Kohler Co.

1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a strike or concerted refusal in the course of their employment to use, process, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, where an object thereof is to force or require Tip Top Roofers, Inc., to assign the work of operating the mechanical hoist to members of International Union of Operating Engineers, Local 926, AFL- CIO, rather than to nonmembers or to members of United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Association, AFL-CIO, Local 136, or any other labor organiza- tion, except insofar as such action is permitted under Section 8 (b) (4) (D) of the Act. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 926, AFL-CIO, Labor Organization. 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. Kohler Co. and Local 833, UAW-AFL-CIO, International Union, United Automobile, Aircraft & Agricultural Implement Work- ers of America. Case No. 13-CA-1780. August 26,1960 DECISION AND ORDER On October 15, 1956, Trial Examiner George A. Downing issued his opinion and order granting motion to dismiss in which he granted the Respondent's motion to dismiss the complaint in the instant pro- ceeding on the ground that the Charging Union, herein called the Union, was not in compliance with Section 9 (h) of the Act because its International's trustees where "officers" of that, organization, and admittedly had not filed the non-Communist affidavits required of "officers" by Section 9(h).' On February 6, 1957, in Kohler Co., 117, NLRB 321, the Board overruled the Trial Examiner's order; denied the Respondent's motion to dismiss the complaint; and remanded the case to the Trial Examiner for the preparation of an Intermediate Report .2 I Section 9(h) of the Act was repealed on September 14, 1959, by Section 201(d) of the Labor-Management Reporting and Disclosure Act of 1959. 21n exceptions filed to the Intermediate Report, the Respondent excepts to the ruling of the Board reversing the Trial Examiner's dismissal of the complaint. The Board finds no merit in this exception. The Chairman and Members Rodgers and Bean adhere to their earlier opinion in this matter. Members Jenkins and Fanning, who succeeded to the Board after the earlier Decision and Order issued, are in agreement with that Decision and Order. 128 NLRB No. 122. KOHLER CO. 1063 On October 9, 1957, the Trial Examiner issued his Intermediate Report, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices as alleged in the complaint, and recom- mended that these particular allegations be dismissed. Thereafter, all parties filed exceptions to the Intermediate Report, together with supporting briefs. On August 1 and 13, 1958, the Union and the Respondent, respec- tively, filed with the Board motions to reopen the record and to receive certain evidence which was brought to light during the course of the hearings in February and March 1958, before the United States Senate Select Committee on Improper Activities in the Labor or Management Field. On November 19, 1958, the Board granted the motions, except for one portion of the Respondent's motion, and ordered the record to be reopened and that a further hearing be held for the purpose of receiving certain additional evidence; and ordered that upon the con- clusion of the supplemental hearing the Trial Examiner prepare and serve upon the parties a Supplemental Intermediate Report. On March 5, 1959, the Trial Examiner issued his Supplemental Intermediate Report, also attached hereto, finding that the new matter introduced during the supplemental hearing supported and confirmed his earlier findings, both in respects where unfair labor practices were found and where they were not found. He renewed the recommenda- tions he had made in the Intermediate Report. Thereafter, all parties filed exceptions to the Supplemental Intermediate Report, and the Respondent and the General Counsel filed supporting briefs. On March 10, 1960, the Board heard oral argument at which all parties to the proceeding participated. At the oral argument and subse- quently, additional memoranda where filed by all parties.' The Board has reviewed the rulings of the Trial Examiner made at the hearing and the supplemental hearing, and, as set forth else- where herein, finds that although certain of his rulings were in error, none of the erroneous rulings constituted prejudicial error. Unless otherwise set forth herein, the rulings are hereby affirmed. The Board has considered the Intermediate Report, the Supplemental Inter- mediate Report, all exceptions, briefs, and memoranda filed by the 3 Thereafter , the Respondent moved to strike the General Counsel's memorandum, en- titled "Memorandum in Opposition to Memorandum of Respondent Presented at Oral Argument," on the grounds that it is nonresponsive to the memorandum filed by the Respondent , that it does not comply with Section 102.46 of the Board 's Rules and Regulations , Series 7, and that it "accused attorneys for the Respondent of gross profes- sional misconduct." We have carefully considered the General Counsel's memorandum, and find no merit to the Respondent's contentions. Accordingly, we deny the Respondent's motion to strike. 1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parties, the oral argument, and the entire record in the case, and hereby adopts the findings,4 conclusions, and recommendations of the Trial Examiner insofar as they are consistent with this Decision and Order.' 1. A primary issue to be decided in this proceeding is whether or not the strike was an unfair labor practice strike in its inception. With respect to this issue the complaint alleges, in substance, that the Respondent provoked and caused the Union to go on strike by the commission of the following unfair labor practices on and before April 5, 1954: (1) Commencing in February 1954, and continuing thereafter, the Respondent engaged in a course of surface bargaining with the Union in that the Respondent unreasonably delayed and interrupted negotiations, participated in negotiations with the ada- mant purpose of undermining the status of the Union as the bargain- ing representative of its employees, and demonstrated an irrevocable determination to frustrate and defeat the statutory goals of collective bargaining; and (2) on or about January 20, 1954, and February 6, 1954, and thereafter, the Respondent refused to give, or unreasonably delayed giving, to the Union information as to pay rates of employees in the collective-bargaining unit which the Union had requested. a. Considering first the surface bargaining allegations of the com- plaint, the Board agrees with the Trial Examiner that the evidence fails to support the contention that the Respondent engaged only in surface bargaining prior to the strike.' I We note and correct the following inadvertent errors appearing in the Intermediate Report: ( 1) The Trial Examiner stated that neither Ireland nor Desmond asked Gerald Emely whether he had been a picket captain . According to the record , Emely was asked if he had been a picket captain by Ireland or Desmond on August 12, 1954; (2) Respondent pleaded that some 30 discharged strikers , including Fred Felde and George Klauser not listed by the Trial Examiner , should be denied reinstatement because of unlawful conduct which they engaged in after their discharge ; (3) the Trial Examiner inadvertently listed Raymond Majerus among those members of the union strike committee lawfully dis- charged because of their direction and control of the strike from April 5 through May 28. Bernard and Gordon Majerus and not Raymond Majerus were members of the union strike committee . The foregoing errors do not, however , affect our conclusions. s On June 28 , 1960, the Respondent filed a motion for dismissal of unfair labor practice complaint, bottoming its motion on certain instructions the General Counsel issued to the field staff regarding procedures to be followed where flagrant or aggravated acts of force and violence occur. More specifically, it contends that the facts in the instant case parallel those contemplated by the General Counsel in his instructions to the staff, that the complaint in the instant case presently would not be issued or would be dismissed by the General Counsel, and that therefore further proceedings in this case would not effectuate the policies of the Act . We find no merit in this motion, and hereby deny it. Moreover, as set forth elsewhere herein, wherever the Board has found that flagrant acts of force and violence occurred , and where these acts were attributable to, or encouraged or endorsed by, the Union , we have found that during those periods of time the Respondent was justified in not participating in negotiations with the Union. In addition, to the extent that the strikers have been found to have participated in unlawful acts and were discharged for such acts , the Board has sustained the discharges. " Member Jenkins, for reasons expressed in his separate opinion , would find that the Respondent did engage in surface bargaining prior to the strike, and that it participated in the negotiations with the adamant purpose of undermining the status of the Union as bargaining representative of its employees. KOHLER CO. 1065 In reaching this conclusion the Board is not unmindful of the back- ground evidence, pointed to by the General Counsel end the Union, which shows that Kohler Workers' Association, herein called the KWA, an independent union with whom the Respondent dealt for many years prior to the advent of the Charging Union, was instigated and sponsored by the Respondent. Nor is it unmindful of the evi- dence showing that the KWA received much assistance from the Re- spondent in the form of office space, use of a telephone, paid time spent on KWA business, use of plant facilities, and income of $800 to $1,500 per month from vending machines for which the KWA paid a rental of $1 per month per machine plus certain utility charges. Moreover, we have noted, in 1947, KWA Representative Arthur Bauer was per- mitted to obtain the signatures of about 300 employees to checkoff cards in the Respondent's cleaning room office on company time with supervisors sending the employees in to sign the checkoff cards. It is also clear that during the late 1940's, as the KWA leadership be- came increasingly militant in its attitudes and demands, the Re- spondent regarded the KWA with diminishing favor and withdrew much of its assistance to the union. Moreover, the record clearly shows that the Respondent, by the use of radio, newspapers, and other means, openly made known its opposition to the Charging Union during the 1951 and 1952 organizational campaigns,7 and immediately after the KWA affiliated with the Charging Union, Respondent ceased all remaining forms of assistance to the KWA. Standing alone, the foregoing evidence could well lead to a finding, as contended by the General Counsel and the Union, that the Respond- ent was opposed to bargaining with any but a dominated union, and was particularly opposed to bargaining with the Charging Party. However, like the Trial Examiner, the Board is persuaded that such evidence is amply refuted by the undisputed facts concerning the negotiations and the results of the collective bargaining during 1952 and 1953. Negotiations commenced in August 1952, and covered many of the same issues discussed during the bargaining on the 1954 contract .8 On February 14, 1953, the Union's membership voted to empower the bargaining committee to call a strike if necessary.' But despite the I The Board also is aware that in a prior proceeding the Respondent was found to have violated Section 8 (a) (1) of the Act during those organizational campaigns by threatening certain of the employees in their tenure of employment or with the loss of their jobs or other economic reprisals if the UAW's organizational campaign was successful or if they joined the UAW, and was also found to have discriminatorily discharged an employee because of his efforts on behalf of the UAW. Kohler Co., 108 NLRB 207, enfd 220 F. 2d 3 (C A 7). These violations were remedied in accordance with the Board 's Order. 8 Arbitration, seniority, union security, pensions and insurance , transfers , maternity leave, and wage inequities were the subject of considerable discussion during the 1953 negotiations. Many of the arguments on these issues were renewed and repeated during the 1954 negotiations. 