Thayer, Inc. of Virginia

222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD therefrom and take certain affirmative action designed to effectuate the policies of the Act- Upon 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 International Woodworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act 2 By inducing and encouraging employees of T Smith & Son, Inc, Neptune Supplies, Inc, and Wm France , Fenwick & Company, Limited, to refuse in the course of their employment to perform work for their respective employers, an ob- ject thereof being to force and require T Smith & Son, Inc, to cease doing business with Montmorency Paper Company , Inc, and Montreal Shipping Company, Lim- ited, or in the alternative with Anglo Newfoundland Development Company, Lim- ited, an object thereof being to force and require Neptune Supplies, Inc, to cease doing business with Montmorency Paper Coiripany, Inc, and Montreal Shipping Company, Limited, or with any person or persons on or in control of the SS Best- wood, an object thereof being to force and require Wm France, Fenwick & Com- pany, Limited, to cease doing business, directly or indirectly, with Montmorency Paper Company, Inc , Montmorency Shipping, Limited, Montreal Shipping Company, Limited, or in the alternative with Anglo Newfoundland Development Company, Limited, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act 3 The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7 ) of the Act [Recommendations omitted from publication Thayer, Inc of Virginia and International Hod Carriers ', Build- ing and Common Laborers' Union of America, Local Union No 453, AFL-CIO Case No 5-CA-1257 November 20, 1959 DECISION AND ORDER On December 10, 1958, Trial Examiner Eugene E Dixon 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 Interme- diate Report attached hereto Thereafter, the Respondent filed excep- tions to the Intermediate Report, together with 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 Interme- diate Report, the exceptions and brief, and the entire record in the case, and finds merit in one of the Respondent's exceptions Accord- ingly, the Board adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the modifications set forth below THE RE31EDY One evening during the strike, strikers Vincile Perkins and Roger Lacy approached nonstriking employees Bobby Baughman and Bobby Layne and asked them to cease working and join the strike 125 NLRB No 25 THAYER, INC. OF VIRGINIA 223 During the course of the conversation, Perkins and Lacy invited Baughman and Layne to "come on outside . . . if either of you think you can whip us." [sic] Further, the nonstrikers were told that they might get hurt if they went back to work. Following the abandonment of the strike, Lacy was interviewed and reinstated by the Respondent. At that time, the Respondent had no knowledge of Lacy's part in the aforementioned incident, although it learned of Lacy's participation about a month after that employee's reinstatement. However, Perkins was denied reinstatement because of this incident. The Trial Examiner found that Perkins had engaged in misconduct. We adopt this finding in the absence of exceptions by the General Counsel.' The Trial Examiner nevertheless recommended that Per- kins be reinstated, on the ground that the Respondent had condoned Perkins' misconduct by reinstating and retaining the "equally guilty" Lacy. We find merit in the Respondent's exception to this finding. Condonation reflects an employer's willingness to "wipe the slate clean" and to continue an employee in good standing despite that employee's misconduct.2 However, an employer, by waiving its right to terminate as to some employees, does not thereby waive this right as to all employees in the same category .3 Under the circumstances of this case, we find that the Respondent was justified in denying rein- statement to Perkins and that it did not condone Perkins' misconduct by reinstating and retaining Lacy. Accordingly, we shall not order the Respondent to reinstate Perkins. 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, Thayer, Inc. of Virginia, Bluefield, Virginia, its officers, agents, successors, and as- signs, shall : 1 Member Fanning dissents from the conclusion that Perkins engaged in such heinous misconduct as to warrant a denial of reinstatement and from the majority's inference that the Trial Examiner did, in fact, make such a finding. The Trial Examiner found only that the Company had condoned any "transgression" of which Perkins may have been guilty. It was therefore unnecessary for the Trial Examiner to decide the legal question whether misconduct of the type required for a denial of reinstatement had been committed by Perkins. In Member Fanning's opinion, Perkins' conduct was not so serious as to warrant a diminution of the Board's usual remedy, Efco Manufacturing, Inc., 108 NLRB 245, 250, 261, particularly necessary in this case in view of the Respondent's flagrant violations of the Act. 1 See The Hoover Company, 90 NLRB 1614, 1624-1625. Member Jenkins agrees that Perkins is not entitled to reinstatement because of his misconduct. He is unable to find any evidence of condonation as he views that concept. See Member Jenkins' dissenting opinion in Plasti-Line, Incorporated, et al., d/b/a Sign. Fabricators. 123 NLRB 1471, and his concurrence in footnote 2 in Union Twist Drill Co., 124 NLRB 1143. 3 N.L.R.B. v. Clearfield Cheese Co., Inc., 213 F. 2d 70, 75 (C.A. 3, 1954). 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Refusing to bargain collectively with International Hod Car- riers', Building and Common Laborers' Union of America, Local Union No. 453, AFL-CIO, as the exclusive bargaining representative of its employees in the appropriate unit concerning rates of pay, wages, hours of employment, and other terms and conditions of em- ployment, by refusing to meet with the Union, by granting unilateral wage increases, and by refusing to furnish the Union with wage and other data within the possession of the Respondent which are relevant to the Union's task as bargaining agent.4 The following unit of employees is appropriate for collective bargaining: All production and maintenance employees at the Respondent's Bluefield, Virginia, plant, excluding office clerical employees, guards, watchmen, professional employees, and supervisors as defined in the Act. (b) Discouraging membership in International Hod Carriers', Building and Common Laborers' Union of America, Local Union No. 453, AFL-CIO, or any other labor organization, by refusing to rein- state any of its employees, or otherwise discriminating in regard to their hire or tenure of employment or any term or condition of employment. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist the aforementioned Union, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to 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 by the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : ('a) Upon request, meet and bargain collectively with International Hod Carriers', Building and Common Laborers' Union of America, Local Union No. 453, AFL-CIO, as the exclusive representative of all employees in the aforesaid appropriate unit, concerning rates of pay, wages, hours of employment, and other terms and conditions of em- ployment, and if an understanding is reached, embody such under- standing in a signed agreement. (b) Furnish to the above-named Union wage and financial data within the Respondent's possession which are relevant to the Union's task as bargaining agent.' 4 Member Rodgers would require the Respondent to furnish the Union only with the names, job classifications, and rates of pay for the employees in the bargaining unit. 5 See footnote 4, supra. THAYER, INC. OF VIRGINIA 225 (c) Offer to the striking employees named in "Appendix A" of the Intermediate Report attached hereto, except Vincile Perkins, im- mediate and full reinstatement to their former or substantially equiv- alent positions, without prejudice to their seniority and other rights and privileges, dismissing, if necessary, any person hired on or after November 26, 1957, and make whole said striking employees for any loss of pay they may have suffered by reason of the Respondent's refusal, if any, to reinstate them, in the manner and according to the method prescribed in section V of the Intermediate Report, entitled "The Remedy." (d) Post in conspicuous places, including all places where notices to employees are customarily posted, at its plant in Bluefield, Virginia, copies of the notice attached hereto marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof and main- tained by it for 60 consecutive days thereafter in conspicuous places. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Fifth Region in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. '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." 