the election Gambrell told employee John F. Bobo, who worked under him, that there were 2 desk jobs open, that the Company did not want the Union in the plant, and that if he would help "fight the Union," he would see that Bobo got I of the jobs. This finding is based upon the credible testimony of the employee, in part supported by Gambrell. The fore- man admitted telling the employee he would try to get him the job, did not deny that he had said he would do so if Bobo would help "fight" the Union, and only explained that he made the offer in order to get Bobo to do better on the job he already had. Having observed Gambrell giving this lame explanation, the Trial Ex- aminer does not believe him. His promise of benefit clearly was of a nature pro- scribed by the Act. C. The discharge of Boyce A. Whitmire, Jr. It is alleged and conceded that Boyce A. Whitmire, Jr., was discharged on April 15, 1 week before the 1954 election. The General Counsel claims that the discharge was discriminatory in order to discourage union membership; in its answer the Respondent claims that it was "for good cause and as a result of the malicious, unlawful and wrongful acts" of Whitmire. Evidence is overwhelming that top management well knew that Whitmire was probably the most active leader in the Union's preelection campaign. He was the first to wear union buttons openly in the plant. He served on the organizing com- mittee and solicited employees at the plant to join. He distributed union leaflets at the plant gate. About 2 weeks before his dismissal he was called to the office by Gregory, resident manager. Gregory deprecated the value of a union to the employees, and declared that the Company could afford to give no raises and "would have to shut the plant down." He proposed the idea of an independent union: Whitmire said he thought such would be illegal and stoutly defended the Union's campaign.2 About a week before the discharge the local newspaper car- 2 The findings as to this interview are based upon the credible testimony of Whitmire, much of which is undisputed, although Gregory's version differs in some respects The Trial Examiner makes no finding that the manager's remarks on this occasion were coer- CRANSTON PRINT WORKS COMPANY 579 ried a prounion article under Whitmire's signature. His testimony is uncon- tradicted that his was the only prounion letter from an employee to be published in that newspaper during the campaign . On numerous occasions shortly before his dismissal, Foreman Parker chided him about the Union. According to the testimony of the foreman himself, he frequently discussed the Union with the em- ployee-"Oh, my goodness," he said, "practically every time I would go through there." Whitmire's testimony is unrefuted , and it is found , that on one occasion Parker told him that the Company could afford no raises and would have to shut the plant down . And according to the foreman 's testimony, Whitmire approached Parker while he was talking to another supervisor, Capers Gambrell , and asked the latter: "Do you still want to bet $100 that if the Union.comes in the plant will close down?" Further, according to Parker, "Mr. Gambrell said to him, `No, I don't want to bet,' and we continued on with our conversation of the day 's work." In this setting, then, in part as described by management witnesses , Whitmire was summarily dismissed on April 15. Events connected with the actual discharge are as follows. On the morning of April 14, Eugene Paige, an employee of Seneca Textile, one of Cranston's customers, was present in Whitmire's room in pursuance of his duties. While standing near Whitmire's machine, which was running some of Seneca's materials, the employee casually asked him what he "was going to do when the plant shut down ." Paige asked what he meant . Whitmire replied: "Mr. Gregory said he was going to shut the plant down if the Union came in." 3 Somewhat later Paige went to see Gregory, but he was away from the plant. About noon, according to the testimony of Plant Superintendent F. X. Cooney, Paige came to him and asked him, "What is going on around here?" and in ex- planation told him that an employee, whom Cooney promptly identified as Whitmire, had asked him what he was going to do with his work when the plant shut down. Cooney, according to both his testimony and that of Paige, assured Paige that he had nothing to worry about, and told him not to "pay any attention to any remarks that may be made by any unauthorized personnel." With this reassurance , Paige went on about his business . Cooney, according to his own testimony, did not approach Whitmire. Nearly 12 hours later, just before midnight, Cooney informed Gregory. Gregory promptly ordered the plant guards not to let Whitmire into the plant the next morning , and to bar his entry until he, himself, should arrive. cive That they were made, however, establishes beyond question that management was aware of Whitmire's union leadership. And the reference to the shutdown of the plant, by Gregory, is of material bearing upon the actual discharge, as will be discussed below. 3 The findings as to this colloquy rest upon the credible and forthright testimony of Whitmire, and the probabilities inherent in the events even as described by Paige, whose version varies somewhat Paige was not called as a witness before the Trial Examiner. No showing was made that he was not available. At the conclusion of the hearing, the Respondent offered in evidence Paige's deposition , taken in New York City some months before the hearing. It was received under the following circumstances : TRIAL EXAMINER • I believe I indicated about a week ago I much prefer to have the witness [Paige] here, and told you I would issue a subpoena at that time. Now, this is rather late, and the hearing is about over, and in view of the fact there is no objection on the part of General Counsel, and in view of the fact that the Regional Director permitted this to be done before the hearing, the Trial Examiner will permit this to be placed in evidence I admit I do this somewhat reluctantly, and do it only in the interest of time In his deposition Paige, in effect, denied that he asked Whitmire what he meant by the plant closing The Trial Examiner does not believe this denial, for the following reasons : (1) No opportunity was provided the Trial Examiner to observe Paige's demeanor as a witness ; (2) as noted above Paige went to see Gregory about it, the specific member of management Whitmire had cited as cause of the rumor ; and (3 ) the equivocal nature of Paige's testimony in the deposition as well as his candid admission of lack of memory as to what Whitmire said to him, revealed by the following colloquy : Q Do you now know how he said it? A No Q You know no more about it today than you did at that tine? [Referring to a statement given to a Board agent sometime before July, when the deposition was taken.] A. That is right. Q And at that time you did say, did you not, that you did not know how he said it? A I did not know how he said it. 