8 The record shows that both parties made considerable preparations for a possible strike. The Respondent brought cots into the plant , purchased food and stockpiled co" 1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wide differences of opinion and position, the parties were able to com- promise their differences and reach an agreement on the eve of the strike deadline. Thereafter, the Union characterized the 1953 agreement a "good" one, and one "we accept with pride." It also referred to "key • con- cessions" the Respondent had made "particularly on arbitration and in union security" and to the Respondent's full acceptance of the Union on a permanent basis. Emil Mazey, secretary-treasurer of the International Union, in a speech to the union membership also re- ported that "Mr. Conger and others have changed in the past 4 weeks," and then added that Conger had expressed a willingness to cooperate with the Union in making the agreement work. Kitzman, regional director for the UAW, informed the membership that the contract was a "gain" over what the employees had under the KWA contract, and Christ Zittle, ex-president of the KWA, was quoted as having stated that the Union had made more progress in contract improve- ments in the single set of negotiations than was made under the KWA in 17 years. The Union widely publicized its wage gains at 18 cents per hour, including fringe benefits. Moreover, as the Trial Examiner found, the execution of the con- tract did not terminate the negotiations. Pursuant to a wage reopen- ing provision in the contract, further negotiations commenced on May 23, 1953. On August 20, after the union membership had again voted to approve a strike if deemed necessary and after the parties had again prepared for a strike in a similar manner described above, a contract settlement was arrived at. This settlement netted the union member- ship a 3-cent per hour wage increase retroactive to May 23. More- over, pursuant to the proviso in the agreement providing for further study by a joint committee of the inequity problem and pursuant to the request by the Union for the average incentive earnings in all incentive operations in the plant, the Respondent commenced com- piling such incentive earning information in October 1953. The foregoing brief summary of the pertinent record evidence clearly shows that despite the Respondent's earlier opposition, after the Union was certified as the collective-bargaining representative of the Respondent's employees, the Respondent fully met its obligation to bargain in good faith. Moreover, the General Counsel and the Union do not claim otherwise. It is against this background of two successful series of negotiations that the Board must view the 1954 negotiations. On December 12,1953, the Respondent, by letter, notified the Union that it proposed to terminate the contract on its expiration date of constructed watchtowers , and purchased shotguns , tear gas guns, and ammunition. The Union, in preparing for "an effective strike," fully equipped a strike kitchen to handle three meals per day, completed sinks and restroom facilities, and brought soundtrucks in from Detroit. KOHLER CO. '1067 March 1, 1954, and offered to meet and confer with the Union "for the purpose of negotiating a new contract." On December 14, the Union notified the Respondent it wished to begin negotiations to "modify" the contract. On January 15, 1954,10 the Respondent suggested the contract proposals be exchanged soon so as- to avoid the necessity of last minute negotiations conducted under the pressure of an imminent expiration date. Respondent thereafter indicated that it was ready to exchange proposals at any time, and suggested that if the Union submitted its contract proposal by January 20, the Respondent would be prepared to start bargaining on January 25. The Union replied that its proposal would not be ready by that time as the union member- ship would not take final action on the contract proposal until January 24. Finally, on January 25 the contract proposals were exchanged by the parties, and bargaining commenced on February 2, 1954.11 As more fully described in the Intermediate Report, the record shows that almost the entire month of February was devoted to going through the proposals point by point at least twice. It appears that agreement was reached on several points and the number of issues were substan- tially reduced. While most of the agreement occurred on minor points, the area of disagreement was also narrowed on some of the major issues.12 On February 23, the Union requested that the contract sched- uled to expire on March 1 be extended for another month to insure sufficient time for bargaining. On February 25, Respondent rejected the proposal, offering instead an extension for 1 year, including the provision for a wage reopener once each quarter. The Union rejected the offer charging that the Respondent intended it more as a propa- ganda weapon than as a reasonable proposal. On February 26, the Respondent submitted as an alternative proposal an offer of 3 cents per hour general wage increase effective March 1, conditioned on ac- ceptance of the Respondent's last contract proposal of February 15, with changes as had been agreed upon and with the existing pension and insurance plans to remain in effect. The Union rejected the pro- posal and then notified the Respondent that it had requested assistance of the Federal Mediation and Conciliation Service. Conger then stated that Respondent would not continue bargaining negotiations, but would await the arrival of the conciliators. 10 Unless otherwise specified , the events set forth herein occurred in 1954. "Although the Union urged evening and weekend bargaining sessions in addition to the daily bargaining negotiations , the Respondent objected to such "marathon negotia- tions " A daily schedule from 9 a.m. to 5 p.m. on normal workdays was adopted and generally followed 12 Although the General Counsel and the Union argue that the areas of agreement were confined to minor points , we note that during the second tour of the proposals the Respondent objected to the fact that the Union was insisting on having discussion and settlement on the so-called minor matters first . The Respondent described such Issues as "chaff," and through its principal negotiator, Conger , continually urged that they "get down to the meat of this contract." The Union , after considerable urging, reluctantly agreed to turn its attention to the major proposals. 1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD From March 3 through 8 and thereafter, one or more representatives of the Federal Mediation and Conciliation Service were present at most of the bargaining sessions. During the course of the sessions from March 3 through 8 Respondent repeated its previous offers and announced this was their "final" position, and the Union announced it had reached its "basic" position. On March 10, pursuant to the request of a Federal conciliator, Respondent, by letter to the Union, stated its "final position in the contract negotiations," namely, a reoffer of its two alternative proposals of February 25 and 26. On March 14, the union membership voted to reject the Respondent's last offer and authorized the union executive board to call a strike. Thereafter, on March 15, the record shows that the Respondent com- menced preparing for a strike as it had on two separate occasions during the 1953 negotiations. It commenced stockpiling coal, and about the same time purchased additional cots, ammunition for its small arms and gas guns, and food supplies. On March 17, Respond- ent, through its publication, People, notified its employees that in the event of a strike the plant would not shut down and that the law protects those desiring to work. On March 18, it erected the watch- towers that were used in 1953. The Union also renewed the same strike preparations made in 1953. Negotiations were resumed on March 17, 18, and 19, during which the Respondent took the position that the only real issue was whether or not the Union would accept either of the Respondent's prior pro- posals and there was no point in wasting any further time. During a heated discussion at the March 19 meeting, the Union's chief spokes- man, Burkart, stated ". . . the Union was there to negotiate. . . and if you [Respondent] are not here to negotiate, there is the door, you are free to go through it at any time." Conger and the other repre- sentatives of the Respondent then got up and left the room, but before their leaving, Ferrazza, an International representative, suggested the Respondent make preparations for a strike. On March 24, the Re- spondent notified its employees that the Union had received its final contract proposal, and that it would not "re-employ any employee who engages in illegal conduct in the event of a strike." Negotiations resumed on April 2 and 3, and although the major issues were discussed, no progress was made. On April 3, Conger rejected the Union's offer of issuing passes to certain maintenance men, stating it intended to operate the plant without union help. At the moment of breakoff, Conger stated that he had seen the strike coming for a long time, and Howe, Respondent's counsel, said, "If we must have a showdown, it might as well come now." The strike commenced on Monday morning, April 5. KOHLER CO. 1069 The record, only briefly summarized above,13 does not show that the Respondent delayed or interrupted the prestrike negotiations, as charged in the complaint. Indeed, the record shows that the Re- spondent urged that the negotiations commence promptly to avoid any last minute negotiations under pressure of an imminent expiration date. It was the Union which delayed the early commencement of negotiations. Moreover, during the course of the negotiations, the Respondent urged that the parties get to the "meat" of the contract. It was the Union which insisted on the protracted discussion and bar- gaining over the "minor" matters first. Furthermore, the Respondent never failed to attend any regular scheduled prestrike bargaining session, and on the one occasion when it did withdraw from a bar- gaining meeting, it was at the invitation of the Union. Nor can the Respondent be found as having delayed or interrupted negotiations because it refused to continue to meet with the Union until after the conciliators had arrived. The basis of its refusal to proceed, namely, because it would only be necessary to go over the entire matter again after the conciliators' arrival, was reasonable under the circumstances. Moreover, after the conciliators were on the scene, the Respondent did continue exploring, discussing, and bargaining on all unresolved matters. Similarly, the record does not support the charge that the Respond- ent participated in the prestrike negotiations with the intent of under- mining the status of the Union and frustrating and defeating the statutory goals of collective bargaining. Thus, the bargaining de- mands of both parties were thoroughly explored. Some agreements on contract proposals were arrived at. Some areas of disagreement were narrowed. The record also shows that the positions taken by the Respondent on the bargaining demands of the Union were sup- ported by legitimate and, in the main, reasonable arguments. While the record shows that the Respondent gave little and held fast to many of its positions, the Act does not compel any agreement whatsoever, or that either party agree to the other's proposals. It only requires the parties to confer in good faith.14 The evidence does not reveal ss Because of the extreme length of this record it would unduly burden our Decision and Order to set forth all the evidence on the disputed issues. However, in making its find- ings, the Board has considered and weighed all the evidence and the entire record. So, too, it would needlessly burden this Decision and Order to set forth all of the numerous contentions and arguments presented by the parties in support of their respective posi- tions on each of the issues. Be it noted , however, that in making its findings and conclusions herein, the Board has carefully and painstakingly considered every conten- tion and argument raised by the parties. With respect to those contentions and argu- ments which are not otherwise set forth herein and which are contrary to the Board's findings and conclusions, such contentions and arguments are found to be plainly without merit because they are unsupported by substantial evidence , and/or are unsupported in law, and/or are not relevant to the issues as framed. 14 N.L R.B. v. Jones & Laughlin Steel Corporation , 301 U.S. 1, 45 ; N.L.R.B . v. American National Insurance Co., 343 U.S. 395. 1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Respondent did otherwise during this period of -the bargaining.15 Nor do we find that the record supports the contentions of the General Counsel and the Union that the Respondent's strike prepara- tions show the Respondent desired, planned for, and provoked a strike and failed to bargain in good faith before the strike. Here, the Union had, taken a strike vote; told the Respondent, through International Representative Ferrazza, to make -preparations for a strike; and was openly making preparations for a strike on its own part. Under these circumstances, like the Trial Examiner, we find that faced with the prospects of a strike, the Respondent was entitled to prepare for it, particularly since it had announced that the plant would remain open in the event of a strike.16 It is also significant that similar strike preparations were made on two separate occasions in 1953 and yet, on both occasions, agreement was reached even in the face of such preparations. In view of the foregoing, and the entire record in this matter, the Board finds that the evidence as a whole does not support the allega- tion that the Respondent was. engaged only in surface bargaining prior to the strike. b. As set forth above, the complaint also charges that the Respond- ent on or about January 20 and February 6, 1954, and thereafter, refused to give, or unreasonably delayed giving, to the Union infor- mation as to pay rates of employees in the collective-bargaining unit which the Union had requested, thereby provoking and causing the Union to go on strike. The 1953 contract provided for the appointment of committees to study the existing classifications with the view to simplification and removal of any inequities that might have existed. The committees were to meet and settle the matter before the wage reopening period, but were unable to arrive at a settlement of the inequity issue during "In the circumstances of this case , the Board finds it unnecessary to pass upon the Trial Examiner's comments as to the necessary "ritual" of bargaining , or on his statement that a bargainer may seldom present his last position in the first instance and be said to be bargaining 10 By this finding we are not here approving of some of the Respondent 's strike prepara- rations , namely, the purchase and storing of guns, ammunition , tear gas, etc. As the Wisconsin Employment Relations Board commented on this matter in its Memorandum Accompanying Findings of Fact, Conclusions of Law and Interlocutory Order, Decision No. 3740, "There is no possible Justification for an employer today to resort to the use of such means in any strike " In connection with the Respondent's strike preparations, we have also considered the Union's contention that the Village of Kohler and its police were dominated by the Respondent and that the organization and use of the "special " police by the Village of Kohler police department shows that the Respondent was interested in breaking the Union rather than bargaining in good faith. In our opinion, there is no evidence showing that the elected officials of the Village of Kohler were dominated by the Respondent, or that Police Chief Cappelle and the "special" police recruited and appointed under his direction, received their instructions from or otherwise were directed and controlled by the Re- spondent either before or during the strike. KOHLER