Stowe-Woodward, Inc.

STOWE-WOODWARD, INC. 287 As we have overruled the Petitioner's objections, and as the Inter- venor has received a majority of votes in the runoff election, we shall certify the Intervenor as bargaining representative of the employees in the appropriate unit. [The Board certified Bakery and Confectionery Workers Inter- national Union, Local 400, as the collective-bargaining representa- tive of the employees in the appropriate unit of all production employees, janitors, checkers, and packers, at the Employer's El Segundo, California, plant, excluding sales drivers, office clerical employees, guards, watchmen, professional employees, and super- visors as defined in the Act.] Stowe-Woodward, Inc. and United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO. Case No. 10-CA-3093. March 18, 1959 DECISION AND ORDER On October 15, 1958, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Re- spondent and the Union, the Charging Party herein, filed exceptions to the Intermediate Report and supporting briefs. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudical error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following additions and modifications. 1. For the reasons stated in the Intermediate Report, we agree with the Trial Examiner's finding that the interrogations, promises of benefits, and threats of plant manager Mitchell and plant super- intendent Turnbull violated Section 8 (a) (1) of the Act. 2. We also agree with the Trial Examiner that the Respondent violated Section 8 (a) (5) and (1) of the Act by refusing to furnish, on the Union's request, a copy of the group insurance booklet, infor- mation concerning the cost of such insurance to the Company, and 'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Bean, Jenkins, and Fanning]. 123 NLRB No. 28. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a copy of the plant rules.2 The Board has long held that group insurance is encompassed within the concept of "wages" and, as such, is an issue about which an employer must bargain, on the Union's demand.3 As the data here requested by the Union was directly related to wages,4 the Respondent, by refusing to accede to the re- quests, violated the Act.5 We also find, for the reasons stated by the Trial Examiner, that the Respondent's refusal to furnish a copy of the plant rules to the Union constituted a violation of Section 8(a) (5) and (1) of the Act.6 THE REMEDY Between the date of the strike's inception and the date the Union formally abandoned the strike and requested reinstatement for the strikers, the Respondent replaced all the strikers. The Trial Exam- iner concluded, contrary to the contentions of the General Counsel and the Union, that the strike was economic in nature and, therefore, did not order the reinstatement of the replaced strikers. We find, in agreement with the Trial Examiner, that the strike was caused by an impasse over the 19 economic issues in dispute at the time the strike began. Accordingly, as no causal connection exists be- tween the strike and the unfair labor practices which we have found above, we shall not order the reinstatement of the replaced strikers.? ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Stowe-Woodward, Inc., Griffin, Georgia, its officers, agents, successors, and assigns shall: 2 We are aware of the conflicts of testimony on these points which the Trial Examiner resolved in the General Counsel's favor. As the preponderance of all the relevant evidence does not convince us that the Trial Examiner's resolutions were incorrect, we adopt his credibility findings and his findings of fact based thereon. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3). a W. W. Cross and Company, Inc., 77 NLRB 1162, enforcement granted 174 F. 2d 875 (C.A. 1) ; Clinton Foods, Inc., 112 NLRB 239. In answer to the Union's wage and insurance proposals, the Respondent offered its existing group insurance plan and a 5-cent hourly wage increase in the form of a "package deal," which would have permitted the Union to "split the nickel" any way it wanted. The Respondent does not dispute the relevancy of the information sought by the Union. 5 Tree Fruits Labor Relations Committee, Inc., 121 NLRB 516 ; Pine Industrial Rela- tions Committee, Inc., 118 NLRB 1055, enfd. 263 F. 2d 483 (C.A., D.C.) ; F. TV. Wool- worth Co., 109 NLRB 196, enfd. 352 U.S. 938, reversing 235 F. 2d 319 (C.A. 9). e The fact that the Union was able to secure sonic of the documents from other sources after the Respondent refused to furnish them, does not preclude a finding that the Respondent's earlier refusal to furnish the documents constituted a violation of its bargaining obligation under Section 8(a) (5) of the Act. 7 Wooster Division of Borg-Warner Corporation, 121 NLRB 1492; Jordan Bus Company, et at., 107 NLRB 717; Winter Garden Citrus Products Cooperative v. N.L.R.B., 238 F.. 2d 128 (C.A. 5). STOWE-WOODWARD, INC. 289 1. Cease and desist from : (a) Refusing to bargain collectively with United Rubber, Cork,. Linoleum and Plastic Workers of America, AFL-CIO, as the ex- clusive bargaining representative of all employees at the Respond- ent's Griffin, Georgia, plant, excluding office clerical employees,. professional and technical employees, guards and supervisors as de- fined in the Act, by refusing or failing to furnish to said Union insurance data, including costs of such insurance to the Respondent, or by refusing or failing to furnish to said Union information concerning the rules and regulations governing the working condi- tions of the employees in the aforesaid unit. (b) Interrogating employees concerning their membership in, or activities in behalf of, United Rubber, Cork, Lineoleum and Plastic Workers of America, AFL-CIO, or any other labor organization, in a manner constituting interference, restraint, or coercion in viola- tion of Section 8(a) (1) of the Act, promising benefits to employees if they should refrain from engaging in such activities in behalf of- the said Union or any other labor organization, or threatening reprisals if employees engage in such union activities. