Edward E. Gurian & Co., Inc.

EDWARD E. GURIAN & CO., INC. 473 3. The Union was on June 22, 1959, and at all times since has been the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. By refusing on and after June 25, and July 3, 1959, to bargain collectively with the Union as exclusive representative in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 5. By changing terms and conditions of employment of Orville C. Miller and Ollie Gruben, on or about July 1, 1959, and by requiring and entering into a written agreement with them on or about November 1, 1959, changing their wages, hours, and terms and conditions of employment, and by entering into such agreements with said employees without consulting the Union, the Respondent engaged in conduct violative of Section 8(a) (5) of the Act. 6. By the said refusals to bargain or consult with the Union, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Edward E. Gurian & Co., Inc. and Local 1031, International Brotherhood of Electrical Workers, AFL-CIO. Cases Nos. 13--CA-3371 and 13-CA-3878. August 5, 1960 DECISION AND ORDER On March 25, 1960, Trial Examiner Owsley Vose issued his Inter- mediate 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 Inter- mediate Report attached hereto. Thereafter, exceptions to the Inter- mediate Report and supporting briefs were filed by the Respondent and the Charging Party.' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the Board has delegated its powers in con- nection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. 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.2 The Board has considered the In- 1 The Charging Party, while agreeing generally with the Trial Examiner's conclusions and recommendations, excepted to certain statements in the Intermediate Report, claim- ing them to be "gratuitous and irrelevant " We find no merit in these exceptions. The statements objected to are generally descriptive of the circumstances surrounding the unfair labor practices found herein , and, in any event , their inclusion in the Intermediate Report in no way prejudices the Charging Party with respect to the issues in the case. Nor do we find merit in its exception that Respondent's filing of a petition with the Board constituted an additional violation of Section 8(a) (5). 9 We deny Respondent's request for oral argument, as the record and briefs adequately present the issues and the positions of the parties. 128 NLRB No. 63. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD termediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' ORDER Upon the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Edward E. Gurian & Co., Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Local 1031, International Brother- hood of Electrical Workers, AFL-CIO, or any other labor organiza- tion, by discharging or refusing to reinstate employees, or in any other manner discriminating in regard to their hire or tenure of em- ployment, or any term or condition of employment, except as author- ized in Section 8(a) (3) of the Act, as amended. (b) Refusing to bargain collectively with Local 1031, Interna- tional Brotherhood of Electrical Workers, AFL-CIO, as the exclusive bargaining representative of its employees in the appropriate unit. The appropriate bargaining unit is: All production and maintenance employees of Respondent at its Chicago, Illinois, plant, excluding office clerical employees, professional employees, guards, and all supervisors as defined in the Act. (c) 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 labor organizations, including Local 1031, In- ternational Brotherhood of Electrical Workers, AFL-CIO, to bar- gain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2 In adopting the Trial Examiner 's conclusions and recommendations , we do not adopt his observations as to the "reasonableness " of certain proposals made by the Union, and the possible implication that Respondent was obligated to agree to the substance of these proposals It is well established that the Board may not pass judgment on the desir- ability of bargaining proposals , and the statute specifies that the bargaining obligation "does not compel either party to agree to a proposal or require the making of a con- cession " See , e g, N L R B v. American National Insurance Co., 343 U.S. 395. Our findings herein are in no way based on such observations or judgments. EDWARD E. GURIAN & CO., INC. 475 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer Leslie Innis, Marie Collins, Clarice Bolden, Willie Wil- hite, Robert Wilson, Lloyd Saunders, Bunny Polk, Mary Lou Stokes, Henry Moore, Ruth Hooker, and Lilly May Hammond full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of pay suffered by reason of the Re- spondent's discrimination, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secur- ity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Upon request, bargain collectively with Local 1031, Interna- tional Brotherhood of Electrical Workers, AFL-CIO, as the exclu- sive representative of its employees in the appropriate unit. (d) Post at its plant in Chicago, Illinois, copies of the notice at- tached hereto marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof and maintained for a period of 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notice is not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Thirteenth Region, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. 4 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 offer to the employees named below immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD privileges, and make them whole for any loss of pay suffered as a result of the discrimination against them : Clarice Bolden Henry Moore Marie Collins Bunny Polk Lilly May Hammond Lloyd Saunders Ruth Hooker Mary Lou Stokes Leslie Innis Willie Wilhite Robert Wilson WE WILL NOT discourage membership in Local 1031, Interna- tional Brotherhood of Electrical Workers, AFL-CIO, or in any other labor organization, by discharging or refusing to reinstate employees, or in any other manner discriminating against them in regard to their hire and tenture of employment or any term or condition of employment, except as authorized in Section 8 (a) (3) of the Act, as amended. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right of self-organiza- tion, to form labor organizations, to join or assist Local 1031, International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except as authoribed in Section 8(a) (3) of the Act, as amended. WE WILL, upon request, bargain collectively with Local 1031, International Brotherhood of Electrical Workers, AFL-CIO, as the exclusive representative of all our production and main- tenance employees. All our employees are free to become or remain or to refrain from becoming or remaining members of Local 1031, International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization. EDWARD E. GuRIAN & Co., INC. Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, in which all parties were represented, was heard before the duly designated Trial Examiner in Chicago, Illinois, on December 9 and 10, 1959, upon EDWARD E. GURIAN & CO., INC. 477 the complaint of the General Counsel and answer of Edward E. Gurian & Co., Inc., herein called the Respondent. Briefs were filed on behalf of all parties.' The issues litigated at the hearing were whether the Respondent, in violation of Section 8(a)(5) and (1) of the Act, has refused to bargain collectively in good faith with Local 1031, International Brotherhood of Electrical Workers, AFL- CIO, herein called the Union, and whether the Respondent, in violation of Section 8(a)(3) and (1) of the Act, has discharged and refused to reinstate 11 employees who allegedly went out on strike in protest against the refusal to bargain. Upon the entire record, and from my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. JURISDICTIONAL FACTS The Respondent, an Illinois corporation, is engaged in the manufacture, sale, and distribution of automobile accessories and related products. In the course of its business the Respondent annually ships finished products valued at more than $50,000 to customers outside the State of Illinois. Upon these facts, which are admitted by the Respondent, I find that the Respondent's operations affect commerce within the meaning of Section 2(6) and (7) of the Act, and that it is appropriate for the Board to assert jurisdiction. H. THE LABOR ORGANIZATION INVOLVED Local 1031, International Brotherhood of Electrical Workers, AFL-CIO, is a labor oragnization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Respondent's business The Respondent operates a small plant in which some 20 employees are normally engaged in simple assembly operations. During the Respondent's peak period, from the latter part of February to the early part of June each year, the Respondent employs an additional 20 employees. The business was begun by Edward E. Gunan and some years later, in 1953, Gurian's brother, Meyer, became associated with the enterprise. The business is now operated as a corporation; Edward E. Gurian and his wife own roughly 60 percent of the stock, and Meyer I. Gurian, 40 precent. These three individuals constitute the board of directors of the Corporation, and Edward is the president of the Corporation. Edward and Meyer function more or less interchangeably in the management of the business. They normally consult one another in the conduct of their day-to-day affairs and, so far as practicable, they make no decisions of importance without conferring with one another. They both participate in selling activities, and at such times when one is out selling, the other normally would remain at the plant to supervise the operations there. Mrs. Edward E. Gurian has nothing to do with the routine operations of the business. She may be consulted infrequently in connection with policy decisions of major importance. B. The organization of the Union; the discharge of the temporary workers; the strike On June 17, 1959, Albert DeVito, an organizer for the Union, passed out union authorization cards and other union literature to the Respondent's employees as the day-shift workers left the plant and the night-shift workers reported for duty. He continued these activities the next morning when the employees reported for work, and again the next evening at 4:30 p.m. Sixteen employees signed cards the first evening. Ten more signed the next day. Some of the employees signed the cards and immediately handed them back to DeVito. Others promptly mailed the signed cards to the union office. At this time the Respondent had about 20 extra temporary employees on the payroll, whom it had added the preceding February. On June 18, having caught up with its work, the Respondent terminated its tem- porary employees. As they left the plant, these employees reported to DeVito that they had been discharged. DeVito, admittedly assuming that the employees had been terminated because they had been seen signing union cards, immediately took the matter up with Edward Gurian. DeVito charged that the termination of these employees was an unfair practice, and requested that the employees be reinstated. Gurian refused to do so. DeVito announced that the Union was calling a strike at the plant to begin the next morning. I Subsequent to the 'hearing the Respondent filed a motion to correct the transcript. The transcript is hereby corrected as requested in the Respondent 's motion. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A substantial number of the Respondent's employees commenced picketing at the plant at 7:30 the next morning, June 19. C. The Respondent's recognition of the Union; the termination of the strike; the initial bargaining conferences Edward and Meyer Gurian went to the Chicago Regional Office of the Board about 9 a.m. June 19, and there consulted Mr. Klean about the Union's demand for recognition. Klean informed them that it might take 2 to 4 months to secure a Board-conducted election, and suggested that they contact Frank Darling, the presi- dent of the Union, to find out what the strike was all about 2 Early in the afternoon on June 19, DeVito, Darling, and Joseph Needham, another union representative, met with Edward Gurian and his brother in the plant office. Darling demanded that the Respondent recognize the Union and reinstate the dis- charged employees. Darling asserted that the Union would do everything in its power to bring about a cessation of the Respondent's activities unless the Respondent did so. Darling mentioned that the Union could call out over 500 pickets from the Webcor plant a few blocks away, and pointed out that truck shipments to and from the plant could be halted by the picket line. As they were talking, a truck was being stopped by the pickets and Darling cited this as an example of the consequences of opposing the Union. Edward Gurian questioned the Union's assertion of majority status. At Darling's suggestion, DeVito held up in his hand a batch of authorization cards and said that the Union had most of the employees signed up. Darling offered to submit the cards to any impartial third person for a check, but he added that what better proof could be had than the fact that a majority of the employees were outside the plant on the picket line.3 After a hasty conference with his brother, the Respondent agreed to recognize the Union. On its part, the Union, accepting the Respondent's explanation that the discharged employees were temporary employees hired a few months before to tide the Respondent