CO. 1071 the prescribed period. Subsequently, in the contract supplement negotiated during the wage reopening, the parties prorided for the establishment of a joint committee to study and narrow down the number of existing classifications and thereafter determine existing wage inequities and negotiate adjustments on those inequities. In October 1953, the Union notified the Respondent it was ready for serious negotiations on the inequity issue, and thereafter orally re- quested the average incentive earnings in all the incentive operations in the plant." Conger pointed out that it would be a tremendous task to supply this information, but that the Respondent was willing to furnish it. The Union suggested that the Respondent furnish one division at a time so that it could continue to form its proposals. On December 7, the Respondent furnished the information for the pot- tery division. Thereafter the Union submitted an inequity proposal and the Respondent submitted a counterproposal. No agreement was reached, but during the discussions, Conger suggested that the Union's request for the remainder of the average incentive earnings be put in writing. Pursuant to this request, on January 20, the Union, by letter, renewed its request suggesting that to expedite matters the earnings of each division be given to the Union as it was completed. Shortly after contract negotiations had commenced on February 2, the Union renewed its request for the incentive earnings, particularly the enamelware division. According to credited testimony, Conger stated that the earnings were on his desk and that the Union would have them in a week. Thereafter, the Respondent proposed that the subject of inequities be postponed until other bargaining issues were disposed of. The Union, while not agreeing to drop the issue, did agree that the subject matter could be left until later in the negoti- ations.'B Subsequently, on two or three occasions during the prestrike bargaining, when the parties had completed discussion of the contract clauses and had turned to such issues as the insurance and pension program, wages, and inequities, union representatives would ask Con- ger, "How about the earnings you said you had on your desk?" Fi- nally, on June 11, after the strike had continued for over 2 months, Union Vice President Bauer inquired somewhat heatedly when Conger was going to supply the requested enamelware information and accused him of stalling on the matter. Conger replied that the material was on his desk, but that the Union was keeping him busy on other things and he had not had time to look at it. Bauer then iv About 65 percent of all the employees were incentive workers at the time of the strike. 's Indeed, from the record, it appears that without the requested information any possible resolution of the inequity issue would be extremely difficult Thus, Burkart testified that it was "impossible" to present any commonsense plan on inequities until the Union had the information showing what the actual inequities were. Other witnesses also pointed out that no intelligent negotiations on inequities could have been conducted until after the information was received. 1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asked him why he didn't have someone else look at it, and Conger said that he personally "wanted to get his hand on this thing." On July 13, in an interview with an attorney and a field examiner for the Board, Conger stated that the Respondent still planned to furnish the information if the Union wanted it. On or about August 8, the enamelware information was given to the Union. It was dated June 14. On August 10, in submitting its modi- fied demands, the Union sought : Establishment of procedures to resolve any existing wage in- equities inside the plant and to reduce the number of existing wage classifications. The Company is to furnish the Union with necessary wage and other data required to make an intelligent study of wage inequity problem's. [Emphasis supplied.] On August 13, President Kohler responded : In the contract last year the company agreed to a procedure in- tended to reduce the number of existing wage classifications and eliminate any inequities. This procedure did not function due to the union's insistence on another general wage increase thinly disguised as an inequity adjustment and on the union's insistence that the company compile data not available and not necessary for bargaining. [Emphasis supplied.] During the September negotiations the question of inequities was again discussed and the Union again indicated it would be necessary to have the pertinent material in order to make an intelligent study of what the inequities were. The remaining information, comprising about 35 percent of the total, was never given to the Union. In addition to the foregoing, it also appears that the machine operators in the brass diecasting division had lodged a complaint that their earnings were no greater than they were before the 1953 wage increase because of artificial limitations placed on production. This. matter was discussed by the parties at a grievance meeting in early February.19 Conger promised to investigate. In connection with this matter, on February 6, the Union requested, in writing, that it be furnished the incentive earnings of the individual machine operators in the brass diecasting department for the last 3 months of 1952 and the last 3 months of 1953. This information, like the remaining 35 percent of the average incentive earnings, was never furnished. The Trial Examiner found that the average incentive earning in- formation requested was both appropriate and necessary to the per- formance of the union function, and that the inequities question, although not among the seven major issues on which the contract ne- gotiations foundered, was still a live issue, and one which, if resolved, 19 On occasion, during the bargaining negotiations, the parties would take some time out to discuss current grievances. KOHLER CO. 1073 could well have formed the foundation for reaching further agree- ments. He also found that the Respondent's delay, prior to June 11, in delivering the enamelware earnings may well be excused on the grounds that there was no apparent urgency about supplying the enamelware information , but that Respondent's excuses for delaying delivery beyond June 14 could not be accepted, and that on or about that date Respondent violated Section 8(a) (5) and (1) by failing to furnish the incentive earnings for the enamelware division. He also found that on August 13, Respondent refused to bargain further by failing to furnish to the Union the remainder of the average incentive earnings requested on January 20, 1954. The Board agrees with each of these findings." The Board and the courts have uniformly held that a collective- bargaining agent is entitled to all wage and other employment in- formation essential to the intelligent representation of the employees 21 Moreover, while an employer is not required to furnish such informa- tion at the exact time or in the exact manner requested, it must be made available in a manner not so burdensome or time consuming as to impede the process of bargaining 22 It follows that where the in- formation is necessary to and is sought in connection with current collective-bargaining negotiations, such information must be delivered with reasonable promptness so as not to impede those negotiations. The Respondent does not now question the Union's right to the requested information.23 but contends, inter alia, that the delay in turning over the enamelware information was warranted because, (1) both parties considered the subject of inequities a side issue which had been sidetracked early in the negotiations, and therefore the delay in furnishing the information did not impede the process of bargaining; and (2) its time was fully occupied with more vital matters, namely, bargaining with the Union and attempting to obtain legal relief from the mass picketing. As to (1), the record does not show that the inequity issue was "sidetracked" at the outset of the collective-bargaining negotiations. While it is true that the Union agreed that this matter could be left 20 Member Jenkins, for the reasons expressed in his separate opinion , would find that the requested information should have been supplied prior to the strike , and that the 8(a) (5) and ( 1) violations occurred before the strike commenced. 21 N L R.B. v. F. W. Woolworth Co , 352 U S. 938. affg. 109 NLRB 196 ; Pine Industrial Relations Committee, Inc., et al., 118 NLRB 1055, enfd. 263 F. 2d 483 (C.A.D C.) ; Whitin Machine Works, 108 NLRB 1537, enfd. 217 F. 2d 593 ( C.A. 4) ; Boston-Herald Traveler Corporation, 110 NLRB 2097 , enfd. 223 F . 2d 58 ( C.A. 1) ; Taylor Forge and Pipe Works, 113 NLRB 693; Dixie Corporation , 105 NLRB 390. a N.L R B. v. Truitt Mfg. Co., 351 U.S. 149, where the Supreme Court cited with approval a Board test set forth in Old Line, Life Insurance Company of America, 96 NLRB 499, 503 29 Contrary to the Respondent's contentions , we agree with the Trial Examiner that, in the August 13 letter to the Union , Respondent's president did question the Union's right to the remainder of the information by stating that the Union had requested data which was "not available and not necessary for bargaining." 1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD until later in the negotiations, what the evidence actually shows is that it was impossible for the Union, early in the negotiations, to present any commonsense proposal on the inequity issue without the requested information, and it agreed to postpone the bargaining on this issue until after it had received the information. But in any event, it is clear that although actual negotiations on the subject of inequities may have been postponed temporarily, there was no agree- ment that the delivery of the information would be postponed. In this regard, the record shows that the Union made at least four re- quests for the information after the parties had agreed to delay dis- cussion of the inequity issue. Moreover, early in the negotiations, Conger stated that the Union would receive the enamelware informa- tion in a week, and later in June, after Bauer's blunt demand for the prompt delivery of the information, Conger based his failure to turn over the information on the fact that he had no time to check the compiled material, and not on the grounds that the parties had agreed to postpone the negotiations on inequities or on any agreement to postpone the delivery of the information. It is also clear that the requested information was both appropriate and necessary to the collective bargaining on the inequity issue. Indeed, it appears that without the information any possible resolu- tion of the inequity issue would be most difficult. Thus Burkart testified that it was "impossible" to present any commonsense plan on inequities without the incentive earning information. The record also shows that the inequity problem was a live issue during the 1954 bargaining negotiations and had been since 1953. Moreover, as the Trial Examiner found, while the inequity issue was not among the seven major issues on which the contract negotiations foundered, if resolved, such resolution may well have formed a foundation for reaching further agreements. Accordingly, and contrary to the Re- spondent, we find that the furnishing of the information was neces- sary to and would have furthered the bargaining process and that, in the circumstances presented, the delay in supplying the Union with the enamelware information after June 14 tended to impede the negotiations on at least one issue separating the parties. In view of our finding above as to the necessity of supplying the requested information in the circumstances of this case, we do not agree with the Respondent's contention (2), above, that its time was occupied with more "vital" matters. It would appear incongruous to find it was more "vital" to meet with the Union than to supply, with reasonable promptness, that information without which there could be no intelligent bargaining on at least one issue which sep- arated the parties during those meetings, and that information which may have led to further agreements and conceivably the ultimate elimination of the picket line. KOHLER CO. 1075 • Apart from the foregoing, there is no substantial evidence showing that the Respondent's time was so "fully occupied" with other matters that it did not have time to comply with the Union's request. The compilation of the enamelware information was probably completed in February, but certainly no later than June 14. All that remained of the task was the clerical chore of checking the information before giving it to the Union. There is no evidence that this clerical task was of such magnitude that it required until about August 8 to com- plete. Nor is there any evidence in the record showing that this task required Conger's personal attention.24 And assuming, arguendo, that Conger alone could perform this clerical task, there is no substantial evidence supporting Respondent's claim that Conger did not have sufficient time to check the information. Accordingly, in view of our findings above, and for the additional reasons set forth in the Intermediate Report, the Board finds that, on or about June 14, Respondent refused to bargain with the Union by failing to furnish the Union the incentive earnings for the enamel- ware division, thereby unreasonably delaying compliance with the Union's request of January 20, 195425 With respect to the failure to furnish the remaining 35 percent of the average incentive earnings, the Respondent contends, inter alia, that the matter of inequities was settled during the early August bargaining by agreement reached on the procedures to be followed after the Union returned to the plant, and therefore it was not incum- bent upon it to supply any additional information until the strike was over. The Trial Examiner found, however, that the agreement which the parties reached in August related only to the question of job con- tent and job standards, but was unrelated to the question of earnings to which the January 20 request for the average incentive earnings applied. The Board agrees with the Trial Examiner. In addition to those findings set forth in the Intermediate Report, we also deem significant the fact that in bargaining on inequities the parties had two objectives in mind, namely, to adjust the existing wage inequities and to reduce the number of existing job classifications. It appears that the Union had requested the average incentive earnings s+ The Respondent contends that the checking of the information and the drawing of conclusions therefrom was not a clerical chore which Conger could have delegated to someone else. Even assuming this to be true, it would appear from the record and from the examples of "checking" cited by the Respondent in its brief, that any checking or analysis of the incentive wage information could have been done by the Respondent after the Union had been supplied with a copy of the information and before actual bargaining on inequities . Indeed, it appears from the record , that any analysis Conger may have made of the incentive earnings in either the pottery division or the enamelware division was not given to the Union in any event. 