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self=organiza- tion, to form, join, or assist the aforementioned Union or any other labor. organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, furnish to the Union insurance data, including costs to the Respondent, and information setting forth Respondent's shop rules and regulations affecting the working conditions of the employees in the aforementioned unit. (b) Post in conspicuous places, including all places where notices to employees are customarily posted, at its principal place of business in Griffin, Georgia, copies of the notice attached to the Intermediate Report as Appendix A.8 Copies of said notice, to be furnished by the Regional Director for the Tenth Region of the National Labor 8 This notice shall be amended by substituting for the words "The Recommendations of it Trial Examiner" the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the, United States Court of Appeals, Enforcing an Order." 508889-60--vol. 123-20 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Board, shall, after being signed by Respondent's repre- sentative, be posted by Respondent immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in such conspicuous places. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Tenth Region in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply therewith. INTERMEDIATE REPORT AND RECOMMENDATIONS ISSUES The primary issues herein are (1 ) whether Stowe-Woodward, Inc. (Respondent herein ) unlawfully interfered with, restrained, or coerced employees by interroga- tions, promises of benefit , and threats of reprisal,' (2) whether Respondent un- lawfully refused to bargain on and after September 4, 1957; 2 and (3) whether a strike, which occurred on or about September 26, 1957, was caused by , or pro- longed by, Respondent 's unfair labor practices. BACKGROUND This case arises out of an organizing attempt by United Rubber, Cork , Linoleum and Plastic Workers of America, AFL-CIO (the Union herein ) at the Griffin, Georgia, plant of Respondent . Respondent also has a plant at Newton Upper Falls, Massachusetts , which is covered by a collective -bargaining agreement between the Respondent and the Union , and a plant at Neenah, Wisconsin , which is cov- ered by a collective-bargaining agreement between Respondent and the Interna- tional Association of Machinists. Approximately 21 production and maintenance workers were employed at the Griffin , Georgia, plant at the commencement of the events involved herein. By letter dated April 26, 1957, the Union requested recognition and negotia- tions. Respondent replied by letter dated May 6, 1957, disputing the Union's contentions that it represented a majority of the production and maintenance workers and suggesting that the question of representation be determined by this Agency. The Union thereafter filed a Petition for Certification (Case No. 10-RC- 3859, unpublished) and, on June 7, 1957, an election , pursuant to a stipulation for certification upon consent election (NLRB Form No. 652 ), was conducted. The vote was 20 to 1 in favor of the Union. A certification was issued on June 17, 1957, and thereafter bargaining sessions were held. A strike began on Sep- tember 26, 1957. Antiunion Animus and Interference Paul D . Dilgard testified that on approximately May 15, 1957 , Plant Manager Paul J. Mitchell, Jr., called him (Dilgard ) to the office and told him (Dilgard) that he (Mitchell ) was opposed to the Union's organizing efforts and intended to defeat the Union and that Mitchell asked for his (Dilgard 's) help 3 in this regard. This testimony is encompassed within the 6 months' limitation of Section 10(b) of the Act and was offered only as "background " evidence tending to show antiunion animus. Respondent did not interrogate Mitchell about this matter but 1 At the hearing in this matter the Trial Examiner dismissed allegations of the com- plaint to the effect that Respondent engaged in surveillance . Upon reconsideration the Trial Examiner adheres to this ruling. 2 The refusal -to-bargain phase of this case may be divided into several categories, namely , whether Respondent unlawfully refused to make available information concern- ing the cost of an insurance plan, whether Respondent unlawfully refused to make avail- able information concerning shop rules and regulations , whether Respondent unlawfully insisted upon an agreement that striking employees had been permanently replaced and whether Respondent entered into negotiations with a predetermination not to make any contract ( engaged in bad-faith bargaining). 3 Respondent's motion to strike this testimony , which was taken under consideration at the hearing , is now denied. STOWE-WOODWARD, INC. 291 during cross-examination he admitted a conversation similar in manner to that described by Dilgard did occur. However, Mitchell did not remember or recall making the statements noted above. In the light of the entire record herein it appears probable that Mitchell engaged in the conduct noted above and the Trial Examiner so finds. Henry W. Nelson testified that on May 23, 1957 (the date the stipulation for certification upon consent election was signed) Plant Manager Mitchell and he (Nelson) conferred for approximately 2 hours in Mitchell's office about "why the men in the plant were so unhappy on the job," that he (Nelson) stated the men were unhappy because Mitchell (and other officials of Respondent) had made promises which had not been kept, that Mitchell promised to rectify the situation and assured him (Nelson) that "he [Mitchell] could do more for us than the third party [the Union] could." Lawrence Pritchett testified that on this same date (May 23, 1957), he had a similar conversation with Mitchell in which Mitchell stated he had to defeat the Union, "otherwise, I [Mitchell] am finished" and that he (Mitchell) had 2 weeks in which to win (it is noted that the election was then 2 weeks hence) and he (Mitchell) was going to do everything he could to win. Arnold C. Thacker testified that he had a similar conversation with Mitchell about a week before the election (before June 7, 1957) in which he (Mitchell) asked his (Thacker's) help in defeating the Union in the coming election. John Bowlden testified that the week before the election Mitchell told him the employees did not need the Union, that he (Mitchell) could help us more than the Union. Carl W. Brown testified that about a week before the election he was inter- rogated by Mitchell as to why he wanted the Union and was told by Mitchell that the employees would