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 refuse to bargain collectively with International Hod Carriers', Building and common Laborers' Union of Amer- ica, Local Union No. 453, AFL-CIO, as exclusive bargaining rep- resentative of our employees in the appropriate emit, by refusing to meet with the Union, by granting unilateral wage increases, and by refusing to furnish the Union, upon request, with wage and other data within our possession which are relevant to the Union's task as bargaining agent. The appropriate bargaining unit is : All production and maintenance employees of our Blue- field, Virginia, plant, excluding office clerical employees, 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD guards, watchmen , professional employees, and supervisors as defined in the Act. WE WILL NOT discourage membership in the aforesaid Union or in any other labor organization, by refusing to reinstate any of our employees or by otherwise discriminating against them in re- gard to their hire or tenure of employment or any term or condi- tion of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form, join, or assist the aforesaid Union, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized by the Act. WE WILL offer to all our striking employees, except Vincile Perkins, immediate and full reinstatement to their former or sub- stantially equivalent positions, without prejudice to their sen- iority and other rights and privileges, dismissing, if necessary, any person hired on or after November 26, 1957, and make whole said striking employees for any loss of pay they may have suf, fered by reason of our refusal to reinstate them upon application. WE WILL, upon request, meet and bargain collectively with In- ternational Hod Carriers', Building and Common Laborers' Union of America, Local Union No. 453, AFL-CIO, as the exclu- sive bargaining representatives of all our employees in the ap- propriate unit, concerning rates of pay, wages, hours of employ- ment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. WE WILL furnish to the aforesaid Union wage and financial data within our possession which is relevant to the Union's task as bargaining agent. All of our employees are free to become, remain, or refrain from becoming or remaining members of the aforesaid Union or any other labor organization. THAYER, INC. OF VIRGINIA, 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. THAYER, INC. OF VIRGINIA INTERMEDIATE REPORT AND RECOMMENDED ORDER 227 STATEMENT OF THE CASE Charges and amended charges were filed by the International Hod Carriers', Building and Common Laborers' Union of America, Local Union No. 453, AFL-CIO, herein called the Union, on January 20, February 4 and 20, May 27, and June 25, 1958, all duly served on Thayer, Inc. of Virginia, herein called the Respondent. On the basis of these charges the General Counsel of the National Labor Relations Board, herein called the General Counsel and the Board, issued a complaint by the Acting Regional Director of the Board's Fifth Region (Baltimore, Maryland) alleging that Respondent had committed unfair labor practices in viola- tion of Section 8(a)(3) and (5) of the National Labor Relations Act as amended, 61 Stat. 136, herein called the Act. The complaint as amended at the hearing, in substance, alleges that from about September 26, 1957, and thereafter Respondent refused to bargain with the Union as the duly designated bargaining representative of Respondent's employees in an appropriate unit and refused to reinstate various employees who had made an uncon- ditional offer to return to work after having engaged in a strike caused by Respond- ent's unfair labor practices. Respondent's answer denies the commission of any unfair labor practices. Pursuant to due notice, a hearing was held before the duly designated Trial Examiner at Bluefield, West Virginia, from July 15 through 24, 1958. All parties were represented by counsel and afforded full opportunity to present evidence, ex- amine and cross-examine witnesses, make oral argument, and file briefs and proposed findings of fact and conclusions of law. Briefs were received from both the Respondent and the General Counsel. On August 28, after the close of the hearing, the Board issued its decision in Ra-Rich Manufacturing Corporation, 121 NLRB 700, reversing its previously held position that the Jencks case, 353 U.S. 657, did not apply to Board proceedings.' Pursuant to the Board's new interpretation of the Jencks case I issued an order on September 8, 1958, reopening the record herein and directing that the General Counsel make available to the Respondent the statements which were refused at the hearing. I also gave Respondent 15 days in which to move to reopen the hearing in the event it was desired to cross-examine on the basis of said statements. No motion to reopen was made and the record herein is closed. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE RESPONDENT'S BUSINESS Respondent is, and at all times material herein has been, a corporation duly organized and existing by virtue of the laws of the Commonwealth of Virginia, having its principal office and place of business at Bluefield, Virginia, where it is engaged in the manufacture and sale of juvenile furniture. In the course and conduct of its operations during the 12 months' period preceding the hearing, Respondent shipped goods and materials valued in excess of $50,000 from its Bluefield, Virginia, plant direct to points outside the Commonwealth of Virginia. Respondent admits and I find that Respondent is engaged in commerce within the meaning of Section 2(6) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Hod Carriers ', Building and Common Laborers' Union of America, Local Union No. 453, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Although it was stipulated that the Respondent began its operations in Bluefield in January 1957, the evidence shows that at least 7 employees had been hired in November and 12 in December 1956.2 In April 1957 the Union began its campaign I Great Atlantic and Pacific Tea Company, National Bakery Division, 118 NLRB 1280. 2 The November hirings appear from an exhibit listing Respondent's employees as of November 25, 1957. The December hirings are taken from another exhibit showing the dates of hire and wage increases made in 1957. The significance of the discrepancy be- tween the stipulated starting date of operations and that reflected in the exhibits con- cerns evidence regarding the 1956 Christmas as a paid holiday to be referred to later. 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to organize Respondent's employees. On September 10 the Union won bargaining rights in a Board-conducted election .3 At the time that the ballots were counted and it became apparent that the Union had won the election a tentative bargaining date was discussed with September 26 claimed as the earliest that the Company's attorney would be available. At this time Thurmond Radford, consultant-conciliator of the International and the Union's spokesman on the negotiating committee, told J. C. Turley, a labor consultant employed by the Company, that he thought the Union had conducted a clean campaign and that he was "opposed" to the Company's having granted wage in- creases during the campaign. Turley's reply was that to have withheld such increases would have been a violation of law and that just because the Union had won the election did not mean that the Company was going to stop doing things for the employees on its "own." 4 According to Turley's testimony about this discussion, he also commented to Radford that it appeared that the Union had won the election and that the Company would like to begin bargaining as soon as possible. In his letter confirming September 26 as the first meeting date Radford stated, among other things, I should like to point out that there has been an unusually long delay since our original request for recognition as bargaining representative was made on May 21. 1957. Under the circumstances, we believe that the best labor management relations can be achieved by devoting as much time as possible to the prompt negotiation and consummation of an agreement. Accordingly, you are advised that unless we are able to negotiate and execute an agreement resolving our differences within the next sixty (60) days, our Organization will feel free to engage in concerted activities for the purpose of achieving this result. Prior to meeting with the union representatives, Respondent's negotiators 5 were informed by Respondent's president that the Company was operating at a loss and was in no "position to grant general wage increases, or fringe benefits, involving money"-that they (the negotiators) "had his authority to go ahead and negotiate a union contract covering rules and working conditions, recognition of the Union, . but . not . . .:increases" in any respect whatsoever. The September 26 meeting took place as scheduled at the plant during working hours. Subsequent meetings occurred in the evenings 6 on October 25 and November 7 and 25. All but one of these dates again were claimed by Respondent as the earliest time open to one or another of its representatives. At the September 26 meeting the Union presented typed copies of its proposals indicating at the time that its wage demands were left blank and would depend in some measure on the extent that the negotiations brought "the fringe benefits of the employees in the plant up to par with those prevailing in the furniture industry." The essentials of the Union's initial demands were: (1) Dues checkoff; (2) seven paid holidays with double time if worked; (3) one week's vacation for 1 year of work, 2 weeks' for 2 years-discharged or quit employees to receive on a pro rata basis the amount of leave earned; (4) grievance procedure ending in arbitration; (5) leaves of absence; (6) plantwide and work group seniority after 60 days; (7) com- pany contribution of 71/z cents per hour per employee to a health and welfare fund; and (8) 4 hours call-in and report time. At the Union's suggestion in this first meeting the negotiators proceeded to examine and discuss the Union's proposals article by article. Turley commented that the Union's proposed contract "looked like a right substantial contract for an initial con- tract, that it appeared to (him) to represent fifteen or twenty years of bargaining somewhere else, and (that) it would require considerable study by (the Company's negotiators and their) principals before (the Company would) be prepared to negotiate on it." The meeting lasted about 2 hours but was not long enough to afford an opportunity to cover the entire proposal. Nor was very much accom- 9 The appropriate unit within the meaning of Section 9 (b) of the Act is : All produc- tion and maintenance employees at Respondent's Bluefield, Virginia, plant, excluding all office clerical employees, guards, watchmen, professional employees, and supervisors as defined in the Act. On September 18 the Board issued its certification. Thayer, Inc. of Virginia, Case No. 5-RC-2239. * In his testimony Turley admitted making this statement. Whether it was at this time or later during the negotiations is not clear. 