25 As we have found that the Respondent failed to furnish the incentive earnings for the enamelware information in June, at a time when the Respondent was meeting with the Union almost daily , we find it unnecessary to consider the Respondent 's contention that from April 5 to June 1 , and from June 29 to August 5, its obligation to bargain was suspended and therefore it was not required to compile the requested information. 1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in connection with the first objective, and had requested a written job description of all job classifications in connection with the second objective. The Respondent objected to furnishing the requested job descriptions 2s Early in August the parties reached an agreement which Conger described in the following terms : ". . . if we were un- able to agree on the job content and have an argument on what the standards on the job should be that instead of trying to rely on some- body's description on it on a piece of paper, that the Union stewards should go out and check the job. . . ." [Emphasis supplied.] In view of the foregoing, and on the basis of the entire record, it is apparent that the agreement reached in August pertained to procedures for resolving the question of job content and job standards in lieu of furnishing the requested written job classifications, and that agree- ment did not pertain to the adjustment of existing inequities and earn- ings to which the requested incentive earning information applied. This conclusion is also supported by the fact that on August 10, after the above-described agreement was reached, the Union again included, in its modified demands, a request for the necessary wage and other data to make an intelligent study of the wage inequity problem, and again during the September negotiations the Union renewed its re- quest for the remainder of the incentive earning information. Accordingly, for those reasons expressed above as well as those set forth in the Intermediate Report, the Board finds that on August 13 Respondent refused to bargain further by failing and refusing to furnish to the Union the remainder of the incentive earning informa- tion requested on January 20, 1954. We also find, in agreement with the Trial Examiner, that on or about March 6, 1954, Respondent, by failing and refusing to furnish the incentive earnings of the individual machine operators in the brass diecasting department for the last 3 months of 1952 and the last 3 months of 1953, requested by the Union on February 6,1954, refused to bargain within the meaning of Section 8 (a) (5) and (1) of the Act .21 c. As the Board has found in paragraph (a), above, that the Re- spondent did not engage in a course of surface bargaining prior to the strike, but during that period, bargained in good faith, and as the Board has found in paragraph (b), above, that the Respondent, prior to the strike, did not refuse to bargain by failing to furnish the Union certain requested information (except by its failure on or about March 6, 1954, to furnish that information pertaining to a grievance of the brass machine operators which we here find was unrelated to p As the failure to furnish the job descriptions was not alleged as an 8 (a) (5) violation, we make no such findings on this matter. 21 N L R B. v F W. Woolworth Co , supra; N L R B. v. Hekman Furniture Company, 207 F 2d 561 at 562 (C.A. 6) ; N.L.R.B. v. Leland-G ford Company, 200 F. 2d 620 at 624 (C.A. 1) ; N.L.R.B. v. Yawman d Erbe Manufacturing Co., 187 F. 2d 947 at 948-949 (C.A 2). KOHLER CO. 1077 the bargaining negotiations and played no part in the failure to reach a contract), and as the complaint alleged only that specific conduct as provoking and causing the Union to go on strike, we conclude, as did the Trial Examiner, that the strike was caused by the failure of the parties to reach a contract and was for economic reasons at its inception .211 2. The complaint alleges that on or about April 5, 1954, the Re- spondent violated Section 8 (a) (5) and (1) by placing in effect a wage increase without any negotiation or consultation with or notice to the Union. The facts, either as set forth by the Trial Examiner or as otherwise indicated in the record, briefly are as follows : On February 23, the Union requested that the 1953 contract be extended for 1 month to insure ample time for orderly bargaining. The Respondent refused, but offered to extend the contract for 1 year, including the provision for reopening the question of wages once each quarter. On February 26, the Respondent made an alternative offer of 3 cents per hour general wage increase, effective March 1, on the condition that Respondent's proposed contract of February 15, with changes agreed upon up to that time and with no changes in the existing pension and insurance plan, become the new contract for 1 year. The Union rejected both contract offers, but queried the Re- spondent as to its intentions on the practices and conditions to be followed in the plant after March 1, when the contract expired. The Respondent's bargaining committee indicated that Respondent would "continue the past practice and operate along the lines of the expiring contract." On March 10, through its publication, People, Respondent notified its employees that the checkoff authorizations expired with the contract and were no longer recognized, but that the pension and insurance plans would continue unchanged. With respect to the other contract provisions, it stated : Some employees seem to be of the opinion, either through con- fusion or misrepresentation, that the Company now may take away rights and privileges that they have enjoyed over the past years (many of which were in effect long before there ever was a contract with this union). Such is not the case. While there is no contract in effect at this time, many times in the past the Com- pany has operated without a contract. It plans no radical changes in its policies which have been carefully worked out over the years even though no contract exists. Also on March 10, Respondent retendered its alternative contract offers, stating that this represented its "final" position, but the pro- posals were again rejected by the Union. On April 5, the Union struck 0 Member Jenkins, for reasons expressed in his separate opinion , would find that the strike was an unfair labor practice strike at its inception. .577684-61-vol. 128 69 1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the plant. Sometime after the strike had commenced Respondent put the 3-cent wage increase into effect without notice to or discussion and negotiation with the Union. Kohler testified, and the record otherwise shows, that after April 5, Respondent kept in effect the old contract terms. After the Union had struck the Respondent frequently stated that it would refuse to reward the Union for having struck by increasing the wage offers which it had made before the strike. At no time there- after did the Respondent offer to the Union the 3-cent wage increase together with the provisions of the 1953 contract. Thus, in July, Conger acknowledged as correct the fact that the Respondent never made an offer to continue the old contract with the 3-cent increase, but that the 3 cents was offered only if the Union accepted the Respondent's contract proposal of February 15. In addition, according to the credited testimony of Judge Murphy, Conger expressly stated, during the September negotiations, that if the Union accepted the old arbitra- tion clause, it would have to take the entire old contract, without the 3-cent raise. The Trial Examiner found that both before and after the strike Respondent refused to offer to the Union the 3-cent wage increase along with the continuation of the 1953 contract, but that this was actually what Respondent put in effect unilaterally and without notice to the Union. He also found that there were substantial differences between the 1953 contract and the Respondent's proposed contract of February 15, and that Respondent's actions effectually prevented the Union from obtaining either credit or reward for the increase actually put into effect. In addition, the Trial Examiner found that as the Respondent never offered the Union the 3-cent increase plus the 1953 contract which it unilaterally placed in effect, no impasse existed prior to the strike. Continuing, the Trial Examiner also found that if an impasse had in fact existed on wages, Respondent's change of position, if announced to the Union, would have effectively broken any impasse that might therefore have existed, or that any prestrike impasse on the wage issue would have been broken by the change in circumstances developing from the strike. The Trial Examiner thereafter concluded that by unilaterally granting the wage increase the Respondent refused to bargain within the meaning of Section 8(a) (5) of the Act. We agree with each of the above findings and his conclusion. It is well settled that the Act presupposes that an employer will not alter existing conditions without consulting and granting the exclusive bargaining representative an opportunity to negotiate on any proposed changes,29 and for an employer unilaterally to grant a wage increase without first consulting the exclusive bargaining representative and giving it an opportunity to negotiate regarding such proposed changes 20 Mg, N.L R B. v. Crompton Highland Malls, Inc, 337 U.S. 217. KOHLER CO. 1079 is evidence of bad faith 30 Moreover, wage increases granted at a time when wages are in issue and under circumstances calculated to mini- mize or deny the effectiveness of the bargaining representative con- stitutes action indicating bad faith." On the other hand, the Board and courts have held that under certain circumscribed conditions where the increases were given in such a manner as not to disparage the union or the bargaining process it was lawful for an employer to grant a wage increase even though wage rates may be an issue in bar- gaining and the parties have reached no impasse32 The Respondent claims that its conduct meets such circumscribed conditions. More specifically, it now contends, inter alia, that as it continued to negotiate with the Union on remaining differences after it had placed the 3-cent wage increase in effect, its action was not a disparagement of the collective-bargaining process, or of the Union, and therefore the wage increase was lawful. It likens the instant case to Bradley Wash- fountain. We disagree. In Bradley Washfountain, the company first offered to, and dis- cussed with, the union those identical wage and holiday benefits it eventually placed in effect. Moreover, it thereafter notified its em- ployees that it had discussed the matter with the union and that the union had refused, but inferring at the same time that the union was unsatisfied with the amount of the increase. Thereafter, it placed those benefits it had first offered the union in effect, treating them as an allowance of the union's demands, and continued to bargain on all demands. On all these facts the court concluded that there was no disparagement of the bargaining representative, but that, in fact, its position may have been enhanced by the company's action and attitude. In the instant case, unlike the company in Bradley Washfountain, the Respondent did not first offer to or discuss with the Union that wage proposal it ultimately placed in effect, namely the 1953 contract plus the 3-cent wage increase. Nor did it suggest to the employees that it had discussed this matter with the Union or that the Union had rejected it. Instead, it placed the increase in effect without notice and without discussion or negotiation with the Union, thereafter denied it the opportunity of accepting the 1953 contract plus a 3-cent wage increase, and at the same time frequently proclaimed that it would not reward the Union for having struck. Moreover, the Re- spondent did not treat this wage increase as an allowance of the union demands, but rather, steadfastly refused to offer the Union that same wage proposal already placed in effect, and in September bluntly stated that if the Union wanted to renew the old arbitration m E g., May Department Stores d/b/a Famous-Barr Stores v. N.L.R.B., 326 U.S. 376, 383-385. 83 E g, Trinity Valley Iran and Steel Company, a Division of C. C. Griffin Manufactur- ing Company,, Inc., 127 NLRB 417; Dinion Coil Co., Inc., 110 NLRB 196. 13 E.g., N.L.R.B. v. Bradley Washfountain Co., 192 F. 2d 144 (C.A. 7). 