be better off without the Union. Alvin B. Tapley testified that about the first of June and also a couple of days later Mitchell interrogated him about his thoughts concerning the Union and stated "we can't have no [union], I can do more for you than [the Union] can, and we just can't have one." Lawrence Pritchett testified that about June 4, Mitchell talked to him about the Union and stated "he made the statement to me during that conversation that he could do more for us than the [Union], at that time his hands were tied but he could do more for us than the [Union]." Pritchett also testified that Mitchell asked whether John Bowlden was going to vote and that he (Pritchett) responded he did not know, "that Bowlden was on vacation" and had told him (Pritchett) that he (Bowlden) was going to Florida fishing, and he (Pritchett) did not think Bowlden would vote. Bowlden testified that the week of the election Mitchell came to his house and asked him to come and vote rather than go to Florida, that he (Bowlden) did vote and that within the next few days after the election Mitchell told him (Bowlden) he could take off 2 or 3 days and go to Florida if he desired and make up the time later. David P. Head testified that 3 or 4 days before June 7, 1957, Mitchell "just walked up and said he wanted to discuss with me a few minutes concerning the [Union], said he thought he could do more without it than he could with it, do more for the employees." Mitchell admitted that between May 7 and May 23 he talked to "practically" every man in the plant and sought to find out what was causing the "unhappiness" and why the employees felt a union was necessary and that he told the employees he could do more for them than the Union could. He denied that he engaged in such conversations after May 23. Mitchell was not questioned specifically about the testimony noted above except for that of Carl Brown, David Head, and Alvin Tapley. He admitted having the conversations as related by Brown and Head but testified they occurred on or before May 23. He admitted having conversations with Tapley about the Union but denied that they occurred after May 23 and denied that he told Tapley "we cannot have [the Union] here." The Trial Examiner credits the testimony of Nelson, Pritchett, Thacker, Bowlden, Brown, and Tapley noted above and finds that Mitchell engaged in the conduct described. Eugene Reeves, Jr., testified that approximately a week, possibly 2, before the election Mitchell came to where he was working and talked to him about the Union and told him that he (Mitchell) "would or could do more without" the Union but that he could not do anything now "my hands is tied but later." Reeves further testified that a few days later Mitchell again talked to him about the Union and again stated that he (Mitchell) "would do more if" the Union "wasn't present." Reeves testified that on this occasion Mitchell drew a comparison of difficulties encompassed by dealing through a union by remarking that "if his [Mitchell's] 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wife wanted something out of him she would get it much quicker if another party wasn't involved." James Allen Vaughn testified that on three separate occasions between the last part of May and June 7, 1957, Mitchell talked to him about the efforts of the Union and on each occasion told him that the employees should not vote for the Union, that he (Mitchell) could do more for the employees than the Union but he (Mitchell) could not do anything at that time but later on "could or would." 4 Mitchell admitted talking to Reeves about the Union but stated that it occurred before May 23, 1957. Mitchell testified he did not remember any such conversa- tion with Reeves "about my wife and couldn't give anything now" and denied that he told Reeves thath e could not give anything now but that he would do it later. Mitchell did not testify with specific reference to Vaughn's testimony. In the light of the entire record there is little doubt that Mitchell in his talks. with Reeves, Vaughn, and other employees 5 did try to sell the idea that dealing: with the Union was more cumbersome and less direct and effective than direct dealings with Respondent, without the Union. However, whether Mitchell went beyond this and made promises of better working conditions once the Union was out of the picture is not as clear, in fact, is sharply disputed. After observing the witnesses and analyzing the record herein the Trial Examiner believes and finds. that Mitchell did not confine his remarks to sales talk and that he exceeded the permissible by making vague and indefinite promises of reward in order to defeat the Union in the coming election. Paul D. Dilgard testified that about July 1, 1957, he suggested to Mitchell that the funds from a "coke machine" be turned over to the Union and that Mitchell, with a flushed face and loud tone, said "we don't have a union in this plant. Dilgard further testified that several days prior to his discharge on October 15, 1957, Mitchell told him (Dilgard-then a supervisor) to tell the people under him to forgive him (Mitchell) and he (Mitchell) would try to do much better in the. future and that Mitchell added "I can't fight you and the Union, too." 6 Mitchell testified that the conversation concerning funds from the coke machine occurred. in 1956, long before the advent of the Union, and no mention of the Union was made. He denied Dilgard's version of this conversation. Mitchell denied stating: to Dilgard "I can't fight you and the Union too." The Trial Examiner had difficulty understanding Dilgard's testimony concerning the October incident at the time it was given and this difficulty has not been clarified by the typed record. In the opinion of the Trial Examiner, this testimony of Dilgard is too fragmentary and lacking in details to determine the context in which Mitchell made the state- ments attributed to him, assuming he made such statements. In view of this and Mitchell's testimony, the Trial Examiner credits Mitchell's denial that he made these statements. The conversation concerning "coke funds" as related by Dilgard: is not as consistent with the entire record herein as is Mitchell's. Bearing this in mind and the interests of the witnesses concerned and their demeanor while on the witness stand, the Trial