5 Besides Turley representing Respondent there were, among others, John W. Gillespie, an attorney, and Philip J. Carney, the son of the Respondent's president. 6In the first meeting Respondent objected to negotiations during working hours. The evening meetings were the result. THAYER, INC. OF VIRGINIA 229 plished in the way of agreement between the two parties. The Company readily agreed to the recognition clause, Turley commenting that it could not be questioned that the Union was the bargaining agent of the employees for a period of 1 year. The Company also agreed to share with the Union the cost of printing for distribu- tion to each employee a copy of any collective-bargaining agreement that came out of the negotiations . Aside from such minor or legally binding concessions,7 the Union's proposals were either rejected, set aside for further discussion, or for a later counterproposal. As a reason for rejecting the Union's demand for any paid holidays the Company cited what it claimed was the practice in that respect in connection with the United Mine Workers. The Union countered with the comment that the Company had already established a precedent for paid holidays by having paid the employees for Christmas Day in 1956. The rejoinder was that there were just a few employees at that time and in effect that it was simply a Christmas present. As for the Union's vacation proposal, the Company indicated it was interested in something based on a percentage of the employees' gross annual income. According to Turley's statement to Radford at the end of the first meeting, the earliest date that the Company could meet again was on October 15. Radford protested the long period between meetings and referred to his letter requesting con- summation of a contract in 60 days. Turley replied that the Company was not "going to be in any hurry to negotiate (a contract) just so (the Union) can move on and organize another plant." He also said he resented what he interpreted as a strike threat and commented that the Company was not "going to be pushed or shoved," and "intended to negotiate fairly and in good faith on their contract and on (their) own proposals that (the Company) would have later." At the outset of the October 15 meeting Gillespie, the company attorney, made a statement about the Company's financial position coupled with a request that negotiations be deferred for a year .8 Gillespie, claiming that the Company was operating at a loss, pointed out that the plant had been brought into the community as a civic project to establish diversified industry; that some $600,000 had been raised by public subscription with which to build the plant to be used as an induce- ment to an outside firm; that the Carneys had been invited to establish in Bluefied and had borrowed money to equip the plant; and that "they were still in the process of training a lot of employees . . . and a great deal of the material which was being produced was below standard . . . and . . . had to be burned." Gillespie also indicated that the Company's "books were open. And that they would not be able to pay a general wage increase." Radford replied that he realized the plant was new, and that the Union would like to give "as much of a break" to the Com- pany as possible. He also reiterated that if the fringe benefits were brought "up to par with those prevailing in the furniture industry" the Union's wage demands "would be substantially less." From this point the negatiators proceeded with their article by article perusal of the Union's proposals. Again, little progress was made toward agreement. Radford indicated that he "intended to notify the Federal Mediation and Concilia- tion Service, and the Virginia Department of Labor." Turley said "We don't need them" and added that he was "suspicious of those fellows." Gillespie suggested putting a 2-hour limitation on the sessions but did not press it when the Union spoke against it. At the end of the meeting Gillespie said that he would write Radford as to when he would be available for another meeting. Outside, in an informal discussion between the two, Gillespie said that it appeared that November 7 would be the first open date. In this same discussion Radford told Gillespie and Turley "that it was going to take a substantial wage increase before they would be able to get over the hump on the contract." As he stated, Radford then wrote to both the Federal and State agencies referring to his previous filing of the 60-day notice on September 23 and indicating the exis- tence of a dispute within the meaning of Section 8(d) of the Act. On October 22, 7 Other examples of such concessions were that employees should not be required to take time off to offset overtime worked, and the agreement to pay time and a half for all hours worked in excess of 40 in any 1 week (both covered by requirements of the Fair Labor Standards Act). 8 This is from Rad'ford's testimony. In his testimony Turley claimed that the request for a year's deferment was only with respect to wages and matters involving financial cost to Respondent. I see no need to resolve this conflict. Quite likely both versions reflect each side's honest interpretation of the statement. 535828-60-vol. 125-16 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Radford wrote the Company complaining of the delay between meetings and inquir- ing if the tentative November 7 date was open. The Company's letter suggesting November 7 as the next meeting date crossed Radford's in the mail. The November 7 meeting took place as scheduled. The Union presented a revised vacation proposal encompassing a percentage type base. The proposal called for a vacation period of the first 2 weeks in July of each year with payment of 2 per- cent of annual gross wages for employees with 6 months' to 3 years' employment. 3 percent for 3 to 5 years' employment, and 4 percent for 5 years' or more employ- ment. It also provided for a pro rata payment to separated employees and the crediting of total employment to laid-off employees who return to work. The Com- pany objected to the July period and the Union agreed to a more flexible period. The Company also objected to the qualifying period of employment and the progres- sive percentages involved. As a counterproposal the Company suggested a 2 per- cent payment after 1 year of service. In this connection Radford pointed out that it was his understanding that during the union campaign the Company had granted paid vacations to all employees with 60 days' service. Turley's reply was "that that was during the time when other plants in the area were closing down for vacation period, and that Mr. Carney just felt like giving them a vacation." It was in this meeting that the Union made its wage demands known-25 cents an hour across the board. Gillespie countered with another statement as to the Company's inability to meet any wage or other cost demands. He again suggested a year's moratorium on any bargaining involving money but this time suggested that at the end of that time the Company would "put in an appropriate wage increase, or negotiate a profit sharing plan." Radford's reply to this was that it appeared that the Company was trying to "crowd" the Union into a strike and that it would be an unfair labor practice strike because of the unilateral increases the Company was giving the employees. Gillespie commented that "Just because you won an election in this plant is no sign we're going to stop doing things for our employees." The Company also indicates that it was not intimidated by any strike threats. Radford then said that since the Company was pleading financial inability, he wanted it to provide the Union with "financial information and data to back up this position." When asked to specify what data he wanted, Radford said he wanted to consult counsel. In addition to learning the wage demands of the Union at this meeting the Com- pany also inquired what the Union's fringe demands were. Radford stated those that he "attached the most importance to," naming 2 hours reporting and call-in pay,9 the vacation plan, paid holidays, and a proposal that the Company pay the Blue Cross-Blue Shield premiums the employees were carrying. The latter was offered as a substitute for the Union's original health and welfare proposal. At the end of the meeting, which came about 10:30 p.m., the Company gave the Union its typed counterproposals. When Radford told the Company that he thought it was about time they got serious in the negotiations, Turley replied, "I don't know about the union representatives, but the company representatives have already spent more time on these negotiations than they had intended. Maybe we can wind it up at our next meeting." Radford had to attend a convention November 21, 22, and 23. Since the Company claimed it could not meet on any date before the 21st, it was agreed that the next meeting would take place on November 25. The November 25 meeting, fourth and last of the fruitless negotiations between the Company and the Union, took place as scheduled. After some discussion on the Company's proposals, the Company again asked the Union to state its wage and fringe demands. Radford did so. The Company asked if these were the Union's minimum demands. Radford replied, "That's a fair assumption." The Company then caucused. When the meeting resumed, Gillespie again proposed that nego- tiations be deferred for 1 year on anything involving cost to Respondent. At this point Radford reviewed the negotiations as he saw them. He stated that while pleading financial inability the Company had "been unilaterally granting wage in- creases to the employees at the plant, including (his) negotiating committeemen; that they were proposing no paid holidays and they previously paid holidays. . that they were offering a vacation plan that contained less than what they had paid the employees prior to the negotiations." Radford continued, saying that the Respondent was offering less than the employees had enjoyed prior to selecting the Union as their bargaining