1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clause, it could do so only on the condition that it take the entire old contract, without the 3-cent raise. We cannot conceive facts more unlike those presented in Bradley Washfountain or conduct more cal- culated to undermine the effectiveness of the bargaining agent. Accordingly, in view of the foregoing, and upon the basis of the entire record, we find for those reasons expressed herein as well as those expressed by the Trial Examiner that the unilateral wage in- crease disparaged the Union and the collective-bargaining process, and clearly falls within the proscription of Section 8(a) (5) and (1) of the Act 33 Having found that the Respondent violated the Act by placing in effect the wage increase, an issue remains as to the date on which the violation occurred. The Trial Examiner found that the wage increase was given shortly after May 28 (when the Union announced that it would comply with the terms of the WERB order and cease the mass picketing which occurred for the most part of April and May), and probably on the first workday thereafter, i.e., June 1. The Respondent now contends that the wage increase was put into effect on April 5. We agree with the Trial Examiner's findings 34 In reaching this conclusion, we are not unmindful of the fact that the complaint alleged and Respondent's answer admitted that the wage increase was placed in effect on April 5. Nor have we ignored the fact that prior to the hearing, in an interview with a field ex- aminer of the Board, Conger indicated that "on April 5, ... after the strike was on, the Company put into effect a 3¢ increase in its pro- 33 N L R B v Crompton Highland Mills, supra; May Department Stores d/b/a Famous- Barr Stores v. N.L R.B., supra. The facts in Pacific Gamble Robinson Company v. N.L.R.B., 186 F. 2d 106 (C.A. 6) ; Times Publishing Company, et at 72 NLRB 676; and Celanese Corporation of America, 95 NLRB 664, relied on by the Respondent to show that it had a right to put the wage increase into effect for replacements and nonstrikers are distinguishable from the instant case. Here , e g., unlike those cases , the Respondent continued to refuse to offer the Union that same wage increase plus the 1953 contract which it had placed in effect for the nonstrikers and the replacements. Furthermore , there is no showing that the secret and unilateral 3-cent wage increase combined with the 1953 contract was adopted as the means of keeping the plant in operation or that it was so intended . Instead, it appears that the claim now made to the effect that it was necessary to institute the 3-cent wage increase plus the 1953 contract "to protect and continue its business and operate its plant" is an afterthought as was the "necessity" for superseniority in Olin Mathie8on Chemical Corporation v N L R B , 232 F. 2d 158 (C.A. 4), affd. 352 U S. 1020. s+ We would find that the Respondent violated the Act whether the wage increase was put into effect on April 5 or June 1. Thus, we reject the Respondent 's contention that it did not violate the Act because it placed the wage increase in effect on April 5, at a time when it was not obligated to meet with the Union because of the mass picketing. while the Board and the courts have found , in cases like Valley City Furniture Company, 110 NLRB 1589, 1592, enfd 230 F. 2d 947 (CA. 6), and Phelps Dodge Copper Products Corporation, 101 NLRB 360, 367-368, that where a union is engaging in certain unlawful conduct, the employer is not obligated to "speak" with the union , or may lawfully refuse to negotiate during the course of such conduct , these cases do not stand for the proposition, as apparently contended by the Respondent, that under such circumstances its duty to bargain is completely relieved, or that it in turn, with impunity, may engage in unlawful conduct KOHLER CO. 1081 duction and maintenance unit," but that this "meant nothing until such time as employees reported for work." However, other testi- mony and the subsequent position of the parties taken during the course of the hearing convinces us of the correctness of the Trial Examiner's findings 35 Significantly, even though the complaint alleged April 5 as the date on which the Respondent put the wage increase in effect, during oral argument before the Trial Examiner, the General Counsel conceded that the evidence did not establish that date or any definite date, but that it could be inferred that the increase was given during the first week in June. Moreover, although Respondent admitted in its answer as well as to a field examiner of the Board that the wage increase was placed in effect on April 5, testimony of Respondent's officials during the course of the hearing contradicts its answer and other admission, and indicates that the wage increase was given sometime after April 5. Thus, President Kohler testified as follows to a question posed by the General Counsel : Q. On April 5 you did give an increase of 3 cents, is that right, 1954? A. Some time later, effective April 5, yes. Everybody was working. [Emphasis supplied.] Conger, in answer to a question of Respondent's counsel, testified : Q. Now, did the company put the 3 cent wage increase into effect at any time subsequent to the strike? A. Yes, we did; we put it into effect as of April 5; 1 do not recall the exact date we actually put it into effect but it was put into effect as of April 5, 1954. [Emphasis supplied.] Moreover, during oral argument, in response to certain questions of the Trial Examiner, Conger stated : T.X.: Well, will you help me settle one factual thing? Gen- eral Counsel hasn't been able to help me. When was it put into effect? CONGER : I'm afraid I won't be much more successful on that than General Counsel. T.X.: Which do you like best, April 5 or the first week in June? 25 The Respondent also contends that it was error for the Trial Examiner to reject its proffered exhibit consisting of a portion of an editorial appearing in the union newspaper of April 8, purporting to show that the Union had knowledge of the wage increase on April 8. Respondent sought to introduce this exhibit only for the purpose of showing that in connection with the mass picketing there were persons who desired to enter the plant. The General Counsel and the Union objected to its introduction for that purpose on the grounds that it was incompetent because of hearsay. The Trial Examiner rejected it on that basis. We agree with this ruling. In any event, the proffered exhibit is equivocal on the issue of union knowledge as to the date of the wage increase, and could be interpreted as referring to the Respondent's offer of a 3-cent increase if the Union accepted its February 15 contract proposal made prior to the strike. 7 1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONGER : Sometime in between, some undetermined time. As we have said in our brief I don't think it is of practical importance. T.X.: Of course, the company is in a position to know when it was actually put in. The record doesn't show though. CONGER : I don't think that is true, Mr. Examiner. T.X.:`Vell, your payroll books would show it. CONGER : It was put in as of April 5, but I may very often tell the payroll to make an increase retroactive ten days back, or 15 days back. I think sometimes we have added even several months back, and this particular case, unfortunately our records do not show when we gave the instructions. It was made effective April 5. There is no argument about that. T.X.: I am inclined to think, or to assume rather, that it was probably put into effect just about May t8. CONGER : I would be inclined to think that. That was about the only time it had become important and that is probably when we started thinking about it 36 [Emphasis supplied.] Finally, during the course of oral argument before the Board, Conger stated that the Respondent "promptly" gave notice of the wage in- crease to the Union after the parties returned to bargaining. This, too, would indicate that the wage increase was given sometime after May 28, because it is clear that the Union was not notified of the wage increase during the May 7 negotiations. Accordingly, we find, on the basis of the record as a whole, that the 3-cent wage increase was put into effect on or about June 1, 1954 37 31 In connection with the time when the wage increase became important, it is significant that although the production and maintenance employees were barred from entering the plant by mass picketing between April 5 and May 28, except for 3 days early in May, some of the production and maintenance employees were living and working inside the plant during this time. Although some of these employees testified on other matters, there is no evidence showing that they received the 3-cent increase on April 5 or at any time before June 1. ar On August 13, 1958, in its motion to reopen the record, Respondent sought to introduce certain evidence produced before the Senate Select Committee on Improper Activities in the Labor Management Field bearing on a number of issues in the instant case, including evidence it had introduced during the Senate Hearing allegedly showing that the wage increase was put in effect and announced to supervision of the Respondent on April 5. On November 19, 1958, the Board remanded the proceeding for further limited hearing to permit the introduction of only that evidence relevant and material to the issues which was unavailable to the parties during the hearing before the Trial Ex- aminer, or that relevant and material testimony given by witnesses before the Senate Committee which might have been inconsistent with their testimony given during the bearing before the Trial Examiner. However, with respect to that evidence concerning the date of the wage increase, the Board stated : Such evidence now sought to be introduced by Respondent cannot be considered evidence which was unavailable to Respondent at the time of the hearing before the Trial Examiner. Indeed, the date of a wage increase to its employees is peculiarly within the knowledge of the Respondent. Moreover, officials of the Respondent have already testified in relation to this matter, and we will not now permit Respondent to repudiate evidence already presented by its own Counsel and other of Respondent's officials or give them the opportunity to substitute other evidence clearly available to them at the time of the original hearing. Thereafter, the Board denied Respondent's motion for reconsideration on this matter. Subsequently, during the course of the reopened hearing, the Respondent sought to submit KOHLER CO. 1083 Having found, as did the Trial Examiner, that the unilateral wage increase was put into effect on or about June 1, an issue remains as to whether or not this violation of Section 8 (a) (5) and (1) of the Act prolonged the strike and converted it to an unfair labor practice strike. The Trial Examiner found that it did. Contrary to the exceptions of the Respondent, we agree. Here the wage increase was given on or about the very time that the parties were renewing negotiations. Moreover, the issue of wages, one of the major issues separating the parties, was one on which nego- tiations were being resumed. To secretly and unilaterally grant the wage increase at that moment was manifestly inconsistent with good- faith collective bargaining. It disparaged the Union as the bargain- ing representative of Respondent's employees at a critical time when the plant was reopening and when the parties were resuming negotiations.38 Moreover, after putting into effect the wage increase and permitting the work conditions already prevailing, to remain in effect, the Re- spondent took the position that it refused to reward the Union for having gone out on strike. In addition, and coupled with this posi- tion, it steadfastly refused to offer or to grant to the Union the 3-cent wage increase along with the 1953 contract which it had already placed in effect for the nonstrikers. In these circumstances the Respondent must have reasonably under- stood that its actions tended to undermine the Union. Furthermore, it must have known that the Union, to save face with the employees on strike and to preserve their representative status, would have to continue striking until they received at least those benefits freely conferred on the nonstrikers. Thus, the Respondent, having placed in effect the 3-cent wage increase in addition to the 1953 contract, created a situation in which the strike, in all probability, could not be ended unless the same benefits conferred upon the nonstrikers were also given to the strikers. This the Respondent refused to do. Accordingly, on the basis of the record as a whole, we find that by the commission of the aforesaid unlawful conduct, the Respondent offers of proof on this issue . The Trial Examiner refused to accept them, but suggested his ruling could be appealed to the Board . No appeal was taken. The Respondent now excepts to the Trial Examiner's ruling. We find no merit to this exception , and, after a full review of the record , are more convinced than ever of the correctness of our original ruling in this matter. as We find no merit in Respondent's contention that the 3-cent wage increase reduced instead of exacerbated the areas of disagreement. While it is true that during a June 12 radio speech Burkart referred to the 3-cent wage increase as an improvement which the Union had won, the remark is equivocal . It may well be interpreted as referring only to the fact that the Respondent had offered the Union a 3-cent increase if it accepted Respondent's February 15 contract proposal. Moreover, it is clear from the record that Burkart never claimed that the Union had won the 3-cent wage increase plus the 1953 contract. It was this combination , when unilaterally and secretly placed in effect, and thereafter denied to the Union , which increased and exacerbated the differences between the parties. 1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aggravated its differences with the Union, particularly on one of the admitted major issues of bargaining, i.e., wages," and created a serious impediment to the settlement of the strike, with the result that the economic strike was prolonged and consequently converted into an unfair labor practice strike4e 3. On the basis of the entire record, the Board finds, in agreement with the Trial Examiner, that on or about July 1, in violation of Sec- tion 8(a) (3) and (1) of the Act, Respondent discriminatorily dis- charged the 53 striking shell department employees, listed in Appendix A attached hereto, for the sole reason that they were on strike, and that the Respondent thereafter discriminatorily failed to offer them reinstatement on the same basis as those nonstrikers simi- larly situated. The Board also finds, in agreement with the Trial Examiner, that in June Respondent violated Section 8 (a) (5) and (1) of the Act by discharging the striking temporary employees and by transferring the nonstrikers to other departments without notifica- tion to and without negotiation or consultation with the Union as their exclusive bargaining representative 41 The Board also agrees with the Trial Examiner's finding that these unfair labor practices contributed to the prolonging of the strike. 