Examiner rejects Dilgard's testimony and credits Mitchell's. version of this matter. James A. Vaughn testified that the last week in May 1957 Superintendent Stew- art C. Turnbull told him (Vaughn) and Eugene Reeves, Jr., and Arnold C. Thacker that he (Turnbull) had influence, "that he could get us 3 extra holidays, 2 weeks. vacation, and 15 cents an hour increase if we voted against the Union," that they should go out and talk to the men and see if they could not get them to vote against the Union and that if they got in trouble because of such activity he (Turnbull) "would look after us." Reeves and Thacker testified to the same effect. Vaughn further testified that about the first of June 1957, and in the presence of Arnold Thacker and James Perkins he asked Turnbull how he thought the election would result and at that time Turnbull told them that if the Union did. not win he (Turnbull) was "going to fire you." Thacker and Perkins did not testify concerning this matter. 4The General Counsel contends (in his brief) that on one of these occasions and during a similar conversation with Walter Franklin that Mitchell threatened to stop the custom of giving Christmas turkeys. The record does not justify such a finding and the Trial Examiner hereby rejects this contention. 5 See testimony by James A. Perkins. Insofar as there is a conflict of testimony between Perkins and Mitchell, namely, as to date, the Trial Examiner credits Perkins. U This evidence was offered by the General Counsel as tending to show antiunion animus, not as evidence of a violation of the Act. STOWE-WOODWARD, INC. 293 Vaughn testified further that around the first of June 1957, Turnbull told him -that the Union would not fit into the pattern of the textile mill owners and they (the textile mill owners ) would not have a union in Griffin and would take their best help and send it out to Respondent's plant to run it (rather than have a union). Vaughn testified further that the day following the election of local union officers (June 8 or 9) Turnbull asked him the names of the officers, that he gave them to Turnbull and asked why he wanted them and Turnbull answered "they was the first ones they were going to start firing." Arnold Thacker testified that the day following the election of local union officers Turnbull inquired of him the names of the shop stewards. Paul D. Dilgard testified that on or about June 15, 1957 (before Dilgard be- came a supervisor) Turnbull told him that the Union "did not have a chance .in a town like this and with as much money as was being put into it" and that Respondent intended to break the Union. Alvin Tapley testified that during the morning of the day the strike vote was taken (September 25, 1957) he was asked by Turnbull if he could work that night, that he replied that he could not because an election was scheduled on whether to strike and that Turnbull then said "well, you are getting into some deep water." John Bowlden testified that Turnbull asked him if he was going out on strike and when he answered in the affirmative Turnbull said "you fellows may be sorry." . Eugene Reeves testified that while fixing a crate for shipping he (Reeves) re- marked to Turnbull that he did not like to make the shipment in view of the impending strike and that Turnbull said "if you go out you'll be sorry." 7 Turnbull testified that he remembered a conversation with Reeves and Vaughn, but did not remember Thacker being there, in which vacations and more holidays (but not money) was discussed and that he stated he could not do anything about these matters. He denied that he promised extra holidays, vacations, or more money if they would give up or abandon the Union. Turnbull testified this conversation occurred during the latter part of April or the first part of May 1957. Turnbull testified that he had "quite a few conversations" with Dilgard about the Union and that in one such conversation he remarked that the Union's demands "could break the Company." He denied that he ever told Dilgard "the Company would break or intended to break the Union." Turnbull did not testify concerning the other conduct noted above. In the light of the entire record herein and on the basis of observations of witnesses, the Trial Examiner credits the testimony noted above attributing to Turnbull the conduct outlined. Refusal to Bargain On June 17, 1957, the Union was certified as the collective-bargaining agent for All employees [at Respondent's Griffin, Georgia, plant] excluding all office clerical employees, professional and technical employees, guards and super- visors as defined in the Act. On July 25 the Union presented its contract proposals or demands-a com- plete contract proposal on wages, hours, and working conditions, and a separate contract proposal covering insurance and insurance benefits. Negotiations began on August 13, 1957, and between that date and the begin- ning of the strike on September 26, 1957, the parties met and held 12 bargaining sessions. They negotiated for a total of 46 hours. At these meetings the parties exchanged and discussed proposals concerning wages, hours, and conditions of employment. In the first meeting, the Union's proposals were explained section by section. At the next meeting, held on August 14, Respondent presented its proposed con- tract which was discussed item by item. The Union outlined 36 or 37 features of Respondent's proposal which it found objectionable. The parties met again on August 20 and 21. At the beginning of the August 20 meeting Respondent an- nounced that it was withdrawing its written proposal as a basis of discussion and would attempt to reach an agreement on the basis of the Union's proposal. The 7 The General Counsel seems to argue that Turnbull's statements to Tapley, Bowlden, and Reeves concerning the strike constitute threats within the meaning of the Act. In the context in which they were made the Trial Examiner disagrees and rejects any such contention. 