John S. Swift Co., Inc.

394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The UAW contends that the question of the inclusion or exclusion of "in-plant trainees" has at all times been subject to doubt, and that therefore their status is a proper subject for a motion to clarify cer- tification. We do not agree. As noted above, North Haven em- ployees in an identical trainee status, temporarily undergoing training at another location, were considered ineligible to vote at the time of the original elections. There is no evidence that, prior to contract negotiations in 1957 and 1958, UAW considered trainees to be in- eluded in the unit, or attempted to represent them. In fact, the evi- dence is to the contrary, insofar as trainees ceased paying dues to UAW when transferred into the training program. Moreover, the wages and conditions of employment for trainees are apparently not covered by the collective-bargaining agreements negotiated by UAW. On these facts, and the entire record, we conclude that in-plant trainees were not included in the stipulated and Board-certified unit, and have not at any time since the Board certification been included in the bargaining unit represented by UAW. Accordingly, a motion to clarify certification is not the proper method for adding the ex- cluded category to the existing unit. UAW should rather have filed a representation petition requesting a secret ballot among the in-plant trainees, to determine whether they desire to be added to the present unit of production and maintenance employees.' We shall, therefore, deny UAW's motion requesting clarification of the certification. [The Board denied the motion.] sGeneral Motors Corporation, 117 NLRB 750; General Electric Company, 119 NLRB 1233. See also Ethyl Corporation, 118 NLRB 1369, footnote 2. John S. Swift Company, Inc. and Local No. 4, Amalgamated Lithographers of America, AFL-CIO. Case No. 13-CA-2445. August 10, 1959 DECISION AND ORDER On November 7, 1958, Trial Examiner C. W. Whittemore 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 Intermediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and brief, and the entire record in 124 NLRB No. 46. JOHN S. SWIFT COMPANY, INC. 395 this case, and hereby adopts the findings, conclusions , and recommen- dations of the Trial Examiner only to the extent they are consistent with our decision herein. The Alleged Violations of Section 8(a) (5) 1. We do not agree with the Trial Examiner's finding that the Re- spondent violated Section 8(a) (5) and (1) of the Act by refusing to bargain with the. Union in the certified unit regarding a health and welfare plan. The Union sought to institute its own health and welfare plan in the certified unit. This unit comprised only a portion of the employees at the Respondent's Chicago plant, and it was the Employer's posi- tion throughout the negotiations that it would make no changes in its existing, companywide plan embracing several plants. None- theless, in the negotiations, the Respondent discussed the health and welfare issue with representatives of the Union on many occasions, beginning with the bargaining session on July 30, 1956, and continu- ing at least until February 1957. Thus, as we find, the Respondent and the Union bargained on the subject of health and welfare at meetings extending over 7 months and, aside from failing to furnish 'certain requested data,' there is no evidence that the Respondent en- gaged in bad-faith bargaining during these negotiations. Indeed, it appears that, in the course of negotiations, the Respondent and the Union had come to agreement on virtually every major bargaining item excepting health and welfare. Section 8 (d) of the statute ex= plicitly states that the obligation to bargain in good faith "does not compel either party to agree to a proposal or require the making of a concession." We are of the opinion that, in the circumstances here, the Respondent's refusal to make changes in its existing health and welfare plan was not a violation of its duty to bargain collectively under Section 8(a) (5). Accordingly, we shall dismiss this allegation of the complaint. 2. We do not adopt the Trial Examiner's finding that the Respond- ent acted in bad faith by failing to meet with the Union during December 1956 and January 1957. Following a series of meetings in July, August, and September, 1956, Respondent's attorney went on vacation. Nothing further was done by either party until the middle of December, when union representative Spolinholtz telephoned i We adopt the Trial Examiner's finding that the Respondent violated Section 8(a) (5) and (1) by refusing to furnish certain wage data requested by the Union. N.L.R.B. v. F. W. Woolworth Co., 352 U.S. 938 , reversing 235 F. 2d 319 (C.A. 9). We also agree that the' Respondent unlawfully failed to furnish the Union with a breakdown as to the cost of its existing health and welfare plan in the certified unit. See Stowe-Woodward, Inc., 123 NLRB 287; Phelps Dodge Copper Products Corporation, 101 NLRB 360. Even assuming arguendo that the requested health and welfare information was not immedi- ately , available , we are convinced • on the record facts that the Respondent made no reasonably diligent effort to obtain it. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's vice president, Jones, to arrange a meeting. Although Jones at first refused, on grounds that the Respondent would not change its position on health and welfare, he finally agreed to speak with Respondent's president, Swift, about arranging a meeting be- tween Christmas and New Year's. When Jones failed to call back, Spohnholtz telephoned him on January 10. Jones then agreed to arrange a meeting, which was held on February 18. In view of the brevity of the Christmas-New Year's lapse, and the entire record, we find the evidence insufficient to establish this alleged violation 2 The Alleged Violations of Section 8(a) (3)3 3. On February 25, 1957, in a conversation with Spohnholtz, Vice President Jones reaffirmed the Respondent's refusal to change its health and welfare plan. The following day, the lithographic pro- duction employees held a meeting during their lunch hour, ,and agreed not to work any overtime "to show the company they were serious about wanting a union contract," and to get more security because of firings that had been taking place. The Respondent was informed of this decision. On the morning of March 11, Jones told the Respondent's super- visors to ask employees in the lithographic production department to work overtime that night. The record shows that, on previous occa- sions, employees who were requested to work overtime normally did so, in the absence of a valid personal excuse. On the morning of March 11, all who were asked refused. Shortly before quitting time,, Jones and Swift personally asked most of the employees again whether they would work overtime. As each answered "no," Jones read him the following prepared statement: You are dismissed from the company for refusing to obey orders and comply with the company's policies. You will be considered for reemployment when you agree to comply with the orders and policies of the management. If you should like to speak with me or Mr. Swift after 4:00 P.M. we shall be available. Each employee was then handed his check, and left the building. We disagree with the Trial Examiner's finding that the Respondent violated Section 8(a) (3) and (1) by its discharge of these employees on March 11. There is no evidence that the Respondent did not actu- ally need the requested work on that date. The lithographic produc- tion employees had frequently worked overtime 'in the past, and were specifically told on this occasion they would be considered for reem- 2 See Valley City Furniture Co., 110 NLRB 1589, 1591, enfd. 230 F. 2d 947 (C.A. 6). We agree with-the Trial Examiner, for the reasons stated by him, that the Respondent discriminatorily discharged Andrew Poch on January 3. We also adopt the Trial Examiner's dismissal as to employee Blumberg, to which mo exceptions were filed. JOHN S. SWIFT COMPANY, INC. 397 ployment when they agreed to comply with management orders. We find no basis in this record for the distinction drawn by the Trial Examiner- that the employees were not "ordered," but were merely "requested," to work overtime. It is quite clear that the Respondent's intention was to order them, under pain of discharge, to work over- time, and the employees could not have understood it otherwise in the context of the statement which was read at the time of their termi- nation. The employees' refusal to work overtime on March 11 con- stituted an attempt to work on terms prescribed solely by themselves. The Board and the courts have squarely held that such a refusal to work provides the employer with valid ground for discharge. We find, therefore, contrary to the Trial Examiner, that the 20 litho- graphic production employees were discharged on March 11 for just cause. Accordingly, we shall dismiss the complaint as to these employees. 