4. The Trial Examiner found, and the Board agrees, that the Re- spondent did not fail to bargain in good faith on May 7 by refusing to attend the bargaining sessions proposed by the Union for the week- end of May 8 and 9. We deem significant the fact that the Respond- ent proposed no deviation from earlier negotiation practices, and did "The settlement of the arbitration issue also was, in effect , stymied by Respondent's position as to the applicability of the 3 -cent wage increase in conjunction with the 1953 arbitration clause. "Trinity Valley Iron and Steel Company, a Division of C. C. Griffin Manufacturing Company, Inc., 127 NLRB 417 ; W. W. Wallwork Fargo, Inc., 123 NLRB 91 , 109; N.L.R.B. v. J. H. Rutter-Rex Manufacturing Company, 245 F 2d 594 (C.A. 5). Member Jenkins, for reasons set forth in his separate opinion, has found that the strike was an unfair labor practice strike at its inception. However, he agrees that if the strike was economic in its inception , then the Respondent's unilateral grant of the wage increase in combination with the 1953 contract was violative of Section 8(a) (5) and (1) of the Act, and did prolong and consequently convert the strike to an unfair labor prac- tice strike on or about June 1, 1954. Contrary to Member Jenkins' assertions in his separate opinion, we have carefully considered the "whole record" In this proceeding and have studiously assessed the Re- spondent's entire course of conduct before and after the commencement of the strike on April 5, 1954 , in reaching our conclusion that the strike was economic at its inception and was converted to an unfair labor practice strike on June 1, 1954 . We do not believe that a fair and judicious appraisal of the entire record which has led us to disagree with Member Jenkins on this issue, has made us "fail [s] to see" a case which the General Counsel has failed adequately to make out . Nor do we believe , as Member Jenkins contends , that such an appraisal of the record denies "the complete remedy which should have been afforded ." In this connection , we would note that Member Jenkins' remedy in this case is almost parallel to the one which Chairman Leedom and Member Rodgers would fashion and falls short of the remedy which Members Bean and Fanning would frame under their view of the case. u Member Jenkins would find that the Respondent violated Section 8 (a) (5) and (1) of the Act, but would not find that it violated Section 8 (a) (3). However, as a remedy to the 8 ( a) (5) violation , he would direct that the Respondent offer reinstatement to all discharged temporary shell department employees on the same basis accorded non- strikers, i.e., permanent jobs with retroactive seniority to the date of their original hire. KOHLER CO. 1085 agree to meet with the Union the following Monday morning. More- over, the Respondent's point that it needed the weekend to prepare a brief due on Tuesday in the Federal district court action was the identical reason the Union had earlier assigned to procure an adjust- ment of the WERB hearing.42 Finally, postponement of bargaining over the weekend was reasonable, particularly as it conformed to the normal bargaining schedule established by the parties early in February 43 5. After reviewing the entire record, the Board finds, as did the Trial Examiner, that the June negotiations lacked good faith on the part of the Respondent because of its continued refusal to bargain in good faith on the wage issue (the Respondent continued to refuse to offer, in negotiations, the 1953 contract plus the 3-cent wage increase which it had placed in effect unilaterally on or about June 1). The Board also concludes from the entire evidence that if an impasse de- veloped during the June negotiations, as contended by the Respond- ent, it was an impasse attributable to the Respondent's unfair labor practice. Other factors also point to the lack of good-faith bargaining on the part of the Respondent during the June negotiations. Thus, while the Board agrees with the Trial Examiner that the Respondent's discharge of the striking temporary shell department employees and the trans- fer of nonstriking shell department employees to other departments without prior notification to and without prior negotiation or consul- tation with the Union in June may not have directly prevented the reaching of a contract agreement in June, such unlawful conduct does further demonstrate the Respondent's lack of good faith during the June negotiations. In like manner, the Board also finds that the Re- spondent's failure to supply the requested enamelware information after June 14, while not impeding the contract negotiations on the seven major issues separating the parties and therefore not neces- sarily effecting a final contract settlement, also furnishes additional evidence of the Respondent's lack of good faith during the late June negotiations. Other conduct also buttressing the finding that at all 41 The Union's contention that the Respondent had no interest in the prompt settlement of the Federal district court case is clearly without merit . The Respondent had filed a complaint with the WERB to obtain relief from certain alleged unfair labor practices on the part of the Union, including the mass picketing. The Union Sled the Federal court action to enjoin the WERB from considering the Respondent's complaint. In view of these circumstances, it is clear that the Respondent was anxious to establish the juris- diction of the WERB in the matter, and desired to quickly dispose of any pending action which might prevent the WERB from considering its complaint. 4i The Union also contends that Conger 's statement to the effect that be would not recommend Judge Tehan's proposal to the Respondent's board of directors proves that Conger did not intend to bargain in good faith and that his failure to seriously treat these proposals constituted a violation of S S (a ) (5). We do not agree. Judge Tehan's proposal called for certain concessions on the part of the Respondent which Conger could reject. N L.R.B v. Jones & Laughlin Steel Corporation , 301 U.S. 1, 45. Moreover, there is no evidence that the Respondent failed to give Judge Tehan 's proposals serious consideration. 1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD times after June 1 Respondent failed to bargain in good faith is its use of detectives at about that time. The reports of the detectives employed by the Respondent furnishes additional evidence showing that the Respondent's interest at the time was not that of reaching a contract with the Union but was to avoid agreement and to avoid settlement of the strike while it considered methods of breaking the strike, supplanting the Union, and preventing its future "infiltration." The Board also finds, in agreement with the Trial Examiner, that the August negotiations also lacked good faith on the part of the Re- spondent because of the continued refusal to bargain in good faith on the wage issue, with a further indication of a lack of good faith appearing from Kohler's claim that the information sought by the Union was not available and not necessary for bargaining. In ad- dition, like the Trial Examiner, we find that by failing to bargain in good faith during the June and August negotiations, the Respondent contributed to the prolongation of the strike. 6. The Board agrees with the Trial Examiner, for reasons stated in his Intermediate Report, that the Respondent entered the Sep- tember negotiations with the intent to avoid an agreement, and that on September 1, and throughout the September negotiations, and at all times thereafter, Respondent failed and refused to bargain in good faith with the Union in violation of Section 8(a) (5) and (1) of the Act. We also agree that this unfair labor practice contributed to the prolonging of the strike. In addition to those findings set forth by the Trial Examiner,44 the Board also views with significance the fact that the Respondent ap- parently first revealed its intention not to take back some 50 or more strikers at the second meeting between Respondent's officials and "We agree with the Trial Examiner 's finding that further evidence of Respondent's intent to avoid a contract was supplied by the remarks of Howe and Conger before the Senate Subcommittee in June 1955 . We also agree with the Trial Examiner that Kohler's refusals to enter the negotiations with Walter Reuther cannot be found indicative of bad faith. To the extent that the Trial Examiner may have relied on General Counsel's Rejected Exhibit No. 141-0 for his finding that as early as July 28 Respondent had jibed at the Union through its publication People for its futile efforts in trying to keep alive its dying strike , we do not adopt it. However, this finding of the Trial Examiner is not essential to our concurrence with his other findings and his conclusions Moreover, other accepted evidence clearly shows that the Respondent recognized and publicized the fact that it had been successful in breaking the strike. With respect to Respondent's Exhibit No. 529 allegedly showing the occurrence of some 800 acts of violence and vandalism , we find that the Trial Examiner properly rejected this exhibit on the ground that it was cumulative. Much of the information contained therein was set forth in other exhibits offered and already received in evidence. Moreover, an examination of this exhibit does not show, as now contended , in effect, by the Respondent, that the Union was responsible for or connected with the alleged inci- dents described thereon, or that, in fact, such incidents had even occurred . But in any event, we are not finding, by the adoption of this portion of the Intermediate Report, that the Union was not guilty of any act of coercion or violence during the course of the September negotiations. We are only finding, as did the Trial Examiner, that the Respondent did not rely on any acts of coercion or violence as a reason for breaking off the September negotiations as it had on two other previous occasions, namely, on June 29 and August 18. KOHLER CO. 1087 Judge Murphy. This meeting was held sometime after Judge Murphy's private meeting with the union representatives during which the Union had taken the position that for "7-cents and 3 cents for the skilled trade workers . . . all other issues in dispute would be washed out." From this it appears that at the time Kitzman made the Union's settlement offer to Judge Murphy, the Union was unaware that there was an issue as to the reinstatement of some 50 strikers. In these circumstances, Mazey's remark, made later in September, to the effect that the return of all strikers was one of the remaining issues in the dispute can hardly cast doubt on the Union's early September settle- ment proposal conveyed to the Respondent through Judge Murphy. Moreover, the record shows that Mazey did not participate in or formulate any settlement proposals during the early September bar- gaining. Instead, it appears that Kitzman was the principal union representative during these negotiations, and the record does not show that he lacked authority to advance the proposal for contract settle- ment which he and other union representatives made to Judge Murphy before Murphy met with Respondent's officials 45 7. The Board finds, for those reasons expressed by the Trial Ex- aminer, that the Respondent was justified in breaking off negotiations on June 29. In making this finding, we have considered and rejected the Union's contention that the June negotiations were carried out by the Respondent as a pretense to camouflage the landing and un- loading of the last two clayboats of the season and that the Respond- ent's charges of union violence asserted from June 23 to the breakoff on June 29 were a carefully planned method of terminating even the pretense of bargaining once the clay had been unloaded. This conten- tion, among other things, ignores the fact that the first two clayboats of the season arrived and were unloaded apparently without incident, so far as the record shows, on April 29 and May 25, a time when no bargaining negotiations were in progress. In view of this fact, the Respondent had no reason to assume there would be any difficulty in receiving and unloading the last two shipments of clay at the time it commenced the June negotiations, or that meeting with the Union would have any effect on the unloading of the clay. Indeed, on the basis of the entire record, we must conclude that the discontinuance of the mass picketing by the Union on May 28 was the event which led to the June negotiations, and not the pending arrival of two ships loaded with clay. The Board also finds, for reasons expressed by the Trial Examiner, that the respondent was further justified in breaking off collective- "I It is reasonable to assume that after the Respondent had rejected the Union's settle- ment offer and raised the question of reinstatement of strikers, the Union reverted to its former position with an added demand that the Respondent take back all strikers. In such circumstances, Mazey's remarks made in late September reflected the Union' s posi- tion at that later time, but such remarks do not cast doubt on the Union's position, as expressed by Kitzman, early in September. 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining negotiations on August 18. We agree that the evidence shows the Union encouraged the continuation, spread, and enlarge- ment of the home demonstrations by its publicity campaign, and that the home demonstrations constituted coercion and intimidation of the nonstriking employees. Accordingly, in view of the foregoing, and on the basis of the entire record, we find that the Respondent was not guilty of a refusal to bargain in good faith at any time between June 29 and August 5, or between August 18 and September 1. 