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When Gregory came to the plant the next morning he discharged Whitmire at once, accusing him of "intimidating a customer." The employee has since that date been refused reinstatement. The above-described event is the sole item, so far as the Trial Examiner can discover, offered in support of the Respondent's claim, in its answer, as being "malicious, unlawful, and wrongful acts." It appears to the Trial Examiner that the Respondent had striven to blow bubble gum to the proportions of the Graf Zeppelin. It explodes under mere scrutiny. The labored efforts to show that Seneca's business with the Respondent was large, that Paige was frightened, and that the Respondent might have lost thousands of dollars had Seneca gone elsewhere has small foundation in fact or likelihood. By his own testimony Cooney made it clear that he had "settled" Paige's "fears" at once, and nearly a full day before the discharge. His own testimony, also, es- tablishes that the incident was of so little importance to him, the plant superin- tendent, that he did not even bother to speak to Whitmire about it. To Gregory, however, the reported incident apparently suggested a way to rid the plant of its most active union leader-whom but a few days before he had been unable to persuade to abandon his activity. That reprisal was his motive, and not concern with loss of business, is indicated by the nature of the action he took. By his own testimony he never, at any time, orally or by letter, made any effort to reassure-Paige. But he at once ordered that Whitmire be barred from the plant- although Cooney had permitted him without rebuke or warning to remain on the job throughout the preceding day. Had management actually considered Whit- mire's casual remark to have been "malicious, unlawful, and wrongful," it is rea- sonable to suppose that Cooney, operating head of the plant, would have as readily have come to that conclusion as Gregory, and have made at least some small effort to question Whitmire. Furthermore, it has been found that the rumor of the plant's probable closing was rife in the plant. Gregory was partly responsible for it, if not wholly. It was so common, as Parker's testimony quoted above shows, that this foreman made no comment when Whitmire, in his presence, spoke to Gambrell about it. Finally, it has also been found that management, in effect, perpetuated its own rumor, even after Whitmire's discharge, by its letter to employees stating that the Union could not make it keep the plant running 1 day. In the face of such facts, it would be unrealistic to believe that the real reason for Whitmire's discharge was his remark to Paige. The Trial Examiner is convinced by the preponderance of evidence that it was not. The incident did, however, provide a pretext, behind which Gregory attempted to hide his real motive: his desire to rid the plant of its most active union leader just before an election in which the Com- pany was taking an open , antiunion stand. In summary, the Trial Examiner concludes and finds that the reason advanced by the Respondent for Whitmire's dismissal is without merit. It is specifically concluded and found that the discharge was discriminatory for the purpose of dis- couraging membership and activity in the Union, and that it was designed to interfere with, restrain, and coerce employees in the exercise of rights guaranteed by the Act. D. The layoffs of Hamilton, Stepp, and Higgins The complaint alleges and the answer admits that Clarence N. Stepp, William B. Higgins, and Evans S. Hamilton were laid off for a period of 1 week beginning about April 29, 1954. General Counsel contends that the action was discriminatory, to discourage union activity. The Respondent pleads that it was because of the "willful and wrongful acts" of the three. To focus at once upon the precipitating incident, the 3 employees visited Foreman Grover R. Keith at his home on Saturday, April 24, 2 days after the election. Events leading up to the visit are as follows: While at work on Friday, April 23, a fellow employee came to Stepp's machine and squirted water on him from a test bottle, while Foreman Keith watched. The same employee repeated the squirting, this time with a hose. Observing that his foreman was grinning at him after the second shower, Stepp turned the hose upon the other employee as the latter started to leave. A couple of hours later Keith came to Stepp and said, "I am telling every- body, and I want you to know it too-there are rules out there on that board and from now on they are going to be gone by. . . You boys have got your Union now . . . and the rules are going to be gone by from now on." Later that day Stepp was told by other employees that Keith was going to "pink slip" him-apparently a method of recording misconduct. Reaching home, Stepp began to worry about it; he told his wife and she worried. The next morning, a CRANSTON PRINT WORKS COMPANY 581 Saturday and nonworking day, he told his neighbor, Evans Hamilton, of his con- cern and the latter suggested that they go to see Keith , whom he knew, and straighten out the matter. Stepp agreed. As they started out of the latter's place a third employee, Higgins-on his way to see Hamilton-came by in his car , saw them, and stopped . When they told Higgins their errand, he offered to drive them to Keith's place. They accepted. Higgins stopped his car in the road outside Keith's house and did not thereafter leave it . Hamilton and Stepp walked up to Keith's door and rapped. He came out and the three talked for several minutes. In substance , there is slight difference in the testimony of the two employees and Keith as to what was said during that visit . Hamilton told the foreman that Stepp was upset about the incident , and thought the foreman was "picking on him," to quote Keith . Keith denied picking on anyone. The matter was reconciled , and they parted amicably. Keith, a witness for the Respondent, readily admitted that "no- body threatened me," and when asked by the Respondent's counsel if he "had any fear" at the time, he replied : "I had no knowledge of what might occur there at the time, I could not say." He further admitted that Hamilton "was not storming out at me, anything like that. . . . Yet Keith, for some reason, apparently reported the visit to higher authority. The following Monday, April 26, Stepp was summoned to the personnel office. There, in the presence of Keith and Personnel Manager Hardee, Supervisor Tony Pearson told Stepp, after they had disposed of the water-squirting incident , "There is one other little thing I want to remind you of . you and your friends making a visit to Foreman Keith 's house. . I am absolutely not going to put up with that, anything that has to be settled will be settled here at Cranston 's, not away from Cranston. Is that clear'' . That will be all." On Thursday, April 29, Stepp , Higgins, and Hamilton (the latter two together) were called into the same office, where Plant Superintendent Cooney merely called their attention to the visit to Keith's house and told them they were to be laid off for a week "while he checked into it." A week or so later the three were permitted to return to work , but were not paid for the time lost. It is undisputed that no 1 of the 3 was given any reason for the loss of pay or what the result of Cooney 's "checking" was, if anything . It is also uncontradicted that when Hamilton later noted that his pay was short, and he re- marked to Personnel