agent. He also stated that the Company was "bargaining in bad faith, and had just about exhausted (his) patience," and added that it looked like the Company was truing to force a strike. Receiving no offer to alleviate the situation, Radford told his commitee, "We may as well go," which they did. 9 The Union had reduced its demand from 4 hours to 2 hours. THAYER, INC. OF VIRGINIA 231 At noon next day in a parking lot near the plant the employees voted to strike and did not return to work. Picketing began the next morning. Prior to the picket- ing, Radford called the employees across the road from the plant and "told them that they had the right to peacefully picket the plant facilities, and that they were not to engage in any coercion, intimidation, threats, violence, damage of property, not to bring any whiskey to the picket line, that it sometimes caused difficulties, and that (he) didn't want a large number of pickets across the road, that (he) wanted a small number of people there." On the day that the picketing started, a representative of the Federal Mediation and Conciliation Service called Radford and informed him that he had arranged to meet with the Company on December 3 and wanted to meet with Radford on December 2. Neither meeting took place but not by reason of any action on the part of the Union. On December 3, Radford called Gillespie about a meeting. Gillespie said "he didn't see how he could meet that week." Radford then called Carney who said, "Maybe we can meet in the evenings" and promised to contact Gillespie and Turley. The latter called Radford back and said, "he didn't see anything to meet about"; that the Company "was let down" by the Union "having left the meeting"; that the Company had nothing in the way of money to offer and that to meet would be a waste of time. On December 11, Radford called Gillespie again and asked if the Company wanted to "continue . negotiations." Gillespie said he would check and call back. The next day he sent a wire to Radford stating that there had been "no change" since Turley's conversation with him. On December 17, Radford called Turley and asked if "there was any possibility of getting the negotiating committees together." Turley said "he didn't know of any change" and told Radford that any decision by the Company about resuming negotiations was up to the elder Mr. Car- ney. Turley also said that he had refused another offer of the Conciliation Service to step in. The following day Radford called Gillespie to see if there was any chance of getting a meeting. Gillespie said, "It doesn't look like it." On December 31, Radford called Gillespie from Morgantown, West Virgina, and asked if there had been any change in attitude about meeting with the Union. Gilles- pie said if there was any change he was not aware of it. Radford said it does not look like the Company wants to meet. Gillespie said, "No, it doesn't." The following day Radford wrote the West Virginia Department of Labor in an effort to enlist its aid. On the same day he also wrote the Company referring to his several past requests for a meeting and again offered "to meet and confer with representatives of the Company for the purpose of negotiating further on the unre- solved issues. ." On January 8, Radford went to see Gillespie in Tazewell and asked "if the Company had decided" to meet with the Union. Gillespie said he knew of no such decision. Radford also gave Gillespie some Board citations in- volving "unilateral changes in wages, hours and working conditions." On January 9 the West Virginia Department of Labor wrote both parties offering its services of mediation and conciliation. On January 12, Radford wrote the Company referring to his many previous unanswered requests for a meeting and again made such a request. In a separate letter to the Company on the same date he asked the Com- pany to supply the Union with certain specified financial data which he described as being "necessary in order that the Union may adequately analyze the Company's financial ability or inability to grant wage increases, and for the purposes of collective bargaining generally.li In this letter he also asked for the names, job classifications, and rates of pay for every employee in the bargaining unit. On January 17, Radford again wrote the Company requesting the names of all employees granted unilateral increases since September 10, 1957, and the amount granted in each instance. In a separate letter to the Company on the same date, Radford again requested a bargainng meeting. He also stated that he had been informed that the Company had declined the offer of assistance from the Federal Mediation and Conciliation Service and in its place suggested that the West Virginia Department of Labor be called in. Additional requests for a meeting were made to the Company either orally or in writing by Radford on January 27 and 31 and February 3, 5, 10, and 12. None of the Union's written requests for meetings or for 10 Requested at this time was 1. Profit and loss statement for period January 1 to December 31, 1957. 2. Opening and closing balance sheets for the same period. 3. Detailed analysis of surplus account. 4. Detailed explanation of current and future financial prospects. 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD information were ever acceded to or answered . Nor were any of its oral requests: granted. In the evening of February 12, Radford met with the striking employees who voted to abandon the strike and return to work. Individual requests for reinstate- ment . were received by the Company on February 14 from all those named in the complaint except Nancy Parker, Harold L. Miller, and Albert Crist whose requests were received by the Company on February 15.11 Contentions and Conclusions on the Refusal to Bargain The General Counsel contends that "the pattern of the bargaining , when viewed as a whole . . . establishes that Respondent was adamant in its determination to retain unilateral control over the essential conditions of employment and thus fell far short of satisfying the statutory requirement to bargain in good faith ." In this connection, the General Counsel points to the unilateral increases granted the em- ployees from the time the Union became their certified bargaining agent and to Respondent's failure to produce financial data requested by the Union . Both these items are claimed by the General Counsel to be separate and independent violations of the bargaining requirement of Section 8(a) (5) of the Act. They also are signif- icant when viewed as part of the entire picture, the General Counsel says , in show- ing Respondent's failure to bargain in good faith . This failure, according to the General Counsel, is further demonstrated by (a) the limitation on the authority of Respondent's negotiators to bargain on anything involving cost to Respondent, (b) Respondent's proposal to defer negotiations for a year , and (c) "Respondent's careless and indifferent attitude toward negotiations ." Furthermore, the General Counsel contends, the Respondent's refusal to meet with the Union after the strike began "was not only a violation of Section 8(a) (5) in and of itself, but also clearly reflects Respondent's determination not to deal with the Union from the outset." By the General Counsel's theory the strike which occurred was caused by and prolonged by Respondent 's refusal to bargain and thus was an unfair labor practice strike. The Respondent contends that the Company bargained in good faith to an impasse which "arose primarily from matters involving money, including both wage rates and certain fringe benefits ." On this premise, of course , the strike was purely an economic strike. Besides engaging in "conduct which was inconsistent with the free atmosphere conducive to successful bargaining," by starting and punctuating its bargaining with strike threats, the Union, according to Respondent , maneuvered to make an economic strike appear to be an unfair labor practice strike. This it did by demanding records it hoped the Company would refuse. When it became ap- parent that the Company would make the records available, the Union's scheme failed and it dropped the matter . The unilateral increases complained about by the Union and relied upon by the General Counsel as evidence of a refusal to bargain are defended by Respondent as simply a continuation of a company policy inaugu- rated before the advent of the Union and totally devoid of any purpose to undercut the Union's status as bargaining agent of the employees . Respondent further con- tends that the Union sponsored and was responsible for various acts of misconduct in connection with the strike (to be alluded to later herein ) and that as a result any obligation it had to bargain with the Union as suspended during the occurrence of such acts. 11 Named as discriminatees in the complaint , as amended, were : George Bandy Sylvia L. Harless Milton F. McBride George E. Barrett James A. Hicks Nancy Parker William L. Belcher Allan C. Hildreth J. A. Payne Bernard Billings Mary J. Hill Kermit Penland Harold W. Blankenship Emory W. Howard Vincile Perkins Clarence Leon Bryant James Howard R. J. Ritter Clyde F . Bryant Howard G. Hubbard Taylor E. Roberts Herbert Chapman Elbert M. Hudgins Monroe Semans Mildred Cole Harless Jennings Flora Short Albert Crist Carrie M. Keller Fannie M, Stallard Floyd L. Dale Earl Roger Lacy S. P.'Thompson Maggie F. Farmer Ada Lester Kenneth Watkins Bob Garbish Lucille Lewis Vivian A. Watkins Garnet D. Goodman Josephine Loretta Lockhart William C. Williams Denver Graybeal Harry L. Miller Chester Workman Lucy A. Hale James E. Mitchem Dean O. Wright David A. Hall Lora J. Munsey THAYER, INC. OF VIRGINIA 233 In substance, I agree with the General Counsel's contentions. I believe and find that the record as a whole shows by a preponderance of the evidence that Respondent did not approach or fulfill its bargaining obligation in good faith as required by the Act.12 Superficially, it may appear that Respondent was simply engaging in hard