4. We agree with the Trial Examiner that the Respondent violated Section 8 (a) (3) and (1) by discharging employees Heidenbluth, Tarczynski, Goranson, Bennett, and Jurewicz on March 12. Goranson, an engraver, was not asked to work overtime on March 11. Heidenbluth and Tarczynski, who were pressmen's helpers, were approached by Jones and Swift on that date with the prepared state- ment. When they indicated they were not union members, Swift told them to report for work the next day. The following morning, on March 12, upon approaching the plant, Heidenbluth and Tarczynski encountered the picket line formed by the discharged employees. As they testified, they decided not to cross the picket line, and entered the plant to inform Jones of their decision. Unable to persuade them to change their minds, Jones told Heiden- bluth and Tarczynski to return in a half hour to pick up their checks. Goranson similarly informed the Respondent of his decision not to cross the picket line, and was told by president Swift : "Well, then you are through. Mr. Jones, give him his check." We find, consistent with settled precedent, that Heidenbluth, Tarczynski, and Goranson, in refusing to cross the picket line of the discharged employees, were engaged in a strike or concerted activity within the broad protection expressly afforded in Sections 7 and 13 of the Act.5 As has been held, Section 7 embraces the right of em- ployees concertedly to quit work "in protest over the treatment of a coemployee, or supporting him in any other grievance connected with 4 C. G. Conn, Ltd. V. N.L.R.B., 108 F. 2d 390 (C.A. 7) ; N.L.R.B. v. Mt. Clemens Pot- tery Company, 147 F. 2d 262 (C.A. 6) ; L. W. Scott d/b/a Scott Paper Box Company, 81 NLRB '535, 546-548; Valley City Furniture Co, supra, at pp. 1592-1596. 5 E.g., N.L.R.B. v. Globe Wireless, Ltd., 193 F. 2d 748 (C.A. 9), enfg. 88 NLRB 1262; N.L.R.B. v. J. I. Case Company, Bettendorf Works, 198 F. 2d 919 (C.A. 8), enfg. 95 NLRB 47, cent. denied 345 U.S. 917; Summit Mining Corporation, 119 NLRB 1668, 1672- 1673, enfd. 260 F. 2d 894 (C.A. 3) ; Vernon T. Mercer, 119 NLRB 673, 674-675; Colonial Fashions, Incorporated, 110 NLRB 1197, 1203, See also N.L.R.B. v. Peter Cailler Kohler Swiss Chocolates Company, Inc., 130 F. 2d 503 (C.A. 2). 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his work or his employer's conduct." 6 We have found that the 20 employees who refused to work overtime were discharged for cause. They were already discharged, and not engaging in a partial stoppage, or any unlawful conduct, when Heidenbluth, Tarczynski, and Goranson refused to cross their picket line. Heidenbluth, Tarczyn- ski, and Goranson had not refused to work overtime,' nor is there any reason to find that the March 12 strike was, directly or indirectly,. such a refusal. It was not a partial strike, slowdown, sitdown, or any form of unlawful conduct, but was, clearly, a full-time work stoppage protected under the Act.' We reject the Respondent's contention that it did not discharge Heidenbluth, Tarczynski, and Goranson by giving them their checks on March 12. Heidenbluth and Tarczynski were told to "pick up their checks," and Goranson was told specifically he was "through." The inference of discharge drawn by the Trial Examiner, we find, is reasonable.9. Accordingly, we conclude that the Respondent dis- charged Heidenbluth, Tarczynski, and Goranson for engaging in a protected concerted activity, thereby violating Section 8(a) (3) and (1) of the Act.'° 11'mployees Bennett and Jurewicz had joined the Union on March S. As artists, they were not asked to work overtime on March 11. On .March 12, upon seeing the picket line, they approached Jones and told him they "belonged to the Union." Jones replied, "The girl will give you your checks." We do not agree with the Trial Examiner's conclusion that -the Respondent discharged Bennett and Jurewicz merely because they announced they had joined the union. This an- nouncement of Bennett and Jurewicz cannot properly be considered in vacua, apart from the background and surrounding circumstances. In the circumstances, it is reasonable, and we find, that Bennett and Jurewicz intended to convey the message that they had decided to observe the picket line, and the Respondent so construed their state- ment. We hold, therefore, that Bennett and Jurewicz were essentially in the same position as Heidenbluth, Tarczynski, and Goranson,. and 9 N.L.R.B. v. J. I. Case Co., id . at 922. 'For example , as noted above , when approached by the Respondent on March 11, Heidenbluth and Tarczynski were quick to diassociate themselves from the refusal to work overtime. s We cannot accept the strained view of our dissenting colleague , Member - Rodgers, which attempts to impute to these strikers conduct unlawful and offensive to the Act. As Member Rodgers himself points out, numerous cases hold that employees who strike to protest the valid discharge of an insubordinate or inefficient fellow worker are pro- tected by Section 7 , and are not themselves, because of the strike, deemed to be insub- ordinate or inefficient, and subject to discharge . The Section 8(b) (3) cases which he cites we regard as quite inapposite, as they do not involve the legality of a full-time strike, but only of harassing "strike-and-work" tactics. 6 See, e .g., Vernon T. Mercer, supra, at p. 692. 10 Id. at 674-675. JOHN S. SWIFT COMPANY, INC. 399 that they were unlawfully discharged for engaging in a protected concerted activity.ll The Alleged Independent Violations of Section 8 (a) (1) 5. Employee Chmielowski testified that during his employment interview Jones stated he did not care to have his employees discuss union business on company property during working hours, and that breach of this rule would result in discharge. The Trial Examiner found that, as the Respondent had no rule against talking generally in the plant, and in view of other violations found by him, such warning independently violated Section 8 (a) (1). However, it is well established that a rule regulating employee conduct and limited to working hours is presumed valid, absent evidence of discriminatory motivation.12 The warning to Chmielowski was limited to working hours, and we find insufficient evidence to show that the rule was dis- criminatorily motivated.13 We therefore reverse the Trial Examiner on this point. 6. The Trial Examiner also found that the Respondent violated Section 8(a) (1) by interrogating Goranson and Chmielowski at the time each was interviewed for employment. Each was asked whether he was a union member; each said "no." However, Goranson was then told "it wouldn't make any difference,, this company is an open shop,, but at the same time we do have union members working here-about half of them." In view of the simultaneous assurance to Goranson that his union affiliations would make no difference, we find no viola- tion in the Respondent's interrogation of Goranson.14 As to Chmielowski, we adopt the Trial Examiner's finding of unlawful interrogation.15 THE REMEDY We have found that employees Heidenbluth, Tarczynski, Goran son, Bennett, and Jurewicz were discharged for engaging in a pro- tected strike, in violation of Section 8 (a) (1) and (3) of the Act.. The record shows that the aforementioned employees were on strike at the time of discharge; it does not establish that they have given up "Although we reach the same conclusion as the Trial Examiner , that the alleged viola- tion was committed as to Bennett and Jurewicz , the effect of our finding, as described in the section entitled "The Remedy," is to deny them back pay while they are on strike and before they make application for reinstatement. '2 Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793 , 803. See also Peyton Packing Company, Inc., 49 NLRB 828, 843, enfd . 142 F. 2d 1009 (C.A. 5), cert. denied 323 U.S. 730. 13 See Pacemaker Corporation, 120 NLRB 987 ; see also Atlas Boot Manufacturing Co., Inc., 116 NLRB 565. 14 Nocona Boot Company, 116 NLRB 1860, 1866 ; Lanthier Machine Works, 116 NLRB 1029, 1037. Cf. Blue Flash Empress, Inc., 109 NLRB 591. '6 Member Jenkins would adopt the Trial . Examiner's finding of unlawful interrogation. as, to both Goranson and Clunielowski. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the strike and have made themselves available for reemployment. We shall, therefore, order that the Respondent, upon application, offer to Melvin Heidenbluth, Leonard Tarczynski, Ernst Goranson, Eugene Jurewicz, and Gordon Bennett reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any employees hired after March 12, 1957, to replace the discharged em- ployees. If, after such dismissal, there are insufficient positions re- maining for these employees, the available positions shall be dis- tributed among them on the basis of seniority or such other non- discriminatory practice as may have heretofore been applied in connection with a reduction in force in the Respondent's business. Those employees for whom no employment is immediately available shall be placed on a preferential hiring list. We shall also order that the Respondent make whole these dischargees for any loss of pay they may suffer by reason of the Respondent's refusal, if any, to reinstate them upon request, by payment to each of them a sum of money equal to that which he normally would have earned as wages during the period from 5 days after the date on which he applies for rein- statement to the date of the Respondent's offer of reinstatement, such loss to be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289.16 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, John S. Swift Company, Inc., Chicago, Illinois, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Local No. 4, Amalgamated Li- thographers of America, AFL-CIO, or in any other labor organization of its employees, by discharging or in any other manner discrimi- nating against employees in regard to hire or tenure of employment or any term or condition of employment, except as permitted by the proviso to Section 8 (a) (3) of the Act. (b) Refusing to bargain collectively with the above-named labor organization, as the exclusive bargaining representative of the em- ployees in the appropriate unit, by refusing and failing to furnish said labor organization with (1) information regarding the names, job classifications, wage rates, and apprentice or journeyman status of employees in the appropriate unit; and (2) information regarding the Respondent's existing health and welfare program, including the " See Bruns Coal Company, Inc., 