Manager Hardee, "you must have found us guilty of some- thing," Hardee replied, "I don't know if you are guilty of anything." To the Trial Examiner it is significant that no member of management was ques- tioned about the layoff-Keith's testimony being limited to the incident of April 24. The Trial Examiner is unable, therefore, to discern any evidence in the record to support the following assertion in the Respondent 's brief: When the Respondent learned of the incident, it was correct in thinking that the purpose and probable result of such a visit was pure intimidation . Believ- ing this, it was justified in its approach to the problem No member of management testified as to his "thinking," of any sort, or even that he learned of the incident. And Keith, who was there, by his own testimony clearly was not intimidated. Plainly there is no merit to the reason advanced by the Respondent for the lay- offs. The Trial Examiner specifically finds that no 1 of the 3 employees engaged in "intimidation " of Keith, and that by visiting Keith they violated no rule then in existence. The real reason lies elsewhere . Hamilton had long been known by management to be a union leader , even in previous organizational campaigns. As a union repre- sentative he had attended a Board hearing about 2 weeks before the election. All three had openly worn union buttons before the election on April 22. And as noted above, Keith had spoken to Stepp , the day after the election, about having the Union in there. The Trial Examiner is convinced and finds that the discriminatory reprisal was directed primarily against Hamilton, and against the others only incidentally.4 4 In his brief General Counsel argues that a coexistent reason for the discipline of the three employees was to demonstrate , in reprisal, to the employees that the Union could not assist them in grievances There well may be merit to this claim , in view of subse- quent events more fully described . Not until the day the strike began did the Respondent recede from its position that the Union could not be present at the first step of the grievance procedure Thus , throughout negotiations until the strike the Respondent was insisting that employees must be permitted to do precisely what Stepp , Higgins, and Hamilton had been laid off for doing. 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under a similarly flimsy pretext, but a few days before, management had fired the Union's other prominent leader-Whitmire. The real motive, it is concluded and found, was to discourage union membership and activity and coerce and restrain employees in the exercise of rights guaranteed by the Act. E. The refusal to bargain 1. Continuing request to bargain Documentary evidence requires the finding that as early as March 1954, the Union was claiming majority representation among the Respondent's employees, seeking recognition as their bargaining agent, and requesting negotiations looking toward a collective-bargaining agreement . Thus, a letter introduced into evidence by the Respondent , signed by its counsel, and dated March 9, 1954, states: Cranston Print Works Company has referred to me your letter of March 1, with respect to recognition of your organization as bargaining agent. Our client is not willing to recognize any bargaining representative until such has been certified as by law provided. Again, on April 13 , the Union repeated its request, its representative saying in part: I further request that you set an early date for a conference at which time we may consummate a collective bargaining agreement covering the heretofore mentioned conditions of employment for the above described employees. The Union won the election on April 22 , a fact plainly known to the Respondent immediately after the results were announced by the Board. (A document bearing the date of April 22 is in evidence , signed by three authorized observers for the Respondent, attesting to the proper conduct of the election .) On April 30, the Board issued its certification . On May 10, the Union again asked for recognition, pointing out that it had by then been certified. In his brief General Counsel urges, with merit in the opinion to the Trial Ex- aminer, that the request for recognition and bargaining made before the election plainly put the Respondent on notice that the Union sought to be accorded recog- nition rights as soon as the Board election was held, if not earlier , and that the request was continuing. It is so found .5 2. Plan of treatment It is General Counsel 's claim that the Respondent, by unilateral action before negotiation meetings began, by adamant positions maintained during negotiations, and by persisting in repeating proposals to which it well knew the Union could not agree without waiving the very rights won in the election , refused to bargain before the strike began on July 17, and by such unfair labor practices caused the strike. Between May 27 and July 17, inclusive, seven negotiating meetings were held: May 27, June 21 and 22, and July 13, 14, 16, and 17. The record contains a great deal of oral testimony concerning these meetings , as well as many pages of docu- ments, including purported minutes prepared by the Respondent after meetings had occurred. Seeking clarity in presentation , the Trial Examiner will attempt to appraise the evidence, making factual findings and drawing legal conclusions according to the subject matters in issue, instead of considering events in the actual order of occurrence. 3. Plant rules of conduct Despite the continuing request to negotiate concerning wages and working condi- tions, and despite the Respondent's knowledge of the continuing request, almost im- mediately after it knew the Union had won the election the Respondent began to violate its legal obligation by changing unilaterally-without consulting the Union- many existing plant rules. For example , it posted new and altered rules between the election day and May 27 , when the first negotiating meeting took place, as follows: 1. On April 27, a rule requiring an employee to report to management the cause of an absence before such absence occurred . Violation called for disciplinary action. 2. On May 6, a rule forbidding an employee to visit the smoking booths 15 minutes before a shift change and 1 hour after. Violation called for disciplinary action. 