bargain- ing which conceded little or nothing as was its right under the law. But the incon- sistencies of its bargaining positions and the anomalies of its attitudes belie the legality of its motives. For instance, at the outset of the negotiations Turley stated that the Union's demands appeared to him to be such as to request 15 or 20 years of bargaining elsewhere and would require considerable study before the Company would be ready to negotiate on them. Yet after spending less than 8 hours in bar- gaining sessions and before the Company had presented its counterproposals Turley commented that the Company had already spent more time in negotiations than it had intended. Likewise, notwithstanding Turley's comment to Radford about the Company's desire to get started on negotiations as soon as possible after the election, this eager attitude apparently had no effect on the setting of the bargaining dates- even the first one. Nor, apparently, did it prevail when Gillespie sought to limit the period of the bargaining sessions to 2 hours. Later on, moreover, Turley indicated that the Company was going to be in no hurry to negotiate a contract thus enabling the Union to "move on and organize another plant." Evidence such as this when viewed in the context of the entire record leaves me with the impression that the Company was something less than enchanted with the Union and the con- cept of collective bargaining. But there is nothing in the law that requires an employer to love the Union which has been certified as the collective-bargaining agent of his employees; the law only requires that he bargain with such a union in good faith. The nice point in this type of case always is to determine when distaste for the Union really had developed and been translated into a resolution not to engage in genuine bargaining or to enter into a contract. In this connection here, I believe that the circumstances surrounding the individual wages increases granted by Respondent provide the key to the question. There are two divisions in Respondent's plant, the wood division directed by Walter Waaranen, and the mattress and metal division directed by Q. W. Tanner, both of whom have the title of superintendent. All wage raises are made by the foreman, usually in concert with either of the superintendents who are independent of each other in authority over their own divisions. According to Waaranen's testimony, merit increases are based on the employees' "production and the quality of their workmanship." There is no doubt, and I find that most of the employees were informed of this fact when they were hired. As noted, the Company had people working for it as early as November 1956. By the end of December 1956, the evidence shows a total of 19 hires. In the month of January 1957, the Company hired some 25 people. Seventeen were hired in February and twenty-six in March. By the end of March, the Company had made only a total of nine individual increases, six in April and three in March. But in April, the month that the union campaign began, 45 individual increases were given. Thereafter, except for the month of July (when only 5. increases were given) the number of increases per month were 25 in May, 30 in June, 33 in August, 41 in September, 33 in October, and 4 in November.13 During 1957 approximately 227 individual increases were given by Respondent to about 148 different employees. During that period the highest number of employees on the payroll at any one time was 163 as of September 1, 1957. At the time the strike started there were about 154 people on the payroll. These figures raise some questions even when viewed without the aid of the sur- rounding circumstances. Rather than merit increases, the extent of these increases certainly give them the appearance of a general wage increase. Also the sharp gain in the incidence of the increases coinciding with the advent of the Union's organizing campaign in April would seem to indicate some connection between the two. But more damaging to Respondent in this connection is the inconsistency of its positions 12 See Bonham Cotton Mills, Inc., 121 NLRB 1.235, where the Board, on the basis of the totality of the record which included unilateral acts by the Respondent, a lack of sufficient authority in its bargaining agent, and other conduct found that "Respondent did not bargain in good faith, but merely entered into sterile discussions with the Union," and did not make "a reasonable effort to reach an agreement as required by the Act." la Waaranen became superintendent of the wood division about July 1, 1957, having worked with the previous superintendent during the month of June. Waaranen explained the small number of increases in July on the basis of his then unfamiliarity with the work of the individual employees. 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD herein. While claiming financial inability to grant any concession involving cost,14 the Company was giving enough individual increases to equal or exceed a general wage increase. Moreover, while claiming that these increases were based on the improved quality and quantity of individual production, the Respondent was also protesting to the Union the high incidence of faulty production that was occurring and complained about other shortcomings of the employees.15 For these reasons, and considering the record as a whole, I am convinced that Respondent's actions regarding the wage increases it granted during the union campaign and after it had been certified as the collective-bargaining agent of the employees were motivated in substantial part by the desire and purpose to undercut and discredit the Union as the bargaining agent of the employees and so find. However, even if I were to conclude that the increases would have been made in the same amount and number regardless of the Union's appearance in the plant, I would still find that by continuing to make them after the Union became the certified bargaining agent of the employees and after the Union protested the making of them, as it did on more than one occasion, the Company was committing an unfair labor practice within the meaning of Section 8(a)(5) of the. Act. May Department Stores, d/b/a Famous-Barr Company v. N.L.R.B., 326 U.S. 376, 385; N.L.R.B. v. Armstrong Cork Company, 211 F. 2d 843 (C.A. 5); Beacon Piece Dyeing and Finishing Co., Inc., 121 NLRB 953. Having found that Respondent refused to bargain with the Union as indicated it is apparent, and I find, that said refusal to bargain was the direct cause of the strike which began on November 26. Thus, from its inception, the strike was an unfair labor practice strike. I also find that Respondent's conduct after the strike commenced further violated its obligation under the Act to bargain and tended to prolong the strike. Not only did Respondent's failure, after the strike began, to acknowledge or accede to any of the Union's numerous requests for meetings con- stitute further violations of its duty to bargain, but its failure to supply at least the profit and loss statement and balance sheets and payroll data requested by the Union in its letters of January 12 and 17, constitute further and independent violations of its duty to bargain. N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149; Shoreline Enter- prises, 117 NLRB 1619. In reaching these conclusions I have considered and re- jected as being without merit Respondent's contention than numerous acts of violence, vandalism, and misconduct in connection with the strike were sponsored by the Union and consequently suspended any obligation on the part of Respondent to bargain with it. To show the Union's connection with and responsibility for said conduct, the following evidence was adduced: According to the testimony of Lloyd Cackler, a witness called by the Respondent, early in the strike "Red" Warner, the then business agent of the Union, told Cuckler (who was then striking but later abandoned the strike to return to work) that the strikers were "going to have to get rough" if they expected to keep people from crossing the picket line. On another unidentified occasion, Warner told the strikers that "the union would protect them on anything that they done." Warner did not testify. James H. Moorehead, another of Respondent's witnesses, testified on direct exami- nation that he heard strikers on the picket line make the statement that they ought to get rough to which Warner agreed saying that "probably they'd have to get rough with them before they could stop them from entering." On cross-examination, how- ever, Moorehead testified that Warner's reply to the suggestion by the strikers that they ought to get rough was "that would be one way of handling them." Moorehead also testified that on another unidentified occasion Warner had said that the Union "would stand behind (the strikers) in anything that was done, they would pay the fines if anything happened." Moorehead also testified that at a union meeting he heard some strikers make the suggestion that they would have to get rough and that Radford commented "that was one way of doing it." Clarence Matthews testified that one morning soon after the strike started, he heard Radford tell a group of strikers, "I'll get you out of anything you do up to murder." In his testimony, Radford categorically denied the statement. Herbert Dillon, another of Respondent's witnesses. testified that he heard com- ments by strikers about "getting tough or tougher" but that he never heard such remarks by either Warner or Radford. 14 Even such a minor and remote one as paying the employees the difference between their rate of pay and that earned by them when called for jury duty was rejected by the Company in the negotiations. 