over its peak production period, agreed that the Respondent could determine its employee needs, and that seniority, skill, and ability would govern the Respondent's retention of employees. With this understand- ing the strike was called off. On June 22, Organizer DeVito called on Edward Gurian and requested that he furnish the list of employees to be returned to work under the plan previously agreed upon. The Respondent complied with this request. On the same occasion De Vito left a proposed bargaining agreement with the Respondent for its consideration. On June 30, the parties held their first bargaining conference in the Respondent's office. Representing the Respondent were the Gurian brothers, and DeVito repre- sented the Union. DeVito suggested going through the Union's proposed contract section by section, and this was done The Guarians asked how various provisions would be applied in view of the Respondent's particular operational setup. DeVito said he would advise them at the next meeting. At this meeting the parties agreed that the Respondent's two group leaders, Greg Packnett and Bertha Crumes, would be excluded from the unit. The contract provisions were further discussed by the Gurians and DeVito at two bargaining meetings held on July 2,and 8. By the end of this latter meeting agreement tentatively had been reached on about two-thirds of the contract pro- visions. However, agreement had not been reached on any of the economic pro- visions. The July 8 meeting terminated with the understanding that the parties would again meet on July 16. D. Meyer Gurian's heart attack; the Union's subsequent unsuccessful efforts to induce Edward Gurian to set a date for a bargaining meeting On the morning of July 15, Meyer Gurian was stricken with a heart attack at the plant. The examining physician recommended that he be taken immediately 2 During the bearing I overruled an objection made by counsel for the General Counsel to the receipt in evidence of testimony concerning this conversation Subsequently, both counsel for the Charging Party and counsel for the General Counsel made motions to strike this testimony. Ruling on these motions was withheld In his brief to the Trial Examiner, counsel for the General Counsel again urges that this motion be granted. I adhere to my initial ruling and consequently deny the motions to strike 3 Gurian did not recall Darling offering to submit the cards to a neutral third party for a check. I credit DeVito's and Needham's mutually corroborative testimony that such an offer was made. EDWARD E. GURIAN & CO., INC. 479 to the hospital in an ambulance. That afternoon Edward Gurian attempted to reach DeVito by telephone, but was told that he was gone for the day. There- after Gurian spoke to all the employees in the plant. He informed them that his brother had suffered a severe heart attack and was in the hospital, that it was un- certain when he would be able to return, and asked them for "their cooperation and patience during this emergency." At the hearing Gurian explained his action in this regard by saying he knew the employees were "concerned" about the contract negotiations and thought it best to apprise them of this development. Pursuant to the understanding reached at the July 8 bargaining session, DeVito went to the plant on July 16 Edward Gurian informed DeVito that his brother, Meyer, had become violently ill at the office on the preceding day, that he had suffered a severe heart attack, and that he had to be rushed to the hospital in an ambulance. Gurian further told DeVito that his brother's physician had advised him that it would take 10 days to 2 weeks to make any kind of diagnosis of Meyer's condition, and that he did not know when he would be able to resume negotiations. DeVito in- formed Gurian that the Union was scheduling a meeting for the following day, and that he would have to have some idea as to his position regarding resuming negotia- tion so that he could keep the employees informed. Gurian stated that he and his brother acted as a team on all serious matters and that "he could not meet without the presence of his brother." 4 DeVito and Needham called on Edward Gurian again on July 17. DeVito again told Gurian about the union meeting scheduled for that evening and sought to obtain a commitment from him as to when he would resume negotiations with the Union. Gurian replied that due to the illness of his brother he could not give them a date, that he would not receive any report on his brother's illness for 10 days to 2 weeks, and that he would not meet until his brother was well enough to return to work. Devito pointed out that Meyer might be ill a month or so. Gurian continued to insist that he could not do so, that he had not yet received any medical report from the doctor, and that he would not resume negotiations until his brother was well enough to participate. DeVito expressed doubt that the employees would be satis- fied to leave the negotiations suspended in this manner without any date set for re- sumption. Gurian nevertheless adhered to his previous stand. Thereupon DeVito proposed that the negotiations be postponed for 6 months with the understanding that whatever agreement was reached at that time would be made retroactive to July 20 Gurian rejected the proposal. When DeVito asked whether Gurian had any counterproposal to offer, Gurian answered "no" he would not meet until his brother was well enough to come back to work .5 That evening the union meeting was held as planned. Thirteen employees at- tended. DeVito testified that he reported to the membership that Gurian had stated that he anticipated receiving a report on his brother's condition in a week or 10 days but that Gurian had refused to commit himself on continuing the negotiations. De- Vito recommended giving Gurian "another week in hope that during this week Mr. Gurian would see his way clear to resume negotiations." DeVito added, however, that the decision was "up to" the employees. After a discussion in which various employees participated, a majority of the employees voted to go out on strike on Monday, July 27, unless Gurian in the meantime indicated a willingness to resume negotiations. DeVito visited Gurlan in his office on July 20. According to an affidavit ex- ecuted by Gurian less than 3 weeks after the event, which Gurian affirmed as true at the hearing, the following transpired: 4 The testimony of Gurian and DeVito concerning the meetings between the two from July 16 to 20 is substantially in accord. The differences are largely differences of emphasis. Their testimony tends to diverge on the issue of whether Gurlan stated that he could not or would not meet with the Union until his brother was well enough to participate in the negotiations. On this point, the testimony of Gurian goes both ways. For the reasons more fully stated at the end of this section of the report, I credit DeVito's testimony on this point, and find that Gurian on this occasion made the state- ment last above quoted 5 Gurian testified that he did not recall meeting with Devito between July 16 and 20. Both DeVito and Needham were specific in their testimony concerning the July 17 meet- ing and gave sufficient details to convince me that their recollection was more accurate than Gurian's. In view of their mutually corroborative testimony concerning this meet- ing, and for the reasons more fully set forth at the end of this section of the report, I credit the testimony of DeVito and Needham regarding the events of the July 17 meeting, as above set forth. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the morning of July 20, Mr. DeVito came into my office and told me that at the employees' meeting of Friday, July 17, the employees had decided to give me one week to resume negotiations and to consummate an agreement on contract with the union. I told Mr. DeVito that unfortunately I was in the position whereby I still did not know about my brother's health, that he was still in the hospital, and that he was unable to sit down and discuss matters per- taining to negotiations at that time. I told Mr. DeVito that inasmuch as my brother was still in the hospital, that I not only had my own duties and work to perform but I also had to assume the duties and work that my brother usually performed and that ^I had too many pressing problems and business matters and that he would just have to wait until my brother's health was better so that he would be able to join with me in sitting down and resuming negotiations. Although DeVito commented one never knows when a man who has suffered a heart attack will be able to go back to work, Gurian again stated "that he would not negotiate until his brother was back to work." As indicated above, the testimony of Gurian and DeVito concerning the occur- rences at the July 16 to 20 meetings is largely in accord. However, on the crucial issue whether he informed DeVito that he would not meet until Meyer Gurian had recovered sufficiently, Gurian's testimony, as indicated above, is self-contra- dictory. Several times Gurian testified that he told DeVito that it would take 10 -days or 2 weeks to ascertain his brother's condition, that "he would have liked to have [his] brother with [him] inasmuch as we act as a team on all serious matters," and that he merely asked DeVito to give him "a reasonable length of time." This testimony leaves the impression that Gurian was merely seeking a temporary post- ponement. However, when asked at another point whether he had told DeVito that he "had too many pressing problems and business matters; that he would have to wait until [his] brother's health was better so that [his] brother would be able to join [him in] negotiations," Gurian answered "I did." And, when con- fronted with the affidavit which he had signed on August 5, when the events were fresh in his mind, Gurian admitted that it was true, as stated in the affidavit, that he had told DeVito on July 20 that DeVito "would just have to wait until [Meyer's] health was better so he would be able to join with me in sitting down and resuming negotiations." DeVito testified that at each of the meetings Gurian insisted that he would not meet until his brother could join him in the negotiations. Needham similarly testified as to the July 17 meeting. As appears hereinafter, Attorney Charone testified that Gurian, at the August 12 meeting, again declined to set a date for a bargaining meeting for the reason that he did not know when his brother would be well enough to participate. In view of Gurian's vacillating testimony on this point, his admission concerning his statement at the July 20 meeting, I credit the testimony of DeVito and Needham in this regard and find the facts to be as set forth in the preceding paragraphs. E. The strike; the Respondent's hiring of replacement employees and discharge of strikers; the Union's effort to settle the strike At noon on Friday, July 24, Union Representative Needham spoke with the employees in the plant lunchroom. He informed them that "due to the fact [that] Mr. Gurian had refused to talk with him concerning negotiations and that he would-it wasn't anything left to do but call a strike." On July 27, the Union established a picket line in front and in back of the plant premises. Nine out of the Respondent's sixteen production and maintenance employees joined the picket line. Subsequently, two other employees joined the strike. The Respondent continued to operate the business with the remaining employees. On the morning of July 28, the Union filed a charge with the Board alleging that although the Respondent had recognized the Union, since July 16, it had refused to meet and to bargain collectively with it, thereby violating Section 8(a)(5) and (1) of the Act. The Respondent received a copy of the charge on July 30, 1959. On Saturday, August 1, the Respondent made arrangements to hire seven new employees. They reported at the plant early Monday, August 3. The Respondent had previously replaced one of the strikers by transferring one of the office workers to production work in the plant. This made a total of eight replacements. About 9 in the morning of August 3, Gurian conferred with Mr. Jeffers of the Board's Chicago Regional Office about filing a petition for a Board-conducted election. With Jeffers' help, he prepared and signed such a petition. During this visit to the Regional Office, Gurian handed Jeffers a letter which had been previ- ously prepared stating that the Respondent questioned the Union's claim that it EDWARD E. GURIAN & CO., INC . 