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parties again went through the Union 's proposals and discussed them item by item, reaching agreement on some but not all items . The parties met again for 2 days the first week in September (September 4 and 5 ) and continued their dis- cussion , item by item, of the Union 's proposals . The evidence is conflicting as to whether at these meetings, and subsequently , the Union requested, and Re- spondent refused or failed to supply , data, including costs to Respondent, in con- nection with Respondent's insurance program . After observing the witnesses and analyzing the record herein the Trial Examiner credits Taylor 's testimony with respect to this matter and finds that such data was requested but not supplied. At the conclusion of these meetings Respondent indicated it had gone as far as it would go on the items in dispute and the following day a strike was authorized by the employees. The parties met again on September 16 and 17, at which time Respondent presented its second written proposal-which included, inter alia, revisions of items previously agreed upon , items previously agreed upon and items where no agreement had been reached-and the discussions centered around this pro- posal . This proposal ( and Respondent's earlier written proposal ) contained, inter alia, the following sentence : "The company shall have, subject to the limitations of this Agreement , the right to . . . require employees to observe Company rules and regulations not inconsistent with the provisions of this agreement." The Union requested a copy of the "rules and regulations" referred to in the above- quoted clause and was told that at that time Respondent had no written rules,a and that the issuance of such was a management prerogative and not subject to negotiation prior to compilation thereof. The parties met again on September 23, 24 , and 25. At the meeting on Sep- tember 23 Respondent offered what is described in the record as a package pro- posal as a means of settling the issues in dispute . In this proposal Respondent offered to amend the recognition clause to include watchmen-utility workers (a disputed group of employees ), improved vacation benefits, checkoff provisions and a 5-cent wage increase which the Union could have applied as a direct wage in- crease or to other benefits which the Union was seeking (the Union could "split the nickel" any way it wanted ). Thereafter, at this meeting (the meeting on September 23), the meeting on September 24 and the two meetings on September 25, Re- spondent stood fast on its packaged proposal-considered and rejected other proposals by the Union by asserting that its package proposal was its best and final offer. An impasse was reached concerning 19 economic issues. On September 25 the employees in the unit involved herein voted to strike beginning the next day because of the failure of the parties to reach an agreement concerning the 19 disputed items. Respondent 's conduct noted above under the section entitled "Antiunion Animus and Interference ," Respondent's refusal or failure to furnish copies of its shop rules and regulations or Respondent's refusal or failure to furnish data concerning its insurance program were not considered by the employees at the times they voted to strike (on September 6 and September 25) or thereafter. The next bargaining conference was held on October 29 , 1957, approximately 1 month after the strike began and while it was in progress . Thereafter, the parties met on November 21 and December 2, 1957, and January 23 , 1958, but did not reach full agreement on the various items in dispute . Between the time of the strike on September 26, 1957 , and the first meeting after it began Respond- ent replaced the strikers .9 The only issue here involved concerning the meetings after the strike is whether Respondent as a condition precedent required the Union to agree that the strikers had been permanently replaced. At first glance the General Counsel's evidence tends to support the affirmative of this proposition but on careful analysis it merely reveals that Respondent 's representative made a statement to this effect but Respondent did not in fact extract such a condition and in fact did meet, consider, and discuss the items in dispute, although the Union did not agree to such a condition . Respondent's evidence is to the effect that no such condition was prescribed , although it did seek an agreement to the effect that strikers had been permanently replaced . Accordingly, the Trial Exam- 8 Prior to the advent of the Union printed rules had been issued but, also prior to the advent of the Union , these rules had fallen into disuse insofar as penalties for infractions were concerned and at the times material herein they were used by Respondent only as a general guide. Respondent did not, and has not, supplied a copy of these rules to the Union. 9 Respondent contends that they were permanent replacements and there is no evidence or contention to the contrary. STOWE-WOODWARD, INC. 295 iner believes and finds the evidence adduced insufficient to establish that Respond- ent made negotiations on and after October 29 contingent upon an agreement by the Union that all of the strikers had been replaced. As noted above, during the first month of the strike replacements were hired and a full complement of workers employed. By letter dated January 23, 1958, the Union advised Respondent: The members of Local Union No. 549, United Rubber, Cork , Linoleum and Plastic Workers of America and the employees represented by it have decided to terminate their strike at the Griffin , Georgia plant effective Janu- ary 24, 1958 at 5:00 p.m. Each employee hereby unconditionally offers to return to work on the job held by him prior to the work stoppage if such job has not been filled with a permanent replacement ; and each employee unconditionally offers to. accept any available employment if the job held by him prior to the present work stoppage has been permanently filled. This offer to return to work is a continuing offer on the part of each employee and each such employee offers to return to any available employ- ment which may hereafter become available if such employment is not now available. This offer to return to work and to accept any available employ- ment shall not be construed as a waiver of any unfair labor practice the Company may have committed heretofore or which it may commit hereafter. The Union requests that contract negotiations be continued at the earliest convenience of the Company. Please advise when the Company can meet. By letter dated January 27 , 1958, Respondent advised the Union: This will acknowledge your letter of January 