'a Turley testified that one of the serious problems confronting the Company at the time of negotiations was absenteeism. THAYER, INC. OF VIRGINIA 235 Early in the morning of January 13 a crowd of strike sympathizers, estimated by various witnesses to be anywhere from 50 to 500 strong, collected at the plant. As the nonstriking employees began to arrive trouble commenced. Car windows were broken, cars were stoned, and one car was overturned after having hit one of the people in the crowd. By 6:45, the turmoil had ceased and the crowd had left or was on its way. Cuckler testified that it was still dark as he arrived at the plant that morning about 6:45. Several cars were leaving. About 125 yards from the plant he saw Warner's car, a gray Studebaker, parked at a gas station. John D. Dority, Jr., a witness called by Respondent, testified that he arrived at the plant that day at 6:30. The crowd was blocking the entrance so he put his car in low gear and "pushed on through." As they proceeded someone broke a side window. People were "hollering and hammering on the car," and rocks pelted it all the way down to the plant. A few minutes later he was standing in the office of the plant watching as the crowd left. The office was situated about 90 feet from the highway upon which the departing traffic was moving. Among the cars he saw leave was Radford's-a black and white Buick.16 He could not see the occupants of the car, however. Dority also testified that as he turned into the driveway to the plant that day he saw 20 or 30 people he could recognize as employees of the plant. Clarence Matthews, another striker who had abandoned the strike to return to work and who arrived at the plant at about 6:30 on January 13, testified that his car was stoned and he was cursed as he pushed through to the plant in low gear. He named eight individuals he was able to recognize in the crowd at that time, among them being "Red" Warner, the union business agent. Another witness for Respondent, William T. Johnson, testified that by the time he arrived at the plant on January 13, the car had already been turned over. A big crowd was blocking the entrance so he "busted on in, and they just scattered." A rock broke his right window. Johnson claimed to have recognized George Bandy and Doug Harris, the former "scratching around there getting rocks as fast as he could, and throwing them." Johnson also saw Taylor Roberts, Fannie Stallard, and Lucy Hale there. He also placed Radford at the scene that morning."' Charlie Hollingsworth, another nonstriking employee who was called by Respond- ent, testified that he had ridden to work on January 13 with the above William T. Johnson. As they drove through to the plant he recognized two strikers standing at the side of the driveway-Taylor Roberts and George Bandy. He saw neither one throw anything. Two other pieces of evidence complete the picture of the Union's alleged sponsor- ing of and responsibility for the strike misconduct: 1. On at least one occasion Radford was seen taking pictures of the nonstriking employees' cars as they were leaving the plant. 2. About a week after he abandoned the strike and returned to work on January 7, according to Cuckler's testimony, two strikers, Henry Neal and one South, came into a restaurant that Cuckler helped out at in his spare time and ordered a glass of milk. There were other customers in the place at the time. Neal told South (in Cuckler's hearing), "We can't get him in here, we'll have to wait 'till we get him outside." With that they went outside and joined several other strikers among whom was "Red" Warner. After about 5 minutes the group left. In rebuttal for the General Counsel, Fannie Stallard testified, among other things, how she came to the plant to picket on January 13 with Lucy Hale between 6 and 6:30; how they found the strangers there who informed them they were taking over the picketing; how they went back to Asbury's store with their picket signs; how when they came out of the store they found Bill Spencer who had been hit by one of the incoming cars and who wanted to see a doctor; how they took 'him to a doctor in Pocahontas who examined him and told them to take him to a hos- pital; how they drove first to "Red" Warner's home some 9 or 10 miles out of Pocahontas and some 15 to 18 miles from the plant and told Warner about the situa- tion at the plant; and how he told them he would go down to investigate. In his testimony Radford denied being at the plant that morning or for that matter being in the Bluefield vicinity at all that day. Taylor Roberts also denied being present. He testified that he was in Cincinnati on that date. 16 another of Respondent's witnesses, Ronald Tanner, the driver of the car which was turned over, also testified about seeing Radford's car on that morning which he de- scribed as green on the body and cream or gray on top. The car he saw was "approxi- mately that description." "On cross-examination Johnson was asked why he had not named Radford as being among those present in the statement he had given the. Board. Johnson replied that he had only been asked about employees being present. 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The foregoing evidence, in my opinion, is insufficient to show that the Union sponsored or was responsible for the misconduct occurring in connection with the strike and I so find. The evidence is too vague, conflicting, and indefinite to prove Respondent's contention. Seeing automobiles that look alike is not unusual these days. And to rely upon the remarks attributed to Warner and Radford about getting the employees off for anything they did in connection with the strike (even if made) without more details as to the circumstances under which they were made and what else was said would be unwarranted. Besides lacking details as to when and where some of these remarks were supposed to have been made, the witnesses were unable to testify as to anything else that was said by either of the two union representatives or anyone else concerned. I specifically reject the testimony regarding the remark attributed to Radford and credit his denial thereof. I also find that Warner's remark in substance simply agreed that one possible way of keeping people from crossing the picket line was to engage in violence-a self-evident fact. In concluding as I do I rely in part on testimony by Radford and several of the General Counsel's wit- nesses that both Radford and Warner gave repeated and detailed admonitions to the strikers against engaging in any misconduct. As for the remarks about getting tough, a comment that getting "tough" with the nonstrikers "would be one way of handling them" can hardly be said to indict the Union in this matter. In rejecting the testimony about the presence of both Radford and Warner at the disturbance of January 13 I am swayed by Radford's testimony denying his presence and that of Fannie Stallard about her trip with the injured Spencer to Warner's home that morning. I also have been influenced by some in- consistencies in Respondent's evidence and by what I consider to be some inherent improbabilities therein. For instance, Johnson, who placed Radford at the scene on January 13, testified also that he saw George Bandy as he drove in that morning, "scratching around there getting rocks as fast as he could, and throwing them." Yet Hollingsworth, who rode in with Johnson that morning, saw Bandy standing by the side of the driveway, throwing nothing. Also, several of Respondent's witnesses testified that it was dark when they arrived at the plant on January 13 18 and that they drove on through without stopping, usually under a barrage of rocks. Yet many of these people testified how they recognized several strikers-Matthews named 8 and another claimed to have recognized 20 or 30. More credible and plausible to me is the testimony of Bernard Booth who testified that on the way in he did not see anyone he knew-that he was too scared to look and did not have time to look anyway and besides it was "fairly dark." 19 Respondent also contends that the Union's connection with and responsibility for the strike misconduct is further established by "its failure to disaffirm it" which failure implies "acquiescence and condonation." A similar theory was rejected in N.L.R.B. v. B.V.D. Company, Inc., 237 F. 2d 545 (C.A., D.C.). Having disposed of the question of the Union's responsibility for the strike mis- conduct, there remains the matter of its effect on the Company's obligation to reinstate individual employees 20 Respondent contends that "the evidence is over- whelming that strikers regularly engaged in blocking of ingress and egress by stand- ing in the middle of the Company's driveway and forcing cars entering or leaving the plant to go around them and pass through a water hole filled with roofing nails. By engaging in this conduct they were both blocking ingress or egress and engaging in malicious damage to property." That the pickets stood in the middle of the drive- way to the plant singly or in pairs is clearly established by the evidence. The evi- dence also establishes that at some point in the strike someone had thrown a quantity of roofing nails in driveway. But the evidence, notwithstanding these facts, does not in my opinion establish that the pickets were "blocking ingress or egress" or that they "engaging in malicious damage to property." 18 It hardly requires an almanac to recognize how dark it must have been at 6 :30 in the morning on January 13, only a matter of days past the winter solstice with its longest night of the year. 10 Several of Respondent's witnesses identified none on this occasion. In this group were Herbert Dillon, Harding Thompson, Herbert Asbury, and Luther Underwood. The latter testified, ". . . it was dark, I could not tell who was there. . . .. He also testified that it was way after 7 o'clock before it became light. 