108 NLRB 590, 593; Morris Fishman & Song, Inc., 122 NLRB 1436. JOHN S. SWIFT COMPANY, INC. 401 cost to the Respondent of existing health and welfare benefits paid to employees in the appropriate unit. The appropriate bargaining unit is: All lithographic production employees at the Respondent's Chicago, Illinois, plant, including off- set pressmen, offset pressmen helpers and feeders and their appren- tices, offset strippers, offset spotters and opaquers, offset cameramen, offset platemakers and apprentices and trainers, pasteup men, litho- graphic artists, film filer, and negative storage men, but excluding lithographic typists and stock handlers, office clerical employees, guards, professional employees, and supervisors as defined in the Act. (c) Interrogating applicants for employment concerning their union membership or activities, in a manner constituting interference, restraint, and coercion in violation of Section 8 (a) (1). (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage .in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment, as authorized by 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 Local No. 4, Amalga- mated Lithographers of America, AFL-CIO, by furnishing said labor organization with information regarding the names, job classifica- tions, 'wage rates, and apprentice or journeyman status of employees in the appropriate unit; and information regarding the Respondent's existing health and welfare program, including the cost to the Re- spondent of existing health and welfare benefits paid to the employees in the appropriate unit. (b) Offer to Andrew Poch immediate and full reinstatement to his former. or substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him, in the manner set forth in the sec- tion of the Intermediate Report entitled "The Remedy." (c) Upon application, offer to Melvin Heidenbluth, Leonard Tarczynski, Ernst Goranson, Eugene Jurewicz, and Gordon Bennett reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges, in the manner set forth in the section of this Decision. and Order en- titled "The Remedy." 525543-60--vol. 124--2? 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social-security pay- ment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due and the right of reinstatement under the terms of this Order. (e) Post at its Chicago, Illinois, plant, copies of the notice attached hereto marked "Appendix." 14 Copies of such notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof, in conspicuous places including all places where notices to employees are customarily posted, and maintained by it for at least 60 consecutive days there- after. Reasonable steps shall be taken by Respondent to insure that said notices are not altered., defaced, or covered by any other material. (f) Notify the Regional Director for the Thirteenth Region in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply therewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges violations of the Act not specifically found herein. MEMBER RODGERS, concurring in part and dissenting in part : I cannot agree that the Respondent violated Section 8(a) (3) of the Act by the discharge of the five employees who refused to cross the picket line at the Respondent's plant. We have here a situation where employees were lawfully discharged because they had refused to work overtime in support of the contract demands of their union-conduct clearly interdicted by Section 8(b) (3) of the Act. Insurance Agents' International Union, AFL- CIO (Prudential Insurance Company of America), 119 NLRB 768; Amalgamated Lithographers of America, Local No. 2 (Buffalo Employers' Group), 124 NLRB 298. These. same employees; dis= charged for engaging in activities contrary to the policies of the Act, then established a picket line to protest their discharges. The five employees here in question refused to cross the picket line and were discharged by the Respondent for that refusal. Nevertheless, my col- leagues are now extending the protection of the Act to these five em- ployees who, in support of those who had violated the Act, refused to cross their picket line. The five employees who refused to cross the picket line were in full alliance with a group of employees who had engaged in unlawful conduct. The natural implication of the majority decision in this case lv 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." JOHN S. SWIFT COMPANY, INC. 403 is that employees who league themselves with those who engage in sit- down strikes, slowdowns, wildcat strikes, extension of rest periods, refusals to work overtime, and other harassing activities which have been held to "impair the process of collective bargaining that Con- gress intended not only to encourage but to protect," 18 are themselves entitled to claim the protection of the Act they thus seek to undermine. I cannot agree to such a result. Cf. Pacific Telephone and Telegraph Company, 107 NLRB 1547, 1550-1551.19 I also do not agree with the majority's finding that the interroga- tion of employee Chmielowski was violative of the Act. In my opinion this single isolated instance of interrogation is not a violation within the meaning of Blue Flash Express, Inc., 109 NLRB 591. I otherwise concur in the findings and conclusions set forth in the majority opinion. MEMBER FANNING , concurring in .part and dissenting in part : While I concur with my colleagues of the majority in their disposi- tion of the other issues in the case, I disagree with their reversal of the Trial Examiner's finding that the Respondent unlawfully refused to bargain with the Union on the subject of a health and welfare plan for the certified unit. As certified majority representative of lithographic production em- ployees at the Respondent's Chicago plant, Local No. 4 was entitled to bargain with the Respondent on the subject of a health and welfare plan for employees in the certified unit.20 This is a mandatory subject for collective bargaining. Yet at the outset of negotiations, and at all times thereafter, the Respondent answered every proposal made by the Union with the statement that its health and welfare program was companywide, i.e., embracing several plants, and that no changes would be considered in the existing ' plan other than, possibly, companywide changes. As the Union • represented only the litho- graphic production employees at one of the Respondent's plants, it could not bargain on a companywide basis. I am mindful of the provision in Section 8(d) that the bargaining obligation "does not compel either party to agree to a proposal or IS Insurance Agents' International Union, AFL-CIO (Prudential Insurance Company of America ), 119 NLRB 768 , 772, quoting from Phelps Dodge Copper Products Corpo- ration, 101 NLRB 360, 368. "It is true that the Board , as is shown by the cases cited by the majority in footnote 5, has held a strike; or refusal to cross a picket line , protected where the strike or refusal is in support of employees who have ultimately been found to have been validly dis- charged .for inefficiency , insubordination , or any other of a multitude of reasons relating to the manner in which the discharged employee ' has performed his job. Ili such cases the -Board has recognized the right of the employees 'to band together in "mutual aid or protection :' in support of a discharged fellow employee . But in none of these cases has the discharged: employee engaged in conduct offensive to our Act, or conduct tainted with any semblance of illegality. 2°W. W. Cross and Company, Inc . v, N.L.R .B., 174 F. 2d 875 (C.A. 1). See also Inland Steel Company, 77 NLRB 1, enfd . 170 F. 2d 247 (C.A. 7), cert . denied 336 U.S. 960. 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD require the making of a concession," but this is a proviso to the posi- tive command to the parties to bargain in good faith. In the present case, the Union was confronted with an existing health and welfare plan in whose formulation it had no voice. By entering negotiations with a totally inflexible position, frozen in advance to certain condi- tions of employment established by it for nonunit employees, the Respondent effectively removed the subject of health and welfare from the bargaining table and foreclosed the Union from its legitimate interest in this important part of the employees' compensation pack- age. Respondent's conduct does not, in my opinion, comport with the requirement of a "bona fide effort" and a willingness to explore com- mon grounds for agreement which is contemplated by the statutory provision for good-faith collective bargaining.21 The clear import of such a tactic is to deny the bargaining representative the full recog- nition to which it is entitled, to hold in contempt the appropriate unit for which that representative is certified, and to impose upon the unit employees wages and working conditions arrived at not as a result of the collective-bargaining process the Act contemplates, but as a result of the employer's own determination. In view of the above, and keeping in mind 22 that the Board has found the Respondent guilty of refusing to bargain in good faith by failing to produce pertinent health and welfare data, a finding some- what incongruous, it seems to me, with its failure to find an 8 (a) (5) violation of the character discussed in this dissent, I would affirm the Trial Examiner on this issue. MEMBER BEAN took no part in the consideration of the above Deci- sion and Order. n See Phelps Dodge Copper Products Corporation, 101 NLRB 360 , 366; cf. N.L.R.B. v. Henry Mayer, d/b/a Cherokee Hosiery Mills , 196 F. 2d 286 , 290 (C.A. 5). 2' 'See Reed & Prince Manufacturing Company, 96 NLRB 850, enfd. 205 F. 2d 131 (C.A. 1), cert. denied 346 U .S. 887. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in Local No. 4, Amalga- mated Lithographers of America, AFL-CIO, or in any other labor organization of our employees, by discharging or in any other manner discriminating against our employees in regard to hire or tenure of employment or.any term or condition of em- ployment, except as permitted by the proviso ^to Section 8(a) (3) of the Act. JOHN S. SWIFT COMPANY, INC. 405 WE WILL NOT refuse to bargain collectively with the above- named labor organization as the exclusive representative of all employees in the bargaining unit described below , by refusing and failing to furnish said labor organization with information re- garding the names, job classifications , wage rates, and apprentice or journeyman status of employees in the unit described below ; and information regarding the Respondent's existing health and welfare program, including the cost to the Respondent of existing health and welfare benefits paid to employees in the appropriate unit. The appropriate bargaining unit is: All lithographic produc- tion employees at our Chicago , Illinois, plant, including offset pressmen, offset pressmen helpers and feeders and their appren- tices, offset strippers, offset spotters and opaquers , offset camera- men, offset platemakers and apprentices and trainees, pasteup men, lithographic artists, film filer and negative storage men, but excluding lithographic typists and stock handlers, office clerical employees, guards, professional employees, and supervisors as defined in the Act. WE WILL NOT interrogate applicants for employment concern- ing their union membership or activities , in a manner constituting interference, restraint, and coercion in violation of Section 8(a) (1). WE WILL offer to Andrew Poch immediate and full reinstate- ment to his former or substantially equivalent position , and make him whole for any loss of earnings suffered as a result of the dis- crimination against him. WE WILL offer to Melvin Heidenbluth, Leonard Tarczynski, Ernst Goranson, Eugene Jurewicz , and Gordon Bennett, upon application, reinstatement to their former or substantially equiv- alent positions without prejudice to their seniority and other rights and privileges, dismissing, if necessary, any employees hired after March 12, 1957, to replace these employees, and we will make each employee whole for any loss of pay suffered by him as a result of our failure to reinstate him within 5 days after his application. WE WILL, upon request, bargain collectively with Local No. 4, Amalgamated Lithographers of America, AFL-CIO, by fur- nishing said labor organization with information regarding the names, job classifications, wage rates, and apprentice or journey- man status of employees in the appropriate unit; and informa- tion regarding the Respondent 's existing health and welfare program, including the cost to the Respondent of existing health and welfare benefits paid to the employees in the appropriate unit. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organiza- tion, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of col- lective 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 condition of employment, as authorized by Section 8 (a) (3) of the Act. JOY-IN S. SWIFT COMPANY, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Charges having been duly filed and served, a complaint and notice of hearing thereon having been issued and served by the General Counsel of the National Labor Relations Board, and an answer having been filed by the above-named Respondent , a hearing involving 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 Chicago, Illinois, on September 24, 25, 26, and 29, 1958, before the duly designated Trial Examiner. At the hearing all parties were represented , and were afforded full opportunity to be heard, to examine and cross-examine witnesses , to introduce evidence pertinent to the issues, to argue orally upon the record , and to file briefs and proposed findings of fact and conclusions of law. Argument was waived . Briefs have been re- ceived from the General Counsel and the Respondent. 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 John S. Swift Company, Inc., is a Missouri corporation having its principal office in Chicago, Illinois, and operating plants and offices in Illinois, Missouri, Ohio, and New York. At its plants it is engaged in the printing and processing of lithographic materials. During the calendar year 1957, in the course of its business at its Chicago plant (the one operation here involved), the Respondent shipped finished products valued at more than $50,000 directly to points outside the State of Illinois. The Respondent is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED Local No. 4, Amalgamated Lithographers of America , AFL-CIO, is a labor organization admitting to membership employees of the Respondent at its Chicago plant. III. THE UNFAIR LABOR PRACTICES A. Major issues In brief, the complaint contends that the Respondent , after the Charging Union had been certified as the collective -bargaining agent of all employees in- an appro- priate unit at its Chicago plant, ( 1) refused to bargain with the Union as required JOHN S. SWIFT COMPANY, INC. 407 by the Act, (2) discriminatorily discharged 27 named employees because they engaged in concerted activity for the purpose of collective bargaining , and (3) by such action and other specifically alleged conduct interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by the Act. B. The refusal to bargain The complaint alleges, the answer admits, and the Trial Examiner finds that on June 1, 1956 , the Board certified the Charging Union as the collective -bargaining agent for all employees in the following appropriate unit: All lithographic production employees at the Respondent's Chicago, Illinois, plant, including offset pressmen, offset pressmen helpers and feeders and their apprentices, offset strippers , offset spotters and opaquers , offset cameramen, offset platemakers and apprentices and trainees, pasteup men, lithographic artists, film filer and negative storage men , but excluding lithographic typists and stock handlers, office clerical employees, guards, professional employees, and supervisors as defined in the Act. It is also alleged, admitted , and found that since May 24, 1956, the Union has been the exclusive representative of all employees in the foregoing unit for the purposes of collective bargaining in respect to rates of pay, wages , hours of em- ployment, and other conditions of employment. The complaint alleges four specific factors as constituting the Respondent's refusal to bargain: 1. On and after August 3, 1956, failing and refusing to furnish Union- requested information as to the names, job classifications, wage rates and apprentice-or-journeyman status of employees in the above-described unit. 2. In and after November, 1956, failing and refusing to furnish Union- requested information regarding an existing health and welfare program. 3. In December 1956 and January 1957 failing and refusing to meet with the Union for the purpose of collective bargaining. 4. On February 25, 1957, refusing to bargain with the Union , apart from the Respondent's other plants, concerning a proposed health and welfare plan. Wage and classification data: On the basis of uncontradicted testimony of Union Representative Spohnholtz , it is found that at negotiating meetings on August 3 and October 1, 1956, the Union requested that it be furnished with a "list of the names of everyone in the unit" with designation of the Company's classification of each as a "journeyman or apprentice," and if classified as an "apprentice" how much time credit the Company considered the employee to possess , as well as the wages of each. Although Jones promised to provide this information on August 3, it was never forthcoming. At the hearing neither Jones nor Attorney Doesburg , both of whom testified after Spohnholtz regarding the negotiations , offered any explanation for the failure to provide information obviously and especially in the Respondent's possession. No contention was made by the Respondent at the negotiating sessions that the request for the information was not reasonable and relevant to bargaining. Spohnholtz' claim was unchallenged at the hearing that such information was needed in order to discuss possible wage differentials and discrepancies in classifi- cations. The Trial Examiner concludes that the requested information was reason- ably requested on August 3, 1956, and thereafter available, relevant to intelligent negotiations, and on and after September 19, 1956, was not produced , despite Jones' promise, by the Respondent.' By its failure and refusal to produce such information the Respondent refused to bargain in good faith within the meaning of the Act? Information regarding health and welfare: As to this item, testimony is in agree- ment that during negotiations the Union repeatedly requested information concern- ing an existing health and welfare program. There is apparent dispute as to whether or not such information was actually furnished. As to the nature of the information sought and his requests for it, Spohnholtz testified, in summary, as follows : At a negotiating meeting on July 30, 1956, he first "requested information regarding their health and welfare program they had in 3 September 19, 1956, is the date 6 months before the filing of the initial charge. By terms of Section 10(b) of the Act, no unfair labor practice may be found earlier than this date. 2 See Whitin Machine Works, 108 NLRB 1537, enfd . 217 F. 2d 593 (C.A. 4), cert. denied 349 U. S. 905. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the plant." Jones, who had "figures" before him, told him only that "the cost of their overall program in all the plants came to $.6006 per hour." Spohnholtz at the time was secretary of the Union's own health and welfare fund and chairman of its pension fund, and this claimed amount per hour seemed incredible to him. He asked what part of that figure was "attributable to health and welfare." Jones replied, "I can't give you those figures. That is all one ball of wax, and it is all contained within the 60 cents figure." Spohnholtz insisted that such information was necessary in order to negotiate intelligently on the subject, but Jones declined to provide it. At a meeting on September 17 the Union again tried and similarly failed to obtain the information sought. Jones merely said he would relay the request back to Presi- dent Swift. Spohnholtz thereupon asked that Swift be present. At the next meeting Swift did not appear, and Jones explained that the president "didn't think he had to be there." After this October 1 meeting Attorney Doesburg went to Hawaii for 2 months, and full negotiation meetings were suspended. On October 3 Spohnholtz called Jones and asked that a meeting be held. After Jones replied that he could see no' good purpose in meeting, Spohnholtz said he would have to report this reply to the union membership. Through the shop delegate he called a union meeting for tl:e evening of October 5. Early the afternoon of that day Jones called the union repre- sentative and told him Swift would see him. Spohnholtz promptly went over to Swift's office, where the president and the vice president were watching the World Series game on television. The company officers continued to watch the game while Spohnholtz made another futile effort to obtain the information sought. On Febru- ary 20, Jones called Spohnholtz and told him that the company auditor was preparing some data for Swift on the subject, but it had not yet been completed. By telephone on February 25, Jones told Spohnholtz that while he "had all the figures" in regard to health and welfare, he "couldn't break it down." Whatever figures the Respond- ent may have then had, they were not submitted to the Union. Involved in Jones' confused and self-contradictory testimony on this subject is a document entitled "Schedule of Amounts of Insurance and Weekly Cost to You." While it contains a good many figures, arranged in columns, to the Trial Examiner it is not self-explanatory, and no witness attempted to explain it at the hearing. It was first marked for identification (as Respondent's Exhibit No. 2) by Attorney Doesburg while Spohnholtz was being cross-examined by him. The union repre- sentative flatly denied ever having seen it before, whereupon Doesburg promptly dropped the questioning and said, "All right. I will present those through our wit- ness." The document was later offered through witness Jones. On voire dire, Jones admitted that he brought the document to some meeting, "toward the latter part of the . . . [negotiations]" and "it could have been the last one," on February 18, 1957, and that after the meeting it was in "the custody of Mr. Doesburg." Jones further admitted that while the document was "on the table" he gave it to nobody at the meeting and had no copies to "pass on to others." Despite these admissions, Jones later testified in the affirmative, when asked the following leading question by Doesburg: I ask you on Exhibit 2 whether or not in fact this was not examined by members of the negotiating committee and considerable discussion arising therefrom? And despite Jones' above-noted statement that the document was not brought to any meeting until perhaps the last one, Attorney Doesburg thereafter took the witness stand and declared that it was furnished him "not later than August 3, 1956," and was "used by members of the negotiating committee." Doesburg admitted, however, that it was "not taken by the Union" because it "did not contain the financial data which they claimed they needed." Finally, Doesburg continued, "As a result, I made a final request on Mr. Jones as late as February 18, 1957, for further information." Whatever actual facts as to this document lie behind the inconsistent testimony of client and attorney, other testimony of Jones permits no other conclusion than that he did not, at any time, come forward with the information requested by the Union. At one point in such testimony he admitted that he told the Union that "it was almost impossible to break it down because it was a sort of lumped together or package proposition." Again he said, "It was just impossible to break the situation down in the way he wanted." Again he admitted, "I am not so certain" that he ever sup= plied "information on the over-all cost of the program." Again he said he was "un- able to make an average cost per employee." Finally he admitted that he did not know whether or not the problem of obtaining this information had ever been sub- mitted to his accounting department. In notable contradistinction to Jones' testimony that "we could not" submit "an average cost per employee" Swift said that "such information was available," and that he had asked Assistant Secretary Faeber of the Respondent to obtain it for Jones, JOHN S. SWIFT COMPANY, INC. 409 In conclusion on this point , the marked contrast between the clear and specific statements of Spohnholtz-many of which are not directly disputed-and the con- fused and mutually inconsistent testimony of Jones, Swift, and Doesburg, of which only some examples have been quoted, leaves the Trial Examiner with little reason- able choice other than to accept as substantially true the claim of the union repre-. sentative to the effect that certain information was requested but was not submitted. Indeed Attorney Doesburg's final word on the subject fully supports that conclusion. He said, "I received from the insurance company finally a break down which still does not contain the information Mr. Spohnholtz wants, on May 11, 1957," a date long after the final negotiating meeting and about 2 months after the Union filed its original charge. To the collateral apparent claim that the requested information could not be com- puted, the short answer appears to be that if a figure of $.6006 was obtainable as the total cost per hour per employee for the program, this aggregate could only have been reached by adding together a number of separate and specific costs, and that some- one on the Respondent's staff was in possession of the detailed information. The Trial Examiner concludes and finds that on July 30, 1956, and repeatedly thereafter the Union requested financial information regarding the Respondent's health and welfare program, that such information was peculiarly within the posses- sion of the Respondent and reasonably necessary to intelligent negotiations , and that at all times after September 19, 1956, the Respondent failed and refused to submit such information to the Union .3 Refusal to meet in December and January : The following facts are found, based upon Spohnholtz' undisputed testimony: 1. In mid-December the union representative called Jones and requested that he set a negotiating meeting date . Jones refused, stating that no useful purpose would be served . Upon Spohnholtz' insistence , Jones finally agreed to talk with Swift regarding a possible meeting between Christmas and New Year's, and to call him back. Jones failed to call and set a date as promised. 2. On January 10 Spohnholtz telephoned Jones and asked why he had not called, Jones replied only that he could see no useful purpose in meeting. 3. Not until February 18, 1957, was the Union able to obtain another meeting with the Respondent. The Trial Examiner concludes and finds that in these 2 months, December and January, the Respondent failed and refused to fulfill its obligation under Section 8(d) of the Act "to meet at reasonable times and confer in good faith" with the Union .4 Refusing to bargain within the unit: On February 25, 1957, after the final negotiat- ing meeting and according to Spohnholtz' uncontradicted testimony , he telephoned to Jones regarding health and welfare data, which Jones had said his auditor was pre- paring, and Jones replied that Swift had gone over the figures and had said he would make no changes in the health and welfare plan, and if he did , "it was going to be company wide." When Spohnholtz protested that the Union "couldn't legally bar- gain for all of his plants" Jones replied that Swift "would not consider it any other way." The Trial Examiner concludes and finds that on February 25, 1957 , the Respondent refused to bargain with the Union as the representative of employees in an appro- priate unit regarding a health and welfare program at the Chicago plant. In summary, the Trial Examiner concludes and finds that since September 19, 1956, the Respondent has refused to bargain with the Union in good faith by: (1) Failing and refusing to furnish requested wage and classification data; (2) fail- ing and refusing to furnish requested health and welfare information ; ( 3) failing and refusing to meet for negotiations in December 1956 and January 1957; and (4) refusing to bargain regarding a health and welfare program within the duly established unit. By thus refusing to bargain , the Respondent interfered with, re- strained , and coerced employees in the exercise of rights guaranteed by the Act. ,C. The discharges The complaint raises discriminatory discharge issues as to groups of employees dismissed on 3 separate occasions : 2 individuals on January 3, 1957; 20 individuals on March 11 , 1957, and 5 individuals on March 12. Before considering specific cases , the Trial Examiner notes, as a relevant fact, that by March 12, 1957, the Respondent had rid itself of 27 of the approximate total of 29 employees in the appropriate unit on January 3, who were represented 8 See Skyland Hosiery 3fills, Inc., 1.08 NLRB 1600. 