481 represented a majority of the Respondent's employees . At that time, as Gurian testified, 11 of its employees were still picketing the plant . As stated above, the total number of the Respondent's production and maintenance employees, prior to the hiring of the replacements , was 16 ( 19 minus Supervisors Packnett and Crumes and Night Watchman Wheeler). Later on August 3, the Respondent mailed letters to the employees it had replaced, notifying them that their services were being terminated as of that day. These letters were sent to the strikers having the least seniority. Darling, the president of the Union , called on Guarian in his office on August 10. Darling stated that he regretted that the strike had been called, and added that if he had been in town the strike would not have taken place. Darling proposed that Gurian agree to the wage increase previously suggested by DeVito and that the Respondent pay for the Labor Day holiday . In return, Darling stated, the Union would consent to a 90-day postponement in the negotiations , by which time Meyer presumably would be back to work. If the Respondent failed to agree, Darling stated, not only would the Union's strike activities be intensified , but also the Union would open a competing nonprofit plant and would sell to the Respond- ent's customers , using a list of such customers already in the Union 's possession. Gurian refused to agree, stating that when DeVito had first broached the subject he and his brother had decided that they could not afford such a wage increase. Gurian also added that he expected the Board to act soon on the Respondent's petition for an election .6 Sheldon Charone, the attorney for the Union, called on Gurian at the plant on August 12 . As I reconstruct the events on this occasion from the testimony of both Charone and Gurian, the following occurred. Charone inquired why Gurian would not accept Darling's wage proposal of August 10. In reply, as Gurian testi- fied, he reviewed the whole sequence of events in this case , stressing the Union's failure to grant a postponement . According to Charone's testimony, Gurian stated that he could not understand why the Union could not wait 3 more months so he could ascertain his brother's condition.? Charone, according to his testimony, brought up the subject of the proposal which had previously been made that the negotiations be postponed 6 months and that any benefits then agreed upon be made retroactive. According to Charone, Gurian said, no, that was not acceptable.8 Charone further testified that at that point he asked whether Gurian doubted the Union's majority status. Gurian said he did not . Charone then inquired, as he testified, why Gurian had filed the representation petition with the Regional Office. Gurian answered that it would give him some time to see if his brother was going to get better.9 Charone advised Gurian that if the Union could only be given some definite date when negotiations could be resumed, it would call off the strike.10 Gurian replied, according to Charone, that he could not set a definite date because the doctor had not told him when his brother was going to be well enough to participate. The discussion ended with Gurian commenting that he was going to see his brother's doctor that night, and that the next morning he might be able to give the Union an idea as to when his brother would be well enough so the negotiations could be resumed. Charone and DeVito again called on Gurian the next day, August 13. Charone testified that he had asked whether Gurian had met with the doctoi. Gurian said that he had, but that unfortunately the doctor was still unable to give any concrete 9 These findings are based on the testimony of Edward Gurlan . Darling was is Florida at the time of the hearing and was not called as a witness. Gurian testified that he did not state any specific length of time, but spoke generally about a "reasonable postponement " I credit Charone's testimony in this regard. 8 Gunan did not mention this proposal in his account of the August 12 meeting I credit Charone's testimony. B Gurian testified that he repeated to Charone what he had told Darling on August 10, as follows : It seems to me that I told Mr Darling that inasmuch as the Union had filed these unfair labor practice charges against us inasmuch as I doubted in my own mind whether or not the Union represented a majority of the employees and inas- much as we had presented a petition for an election to the NLRB, that we should let the National Labor Relations Board handle the matter Charone's testimony on this point was unequivocal, whereas Gurian's indicated that he was not sure in his recollection of these matters. I credit Charone's testimony above- set forth. ii On this point the testimony of Charone and Gurian is in agreement. 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD information concerning his brother's recovery, that he was still in a precarious condition, and that he had been advised to keep his brother free of all stress and strain. Charone further testified that he again asked whether Gurian could give any idea of a date on which the parties might sit down and complete the negotia- tions. Gurian said no, that he could not.ii Thereupon Charone handed Gurian a letter stating that the Union was termi- nating the strike as of 4 p.m. on August 13 and offering immediately to return to work all of the striking employees.12 Gunan stated that tthe Respondent would reinstate the three strikers whom it had not as yet replaced. The next morning Gurian handed DeVito a letter offering to reinstate Lilly May Hammond, Ruth Hooker, and Henry Moore, the three senior striking employees. This offer appar- ently was not acceptable to the Union, as the picketing continued as before, and Hammond, Hooker, and Moore did not go back to work. Thereafter, on August 21, the Respondent replaced Hooker and Moore, and on August 27 replaced Hammond. On these dates the Respondent sent them letters stating that they were terminated. On September 21, Charone, on behalf of the Union, mailed a letter to the Respondent again offering to return to work all of the striking employees as of September 22. Charone received no response to this letter. F. Myer Gurian's return to work in November; Edward Gurian's management of the business during his brother's absence Meyer Gurian was released from the hospital on July 27. However, upon the advice of his doctor that he be relieved of all stress and strain, he was not informed of the strike and the attendant labor problems until the latter half of October. In the latter part of November Meyer Gurian returned to work on a part-time basis. During the 4-month period of Meyer's absence, Edward Gurian continued to operate the business, making all the decisions necessary to do so without consulting his brother. He decided to buy a truck so as to be able to facilitate obtaining supplies and making deliveries. Among the other important decisions made by Edward Gurian without consulting his brother was the decision to hire replace- ments and to discharge the strikers, and to petition the Board for an election. During this period Gurian was receiving the advice of Frank H. Ingram, a compe- tent professional labor relations adviser, whom he had originally consulted at the time the Union first requested recognition. G. Analysis and conclusions 1. The Union's majority status in the appropriate unit The Respondent, in its answer to the complaint, admits that its production and maintenance employees, exclusive of office and clerical employees, guards, and supervisors, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act, as alleged in the complaint. Of the 16 employees in the appropriate unit on July 16, 1959, cards authorizing the Union to