20 The strike, being an unfair labor practice strike, imposed upon Respondent the re- sponsibility of reinstating the striking employees upon their unconditional offer to return to work, displacing if necessary, anyone hired after the strike began. Consequently by failure to comply with the strikers' mid-February unconditional offers to return to work, Respondent violated Section 8(a) (3) of the Act. THAYER, INC. OF VIRGINIA 237 The access driveway to the plant presumably came out of the plant property perpendicularly to the highway. There was a high spot in the center of the drive with ruts or declivities on both sides caused by the wear of traffic in and out of the plant. During wet weather these depressions would fill up with water and at times were muddy. Whether there were two ruts on each side of the center or only one I am unable to determine from the record . However, the evidence is clear and I do find that the driveway was wide enough to accommodate two cars abreast and that cars often came down the driveway from the highway in that manner and came out to the highway the same way . I also find on the basis of Fannie Stallard's uncon- troverted testimony that the sheriff advised the pickets to stand in the center island of the drive as "the safest place not to block the traffic " and where the cars could pass on each side of them . The evidence also shows that the pickets on the driveway usually carried a flashlight . According to some of the Respondent's witnesses the pickets flashed the light in the eyes of the drivers, trying to blind them. This was denied by the General Counsel's witnesses who claimed their only purpose in using a light was to protect themselves from oncoming cars in the dark- ness. There was also some testimony by Respondent 's witnesses to the effect that the pickets often cursed them as they drove through the picket line. The General Counsel's witnesses also denied this with the unanimous claim that they never spoke at all to the people passing through the line. While I have some doubts about the pristine purity with which the General Counsel's witnesses would have me believe they deported themselves in the strike, I am of the opinion, nevertheless, that none of this evidence reflects conduct of sufficient seriousness to cause a forfeiture of the right of reinstatement of any of the strikers involved . At the most, the only impediment suffered by the employees crossing the picket line would appear to have been a sense of inconvenience or irri- tation. The conclusion I have reached about this matter might be different if it were shown that the pickets were responsible for the presence of the roofing nails in the driveway or knew of their presence .21 But this was not shown. Vincile Perkins is one of the strikers who has already been denied reinstatement by Respondent on the basis of information concerning misconduct toward two then nonstriking employees. Under the doctrine of .Rubin Bros. Footwear, Inc., et al., 99 NLRB 610, an employer's good-faith belief that such conduct occurred would be an adequate defense to a requirement of reinstatement unless the General Counsel came forward with evidence showing that the conduct did not occur. The facts regarding Perkins are these: Roger Walker, Respondent 's purchasing agent, was informed by one of the nonstriking employees that her son , an 18-year-old boy by the name of Bobby Baughman and his 18 -year-old friend, Bobby Layne, both nonstriking employees of Respondent, had been accosted by strikers Vincile Perkins, Roger Lacy , and two other young men one night during the strike at a store frequented by young people. According to the report, Perkins had invited Baughman and Layne to come outside and fight. The storekeeper had ordered Perkins and Lacy to leave and had told Baughman and Layne to leave by the back door to evade their molesters. This information was passed on to Superintendent Tanner in whose department Perkins worked. Bowman, the storekeeper, testified that Perkins and others were outside in front of his store. Perkins asked Bowman if they could come in and talk to Baughman and Layne. Bowman told them they could not, that he did not want any trouble there. Inside the store Bowman told the two youngsters that the fellows outside seemed "to be kind of mad at you about this strike, and I would not go out there until they left." He also testified that Perkins and his group left before closing time and that he could not recall whether they ever came into the store. Baughman testified that the group (Perkins, Lacy, Randolph Scott, and Bobby Ward) came inside and brought up the subject of the Union . Someone, Baughman was unable to remember who, said, "if either of you think you can whip us, come on outside." Someone also said that if they did not stop working they "might get hurt." In the conversation the boys agreed to stay out until the first of the year.22 Baughman further testified that "everybody was friends when they left. They did not have anything against us and we did not have anything against them ." Layne testified that while Perkins did most of the talking on this occasion, he believed that 21 One of the pickets who later abandoned the strike and returned to work testified that while he was on strike he saw some nails-in the driveway and kicked them out saying he did not believe in such things. 22 This they did. 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lacy tendered the invitation to come outside. He also testified that "it was a friendly conversation . as it developed." Perkins denied making any threats on this occasion or hearing any made.23 Ac- cording to his testimony, he told Baughman that they were out on strike and would "appreciate it if he'd stay out with" them. Lacy's testimony corroborated Perkins. Neither Perkins' nor Lacy's version sounded convincing to me. I credit Baughman and Layne. At the end of the strike, Perkins was interviewed regarding reinstatement by Tanner along with other strikers among whom was James Mitchem. Tanner told Mitchem at this time that he could not be rehired until a West Virginia indictment against him was dismissed. No mention, however, was made to Perkins at this time regarding the Baughman-Layne incident. Later, Tanner learned that the Company had filed an NLRB charge against Perkins. On May 15, Lacy was recalled to work by the Company.24 Nothing about this matter was ever mentioned to Lacy until sometime in June when he was questioned about it by the company attorneys in the preparation of their defense. Even though I find that Baughman and Layne were threatened with harm if they did not join the strike and that Perkins was involved in the matter, I believe and conclude that on the record herein to deny him reinstatement on this ground would be unjust and is not required by the Act. While the evidence shows that Perkins did most of the talking, it would appear that Lacy was the one who tried to start the fight. It seems to me that both Lacy and Perkins were equally guilty in this matter. The Company has seen fit to take the position that Perkins is not worthy of rehire yet at the same time his equally guilty partner is obviously acceptable to the Company and is back on the job. It seems to me that by this conduct, the Company has condoned Perkins' transgression and has waived any right to resist his reinstatement or other remedy to which he may be entitled. I so find. Of those strikers listed in the complaint as having been discriminated against by Respondent, the Respondent's witnesses named eight who were at the scene of the January 13 trouble. Those eight were Fannie Stallard, Lucy Hale, Carrie Keffer, Loretta Lockhart, Taylor Roberts, Bernard Billings, William Williams, and George Bandy. All of them except Bandy were merely identified as being at the scene, either at the side of the driveway or in the crowd generally. Bandy, however, was claimed to have been throwing rocks 25 The testimony of Roberts, Stallard, and Hale, as far as their presence at the plant that morning was concerned, has been set forth.26 Lockhart testified that she was home in bed until 8:30 that morning and did not get to the plant until noon that day. Carrie Keffer testified that as she arrived at the plant she saw Stallard and Hale leaving. She went to the fire,27 and had a few words with Elbert Hudgins. At about that time the Tanner boy "came flying off the highway into the crowd." Somebody hollered, "Oh, God, he hit somebody." She turned and saw a man getting up. Keffer left and went home. Billings testified that he was home on January 13, 32 miles from the plant. Ronald Dillon was supposed to have picked him up but did not do so. Williams also testi- fied he was home in bed. Bandy testified that he got to the plant about 6:40. Hale and Stallard were still there. He stayed about 10 or 15 minutes and left. He heard rocks thrown but denied throwing any himself. With respect to all of the above eight except Bandy, it seems to me that the evi- dence (regardless if I should find all of them present which conflict I deem it unnecessary to resolve) is insufficient to show participation on their part in the illegal activity. All that the record shows is that they were there as was their practice at that hour throughout the strike. I so find. With respect to Bandy, however, I must resolve the conflict between Matthews and Johnson on the one hand and Bandy on the other. I have already indicated 22 Perkins and Lacy were both young men but appeared to be a few years older than Baughman and Layne. 24 The evidence also shows that on the basis of Mitchem's indictment being dismissed he also was rehired by the Company. 'Both Matthews and Johnson so testified. Hollingsworth on the other hand, testified that Bandy was not throwing anything. 26 Roberts claimed to have been in Cincinnati, it will ,be recalled, and Stallard and Hale had left the scene and had taken Spencer to the hospital via a visit to Business Agent Warner some 18 miles from the plant. 