4 See Mat Meson Chemical Corporation, 114 NLRB 486, 500. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Union with which, as found above, the Respondent refused to bargain in good faith. Andrew Poch : Poch was summarily and without warning discharged on January 3, after nearly 3 years of service as a "stripper" who, Jones admitted, was given a $10 weekly merit raise about 3 months before his dismissal , and against whom Jones further admitted he had never had any complaints until January 2. Poch was discharged in the presence , and over the clear protest of his department head, Louis Brogni. A witness for the Respondent, Brogni testified that he considered Poch a "very good workman ," and that he had expressed this opinion to both Jones and Swift. It is the claim of Swift and Jones, in substance, that on January 2, the day before the discharge, one Douglas Arrick, a cameraman who worked in another room than Poch , came to the office and reported, according to Jones, that: 1. he saw Andrew Poch using a knife and scratching or otherwise destroying . negatives. . 2. he had seen Poch using what they call a stripper knife to mar certain negatives 3. he had seen Andrew Poch maliciously destroy negatives Swift's account of Arrick's visit is as follows: Doug Arrick came into my office after closing time . and he said, "I think I know who has been destroying and losing negatives." I said, "Who?" He said "Poch." I said "How do you know?" He said, "I saw him." So I said, "Well, just a minute." So I called Earl Jones over to my office, and I said, "Doug, repeat to me in front of Mr. Jones what you just told me." He recited in front of Mr. Jones exactly what he told me a few minutes earlier. Appraising no more than the two Respondent officials' testimony, it is readily apparent that one or the other's memory is faulty and that some one tampered with affirmative truths as well as "negatives." Swift's testimony notably fails to quote Arrick as having said anything about a knife or malicious destruction. Moreover, essential features of their testimony are contradicted by Arrick, a witness for General Counsel. Although Arrick's demeanor was that of a reluctant and uncomfortable witness-understandable enough for one being confronted under oath with the result of his having served in the role of an informer-there was the convincing note of truth in his insistence that he did not tell the company officials that he actually saw Poch do anything to negatives. He admitted that he volun- tarily informed Swift and Jones of damaged negatives and that he both accused Poch of being responsible and showed them certain negatives on Poch's working table after the employee had left. The physical surroundings described by Arrick, unchallenged , lend support to his assertion that he could not have seen Poch mar negatives , and so did not report that he had. He worked , as a cameraman, in another room, some distance away, and when Poch worked at his table his back was toward that room . Had either Swift or Jones been at all concerned in getting at the truth of the matter it is reasonable to believe that one or the other would have queried Arrick as to how, from another room, he could have known that Poch was damaging negatives. The Trial Examiner has no doubt that Arrick did go to the office and claim that Poch was responsible for certain marred negatives . It was admitted even by Jones that such damage is not uncommon, and frequently by accidental use of the strip- ping knife, or "with a thumbnail," and was further admitted by him that such nega- tives were and could be damaged by "other strippers" and "cameramen ." Poch's testimony is uncontradicted that at the period of his incident Arrick was making all the halftone negatives and that on several occasions just before his discharge, and acting on orders from his department head, Brogni, he had had to take damaged negatives back to Arrick to be "re-shot." Arrick, he said, "was kind of peeved," "kind of mad." It is reasonable to believe that an individual of a certain character , instead of con- fronting a department head with his disgruntlement at being required to reshoot negatives which .may or may not have been his own fault , should go to the mast- the captain 5-and inform , not on the department head, but on the employee messenger. 5 According to Swift's testimony , when Brogni told him, In Arrick's presence, re- ferring to the latter 's accusation of Poch's responsibility for the damage , "Gentlemen, I can't believe it," Arrick said, "Well . I am an officer in the United States Navy, and I am sure that my word would be good for it." JOHN S. SWIFT COMPANY, INC. 411 In any event, the next morning after Arrick came to them, Poch was called to the office, his.flat denial of the accusation was brushed aside, and he was fired by Jones. The latter did so despite Brogni's protest and despite his own testimony that he had the department head witness the discharge because "he would probably have more knowledge of the damage done, shall we say, than anyone else in the organization." It seems clearly apparent from the foregoing appraisal of the surrounding cir- cumstances that there is no reasonable merit to the Respondent's claimed motive for the discharge, and that the incident was seized upon as a mere pretext while the real reason lay elsewhere. Poch was an active member of the union negotiating committee and had attended many meetings at which Jones was present. (Jones' vague evasiveness when asked if he knew Poch was on the committee: "That I honestly cannot remember . . . I do not believe so" and when asked if he had seen him present: "I will say that he does not stand out in my memory, no, sir," fails to constitute a convincing denial of the straightforward testimony of Spohnholtz and Poch. All meetings were held in Attorney Doesburg's office. There is no evidence that his office was so large Jones could not see one of his own employees sitting across the table or even the room.) The Trial Examiner finds that the Respondent was well aware of Poch's union activity. The incident created by Arrick arose at a time when, as found heretofore, Jones had refused to meet for negotiations with the Union. Finally, Arrick's testimony is undisputed that Jones told him, on January 3, after Swift had ordered Poch's discharge, "that's not the way to solve the problem," and that "the union will have another man in here or another man just as union strong will be in here as Poch." The Trial Examiner concludes and finds that Andrew Poch was discriminatorily discharged on January 3, 1957, because of his activity on behalf of the Union. Leon Blumberg: This employee was also discharged on January 3, 1957. Jones claimed that he was fired for "general incompetence." The vice president's testimony about him is so confused, uncertain, and so plainly incredible that the Trial Ex- aminer can place no reliance upon it. At first he claimed that Blumberg was hired in 1957. When it was pointed out to him that 3 days' employment was a question- able length of time to work in three departments and be determined to be a "square peg" in each, he changed his testimony and said he was hired on December 21, 1956. Actually, according to Blumberg's later credible testimony-checked on cross-ex- amination by Attorney Doesburg from the records-he was employed by the Re- spondent in September 1955. Later in his testimony Jones claimed that he warned Blumberg about his work "a couple of occasions," but admitted that he did "not know what date or anything else." Then he said he spoke to him only once. Still later he said he had "received reports" about Blumberg's work, but then he said he was "not altogether certain about that." "I am trying to stir my memory right now," he declared, and added, "It seems to me like Lou Brogni talked to me about the work he was not doing out in the lay department. I am not sure. But, he would be the logical one." He finally admitted he could not recall what Brogni said, if anything, or when, if ever. At this point his counsel compounded confusion by offering, "We will stipulate with you that all this took place between December 21 and January 3"-although later showing by his cross-examination that Blumberg was employed more than a year earlier. The record reveals precisely nothing that happened "between December 21 and January 3." On the other hand, General Counsel failed to adduce any convincing evidence to show that, whatever may have been the Respondent's confused and contradictory claims, the real motive was to discourage union activity. There is no evidence in the record to show that Blumberg was active, or even a union member. Nor is there any evidence to support a finding that any member of management believed him to be active in, or interested in, the Union. Under the circumstances, the Trial Examiner must conclude and find that General Counsel has failed to sustain the allegations of the complaint as to Blumberg. The discharges of March 11, 1957: It is undisputed that the Respondent summarily and without prior warning discharged the following named employees on March 11: Elizabeth Lerman Richard R. Dykhuis Alfred Du Colo Marian Nigohosian George Zarach Arnold Franzke Hazel von Burkirk Robert Tenney Ralph Kenning Albert Lau Bill Gojdos Joseph Sims 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thomas F. Ryan Richard Krautsach Ronald Vejvoda Frank Jarski Earl Majer Arthur F. Hawrylak Donald C. Koch Robert Powell The single dispute is whether or not these 20 individuals were discharged for disobeying orders, as the Respondent claims, or to discourage union membership and activity, as the complaint alleges. The relevant circumstances are summarized from testimony largely in agreement. As found above, after refusing even to meet with the duly