3. On May 6, a rule forbidding employees to enter the plant more than 15 minutes before the beginning of a shift . Violation called for disciplinary action. e General Counsel cites N L R. B. v Burton-Dixie Corp , 210 F. 2d 199 (C. A. 10), enfg. 103 NLRB 880 CRANSTON PRINT WORKS COMPANY 583 4. On May 13, a rule requiring donations for deaths, etc., to be placed in a box at the plant gate. Also, on May 5 management posted an entirely revised list of "rules of conduct," violation of which would warrant discharge. One of the revised rules, referred to briefly in section 111, B, above, is quoted: 19. Soliciting for contribution, membership in organizations, or for the benefit of other outside plant activities. [Emphasis supplied.] In the light of the finding already made that Gregory threatened an employee with dis- charge if caught soliciting for the Union without restricting such prohibitions to work- ing time, the Trial Examiner specifically finds that the above-quoted revised rule, ap- parently still in effect at the time of the hearing, is so broad as to deprive employees of rights clearly guaranteed by the Act. It is coercive, and violative of Section 8 (a) (1) of the Act.6 When specifically questioned on the point, Gregory could point to no other period in the plant history when so many rules of conduct had been revised or posted in so short a time. No substantial reason or credible necessity for many of these rules' changes was offered by the Respondent's witnesses. A reasonable inference is that management imposed them by way of reprisal and because the Union had won the election. As has been found, before the election Gregory threatened that if the Union got in he "would make it hard and fight it to the finish." And after the election Foreman Keith warned another employee: "You boys have got your Union now ... there are rules out there on that board and from now on they are going to be gone by." Except as to rule 19, quoted above and found per se to be violative of the Act, the Trial Examiner makes no finding that the rules thus posted were illegally re- strictive of employee rights. The finding that they were posted in reprisal, however, supports the conclusion that such posting was coercive, and violative of Section 8 (a) (1) of the Act. All such changes were made and published without consultation with or notification to the Union, at a time when the Union was the legal bargaining representative of the employees as to all matters affecting working conditions. The Respondent's action in this respect constituted per se'refusal to bargain, even if taken before the date of certification.? Furthermore, with relation to such rules, the Respondent again violated Section 8 (a) (5) when its personnel manager, Hardee, on June 11, after the certification and after formal negotiations had begun, summarily replied to the Union' s submission of written grievances concerning rule changes, as follows: In reply to alleged grievances Nos. 1 through 14, the Company does not recognize the fact that any part of grievances Nos. 1 through 14 are a proper matter for a grievance, and does not recognize the authority of the committee to raise these questions. It should be common knowledge among all men who have been employed by others that rules which must be observed while working are, except for wages, the most con- trolling factor of working conditions. To bar them as matters of negotiation, and to deny the legally chosen representative its right to "raise these questions," constitute clear and unmistakable failure on the part of the employer to meet his obligations under the Act.8 Finally, the preponderance of credible evidence establishes that management persisted in its refusal to negotiate concerning its unilateral rule changes up to and including the date of the strike, July 17,9 thereby continuing to violate its statutory ON. L R. B. v American Tube Bending Co., Inc., 205 F. 2d 45 (C. A. 2) ; also Johmston Luton Mower Corporation, 110 NLRB 3955 ' See Tennessee Valley Broadcasting Company, 83 NLRB 898, footnote 7, confirming a policy most recently reiterated by the present Board in Valley City Furniture Company, 110 NLRB 1589, footnote 5 8 See Norfolk Shipbuilding d Drydock Corporation, 70 NLRB 391, 442, enfd. 172 F 2d 813 (C A 4), where employer refused to deal with certified union concerning grievances 6 The Trial Examiner does not believe the testimony of Hardee and Owens to the effect that on July 17 the latter requested the Union to meet with him regarding these grievances and that the Union declined This finding of disbelief is based upon (1) the Trial Ex- aminer's careful observation of both witnesses while testifying upon this crucial point ; (2) the fact that in the Respondent's draft of purported minutes of the July 17 meeting, prepared and sent to the Union sometime in August, no mention is made of any offer on the part of the Respondent to negotiate coned ring these grievances ; and (3 ) the inherent 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obligations. The supporting events, in summary, are as follows: (1) On May 27 the Union orally protested the unilateral rule changes and management asked that such grievances be submitted in writing; (2) between May 27 and June 11 the Union submitted many such grievances in writing ; ( 3) on June 11 management replied as above-quoted, rejecting both the grievances as proper subjects and the Union's right to submit them, despite the plain indication in the Respondent's own minutes of the May 27 meeting that as of that date it would negotiate the matters as grievances ; (4) at the negotiating meeting on June 21 , when the Union protested management's letter of June 11 , management's top representative, Owens, said he was not ready to discuss them and insisted that all future grievances must be signed by the individual employee claiming himself aggrieved: (5) on June 22 Owens again declined to discuss such grievances, but said , upon leaving the meeting , that al- though he had no authority to alter his position of June 11 Hardee could discuss them if he wished ; (6) on July 13, according to the Respondent's own minutes of the meeting, the Union proposed negotiating the plant rules but Owens replied, "No, it is the Company privilege to set up and administer rules and regulations"; and (7 ) by the morning of July 17, just before the strike , management had not retreated from its original position but persisted in reserving to itself the right to determine and enforce, unilaterally, plant rules of conduct.1° Ample substantial evidence also supports General Counsel 's claim, and the Trial Examiner finds, that throughout actual negotiations up to and including the beginning of the strike the Respondent refused to bargain concerning plant rules-those already established and those which might be invoked in the future-during the existence of the contract. Thus, by the Respondent's own minutes of the June 22 meeting, as submitted later to the Union , it is established that when the Union requested that it be permitted to negotiate concerning plant rules, "Mr . Owens stated the Company had the right to make reasonable rules and would do so." According to similar minutes for July 13 • "Mr. Lisk [the union representative] wanted to know if we wanted to negotiate our rules and made a part of the Contract Mr. Owens replied, `No, it is the Company privilege to set up and administer rules and regulations.' " In the minutes of the July 17 meeting , the day the strike began, nothing appears to show that the Respondent had retreated from its original position of insisting upon its right to make rules unilaterally . There is indication that on July 17 the parties discussed certain rules already in effect and agreed that some of them might be in any contract. The final written proposal by the Respondent to be submitted before the strike was to the effect that after it had discharged an employee for violat- ing some rule there might be later arbitration as to whether or not the employee actually had violated the rule, but none as to the merit of the rule itself. The Trial Examiner considers and concludes that by maintaining the positions , above de- scribed, before the strike, the Respondent failed and refused to bargain. 