23, 1958, presented to repre- sentatives of the Company in our conference on Thursday, January 23 with representatives of your local union and Mr. John P. Taylor representing the International Union, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO. We herewith acknowledge your official notification that you are terminating. the strike at the Griffin, Georgia plant effective January 24, 1958 at 5 : 00 p.m. We also acknowledge the unconditional offers by each of the strikers to return to work on their old jobs , if available, and if not, to any available employment the Company may have. This is to advise you that each of the jobs held by the employees who went on strike has been filled by a permanent replacement . We have no vacancies at the present time. It has not been and it is not our policy to accept continuing applications for employment. It is necessary that applicants for employment keep in touch with the Com- pany and be available at the plant when a vacancy occurs. We suggest that any of the individual strikers named in the attachment to your letter who are interested in being considered for employment in the future come by our plant and keep in touch with us from time to time if they wish to be con- sidered for vacancies which may open in the future. We are agreeable to resuming negotiations at any time mutually agreeable to representatives of both parties . We suggest that arrangements for future meetings be made on the same basis that they have been made in the past, and that you and Mr. Taylor communicate with Mr. Prowell. About October 14, 1957, striker Joseph Drake returned to work. About April- 24, 1958, striker John Bowlden returned to work and about May 26, 1958, striker David P. Head returned to work. There is no evidence that Respondent in seeking replacements or returning strikers sought to undermine the Union and engage in individual rather tham collective bargaining. During the strike Respondent, through State court proceedings , sought to compel certain motor carriers to handle its freight , and through State injunction proceedings sought to enjoin and restrain the strikers from engaging in violence, blockading of entrances, mass picketing, loitering, using abusive language , following vehicles of nonstrikers and others , and from having more than two pickets. Conclusions The foregoing reveals that Respondent violated Section 8(a)(1) of the Act by- the following conduct: .296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Plant Manager Mitchell's interrogations 10 of Henry W. Nelson, Lawrence Pritchett, Arnold Thacker, Carl Brown, and Alvin B. Tapley. (b) Plant Manager Mitchell's promises of benefit to Henry Nelson, Alvin Tap- ley, Eugene Reeves, James Vaughn, and James Perkins. (c) Superintendent Turnbull's interrogations of James Vaughn and Arnold Thacker. (d) Superintendent Turnbull's promises of benefit to James Vaughn, and a .group consisting of Vaughn, Eugene Reeves, and Arnold Thacker. (e) Superintendent Turnbull's threats of reprisal to James Vaughn, Paul Dil- gard, and a group consisting of Vaughn, Arnold Thacker, and James Perkins. The General Counsel contends that the conduct considered above under the section entitled "Antiunion Animus and Interference" reveals an antiunion animus which permeated the bargaining sessions and converted them into "bad-faith" sessions. The Trial Examiner believes, finds, and concludes that the evidence reveals that Respondent engaged in certain conduct violative of Section 8(a)(1) of the Act, and that some of the conduct, though not violative of the Act, never- theless, reveals an antiunion attitude on the part of the Respondent. However, the Trial Examiner is not persuaded that the conduct here involved standing apart from the bargaining sessions, or considered in connection therewith, reveals an intent on the part of Respondent to engage in surface bargaining only. The General Counsel contends that Respondent's initiation of the State court proceedings was inconsistent with a good-faith intention to bargain and when considered in connection with the other conduct involved herein establishes a lack of good faith during the bargaining sessions. This contention is hereby rejected. There is no evidence that these State court proceedings were frivolous and dilatory or were filed to defeat or delay Respondent's obligation to bargain. The General Counsel seems to contend that Respondent's adamant adherence to its package proposal on September 23, 24, and 25 constitutes bad-faith bar- gaining. The Trial Examiner hereby rejects any such contention. True, Re- spondent was engaging in "hard" bargaining but that is considerably different from bad-faith bargaining. In the circumstances then prevailing, including the .give and take of the numerous bargaining sessions, Respondent, in the opinion of the Trial Examiner, was not required to give in on its package proposal or to meet all night on September 25, as proposed by the Union. The General Counsel contends that Respondent's refusal, after the strike began, to honor the Union's request that Respondent negotiate through its original nego- tiator (Respondent's director of industrial relations-James Dunlop) rather than through its attorney (M. A. Prowell) "constituted an adamant preconceived attitude against collective bargaining." The Trial Examiner rejects this contention. There is no showing that the change of negotiators was for any improper purpose •or that the new negotiator was not free to carry on the negotiations and stand by any commitments his predecessor may have made. In addition, others who were present throughout the earlier negotiations were also present at the negotiations after the strike and Respondent was not required to produce its original negotiator to explain the positions he had taken-which appears to be what the Union wanted. Furthermore, to honor the contention now under consideration would, in effect, give unions a power not contemplated by the Act-the power to select employer negotiators. The General Counsel argues that the hiring of replacements and reinstatement of strikers, without consulting the Union, violated Respondent's obligation to bar- gain with the Union as the exclusive bargaining representative and was in deroga- tion of the Union's status as such representative. The evidence herein does not reveal that Respondent was seeking to bypass the Union and deal directly with employees on bargainable subject matters or that offers of benefit or threats of reprisal accompanied the efforts to get replacements or the return to work of strikers. The Trial Examiner hereby rejects the contention under consideration. The contention of the General Counsel that the bargaining sessions were "bad- faith" sessions is hereby rejected. Apparently, it is not disputed that the Union is entitled to the insurance data involved herein," provided a clear and unambiguous request was made for such 10 Any contention that these interrogations, and those by Turnbull, fall within the principle of Bloc Flash Express, Inc., 109 NLRB 591, is hereby rejected. See Ballas Egg Products, Inc., 121 NLRB 873. 