act as their "sole bargaining agent" signed by 13 of the employees in the unit on or before June 18, 1959, were received in evidence without objection from the Respondent's representative at the hearing. Upon these facts, I find that on June 18, 1959, and at all times thereafter, the Union represented a majority of the employees in the appropriate unit. 2. The refusal to bargain collectively in good faith The question before me on the merits of the refusal to bargain allegations of the complaint is whether the Respondent has fulfilled the bargaining obligations imposed upon it by Section 8(a)(5) of the Act. These include not only the n Gurian's testimony, as to his answer to Charone on these occasions, was similar to that given in response to the Union's earlier reque"ts that he set a date for a meeting, namely, that he still did not know when his brother was going to be well because the doctor had not told him, and that consequently he could not say when they could meet. Thus, the testimony of Gurian substantially conforms to that of Charone regarding Gurian's position at the August meetings I find the facts to be as set forth in the text above is There is no controversy as to this fact or as to any of the other facts hereinafter set forth. EDWARD E. GURIAN & CO., INC. 483 duty to deal with the Union in good fath, but also the obligation to make expedi- tious and prompt arrangements, within reason, for meeting and conferring. On this latter score, the Act requires that the bargaining obligation be accorded the same serious attention as other business affairs of importance. As stated in J. H. Rutter-Rex Manufacturing Company, Inc., 86 NLRB 470, 506: The obligation to bargain collectively surely encompasses the affirmative duty to make expeditious and prompt arrangements, within reason, for meeting and conferring. Agreement is stifled at its source if opportunity is not ac- corded for discussion or so delayed as to invite or prolong unrest or suspicion. It is not unreasonable to expect a party to collective bargaining that he display a degree of diligence and promptness in arranging for collective bargaining sessions when they are requested, and in the elimination of obstacles thereto, comparable to that which he would display in his other business affairs of importance. The Board's thinking on this subject is further explained in Burgle Vinegar Com- pany, 71 NLRB 829, 830, as follows: ... In labor relations, a delay in commencing collective bargaining entails more than mere postponement of an ordinary business transaction, for the passage of time, itself, while employees grow disaffected and impatient at their designated collective bargaining agents' failure to report progress, weakens the unity and economic power of the group, and impairs the union's ability to secure a beneficial contract. The Act, which was designated to equalize bargaining power between employers and employees, does not permit an employer to secure, even unintentionally, a dominant position at the bargain- ing table by means of unreasonable delay.i3 For reasons which will more fully appear, I conclude that the Respondent's conduct does not measure up to the requirements of the Act. As stated above, the parties had made substantial progress in the first three bargaining meetings, two- thirds of the provisions of the proposed contract had been tentatively agreed upon. The fourth meeting could not be held because of the heart attack of Meyer Gurian. On July 16, Edward Gurian took the position that he could not meet again with the Union until Meyer was well enough to participate. Thereafter, on the 17th and again on the 20th, Edward Gurian reiterated that he had too many pressing business matters pending and that the Union would have to wait until Meyer's health was such that he could join in the negotiations. Although the Union pointed out that this might mean an indefinite delay of a month or longer, and indicated that the Union might go out on strike in protest, Edward Gurian nevertheless continued to insist that he could not meet until Meyer was well enough to take part in the negotiations. Gurian turned deaf ears on the Union's proposal that the parties agree upon a 6-month postponement, with the understanding that all benefits ultimately agreed upon be made retroactive to July 20. This was not an unreasonable proposal in view of Gurian's insistence upon an indefinite delay. Even after the employees had demonstrated how strongly they felt about Gurian's insistence upon an indefi- nite postponement in the negotiations by going out on strike and picketing the plant every day, Gurian failed to give any indication when the negotiations could be resumed.14 There is no contention made that Edward Gurian, who was the president of the Respondent, lacked the power to continue the negotiations. Rather, the Respondent claims merely that it would be contrary to its customary method of operating its business for Edward alone to have made a decision of the importance of signing a union contract without consulting his brother. The facts of the case establish that Edward Gurian was fully capable of consummating an agreement with the Union, without consulting his brother. In my opinion the Respondent has not acted with the diligence which the Act requires in setting a date for the resumption of negotiations. From the time Meyer 11 Northern Indiana Broadcasting Co , Inc (WKJG), 88 NLRB 1381, 1391. Reed & Prince Manufacturing Company, 96 NLRB 850, 852-853, enfd. 205 F 2d 131, 135 (CA 1), cert denied 346 U S 887 14 In its brief the Respondent points to the fact that DeVito, who was on the picket line almost every dav, made no effort to see Gurian to resume negotiations The strike hav- ing been called because of the Respondent's insistence upon postponing negotiations in- definitely, it was incumbent upon the Respondent to make the next move. Under the circumstances of this case, the Union by picketing was in effect making a continuing request to the Respondent to resume negotiations. 