4. Other changes in working conditions Also shortly after the election, and without consultation with or notification to the Union, the Respondent made numerous working-condition changes in various departments, and thereafter refused to negotiate about them as grievances. For ex- amples: (1) In the color shop-where Hamilton, the union leader above identified, worked-the workload upon all employees was substantially increased and addi- tional help denied them; (2) in the packing room management stopped providing employees with relief help; (3) shortly after the election employees in the aging department, previously allowed 8 hours overtime on Saturday to clean machines, were reduced to 5 hours overtime; and (4) folders were given additional work as well as additional pay. As to 3 of these 4 items, the Union protested in writing and, as noted heretofore, in June Hardee rejected each of them as not being "a proper matter for a grievance." And as with the plant rules, thereafter the Respondent probabilities of the situation previously described and based upon the Respondent's own documents-its refusal to considei these questions as proper grievances It is inciedible, also, that the Union-so long deprived of its right to discuss the grievances and told in fact that it had no right to submit them as grievances-should have declined an opportunity to meet and negotiate concerning then 10 In Arnistrong Cork Co v N L R B , 211 F 2d 843 (C A 5), the court said • "Good faith compliance with Sections 8 (a) (5) and (1) of the Act presupposes that an employer will not alter existing 'conditions of employment' without first consulting the exclusive bar- gaining representative selected by his employees, and granting it an opportuinty to nego- tiate on any proposed changes " CRANSTON PRINT WORKS COMPANY 585 continued its refusal to negotiate regarding these subjects up to and including the beginning of the strike on July 17. For the reasons advanced for the conclusions of the matter of rules of conduct, the Trial Examiner likewise concludes that the Respondent violated Section 8 (a) (1) and (5) of the Act by its unilateral changing of working conditions, by its refusal to consider them as grievances for negotiation , and by its refusal to negotiate con- cerning them before July 17, the day of the strike. And as in the case of plant rules, the Respondent also refused during negotiations up to July 17 to accord to the Union its legal right to notice and consultation regarding future changes in wages, hours, and working conditions. In its original proposal the Respondent proposed that the Union agree to the following, quoted in part: "The Union recognizes other rights and responsibilities belonging solely to the Company, prominent among which, but by no means inclusive, are ... the scheduling of shifts and hours of work ... the establishment of incentives, bonuses or job rates...." The Union promptly protested that this proposal would require it to yield rights accorded by law to the legal bargaining agent. The Respondent insisted. As a witness, Owens admitted that not until after the strike did he make concession and agree to give the Union "reasonable notice" before putting into effect job rates and changes in work shifts. It is plain, and the Trial Examiner concludes and finds, that at the time the strike occurred, on July 17, the Respondent was refusing to bargain, as above de- scribed, regarding changes in working conditions 5. Wage information By letters dated May 10 and 13, even before the first negotiating meeting was held, the Union specifically requested the Respondent to furnish it with a copy of the exist- ing "wage scale, showing hourly rates, piece rates and average hourly earnings of piece rated employees." This information was not forwarded by the Company to the Union. The request was orally repeated at the meeting of May 27. At that meeting the Respondent gave the Union a document containing some of the information, but only code numbers and no names of the employees. Thereupon the union repre- sentative asked for the missing information so "we could tell who and how much they were making." Owens, for the Company, said he would have this information pre- pared, as well as still missing information concerning the piece -rated employees. Three weeks passed, and the information had not been provided. At the meeting on June 21 the union representative again requested it. Owens said it was not yet ready, but would be. Another 3 weeks passed. On July 13, at a negotiating meeting, the Union repeated its request. Owens gave the union representative the earnings report and names of only 8 individuals-in a plant employing more than 200. When asked where the rest of the information was, Owens replied that it had not been pre- pared, but would be. It was not provided to the Union between that date and the day of the strike, July 17. Not until August 13, long after the strike was over and the Respondent had been served with the charge alleging refusal to bargain, was any list identifying names and classifications given to the Union. _ No credible reason was advanced by management for its nearly 3-month delay in providing the requested information. It rests, apparently from the Respondent's brief, upon the denials of Owens and Hardee that such information was requested. Their denials are wholly unbelievable and are not credited by the Trial Examiner. The above-cited letters from the Union of May 10 and 13 are specific and clear, and the Respondent concedes having received them. Owens' denial that any request was repeated on June 21 finds clear refutation in an exhibit placed in evidence by the Respondent itself-the first draft of management's purported minutes of the June 21 meeting. From them the following is quoted: 8. Wage information. The Union suggested that the Company furnish it with the low, high and average earnings of all piece workers.... The Company took the position that it was not willing to divulge personal earnings.... Mere unwillingness , however, is not a valid defense , as the Board and courts have found in numerous cases. Nor does the Respondent claim that the complexity of the information requested made compliance difficult. Other company minutes show that its office has IBM equipment, and far more complicated data was provided to General Counsel, upon his demand before the hearing, within 20 days. The record is not clear as to whether or not all of the requested information had been provided the Union before the hearing. In any event, it is found that by the time of the beginning of the strike, July 17, it had not been produced. Whether considered, as an effective refusal, in view of the admitted unwillingness of the Com- 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany to "divulge personal earnings," or as stalling tactics, the Respondent's failure to comply with the Union's reasonable request constituted a failure to bargain in good faith." 