11 See N.L.R.B. v. Truitt Manufacturing Company, 351 U.S. 149; Whitin Machine Works, 108 NLRB 1537, enfd. 217 F. 2d 593 (C.A. 4), cert. denied 349 U.S. 905, and Tree Fruit Labor Relations Committee, Inc., 121 NLRB 516. STOWE-WOODWARD, INC. 297 information and the Union has not abandoned its request for this data. However, Respondent contends that the evidence does not reveal that Respondent refused or failed to supply, on request, data, including costs to Respondent, in connection with Respondent's insurance program. As noted above, the facts do not support this contention. Respondent seems to argue further that the Union's request for insurance costs was made in such a casual manner that the request lacked sufficient specificity and that the Union abandoned any requests it may have made for this information. Any such contentions are hereby rejected. Having credited the union negotiator's version (Taylor's version) of this matter, the Trial Examiner has no doubts but that his requests were clear and unambiguous and the record reveals that as late as November 8, 1957, the Union was still endeavoring to get information concerning insurance costs. On that date the Union in a letter to Respondent's counsel stated, inter alia: In fact, the Union made numerous requests for information from the Company regarding the insurance benefits and the cost thereof which were ignored. Apparently, it is not disputed that the Union is entitled to the information on shop rules provided Respondent had written rules it could furnish the Union and provided the Union has not abandoned its request for this data. Respondent contends it has no written shop rules it could furnish the Union and that the Union abandoned its request for this information. Such contentions are hereby rejected. As noted above, Respondent does have printed rules which it uses as a general guide although it does not follow the penalties set forth therein (see footnote 8).12 Furthermore, the record does not establish any clear waiver on the part of the Union to such information. If anything, the record reveals per- sistent efforts to secure the rules. In any event, Respondent's assertions to the Union that it had no such rules and that issuance of rules was a management prerogative and not subject to negotiation prior to compilation thereof, would justify any failure on the part of the Union to press demands for such rules.13 The General Counsel asserts that Respondent's refusal or failure to produce the insurance data and shop rules constitutes bad-faith bargaining, generally. Certainly Respondent's refusals or failures in these regards tend to establish such but, in the opinion of the Trial Examiner, Respondent's conduct with respect to these matters, when viewed alone or in connection with the entire conduct involved in this case, was not such as would warrant a finding that the entire bargaining sessions were conducted in bad faith. The General Counsel urges that the evidence reveals that after the strike began Respondent imposed an illegal condition to further negotiations-required that the Union agree that the strikers had been permanently replaced. As noted above, the facts do not support this position. Respondent contends that the refusal-to-bargain allegations of the complaint should be dismissed because a subordinate to the Charging Party, who participated in the bargaining conferences and who was to sign any agreement reached, was not in compliance with Section 9(f), (g), and (h) of the Act at the time of the filing of the original charge. This contention is hereby rejected. The crucial date for compliance is the date of issuance of the complaint, not the time of the filing of the charge. Furthermore, the Act does not require compliance by labor organizations subordinate to a Charging Party, except where it has been proved that the Charging Party filed a charge on behalf of its subordinate as a subterfuge to circumvent the Act's filing requirements. Northern Crate & Lumber Company, 105 NLRB 218, 220. There is no claim of fronting herein. The General Counsel contends that Respondent's 8(a) (1) conduct together with its withholding of information on insurance and shop rules caused the strike of September 26, 1957, and that, therefore, the strike, at its inception, was an unfair labor practice strike. As noted above, the employees authorized the calling of the strike because of the failure to reach agreement concerning wages and other conditions of employment and did not at that time, or thereafter, consider the matter now under consideration. Accordingly, there is no proof of a causal relationship between these matters and the calling of the strike. It is well estab- lished that there must be a showing of causal relationship between such matters and the strike in order to establish that the strike was an unfair labor practice '2 Mere nonuse of the Penalty Provisions does not constitute a revocation of the rules. Cf. Time- O-hlatic, Inc., 121 NLRB 179. "There is no issue herein as to whether issuance of shop rules is a management preroga- tive and not subject to negotiation prior to compilation thereof, and the Trial Examiner makes no ruling concerning this matter. ,298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strike. Nineteenth Annual Report of the National Labor Relations Board, 1954, page 86, and cases there cited See also Anchor Rome Mills, 86 NLRB 1120; .Harcourt and Company , Inc., 98 NLRB 892; Clinton Foods, Inc., 112 NLRB 239 and N.L.R.B. v. Scott & Scott, 245 F.2d 926 (C.A. 9) and cases there cited. .A problem remains , however, of determining whether the strike was prolonged by "solicitation of certain strikers to return to work and by attempts of the Respondent to get the Union to agree that striking employees had been permanently replaced," as asserted by the General Counsel. Assuming , arguendo, that Re- spondent engaged in unlawful "solicitation" and that Respondent imposed an illegal condition to further negotiations , there is no proof of a causal relationship :between these matters and the continuation of the strike . Furthermore , as noted above, the facts do not reveal that Respondent engaged in unlawful solicitations or imposed an illegal condition to further negotiations. In view of the foregoing , the Trial Examiner believes , finds, and concludes that .the strike was not, at its inception , an unfair labor practice strike and that it was not thereafter converted into such a strike. Having found that the strike was not an unfair labor practice strike from its inception and was not converted into such , a question arises as to whether the strikers are now entitled to reinstatement . As economic strikers Respondent's -employees were subject to loss of employee status by replacement . As noted above, they were replaced prior to the offer to discontinue the strike and return to work. There is no evidence that there were vacancies at the time of the offer -to abandon the strike . Three strikers have returned to their jobs . The other -strikers have not returned to Respondent 's employ but there is no evidence that there have been job vacancies for the other strikers . Accordingly, the strikers are not now entitled to reinstatement.14 ULTIMATE FINDINGS AND CONCLUSIONS In summary, the Trial Examiner finds and concludes: 1. The evidence adduced in this proceeding satisfies the Board 's requirements for the assertion of jurisdiction herein.15 2. United Rubber, Cork , Linoleum and Plastic Workers of America , AFL-CIO, is a labor organization within the meaning of the Act. 3. The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of the Act: All employees at Respondent 's Griffin , Georgia, plant, excluding all office -clerical employees , professional and technical employees , guards, and supervisors as defined in the Act. 4. At all times since on or about June 17, 1957, the Union has been the exclusive :representative of all employees in the aforementioned unit for the purposes of -collective bargaining with respect to rates of pay , wages, hours of employment, and other conditions of employment. 5. The evidence adduced establishes that Respondent interfered with , restrained, or coerced employees in the exercise of the rights guaranteed in the Act, and thereby violated Section 8 (a)(1) of the Act. 6. The evidence adduced establishes that Respondent refused to bargain and thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5 ) of the Act by (a) refusing or failing to make available insurance data, including the costs to Respondent , and (b ) refusing or failing to make available information concerning its shop rules and regulations. 7. The aforesaid activities are unfair labor practices affecting commerce within -the meaning of Section 2(6) and (7) of the Act. 8. The evidence adduced does not establish that Respondent engaged in bad -faith bargaining, generally, or that Respondent imposed an illegal condition -precedent to negotiations. 9. The evidence adduced does not establish that the strike was caused , or pro- longed, by unfair labor practices within the meaning of the Act. [Recommendations omitted from publication.] 14 In view of the foregoing , the Trial Examiner is not discussing in this report whether -the Union's letter dated January 27, 1958, was a proper request for reinstatement or matters bearing upon misconduct of the strikers. 15 Respondent is engaged in the renovation of rubber rolls used in the paper Industry .and annually ships from its Griffin , Georgia, plant, reprocessed rolls of a value in excess -of $100 ,000 directly to customers located outside of Georgia. EPSTEIN HARRIS MANUFACTURING CO. 299 APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT refuse to bargain with United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, by refusing or failing to furnish said Union insurance data, including costs, or by refusing or failing to furnish .said Union information concerning shop rules and regulations. WE WILL NOT discourage self-organization or concerted activities among .employes for their mutual aid or protection as guaranteed in Section 7 of the Act, by threatening employees with reprisals because of such activities, by promising employees rewards on condition that they abandon their member- ship in and activity on behalf of the United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, or any other labor organization, or by interrogating employees concerning such activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights to engage in union or concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL furnish to the Union named in this notice insurance data, includ- ing the costs thereof, and the shop rules and regulations affecting the working conditions of our employees. STOWE-WOODWARD, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Epstein Harris Manufacturing Co. and International Ladies Garment Workers Union, AFL-CIO, Petitioner. Case No. 10-RC-4151. March 18, 1959 SUPPLEMENTAL DECISION AND DIRECTION Pursuant to a Board Decision and Direction of Election dated August 6, 1958,1 an election by secret ballot was conducted on August 21, 1958, under the direction and supervision of the Regional Director from the Tenth Region, among the employees in the appro- priate unit. After the election the Regional Director served upon the parties a tally of ballots, which showed that eight ballots were 'cast, all of which were challenged. Three were challenged by the Petitioner and five by the Employer. Since the challenges were sufficient in number to affect the results of the election, the Acting Regional Director pursuant to the Board's Rules and Regulations, investigated the challenged ballots, and on November 4, 1958, issued his report on challenged ballots. In his report the Acting Regional Director recommended that challenges to the ballots of certain individuals be sustained and the challenges I Unpublished. 123 NLRB No. 39.