8. The Board finds, as did the Trial Examiner, that the Respondent separately and independently violated Section 8(a) (5) and (1) of the Act by the unilateral granting of a wage increase on August 5, 1955, in the absence of an impasse on wages or other contract issues.46 The Board also agrees with the Trial Examiner that this unfair labor practice contributed to the prolongation of the strike. 9. The Board agrees with the Trial Examiner that the evidence presents no real issue as to the Union's majority status. Indeed, the Respondent's pleadings do not attack the fact of union majority prior to February 10, 1955, and the evidence otherwise establishes it. As- suming the loss of a union majority in the collective-bargaining unit after that time, such a loss of majority occurred long after the Re- spondent's unfair labor practices converted the strike to an unfair labor practice strike, and prolonged it as an unfair labor practice strike. Thus, the loss of majority, if indeed such occurred after February 10, 1955, can be attributed to the Respondent's unfair labor practices and would not affect the Union's representative status." 10. We agree with the Trial Examiner that by the following inci- dents the Respondent interfered with, restrained, and coerced em- ployees in violation of Section 8 (a) (1) of the Act : (a) Alois Forstner was employed for 14 or 15 years by the Re- spondent. Before he went out on strike on April 5, he worked as a colorman. In this job, he mixed color pigment with white enamel powder to obtain standard colors for plumbing fixtures. This is a very skilled operation which few men in the plant could perform. He lived in St. Cloud, Wisconsin. Sometime between June 23 and 26, 1954, his foreman, Fred Nack, came to St. Cloud and invited Forstner to a tavern where he per- sistently solicited Forstner to return to work. Nack told Forstner 46 Member Rodgers disagrees with this finding. He views the evidence as showing that an impasse was reached by the parties when the union membership rejected the Respondent's settlement proposals , including the wage increase later placed in effect. In view of this impasse, he would find that the Respondent lawfully placed in effect the August 5 wage increase . N.L.R.B. v. Crompton Highland Mills, Inc., 337 U.S. 217. 47 W. W. Wallwork Fargo, Inc., 123 NLRB 91 , 109; Habib Marcus d/b/a Marcus Bros., 123 NLRB 33, enfd. 272 F . 2d 253 ( C.A. 2). See Joy Silk Mills, Inc. v. N.L.R.B., 185 F. 2d 732 (C.A.D C.), cert. denied 341 U.S. 914 ; Franks Bros . Company v. N.L.R.B., 321 U.S. 702, N L R B. v. Mersa Textile Mills, Inc., 339 U.S. 563, 565, 568. KOHLER CO. 1089 that the Respondent wanted him to return to work "in the worst way." When Forstner refused, stating he was busy painting houses, Nack asked him if he couldn't come in to the plant 4 hours per day, and also when he was unable to paint because of rain. Nack then promised Forstner that if he came to work before July 1, he would collect his holiday and vacation pay, and that he (Nack) would see to it that Forstner received a 3-week vacation. Nack also promised that Forstner could work as many hours per day and as many days per week as he wanted to. Forstner did not have such liberties in selecting his hours and days of work before the strike. Near the end of the conversation, Nack cautioned Forstner not to tell anyone about the conversation, "otherwise he (Nack) would get his rear end in a sling." Thereafter, Nack had a separate conversation with Forstner's wife. Nack urged her to tell her husband to return to work. He also told her that if her husband returned to work, he could work as many hours as he wanted to and that he would receive a 3-week vacation. The Trial Examiner found that by Nack's solicitation of Forstner and by his promise of benefit to induce Forstner to return to work, Respondent violated Section 8 (a) (1) of the Act. The Respondent excepts to these findings of the Trial Examiner contending (1) that the findings as to promise of benefit are unwarranted, and (2) that the solicitation by Nack was outside his authority. The Board finds the Respondent's contentions without merit. As to (1), even assuming, arguendo, as contended by the Respondent, that the 1953 contract and Respondent's contract proposal of 1954 did contain provisions which made Forstner eligible to receive a 3-week vacation in 1954, and eligible to receive holiday pay if he returned to work before July 1, it is clear that neither past practice nor contract provisions permitted employees to select the number of hours per day and the number of days per week which they may work. As Nack, according to credited and unrefuted testimony, also made these addi- tional promises to Forstner, it is clear that the Trial Examiner's find- ings as to promise of benefit, which we adopt herein, are not unwarranted.48 As to (2) it is true, as contended, that the only allegation in the complaint involving solicitation was the Nack-Forstner incident. Moreover, there is nothing in the record which shows that the Respond- ent had a policy of encouraging solicitation. However, even assuming a general policy opposing solicitation, and the absence of other in- stances of solicitation, such does not dispose of the issue as to whether Nack was acting within the apparent scope of his authority when he solicited and made promises of benefit to Forstner. Nack was Forstner's foreman. Forstner was no usual employee. His job was 48 See, e.g., Northern Fruit Company, Inc., 108 NLRB 1017 ; Clearfield Cheese Com- pany, Inc., 106 NLRB 417, enfd. as modified in other respects 213 F. 2d 70 (C.A. 3). 1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a most skilled one which few men could do. In the circumstances presented herein, it is reasonable to infer that Respondent's production may have been seriously handicapped without Forstner's services. Thus, even assuming Respondent had a general policy against solicita- tion, Nack's solicitation of Forstner may well have been an exception to this policy, and could still be found violative of the Act 49 The Respondent also contends that Nack's conversation "was strictly on his own," that it was not authorized, and was not acquiesced in by the Respondent. Thus, it points out that Nack cautioned Forstner to refrain from repeating what he had said because "he (Nack) would get his rear end in a sling." We find from the record, however, that the Respondent did acquiesce in Nack's activities. Thus, the record shows that during August Nack successfully solicited striker Chad- wick Fischer to return to work, made arrangements to meet him outside the plant, and took him to the plant where he was reinstated. Considering the foregoing, and in view of the entire record, the Re- spondent is clearly liable for Nack's solicitation of Forstner to return to work and his promises of benefit if Forstner did so, and Respondent thereby violated Section 8 (a) (1) of the Act. (b) Gordon Majerus was chief steward in the Respondent's engine and electric plant division and also a member of the Union's grievance and bargaining committees. About 6 weeks before the strike, and at about the time Majerus was presenting a grievance for an employee, his foreman, Willard Kohlhagen, approached him at his work station. According to the credited and unrefuted testimony of Majerus, Kohl- hagen said, "I was a fine fellow and that I shouldn't stick my neck out for these fellows." Majerus replied that he thought this was a legitimate grievance and would continue to process it. Kohlhagen commenced arguing with Majerus and stated that the employee in- volved in the grievance had done some work that wasn't exactly what it should have been. According to Majerus, Kohlhagen thereafter told him that to continue to process grievances "would put me in a bad light with the company and wouldn't do any good for my record with the company." Kohlhagen continued, "Gordy . . . I don't see why you go out and fight for a fellow like that.... You are not doing yourself any good and you have been a good fellow and I think you can go far with the company." Majerus retorted that he had been working for the company for 15 years and the company had not recognized his ability, and it was not until he became a steward and the company didn't want him to process grievances that they ap- proached him and said he was a good fellow. In addition to the foregoing, about 3 or 4 weeks before the strike, while at his work station, Majerus was approached by Foreman Smith. 49 See E. I. Dupont de Nemours & Company, Inc, Construction Division, Savannah River Plant, 115 NLRB 84, 95. KOHLER CO. 1091 Smith said to Majerus, "Gordy, you are battling for the union here. ... They are going out on strike, and I think you are making a mistake and I think if you find out they go out on strike, the majority of the workers are coming into the plant and will be out in the cold. Why don't you lay off this union business and come downstairs and work on the third floor, the assembly floor, and you are a pretty good guy with your nimble fingers, and why don't you come down and work on the 4-cylinder engine? " The Trial Examiner found that Kohlhagen' s remarks to Majerus were of a restraining character, were aimed at discouraging his ac- tivities as chief steward in the presentation and prosecution of griev- ances, and were implied threats. He further found that Smith's remarks were also directed at discouraging Majerus' activities as chief steward, but unlike Kohlhagen's remarks, were implemented by a promise of other employment rather than threats. He found both Kohlhagen's and Smith's remarks violative of Section 8(a) (1) .50 Contrary to the Respondent's exceptions and concentrations we agree with each of these findings." 11. The Board, for reasons set forth in the Intermediate Report, finds, as did the Trial Examiner, that the Respondent did not engage in interference, restraint, or coercion by reason of the 19 items of interrogation alleged in the complaint, or by reason of Herwaten's statement to Korff, or by Kohler's remarks made at the time the 60 The Union contends that the Trial Examiner should have also found these remarks a violation of Section 8(a) (5) because they were made to a member of the Union's bar- gaining committee at a time when the committee was engaged in bargaining for a new contract. We reject this contention. The complaint does not allege these remarks to be violative of 8(a ) ( 5), and the matter was not litigated within the scope of that section of the Act. Moreover, after considering the record as a whole , including the remarks made to Majerus , we have already concluded that the Respondent was in fact bargaining in good faith at all times prior to the strike , and we cannot find, on the basis of the record, that the remarks were calculated to undermine the Union 's position in bargaining for a new contract. See American Rubber Products Corporation v. N.L.R.B., 214 F. 2d 47, 54-55 (C.A. 7). Those cases cited by the Union are plainly distinguishable, and, at best, stand for the proposition that the Board will consider supervisor 's 8(a) (1) conduct as evidence of whether or not the employer also violated Section 8 ( a) (5). But as set forth above, we have already considered the remarks in determining whether or not the Respondent was bargaining in good faith prior to the strike. Member Jenkins would find the remarks to Majerus were part of an integral pattern of conduct on the part of the Respondent showing that the Respondent was at all times, from the inception of negotiations , failing and refusing to bargain in good faith. 61 See, e g., N.L.R.B. v. Phoenix Mutual Life Insurance Company, 167 F. 2d 983 (C A. 7), cert. denied 335 U S. 845; Thomas W. Dant, et al., co-partners d/b/a Dant c6 Russell, Ltd., 92 NLRB 307, enfd. 207 F. 2d 165 ( C.A. 9) ; Salt River Valley Water Users' Association v. N.L.R.B., 206 F. 2d 325 (C.A. 9) ; N.L.R.B. V. Moss Planing Mill Co., 206 F. 2d 557 (C.A. 4). To the extent the Respondent contends these incidents are isolated and will not sup- port an 8(a ) ( 1) finding, Respondent is in error . Thomas Morelli and Charles Morelli d/b/a Morelli Brothers and Capitol Transport Co, Inc, 123 NLRB 635 See also Lloyd A. Fry Roofing Company, 123 NLRB 647. And, to the extent the Respondent also appears to contend that it is necessary to show, in support of an 8(a )( 1) finding, these con- versations intimidated , coerced, or improperly influenced Majerus, such contention is clearly without merit. Drennon Food Products Co., 122 NLRB 1353. 1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strikers had physically barred entrance of his automobile into the plant. 