6. Grievance procedure In its first written contract proposal to the Union, in June, the Respondent asked the Union to agree, to waive, in effect, its legal right to be present at the first step of any grievance procedure. The pertinent language of the proposal: all grievances respecting hours, wages or other conditions of employment ... shall ... be handled as follows: (a) Between the employee and his Supervisor. The Supervisor shall have a period of two work days in which to give the employee his answer.... When this proposal came up for negotiation on June 22, the Union protested against such deprivation of its right to be present. Owens declared that he must have a section of this type in any contract. During negotiations later that same day, the company representative presented the Union with a proposed "Grievance Procedure Form" which provided for an employee and his supervisor only in step 1. The Union ob- jected again and asked that the language of the law permitting the presence of a union representative be included. On July 13, at the next meeting, the Union submitted a written counterproposal on this subject containing the provision: "that the Union representative has been given opportunity to be present at each stage of the presentation and the adjusment." Owens said he would not agree to this. On July 17, before the strike, Owens yielded in his position only to the extent that he said he would "give consideration" to the Union's proposal that this section- contain language complying with the requirements of the law. Finally, during the course of the strike, on July 23, Owens agreed to include ap- propriate language. It was included in another written proposal offered to the Union on July 26, and was agreed upon by the parties on July 30. The foregoing findings are based upon the credible testimony of Lisk, the union representative at the meetings, and documents placed in evidence by the Respondent itself. The Trial Examiner can place no reliance upon Owens' testimony, flatly con- tradicted by Lisk, to the effect that as early as July 13 he withdrew from his posi- tion concerning step 1 of the grievance procedure. The Respondent's draft minutes for the morning of July 13 corroborate Lisk's testimony that he submitted the counterproposal "on individuals to present grievances," and the same minutes indi- cate "no discussion" at this time. The draft minutes for the afternoon session, on this point, read: "Owens referred to Grievance Procedure (page 20a) employee, shop steward & supervisor-however under Article 1, Section 2 page this language (Owen read new new sub section) Lisk objected to word deal-Owen said we would use discuss if they wanted it.. . But the final minutes sent to the Union, on the above point, states: "The Company's proposed grievance procedure on page 20 A was briefly discussed as also was the Company's proposed modification to its Article 1, Section 2, which Owen read to the group. This was left open." Had Owens in fact agreed to the Union's request on this important point, at any time that day, it is reasonable to believe that the minutes would have so indicated. The only proposal to amend the grievance article, in written form and offered by the Respondent that day, mentions no word about step 1. The first written mention of the Company's permitting a steward to be present is contained in its proposed contract submitted to the Union on July 26, referred to above. From the preponderance of credible evidence the Trial Examiner concludes that as of July 17, by persisting in its refusal to permit a union representative to be present at the first step in any grievance procedure, and its refusal to agree to include in any agreement the substance of its legal requirements in this respect, the Respondent failed and refused to bargain in good faith.12 See Whitin Machine Works, 108 NLRB 1537, enfd. 217 F. 2d 593 (C A 4) That the present Board majority still holds to this view is shown in Valley City Furniture Company, 110 NLRB 1589, footnote 5. See also Boston Herald-Traveler Corporation, 110 NLRB 2097 12 Bethlehem Steel Company, Shipbuilding Division, and Bethlehem-Sparrows Point Shipyard, Inc., 89 NLRB 341. Section 9 (a) of the Act, in pertinent part, provides that employees may appeal to an employer directly "Provided . . . that the bargaining repre- sentative has been given an opportunity to be present at such adjustment." CRANSTON PRINT WORKS COMPANY 587 7. Less desirable working conditions During the negotiations before July 17 the Respondent proposed that the Union agree to bind the employees, by contract, to less desirable working conditions than they had enjoyed before the election. The General Counsel urges that such tactics be determined to be elements of bad-faith bargaining. First: In its initial contract proposals , submitted to the Union on June 14, man' agement proposed that minimum hourly rates for men and women workers should be 80 and 75 cents, respectively. The Company's established minimum hourly rates were then $ 1.12 and $ 1.02, according to oral information given to the Union on May 27. The Respondent's own purported minutes of the July 14 meeting, just before the strike began , state that it proposed to the Union that the existing minima be lowered to $1 for women and $1 .10 for men. And even during the strike, in its proposal of July 26, the same reduced minima for men was offered. Second: In its initial proposal the Respondent asked the Union to agree that all employees must have worked at least 1 ,500 hours in a given year to receive a vaca- tion; when the proposal was discussed at the meeting of June 21 , Owens admitted that this qualification or restriction had not been imposed in the past .. The Respondent persisted in this demand and it still appeared in its proposal of August 9 after the strike. Third: In its first seniority proposal the Respondent set up various "factors"-such as "knowledge , training, ability, skill," etc.-to govern the order of layoff and recall of employees. This proposal was made despite the fact that the current practice, as described in a document given to the Union the last of May , was as follows: Layoffs for lack of work will be made on a Departmental Seniority basis. The last person in the department will be the first to be laid off and the last to be recalled. The newly introduced "factors" had no part in the existing policy. In its proposal of August 9, after the strike , the Company still insisted upon its original proposal and the subject, as the Respondent's minutes show, was one of the bones of contention on July 16, just before the strike. Fourth: Not until after the strike began did the Company recede even to a degree from its previously maintained insistence that any contract must contain a clause requiring an employee, upon penalty of discharge, to notify management at least 6 hours before a shift change if he was to be absent. It turned aside the Union's reasonable plea that a sudden illness might well make such notification impossible. The Union strenuously objected to each of the above-described proposals, yet the Respondent either insisted outright upon them or repeatedly submitted them for negotiation. As examples of the Respondent's attitude at the negotiating table, the Trial Ex- aminer considers the above items to be ample support of General Counsel's claim of bad-faith bargaining. Particularly is this conclusion inescapable in the context of discrimination, coercion, and acts of per se refusals to bargain, previously found. The conduct of the Respondent in the above respects, the Trial Examiner believes, is even more demonstrative of bad faith than that described by the court in N. L. R. B. v. Reed & Prince Mfg. Co.,13 when it said: It is difficult to believe that the Company with a straight face and-in good faith could have supposed that this proposal had the slightest chance of acceptance by a self-respecting union, or even that it might advance the negotiations by affording a basis of discussion, rather, it looks more like a stalling tactic by a party bent upon maintaining the pretense of bargaining. 