27 Since it was midwinter there was always a fire by the side of the road burning in an oil drum. THAYER, INC OF VIRGINIA 239 some skepticism about the ability of anyone driving into the plant that morning to see well enough to make any accurate observations A reading of Matthews' testimony on the events that day serves only to heighten this skepticism Not only did he name eight people he recognized, but went into considerable detail about what several of them said and did Johnson identified six on that occasion But his testi- mony about Bandy's throwing rocks was contradicted by another occupant of his car, Hollingsworth Since Johnson was driving and Hollingsworth was just a passenger it is apparent that Hollingsworth was in much the better position to observe I credit Bandy here and find that his presence on this occasion does not stand in his way to reinstatement On the first day of the picketing Henry Neal and Taylor Roberts met the bus Hollingsworth came to work on which stopped in front of the plant They got Hollingsworth and tried to convince him he should join the strike, telling him that the Union would help him Hollingsworth voiced no objection to going with them and talking to them They made no threats to Hollingsworth nor did they engage in any coercive conduct toward him However, Hollingsworth did not go to work that day and it would appear from his testimony that he was afraid to act any differently than he did 28 Under the circumstances Roberts and Neal can hardly be penalized for any element of coercion or intimidation experienced by Hollings- worth in this matter I find this conduct here to be permissible The day after the strike started, according to Matthews, he drove into the plant driveway as if he meant to go on but stopped Lucy Hale came over and said, "You rotten - -, you go back to work and I hope you get executed" Hale's version was that she opened his door and said, "You're not going back in on us, are you?" to which Matthews replied, "No, I'm not, I'm going to stay out with you " Hale also specifically denied the use of any profane language My observation of Hale would lead me to believe that she was not the type of woman who would use profanity gratuitously if at all And it seems to me that the pro- fanity attributed to her at this stage in the strike and the circumstances here could be characterized as completely gratuitous I credit her denial According to Matthews' further testimony, on Saturday, the first week of the strike, he went into the plant to get his pay and remained there for about an hour talking to his foreman When he came back he found one of the tires on his car had been cut Across the road from the car at the time were Williams, Billings, Stallard, Hale, all named in the complaint, and others Obviously, someone did not like Matthews But there is nothing here that implicates any of the above strikers Apparently there were a few striking employees who took it upon themselves to engage in a variety of vandalism of this kind There are numerous incidents involving vandalism, directed not only to nonstrikers but also to many strikers, committed by unknown persons There were also three or four strikers and strike sympathizers who were charged with numerous tire slashings and who pleaded guilty In addition, there are several incidents involving intimidation and force directed toward the nonstrikers by striking employees who for that reason were not named in either charges or the complaint, and which, for the same reason, I have not discussed Matthews also testified that after he returned to work a group of strikers, including William Williams, James E. Mitchem, and E L Hudgins, passed him in his car and thumbed their noses at him They slowed down in front of him and when he tried to pass them they prevented it They kept this up all the way to the plant, some 3 miles or so Near the plant entrance they signaled for a left turn but instead made a sudden stop in front of him nearly causing him to hit them Then they thumbed their noses at him and pulled away In their testimony the three strikers deny the incident On another occasion when Matthews was working on the roof of the plant, Billings and Mitchem and an unidentified female striker shouted at him from the road cursing him and another employee and saying they hoped he and the other nonstrikers starved to death This was also denied by the two strikers These last two items seem to me, when viewed in the context of the entire record, to be of an isolated and relatively inconsequential nature even if they occurred Furthermore, one of the accused strikers who was involved in both incidents was recalled to his job by Respondent In these circumstances it would seem that to exclude the other two from reemployment would be inimical to the effectuation of the policies of the Act rather than helpful I so find 23 Hollingsworth was the colored janitor, and so far as the record shows the only colored person employed in the plant 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce in the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Company. has engaged in and is engaging ,in certain unfair labor practices affecting commerce, I shall recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. It has been found that the Company refused to bargain collectively with the Union thereby interfering with, restraining, and coercing its employees. I shall therefore recommend that the Company cease and desist therefrom and from any like or related conduct, and also, upon request, bargain collectively with the Union with respect to wages, hours, and other terms and conditions of employment, and embody, in a signed contract, any understanding reached. It has been further found that the strike herein was an unfair labor practice strike, caused by the Company's refusal to bargain. I shall therefore recommend that the Company offer, upon application, immediate reinstatement to their former or substantially equivalent positions,29 without prejudice to their seniority and other rights and privileges, to all of the strikers, dismissing, if that be necessary, any re- placements hired; those strikers for whom no employment is available because of any change in the Company's operations shall be placed on a preferential hiring list for all jobs for which they are qualified, with priority determined among them by such system of seniority or other nondiscriminatory practice as heretofore has been applied in the conduct of the Company's business, and thereafter in accordance with such list shall be offered reinstatement as positions become available and before any other persons are hired for such work. I shall also recommend that the Company make whole such strikers for any loss of pay they may have suffered by reason of the Company's refusal, if any, to re- instate them, by payment to each of them of a sum of money equal to that which he would normally have earned, less his net earnings, during the period from 5 days after the date on which he applies for reinstatement to the date of the Company's offer of reinstatement. In view of the nature of the unfair labor practices committed, the commission by the Respondent of similar and other unfair labor practices may be anticipated. I shall, therefore, recommend that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is, and at all times relevant herein was, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Hod Carriers' Building and Common Laborers' Union of America, Local Union No. 453, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing to reinstate the striking employees whose names appear on Ap- pendix A herein, Respondent engaged in discrimination to discourage membership in a labor organization, thereby engaging in unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act. 4. All production and maintenance employees at Respondent's Bluefield, Virginia, plant, excluding all office clerical employees, guards, watchmen, professional em- ployees, 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. 5. At all times since September 10, 1957, the Union has been and now is the exclusive representative of all the employees in said unit within the meaning of Section 9(a) of the Act. 6. By failing and refusing to bargain with the Union on and after September 26, 1957, Respondent engaged in unfair labor practices proscribed by Section 8(a)(5) and (1) of the Act. [Recommendations omitted from publication.] 2D The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. FUNERAL DIRECTORS OF GREATER ST. LOUIS, INC. APPENDIX A 241 George Bandy Sylvia L Harless Milton F McBride George E Barrett James A Hicks Nancy Parker William L Belcher Allan C Hildreth J A Payne Bernard Billings Mary J Hill Kermit Penland Harold W Blankenship Emory W Howard Vmcile Perkins Clarence Leon Bryant James Howard R J Ritter Clyde F Bryant Howard G Hubbard Taylor E Roberts Herbert Chapman Elbert M Hudgins Monroe Semans Mildred Cole Harless Jennings Flora Short Albert Crist, Carrie M Keffer Fannie M Stallard Floyd L Dale Earl Roger Lacy S P Thompson Maggie F Farmer Ada Lester Kenneth Watkins Bob Garbish Lucille Lewis Vivian A Watkins Garnet D Goodman Josephine Loretta Lockhart William C Williams Denver Graybeal Harry L Miller Chester Workman Lucy A Hale James E Mitchem Dean 0 Wright David A Hall Lora I Munsey Funeral Directors of Greater St. Louis, Inc, St. Louis Funeral Directors Association and Alvin C. Trapf Miscellaneous Drivers and Helpers Local 610, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Alvin C. Trapf. Cases Nos 14-CA- 2064 and 1I-CB-729 November 20, 1959 DECISION AND ORDER On dune 16, 1959, Trial Examiner Charles W Whittemore issued his Intermediate Report in this case, finding that the Respondent Union and the Respondent Funeral Directors of Greater St Louis, Inc, had each of them engaged in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth more fully in the copy of the Inter- mediate Report attached hereto Thereafter, the Respondent Union and the General Counsel filed exceptions to the Intermediate Report together with,supporting briefs The Board' has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed The rulings are hereby affirmed The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following additions and modifications 1 The Trial Examiner found, and we agree, that, by maintaining and enforcing the discriminatory hiring and employment conditions established by the contract between them, the Respondent Union 1 Pursuant to provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Jenkins] 125 NLRB No 29