certified bargaining repre- sentative of employees in an appropriate unit during December and January, on February 25 the Respondent declined to bargain concerning a health and welfare plan covering employees in that unit. It has also been found that on January 3 it discriminatorily discharged one of the employees' bargaining committee members, Andrew Poch. During the lunch period on February 26, the day after Jones' final refusal to bar- gain in good faith, all of the employees named above, being union members, at- tended a union meeting 6 and voted not to work overtime thereafter in protest against the Respondent's refusal to bargain and its discharge of Poch. It is undisputed that President Swift was informed of the employees' decision and the reasons for it, by Albert Lau, also one of the union committee. The employees did not return to work until a little more than an hour after the end of the normal lunch period. Swift came around the plant and told a number of the employees that unless they made up the time lost after closing hours they need not return to work the next day. All returned, however, without making up the lost time, and no discipline was invoked. Jones' testimony, as well as that of several employees, establishes and it is found that: (1) Although employees of the various departments were frequently :asked to and did work overtime, there was no rule, written or oral, requiring that overtime be worked on request; (2) it was not uncommon for employees to refuse to work overtime when requested by supervision; and (3) no discipline, discharges, or threats of either had ever been visited upon employees thus refusing to work. As a witness Jones also admitted that although he talked to employees about their decision of February 26, he never warned them of discharge if they carried out their resolution. No request for overtime appears to have been made to any of the employees in the unit between February 26 and March 11. On the latter date, however, manage- ment decided to have all employees in the unit asked to work overtime that after- noon. (There is no evidence that ever before had all such departments been asked to work overtime.) . Jones further said that he instructed supervisors to make this demand upon all such employees, and that at least in some cases foremen reported back that the employees declined to work. During the day Jones had checks made out for each of the above-named individuals, for wages in full up to the closing hour, and shortly before 4 p.m. he and Swift began a tour of the plant. To each of the employees, and with no preliminary remark or question (Jones admitted he asked no one to work overtime) the vice president read the following previously prepared text, after which Swift gave each his check: You are hereby dismissed from the company for refusing to obey orders and comply with the company's policies. You will be considered for reemploy- ment when you agree to comply with the orders and policies of the management. If you should like to speak to me or Mr. Swift after 4 p.m. we shall be available. Each of the 20 employees then left the plant, discharged. Conclusions: It appears to the Trial Examiner that the essential point for deter- mination here is the real motive for the Respondent's summary action. There can be no doubt as to the precise wording of the reason read to the employees upon their dismissal: "for refusing to obey orders and comply with the company's policies." That was what they were told, no more and no less. Yet the record is without any evidence that any or all of the 20 employees refused to obey any order or refused to comply with any company policy. No witness was brought forward by the Respondent to state that on March I I or any other date he had "ordered" any employee to work on that or any other day. The nearest approach to such evidence in the record is Jones' testimony that on March 11 "the order to work overtime came indirectly from me to the various 6 The Respondent's counsel conceded the facts of meeting attendance and union membership. JOHN S. SWIFT COMPANY, INC. i 413 department heads .. . I had nothing to do, so far as me talking specifically to any one of the employees about that." Jones' testimony, already found to possess questionable reliability in general, is unsupported on this point by any department head and alone fails to establish, in the opinion of the Trial Examiner, even a finding that he told department heads to order employees to work overtime that day. Counsel for the Respondent offered to stipulate-an effective concession-only that "every man in the, lithographic department was asked to work overtime on the 11th." On the basis of all the evidence on this matter, the Trial Examiner concludes and finds.that no one of the 20 employees was ordered by any responsible management representative to work overtime on March 11. There is evidence to support a finding, here made, that at least some of them were asked to work overtime, and that they declined, To scrutinize the essential difference between an "order" and a "request" is not indulging in semantics. The idea that an employer's "request" of an employee is .synonymous with his "order" has long been disavowed by the Board in many cases. The most notable example, of course, is in Board elections, where an employer may without violating the Act "request" an employee not to vote for a union, but may not "order" him not to. And clearly within the pattern of this case there is no support for the equation: "a request equals an order." To the Trial Examiner it appears reasonable to say that "orders" must Abe either general and standing or specific and timely. As noted heretofore, Jones admitted that there were no general rules, published or oral, con- cerning anything at the plant. And it has been found above that there is no competent evidence that a specific and timely "order" was issued on March 11. Also, it seems reasonable to consider an "order" as something to be ignored only with peril. Again Jones' testimony makes it plain that declining to work overtime at this shop was not uncommon, had never caused punishment, and never had occasioned even a threat of discipline. The Trial Examiner concludes, therefore, that no "orders" to work overtime were standing or were specifically issued on March 11. It follows that none could have been or was disobeyed by any of the 20 employees. The same reasoning disposes of any factual merit in the conjunctive statement that the employees had refused to "comply with the company's policies." The Com- pany's actual policy, as defined by Jones' testimony, was not to require overtime as a condition of employment. The latest incident of this nature-and one which was a concerted action-occurred without penalty when all attending the February 26 union meeting failed to make up time lost. Clearly the real motive for the Respondent's action on March 11 resides elsewhere than in the statement read by Jones, since that statement lacks any factual basis. The Trial Examiner believes that such motive is revealed in other conduct of the Respondent in dealing with the Union. It had refused to supply needed information and for a long period of time had even refused to meet for negotiations. It had discriminatorily discharged a union leader. There can be no question but that had the Union struck on February 26 it would have been an unfair labor practice strike. The Union, however, did not take such drastic action. The members merely decided to do, as a union group and concertedly, what they had been accustomed to do as individuals-decline to work overtime. Absent any standing rule or timely warning, they had no reason to fear punishment as a group when individual action had occa- sioned none. Nor can their failure to work overtime upon request be considered as "harass- ment" by employees of the unprotected variety. It was not sporadic and unan- nounced desertion of their work, it was not a "slowdown." Nor was the employer uninformed of its purpose. Finally, there was no element of surprise in the employees' action of declining. A request to work overtime necessarily had to precede any refusal, and the timing of the request lay within the discretion of the Employer. The Trial Examiner concludes and finds that these 20 summary dismissals were actually caused by the Respondent's adamant refusal to comply with its obligations under the Act, using as a pretext the factually unfounded claim that rules were violated, by discriminatorily ridding itself of practically all members of the offend- ing Union. In effect, the specific motive was to discourage union and concerted activity, a right guaranteed by the Act. The discharges of March 12: On the day after the mass dismissals described above, the Respondent fired five more employees in the bargaining unit: Melvin Heidenbluth, Leonard Tarczynski, Ernst Goranson, Eugene Jurewicz, and Gordon Bennett. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Heidenbluth and Tarczynski: Both were discharged under identical circum- stances. It is established by Jones' own testimony that he fully intended to dis- charge them on March 11 along with the other 20. He had checks already made out and at closing time approached each of them separately . To each of them he started to read the above-noted dismissal message, but by each was halted upon telling him he had not complied with company policy. Both promptly told him they were not union members. Swift then broke in and said he would expect them in the next morning. It is undisputed that neither of these two employees was even asked, by anyone, to work overtime on March 11. The next morning both employees came to work and found their discharged fellow workers picketing the plant because of the "lockout ." Both went into the plant and informed Jones that they would not cross the picket line . Although neither em- ployee asked for his paycheck ,? Jones told them that their checks in full (made out the day before ) were in the vault and to come back later and get them . They did so. The Trial Examiner concludes that both Heidenbluth and Tarczynski were dis- charged by the Respondent for engaging in concerted activity protected by the Act. Their concerted activity consisted, not of striking but merely of informing manage- ment that they would not cross the picket line of their discriminatorily discharged fellow employees . The picket line was not that of strikers , but of already discharged employees . Even if the circumstances be viewed as an actual strike on the part of the two employees , the announcement of intent being in substance the same as the Act, the conclusion remains the same-they were effectively and discriminatorily discharged .8 Furthermore , the conclusion that the primary motive of the Employer was to rid itself of union members is supported by the undisputed fact that on March 11 Jones and Swift withheld actual discharge when each of the employees denied being a union member . As soon as they announced , in effect, that they intended to make the union cause their own, they were fired. Bennett and Jurewicz: Both of these employees were artists in the appropriate unit, both were discharged under the same circumstances . Neither was asked to work overtime on March 11, and neither was approached that day by Jones or Swift with discharge or paychecks. When they reported for work the morning of March 12 and found their fellow employees locked out, they went to Jones and told him they had joined the Union. Upon this announcement, according to Bennett's undisputed testimony , Jones said, "All right, the girl will give you your checks," and walked away.9 As to these two, evidence reveals even more clearly than in the case of Heiden- bluth and Tarczynski that it was union membership that the Respondent's action was designed to discourage . Neither Bennett nor Jurewicz threatened to observe the picket line, nor does Jones claim that they did. They were discriminatorily and in violation of the Act discharged upon the mere announcement that they had joined the Union. Ernst Goranson : The circumstances of this individual 's dismissal are as follows: He is an engraver, within the unit, and was not asked to work overtime on March 11. It does not appear that he was approached by Jones with final paycheck as were Heidenbluth and Tarczynski . Like these two, however, when he found his fellow workers locked out the next morning , he went into the plant and informed Jones and Swift that he would not cross the picket line. "Well," said Swift, "then you are through . Mr. Jones, give him his check." 10 The Trial Examiner concludes and finds that Goranson , having informed the Respondent that he was joining in the concerted activity of his fellow workers, was thereupon discriminatorily discharged to discourage union and concerted activity. D. Other conduct of interference, restraint, and coercion When cameraman Walter Chmielowski was interviewed by Jones in early 1957, just before his hire, Jones asked him if he was a member of any printer 's union. ' Jones' testimony to the contrary is not credited, for reasons of general unreliability heretofore discussed. 8 See Kitty Clover, Inc., 103 NLRB 1665 at 1666. Jones testified that he did not "remember that too distinctly," referring to Bennett and Jurewicz . His claim that they asked for their checks is flatly and credibly denied by Bennett. 10 The quotation is from and the findings based upon Goranson's credible testimony. Swift's denial that he told the employee he was through is not credited . He admitted telling him that his check was ready. JOHN S. SWIFT COMPANY, INC. 415 When the applicant said he was not, Jones asked him if he had any desire to join at that time. Again the applicant said "no." Then Jones told him that he would fire anyone talking about the Union "on company property during working hours." When employee Goranson, whose discharge was discussed in the section immedi- ately above, was interviewed for employment in December 1956, he also was asked by Jones if he was a union member. Jones further told Goranson, "if you have in your mind to join the union, in doing so, hoping you can better yourself, don't do it, because we are having just as good benefits as the union can give you." 11 Other evidence establishes, and it is found, that the Respondent has no rule against talking in the plant. Under the circumstances of this case, especially the concurrent violations of the Act, the Trial Examiner concludes and finds that by Jones' interrogation of Chmielowski and Goranson as to union membership and threatening the former with discharge if he talked about the Union during working hours on company property, the Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed by the Act. (See Moe Scharf stein et al., d/b/a Stein- Way Clothing Company, 103 NLRB 1314 at 1319.) E. Conclusions in summary The Trial Examiner concludes and finds that by refusing to bargain, as found in section B, above, and by discriminatorily discharging employees as described in section C, above,. the Respondent also has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening. and obstructing com- merce 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 affirma- tive action designed to effectuate the policies of the Act. It will be recommended that the Respondent offer immediate and full reinstate- ment to the following named employees to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges: 12 Elizabeth Lerman Alfred Du Colo Richard Krautsach Marian Nigohosian Andrew Poch Earl Majer Hazel von Burkirk Leonard Tarczynski Robert Powell Albert Lau Eugene Jurewicz Arthur F. Hawrylak Richard R. Dykhuis Ralph Kenning Arnold Franzke George Zarach Thomas F. Ryan Melvin Heidenbluth Robert Tenney Frank Jarski Ernst Goranson Bill Gojdos Donald C. Koch Gordon Bennett and make them and Joseph Sims and Ronald Vejvoda whole for any loss of pay suffered by reason of the Respondent's discrimination against them, by paying to each a sum of money equal to that which he would normally have earned had he remained in the Respondent's employ between the date of his discharge as above found and the effective date of the Respondent's offer to reinstate him (in the case of Joseph Sims and Ronald Vejvoda between the date of discharge and the date of reemployment), less his net earnings during said period, computing the amount to be paid in accordance with Board's policy set out in Crossett Lumber Company, 8 NLRB' 440, and F. W. Woolworth Company, 90 NLRB 289. It will also be recommended that, upon request, the Respondent bargain in good faith and furnish information within its possession relevant to negotiations with the Union as the exclusive bargaining agent for all employees in the appropriate unit, as found above. 11 The quotations are from the employee's testimony, which is not specifically disputed by Jones. 12 The record shows that Joseph Sims and Ronald Vejvoda have been reemployed, but not the date. 416 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD Since the unfair labor practices herein found to have been committed by the Respondent disclose a willful opposition to the fundamental purposes of the Act and evidence an intent to interfere generally with the rights of employees which are guaranteed by the Act, the.preventive purposes of the Act will be thwarted unless the remedial recommendations are coextensive with the threat. Therefore it will be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed by Section 7 of the Act. On the basis of the above findings of fact,. and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS 'OF LAW 1. Local No. 4, Amalgamated Lithographers of America, AFL-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 the 26 employees named herein, thereby discouraging membership in and activity on behalf of the above-named labor organization, the Respondent has engaged in' and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. All lithographic production employees at the Respondent's Chicago, Illinois, plant, including offset pressmen, offset pressmen helpers and feeders and their apprentices, offset strippers, offset spotters and opaquers, offset cameramen, offset platemakers and apprentices and trainees, pasteup men, lithographic artists, film filer and negative storage men, but excluding lithographic typists and stock handlers, office clerical employees, guards, professional employees, and supervisors as defined in the Act, constitute a unit 'appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The above-named labor organization was on May 24, 1956, and at all times since has been the exclusive representative of all of the employees in the said unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing to bargain with the aforesaid Union, on and after September 19, 1956, as the exclusive representative of all employees in the aforesaid unit, the Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(a) (5) of the Act. 6. By interfering with, restraining, and coercing its 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. 8. By discharging Leon Blumberg the Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. [Recommendations omitted from publication.] United States Gypsum Company' and General Teamsters Union, Local No. 406, International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America, Petitioner. Case No. 7-RC-4100. August 10, 1959 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 James P. Kurtz, hear= ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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- 124 NLRB No. 49.