8. Strike-referendum clause Four days before the strike began the Respondent thrust into the negotiations another demand, the purpose of which General Counsel urges was to divest the Union of its authority as the bargaining agent of the employees . Its proposal- of July 13 reads: If a new agreement cannot be reached within sixty (60) days after the ex- piration date of this contract, the union shall have the right to strike, pro- 13 205 F. 2d 131 (C. A. 1). 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, vided, a majority of the employees voting in the bargaining unit shall have voted in favor thereof in a secret ballot referendum held under the supervision of an impartial State or Federal agency designated by the union. Although the Respondent thereafter receded somewhat from its original demand that the Union bind itself not to strike for 60 days after the expiration of any con- tract, Owens insisted even during and after the strike that the referendum must be provided for in the contract. The clause appears in the company proposal of July 26, and again in its proposal of August 9. Counsel for the Respondent contends, in effect, that the Company had a right to propose anything and that the Union could have, had it wished, waived any right that it possessed under the law. General Counsel claims, however, that repeatedly proposing such relinquishment of rights, in the face of the Union's consistent re- fusal, amounted to constructive insistence, with the plain indication that no agree- ment would be signed unless the Union yielded. Under the circumstances of dis- crimination, coercion, and bad-faith bargaining in general, heretofore described, the Trial Examiner is of the opinion that General Counsel's argument has real merit. This case is not comparable, in substance or even casual appearance, to the facts in United States Gypsum Company, 109 NLRB 1113, wherein the same Trial Ex- aminer found, with Board adoption, that the mere proposal of a similar referen- dum was not bad-faith bargaining, and which counsel for the Respondent here cites. Specifically, the Trial Examiner finds that the Respondent here both proposed and insisted upon the referendum in bad faith, and that by injecting this element into negotiation the Respondent was motivated, not by any sincere desire to reach agree- ment with the Union, but by its professed intent, expressed even before the elec- tion, of "fighting" the bargaining agent of its employees. Conclusions in Summary As described in detail above, management made it plain by written announce- ment and by oral threats, even before the election, that if the employees chose the Union as their bargaining agent they would suffer and not benefit. One union leader was discriminatorily dismissed, another was discriminatorily laid off. Imme- diately upon learning of the result of the election the Respondent published new and restrictive plant rules. It made changes in working conditions and pay without con- sultation with or notification to the Union. The Respondent's clearly expressed intent was made concrete at the bargaining table. Early in negotiations Owens declared that bargaining would produce no eco- nomic benefits for the employees, and the minutes prepared by the Respondent, up to the time of the strike, establish beyond question that Owens made no retreat from his earlier resolve. Even after the strike, management's proposals show that not only would it not yield a point in the Union's economic requests, but even insisted that the very subject of wages should not be raised in the bargaining for 6 months after the contract was signed. As counsel for the Respondent claims in his brief, during the course of negotia- tions management did make some concessions. But they were purely negative con- cessions. Having earlier demanded that the Union agree to waive many of its rights under the law, the Respondent later and in some respects modified such de- mands-the only appreciable concessions made throughout the negotiations up to the strike. The strategy of the Respondent appears to have been of the military variety-vig- orous offense as the best defense and wholly consistent with Gregory's promise to "fight" the Union. From April 22 and until July 17-and indeed up to the present day-the Union has been mainly engaged in striving to regain for the employees the rights and working conditions they had enjoyed before the election. It cannot be reasonably said that such strategy seeks peaceable agreement, but rather that it aims toward complete discrediting of the bargaining agent and its eventual defeat and decertification. In short, for the reasons set out above, the Trial Examiner concludes and finds that since the day the Union became the legal bargaining representative of the employees in the appropriate unit,14 April 22, 1954, the Respondent has failed and 14 The complaint alleges, the answer in effect admits, and the Trial Examiner finds that the appropriate unit consists of All production and maintenance employees at the Fletcher plant, excluding all executives, supervisors, clerical and professional employees, and guards, its defined in the Act, and all printers and printers' apprentices. CRANSTON PRINT WORKS COMPANY 589 refused to bargain with the Union in good faith, and thereby has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by the Act. By its unfair labor practices, including the refusal to bargain, the discriminatory discharge and layoffs, and by coercion, as found above, the Respondent caused employees to strike on July 17, 1954. Since it caused the strike by its unfair labor practices, the Respondent was legally required to reinstate the striking employees upon their unconditional offer to return to work. Many such strikers were not reinstated, others were permitted to come back only to less desirable shifts. The Trial Examiner considers and finds that by such action, unilaterally selecting the individuals and the shifts for reinstatement after a strike caused by its own unfair labor practices, the Respondent continued to refuse to bargain in good faith with the Union. F. The strike and refusal to reinstate strikers During the afternoon of July 17 a number of the employees, following a union meeting at which the Company's conduct during negotiations was reported, went on strike. They were joined by others on July 19, the following workday. It is agreed by the parties that on July 27 the strike was at an end, and an un- conditional offer to return was made by the Union for all strikers. Most of the strikers reported for work that day. Many of them, listed in Appendix A, attached hereto, were told that their jobs had been filled and were not reinstated to any job on any shift. Others, listed in Appendix B, attached hereto, were placed on shifts