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gurian suffered the heart attack, the Respondent took the position with the Union that it was not obliged to meet and confer until Meyer had recovered from his heart attack and could participate in the negotiations. Edward Gurian continued to maintain this position even though the union representatives made it plain to him that they regarded this as the equivalent of asking for an indefinite delay of a month or longer. Edward Gurian admitted at the hearing that at the time he took this position he had no idea whether his brother would be out a few weeks , months, or even longer. As it turned out, the Union's apprehensions that Edward Gurian was seeking a long delay in the negotiations turned out to be well founded, as Meyer Gurian did not return to work for at least 4 months after the commencement of the strike. While Edward Gurian reasonably could have requested a delay in committing himself as to the date of the next bargaining meeting until after he had received the medical report on his brother 's condition, he was not entitled, in my opinion , to insist that negotiations be postponed until Meyer Gurian was well enough to participate. Furthermore, the Respondent's conduct after the strike began points to the con- clusion that its insistence upon delay before the strike was motivated by a desire to avoid bargaining altogether. Even after Meyer Gurian had been ill for almost a month, Edward Gurian still adhered to the position that he could not set a date for resuming negotiations because his brother's doctor had not advised him when Meyer would be well enough to participate. At this time Edward Gurian complained to Attorney Charone that the Union was being unfair in not giving him 3 more months to determine the condition of his brother 's health. Respondent's prompt decision to discharge the strikers and to file a petition for an election also casts light on its motives in delaying the negotiations . The Respondent's discharge of the strikers, of course, gave the Respondent a colorable basis for challenging the Union's claim of representative status. But here, the Respondent's action is to be viewed in light of its other conduct in the case, including its continued insistence upon an indefinite postponement of negotiations , and its rejecton of the Union's proposal for a 6-month postponement with retroactive benefits. Viewed in this light, the Respondent's discharge of the strikers is of a piece with the Respondent's other acts and conduct and, in my opinion , reflects a desire to rid itself of the bargaining obligation altogether. Under all the circumstances of the case I find not only that the Respondent has failed to observe one of the essential procedural requisites of the bargaining process, i e., meeting with the Union without unreasonable delay, but also that its action in insisting upon an indefinite postponement in the negotiations was prompted by a desire to avoid all bargaining with the Union. Accordingly, I conclude that the Respondent has breached its duty to bargain collectively in good faith with the Union, and has thereby violated Section 8(a)(5) and (1) of the Act. In its brief the Respondent stresses the Union 's readiness to resort to strikes and threats of strikes and other drastic forms of economic pressure in order to achieve their objectives. The Respondent does not state the consequences which it deems to flow from this fact, and I perceive none which alter the conclusion which I have reached in this case. The fact that a union without justification resorts to strikes does not in and of itself suspend the bargaining obligation . N.L.R.B. v. J H. Rutter-Rex Manufacturing Company, 245 F. 2d 594, 595-596 (C.A. 5). It is true that Union President Darling, at the first meeting on June 19 at which he demanded recognition and at the August 10 meeting during the strike, uttered threats which were perhaps illegal and certainly unreasonable under the circumstances of the case. The legality of these threats , however, is not in issue in this case. While these threats may have contributed to an atmosphere which was not conducive to the resolution of differences at the bargaining table at the time the threats were made, there were no such threats made during July 16 to 20 , and Darling was not even a party to the negotiations at this time There is no suggestion made that any of Darling's threats were a factor either in the first three bargaining meetings on June 30 and July 2 and 8 , or at the meetings immediately following Meyer Gurian's heart attack . It is these meetings which are the crucial ones in this case i5 11 Cf N T, R R v Herman Sausage Compann, Inc , 275 F 2d 299 (C A 5), in which the conduct of one of the union negotiators was also in issue in a collective-bargaining context The court concluded that "as revolting as his personal conduct must have been as disruptive as it was to the very nature of the negotiating process, demands and counterdemands were knowingly offered and received, and their partial or complete rejec- tion was not due to the presence in two of the meetings of this obnoxious personal obstacle " EDWARD E. GURIAN & CO., INC . 485 As to DeVito's conduct during the meetings following Meyer's illness, the most he could be charged with, accepting Edward Uurian's appraisal of DeVito's conduct during this period, is a somewhat surprising indifference on his part to the physical condition of Meyer Gurian and considerable insensitivity to the personal plight of Edward Gunan in the situation in which Meyer's illness left him. But such an attitude on DeVito's part, however, regrettable as it may be, did not alter the Respondent's continuing obligation to bargain collectively as required by the Act. Edward Gurian attended to the Respondent's other business obligations during the difficult period following the onset of Meyer's illness. He was just as much obliged to fulfill the Respondent's bargaining obligations during this difficult period, despite the handicap of Meyer's illness. In this, as I have found, the Respondent has failed. 3. The strike and the Respondent's refusal to reinstate the strikers I have found that Edward Gurian's refusal to meet with the Union until his brother Meyer was well enough to participate in the negotiations constituted a breach of the Respondent's duty to bargain collectively with the Union in good faith. The record establishes that it was Gurian's insistence on this indefinite post- ponement of the negotiations which caused DeVito to recommend to the employees that they go out on strike. The Respondent's refusal to bargain was the only topic discussed in the union meeting at which the employees voted to go out on strike. The morning of the second day of the strike the Union filed charges with the Board's Chicago Regional Office alleging that the Respondent was refusing to meet and bargain collectively in good faith with the Union. Upon these facts, and upon the entire record, I conclude that the strike which commenced on July 27, 1959, was caused by the Respondent's refusal to bargain collectively in good faith with the Union, that it was therefore an unfair labor practice strike, and that the em- ployees engaged therein were unfair labor practice strikers. As unfair labor practice strikers, the 11 strikers retained their status as employees within the meaning of the Act, were protected from discharge for having engaged in the strike, and were entitled to reinstatement upon request even though this involved the discharge of the