other than the one they had worked upon before the strike. The prepon- derance of credible evidence shows, and the Trial Examiner finds, that putting an employee upon a shift other than the one previously worked upon did not consti- tute full reinstatement. Testimony of management witnesses establishes that the changes were made only because replacements had been hired during the course of the strike. General Counsel contends that the Respondent's failure to reinstate the returning strikers to their regular jobs was discriminatory within the meaning of Section 8 (a) (3) of the Act. Since it has been found above that the strike was caused by the Respondent's unfair labor practices, the Respondent was obligated, under the law, to reinstate all strikers-absent reasons not material here-to their same or substantially equivalent positions. There is merit, therefore, to General Counsel's contention. Ample evidence sustains that portion of his complaint. During the strike Foreman Gambrell, previously identified, urged employee Marion Corn to return to work, telling him that the Company was going to hire new employees and if he would come back he would not lose his job. During the strike Gambrell also told Corn that the employees might as well come back because the Company was not going to "give us any contract," according to the employee's un- contradicted testimony. Gambrell's solicitation of Corn's return, under threat of losing his job, was coercive, and violative of the Act. His statement that the Company would not sign a contract with the Union bears significantly upon the issue of refusal to bar- gain. (See Reed & Prince Mfg. Co., supra.) IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. . Having found that the Respondent has discriminated in regard to the hire and tenure of employment of Boyce A. Whitmire, Jr., Clarence N. Stepp, Evans S. Hamilton, William B. Higgins, and the employees listed in Appendixes A and 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B, the Trial Examiner will recommend that the Respondent: (a) offer Whitmire and the employees listed in Appendixes A and B immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; (b) make whole Whitmire from the date of his dismissal to the date of offer of reinstatement; Stepp, Hamilton, and Higgins for the period of their discriminatory layoff; the employees listed on Appendix A from July 27, 1954, until the date of offer of reinstatement; and the employees listed in Appendix B 15 for any loss of wages, if any, caused by the discriminatory transfer to other shifts upon reemployment after the strike. Back pay shall be computed in accordance with the Board policy set out in F. W. Woolworth Com- pany, 90 NLRB 289. It will further be recommended that the Respondent dis- miss, if necessary, any replacements hired since the strike began on July 17, 1954. Having found that the Respondent has unlawfully refused to bargain with the Union, the Trial Examiner will recommend that, upon request, it bargain in good faith, and, if an understanding is reached, embody such understanding in a signed agreement. It will also be recommended that the Respondent cease and desist from specific coercive conduct, found herein. In view of the nature of the unfair labor practices found above, the commission by the Respondent of similar and other unfair labor practices may reasonably be anticipated. The remedy should be coextensive with the threat. It will therefore be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Textile Workers Union of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Boyce A. Whitmire, Jr., Clarence N. Stepp, Evans S. Hamilton, William B. Higgins, and the employees listed in Appendixes A and B, and thereby discouraging concerted activity and membership in the above-named labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8 (a) (3) and (1) of the Act. 3. All production and maintenance employees at the Fletcher plant of the Re- spondent, excluding all executives, supervisors, clerical and professional employees, and guards, as defined in the Act, and all printers and printers' apprentices, con- stitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act. 4. The above-named Union was on April 22, 1954, and since that date has been at all times, the exclusive representative of all employees in the aforesaid unit for purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 5. By refusing on and after April 22, 1954, to bargain collectively with the above- named Union as the exclusive bargaining representative of employees in the afore- said unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act. 6. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] ss The Trial Examiner notes apparent and probably Inadvertent inconsistencies in cer- tain names appearing in the Appendixes, the complaint, and the record of applications and recall prepared by the Respondent and placed in evidence as General Counsel's Exhibit No 48 For example, the complaint alleges that Clarence Hill was not reinstated ; Gen- eral Counsel's Exhibit No 48 shows him as having been placed on the third shift. Also, no Arthur Merrill, named in the complaint, is listed on General Counsel's Exhibit No. 4'8. It is assumed that, In the event of compliance with these recommendations, full access to the Respondent's records will be made available, and inaccuracies, if any, corrected. EASTMAN KODAK COMPANY 591 APPENDIX A Norman Wilkie Eugene Anders Tony Hoots Vernon Rhodes Clyde Jones Joseph King R. L. Roper John London Parlie Baker Paul Hutchison Arthur Merrill John Hill William C. Thomas Willie Hoots Jack Gasperman Ralph W. McMinn Tommie L. Crouch Charlie E. Roberts James V. Brown Josephine Smith Kenneth Garrett Hugh Marshall Nora Dill Hugh Hoots Charles Burrell Madge Signam Joseph Brooks Millard Corn Leonard Tabor Estel Gordon Marion Corn Carm Quinn Adger Burns Lee Edwards Ella Mae Anders James L. Millinax Arthur Case Charles Wright Berlin Buckner Carrol Bryson Forest Souther Clarence Hill Rudolph Stepp Lester F. Emory Elbert Nanney Euston Lusk Richard Buckner Clyde Thomas Adger Sexton Bob Melton Wm. J. McLaughlin James R. Baker John Nix Billy W. Beddingsfield Vollie Whitaker William R. King Myrtle Livingston Wade Williams Herbert Capps Ridgeway Russell Vestil Edwards Orvale Hyder APPENDIX B Henry Russell George Justice James F. Sexton Thurn Bagwell J. D. McClure Joseph N. Boone Homer Isreal Laughran Stepp ('d. D. Rhodes June Middleton Calvin Wright James Davidson Arvil Franklin James Hyder John J. Cagle Samuel Redrick Robert Bryson Edward Willis Tommy Young Ray Davis Ben Walden A. L. Fortner Willie Gibbs Charles Qualls E. S. Hamilton Hugh Rutledge Redmon Jackson William B. Higgins Paul Culberson James D. Thompson James Barnett C. F. Hollingsworth Vernon Drake John F. Bobo Ernest Justice Tom Collins Lige Franklin Clarence Stepp Stanbury Franklin Eastman Kodak Company and Film Technicians of the Motion Picture Industry, Local 683, of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Oper- ators of the United States and Canada, AFL-CIO, Petitioner. Case No. 21-RC-4118. February 27, 1956 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Norman H. Greer, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain employees of the Employer. 115 NLRB No. 91. 1