employees who had replaced them. Mastro Plastics Corp. et al. v. N.L.R.B., 350 U.S. 270, 278, 286. However, as stated above, the Respondent discharged eight of the strikers on August 3 (Innis, Collins, Bolden, Wilhite, Wilson, Polk, Saunders, and Stokes), two more on August 21 (Moore and Hooker), and Hammond on August 27. On August 13, 1959, the Union, both orally and by letter, notified the Respondent that it was terminating the strike and that it was offering to return all of the striking employees to work immediately. The Respondent rejected the Union's offer, but agreed to take back the three employees whom at that time it had not replaced, These three employees in effect refused the Respondent's proposal and all of the striking employees continued to picket the plant as before. Subsequently, on Septem- ber 21, the Union by letter again notified the Respondent that it was terminating the strike, and offered on behalf of all the strikers whom it named by name, including the three strikers who had refused the Respondent's previous offer, to return to work on September 22, 1959. No reply was received to this letter On these facts, which are undisputed in the record, I find that the Respondent, by discharging the striking employees on the dates hereinabove stated, and by refusing to reinstate them on August 14 and September 22, 1959, has engaged in unfair labor practices in violation of Section 8(a) (3) and (1) of the Act. N.L R.B. v Samuel J. Kobritz, d/b/a Star Beef Company, 193 F. 2d 8, 16-17 (C.A. 1), cited with ap- proval in the Mastro Plastics decision of the Supreme Court, supra. IV. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, I will recommend that it be ordered to cease and desist therefrom and take certain af- firmative action designed to effectuate the policies of the Act. I have found that the Respondent engaged in discrimination in regard to the hire and tenure of employment by discharging Leslie Innis, Marie Collins, Clarice Bolden, Willie Wilhite, Robert Wilson, Lloyd Saunders, Bunny Polk, and Mary Lou Stokes on August 3, 1959, by discharging Henry Moore and Ruth Hooker on August 21, 1959, by discharging Lilly May Hammond on August 27, 1959, and by refusing to reinstate them on and after August 13, 1959', following their participation in a strike caused and prolonged by the Respondent's unfair labor practices. Accord- ingly, I will recommend that the Respondent offer the above-named employees full reinstatement to their former or substantially equivalent positions, without prejudice 577684-61-vol. 128-32 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to their seniority or other rights and privileges. If there are not sufficient positions available, the Respondent shall make room for the employees ordered reinstated by dismissing, to the extent necessary, employees who were hired on and after July 27, 1959. If after such dismissal there are still not sufficient positions available, all existing positions shall be distributed among the employees ordered reinstated and other employees who were hired before July 27, 1959, without discrimination against any of them because of his union affiliation or strike or concerted activities, following such system of seniority or other nondiscriminatory practices as would normally have been applied by the Respondent to determine job retention rights upon a reduction of force All employees remaining after such distribution, in- cluding those ordered reinstated, for whom no employment is immediately avail- able, shall be placed upon a preferential list and offered reemployment as work becomes available, and before other persons are hired for such work, in the order required by the Respondent's normal semority system, or other nondiscriminatory practices. It will be further recommended that the Respondent be ordered to make whole each of the above-named employees for any loss of pay he may have suffered by payment to him of a sum of money equal to that which he would normally have earned as wages from the date of his application for reinstatement to the date of the Respondent's offer of reinstatement, less his net earnings during said period, and in a manner consistent with Board policy set out in F. W Woolworth Company, 90 NLRB 289. In the cases of Innis, Collins, Bolden, Wilhite, Wilson, Saunders, Polk, and Stokes, the backpay period shall run from August 14, 19'59, the day after the Respondent was notified that they wished to return to work. As to Moore, Hooker, and Hammond, whom the Respondent offered to reinstate on August 14, their backpay shall commence on September 23, 1959, the day after the Respondent received the second letter from the Union requesting their reinstatement. I shall recommend also that the Respondent preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll and other records necessary to analyze the amounts of backpay due under the terms of these recommendations. Having found that the Union represented a majority of the employees in the ap- propriate unit and that the Respondent refused to bargain collectively, I shall recom- mend that the Respondent, upon request, bargain with the Union as the exclusive representative of the employees in the appropriate unit. In the light of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. All production and maintenance employees of the Respondent at its Chicago, Illinois, plant, exclusive of office and clerical employees, professional employees, guards, and supervisors, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 3 The Union on June 18, 1959, was, and at all times thereafter has been, the exclusive bargaining representative of all employees in such unit for the purposes of collective bargaining. 4. By refusing to bargain collectively with the Union as the exclusive representa- tive of its employees in an appropriate unit on and after July 16, 1959, the Re- spondent has violated Section 8 (a) (5) of the Act. 5 By discharging Leslie Innis, Marie Collins, Clarice Bolden, Willie Wilhite, Robert Wilson, Lloyd Saunders, Bunny Polk, and Mary Lou Stokes on August 3, 1959, by discharging Henry Moore and Ruth Hooker on August 21, 1959, by dis- charging Lilly May Hammond on August 27, 1959, and by refusing to reinstate all of the above-named employees, pursuant to the requests made in their behalf by the Union on or about August 13, 1959, and September 21, 1959, the Respondent has discriminated in regard to the hire and tenure of employment of the above- named employees, thereby discouraging membership in the Union in violation of Section 8(a) (3) of the Act 6 By engaging in the aforesaid unfair labor practices, the Respondent has inter- fered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8 (a) (1) of the Act 7 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.]