12. The Board adopts the Trial Examiner's findings and conclusion to the effect that by serving notices of eviction upon Walter Siech, Ervin A. Siech, John Siech, Peter Gasser, Jr., Frank Novak, Gordon Daniels, Ove Gjersten, and Lee Blandin, striking tenants of the American Club, and by the physical eviction of Gasser and Novak, Respondent violated Section 8 (a) (1) of the Act. The Board also agrees that by serving the eviction notices on Carl Faas and Henry Arnoldi, striking tenants of Respondent's dwelling and garden plots, and by requiring Faas to surrender his occupancy, Respondent inter- fered with, restrained, and coerced its employees in violation of Sec- tion 8(a) (1) of the Act. The Board also finds, for reasons set forth in the Intermediate Report, that this conduct did not violate Section 8 (a) (3) as alleged in the complaint. With respect to Faas, however, the Trial Examiner did find that his tenancy in a dwelling and garden plot constituted a term and con- dition of employment, and therefore when Respondent required Faas to surrender his occupancy it violated Section 8 (a) (3) as well as Section 8(a) (1). The Trial Examiner based his 8(a) (3) finding on the following factors in the record. Faas had worked for the Re- spondent for 18 years, had rented houses from Respondent for 9 years, and the house for which he received the eviction notice for 5 years. Faas' lease of December 29, 1952, contained the following proviso : This lease is entered into by Lessor because of the employment by Lessor of Lessee, and for this reason the annual rent is fixed at the sum named herein. If the Lessee should at any time, voluntarily or involuntarily, quit the service of the Lessor, or decline or refuse to perform the work for which said Lessee is employed, or the Lessor for any reason desires possession of said premises; in either of said events Lessor shall have the right to terminate this lease and reenter upon and take possession of said premises, upon thirty (30) days written notice to vacate said premises, either given to the Lessee in person or by leaving a copy of said notice upon said premises. [Emphasis supplied.] When Faas' lease was renewed for another year in December 1953, the foregoing clause was omitted, although the rental was continued at the same rate of $40 per month. The Trial Examiner found that even though the proviso was taken out of the subsequent lease, as the rent remained the same despite the fact that since December 28, 1952, there had been an average increase in rents, nationwide, of 5.7 per- cent, Faas' employment continued to enter into the fixing of the rental in the later lease and was therefore inseparably linked with the terms and conditions of his employment. KOHLER CO. 1093. The Respondent contends that as the clause was omitted it would- be contrary to basic contract construction to hold that although the- lease was changed, the parties intended only to accomplish a nullity- by making the change, or to find that because all provisions of the lease were not changed the provisions that were changed must be ignored. We find merit in the Respondent's contention. Moreover,, the record contains no evidence showing the rents of other tenants, employee or nonemployee, were increased from 1952 to 1954. Nor does, the record show that Faas otherwise received more favorable con- sideration than other tenants because of his employment by the Respondent.52 Accordingly, the Board finds that the evidence will not support a, finding, as alleged in the complaint, that the Respondent violated. Section 8 (a) (3) by serving an eviction notice on Faas, or by requiring- Faas to surrender his occupancy 53 13. The Board now turns to consider whether or not the Trial' Examiner improperly refused to permit the General Counsel to amend' the complaint to include certain allegations of surveillance, and, if- so, whether or not the Respondent violated Section 8(a) (1) by un- lawful surveillance. The hearing in this proceeding commenced on February 8, 1955. In issue at the time were various allegations of 8 (a) (1), (3), and (5),, none of which included surveillance. On February 10, 1955, the• General Counsel obtained a recess of the hearing in order to amend the complaint in various respects including a possible amendment of "surveillance by the company of the picket line by microphone."' However, the General Counsel indicated that he didn't want to bind' himself to only the proposed amendments specified at that time be- cause the situation at the Respondent's plant was "developing and continuing," and he wanted to be free to amend the complaint as circumstances in the future warranted. The hearing resumed on May, 27, 1955, at which time the General Counsel amended the complaint in,, substantial part, but did not add an allegation of surveillance of the picket line by microphone. Thereafter, in the course of the hearing, particularly during Re- spondent's case-in-chief and during General Counsel's- rebuttal, evi- dence was introduced showing the extensive dossiers Respondent maintained on several hundred of the strikers. These files contain a mass of reports, affidavits, photographs, and other material relative, 53 Indeed , the rental of Arnoldi , who occupied a dwelling somewhat similar to that of Faas, was fixed at $45 per month . While this rental appears somewhat higher than that of Faas, Arnoldi's premises included some half acre , while Faas' residence included only about a quarter-acre garden plot Is In any event , as we have already found that the Respondent 's conduct with respect to Faas is violative to Section 8(a) (1), the remedy would be the same whether or not we find the conduct also violative of Section 8(a) (3). 577684-61-vol 128 70 1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to both the strike activities and union activities of the strikers. In addition to the foregoing, near the end of his rebuttal, it would appear that the General Counsel learned, for the first time, that Respondent's attorney, Desmond, also maintained a strike incident file on almost 1,000 strikers. On March 28, 1956, pursuant to a subpena, this file was given to the General Counsel, and on April 2, 1956, the General Counsel moved to amend the complaint to include surveillance, basing its motion principally on the compiling, the methods of compiling, and the contents of the strikers' dossiers and the strike incident file maintained by Desmond.54 Subsequently, the General Counsel nar- rowed the scope of the amendment by three alternative motions, namely, "limiting the evidence to be considered . . . to matters which are presented in General Counsel's Exhibit 332 (strike incident file maintained by Desmond)," or "limiting the motion to amend to all matters which have occurred within six months prior to this date," or "limiting said motion to amend to six months prior to this date, and . . . to matters which are raised in General Counsel's Exhibit 332." The General Counsel indicated that no additional evidence would be introduced by him to support the amendment to the com- plaint, but did admit that such an amendment may add to the Re- spondent's case by way of rebuttal. The proposed amendment, and the three alternative amendments were rejected by the Trial Ex- aminer, principally on the ground of untimeliness and the Section 10(b) limitation. The General Counsel reserved his objections to the Trial Examiner's rulings. On October 9, 1957, the Trial Examiner, in his Intermediate Report, set forth the rulings he had made during the course of the hearing on the General Counsel's motion to amend the complaint with respect to surveillance. None of the parties filed exceptions to the Intermediate Report in this regard. Thereafter, the Union and Respondent filed motions to reopen the record to take certain further evidence "brought to light" in the course of hearings before the United States Senate Select Committee on 51 The amendment, in pertinent part, is as follows : "( 1) Since April 5, 1954, and at all times thereafter, the Respondent has been, and is now, engaging in surveillance of the union and other concerted activities of its employees ; and Respondent has been and is now engaging in discriminatory surveillance of the union , concerted and other activities of its striking employees while failing to conduct such surveillance of its non- striking employees. (2) Respondent conceived, instituted and set up a system and pro- cedure designed to, and Respondent did observe , report, solicit obesrvations and reports, collect, assemble, analyze and record, and did make and maintain files and records of facts and matters relating to union, concerted , and other activities of its striking employees, and their families and relatives including . . . ( specifies some of content of files, etc.) . . . . Respondent has engaged in and is engaging in the activities herein noted with respect to its striking employees while failing to engage in such activities with respect to its non-striking employees " Although the Trial Examiner rejected the foregoing (General Counsel's Exhibit No. 1-XXXX) as an exhibit in the proceeding, in view of our ultimate, conclusions herein, we find that the rejection of this exhibit was in error, and we hereby receive it in evidence KOHLER CO. 1095 Improper Activities in the Labor or Management Field. The Union sought to introduce evidence of "extensive antiunion espionage carried on continuously from April 1954, to November 1957, by private de- tectives hired and directed by Lyman Conger, Respondent's counsel and chief negotiator." The General Counsel took no position on the motions to reopen. On November 19, 1958, the Board directed that a further hearing be held, in part, for the purpose of receiving that additional evidence sought to be introduced by the Union which was relevant and material to the issues, and which was unavailable to the Union during the hearing before the Trial Examiner. As more fully set forth in the Supplemental Intermediate Report, on January 7, 1959, during the reopened hearing, the General Counsel moved that the Trial Examiner reverse his previous rulings made on April 2, 1956, denying the General Counsel's applications to amend the complaint in the manner described above. The motion was denied. The General Counsel then moved to amend the complaint to include the following 8 (a) (1) allegation : From on or about April 5, 1954, and thereafter, respondent [sic] by its officers, agents and representatives, while engaged in the course and conduct of its business, did engage in a course of illegal surveillance of the concerted or union activities of its employees. In making this latter motion the General Counsel relied entirely on that newly discovered evidence submitted by the Union concerning the Respondent's use of detectives and the nature of their investiga- tions during the course of the strike. The General Counsel did not propose to introduce any additional evidence to support the amend- ment. The Trial Examiner denied the motion on the ground that this would create "an entirely new issue" and that he did not consider it as falling within the ambit of the Board's Order reopening the record. In so finding, he relied on the fact that neither the General Counsel nor the Union had filed exceptions in this regard to the Inter- mediate Report. However, the Trial Examiner set forth various aspects of the Respondent's conduct which he would find as violations of Section 8 (a) (1), should he have misconceived the scope of the remand order. Both the General Counsel and the Union now except to the rulings of the Trial Examiner, namely, his original refusal to permit the amendment to the complaint offered on or about April 2, 1956, as well as his refusal to permit an amendment to the complaint on one or more of the limited grounds described above, and also his subsequent refusal to permit the amendment offered during the reopened hearing. In effect, the General Counsel also retenders the motions, described above, to the Board. 1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Before considering whether or not the Trial Examiner improperly denied the General Counsel's motion to amend the complaint on or about April 2, 1956, the Board must first determine whether or not this issue has been timely raised. As set forth above, although the General Counsel reserved its objections to the Trial Examiner's rul- ing denying the amendment, no written exceptions concerning the ruling were filed to the Intermediate Report. Instead, the exceptions to this ruling were filed after the Supplemental Intermediate Report had issued. The Board finds, in the circumstances of this case, that the failure to file exceptions to the Intermediate Report does not bar our consideration of the Trial Examiner's rulings on the motion of April 2, 1956, or on the three alternative motions. In reaching this conclusion we have considered Section 10(c) of the Act and Section 102.46(b), Series 8, of the Board's Rules and Regulations. However, as interpreted by the Board and the courts, neither Section 10(c) of the Act nor the Board's Rules and Regu- lations prevent the Board from considering the Trial Examiner's rulings in regard to the General Counsel's motions to amend the com- plaint.55 Moreover, as the Board directed further hearing and the preparation of a Supplemental Intermediate Report before under- taking "final consideration" of the issues,56 and as the exceptions of the General Counsel and the Union were timely filed with respect to the Supplemental Intermediate Report, the requirements of Section 10(c) of the Act and Section 102.46, Series 8, of the Board's Rules and Regulations have been met.57 55See, e.g., N.L R.B. v. M. L. Townsend, 185 F. 2d 378 ( C.A. 9), cert. denied 341 U.S. 909, where the court rejected a contention based on 10 (c), that an order of dis- missal recommended by the Trial Examiner became the irrevocable order of the Board because no exceptions had been filed ; N.L.R.B. v. WTVJ, Inc., 268 F. 2d 346 (C.A. 5), where the court held that "event absent an exception , the Board is not compelled to act as a mere rubber stamp for its Examiner." See also United Association of Journeymen & Apprentices of Plumbing & Pipefitting Industry of the United States and Canada, Local 231, AFL-CIO (J. S. Brown-E. F. Olds Plumbing & Heating Corporation ), 115 NLRB 594, at 599 ; International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, Local 179 (De Prizio Construction Company), 110 NLRB 287, at 288 ; The Item Company, 108 NLRB 1634; Kallaher and Mee, Inc., 87 NLRB 410, and cases cited therein. ie The Trial Examiner misconceived the Board's order reopening the record . It was not intended to indicate approval of the Trial Examiner 's prior rulings with respect to the General Counsel's proposed amendments to the complaint . Indeed, had it not been contemplated that the Trial Examiner might change some of his previous findings and rulings in the light of additional evidence offered by the Union which the Board directed be received, there would have been no point in reopening the hearing and directing the Trial Examiner to file a Supplemental Intermediate Report. 67 See N.L.R .B. v. Stocker Manufacturing Company, 185 F. 2d 451 (C A. 3). Cf. N.L.R.B. v. International Association of Machinists, Lodge 942 ( Alloy Manufacturing Company), 263 F 2d 796 ( C.A. 9) ; Moss Planing Mill Co., 119 NLRB 1733, footnote 21. In the instant case at least two other grounds exist for finding that the rulings of the Trial Examiner have been properly preserved for Board consideration . Thus by directing the Trial Examiner to receive certain additional evidence and to prepare a Supplemental Intermediate Report, the Board, in effect, gave the Trial Examiner another opportunity to review his rulings , findings , and conclusions in the light 'of additional evidence. This the Trial Examiner did. It follows that timely exceptions filed to the Trial Examiner's reconsideration and review of his earlier rulings, findings, and conclusions are sufficient KOHLER CO. 1097 The Trial Examiner denied the General Counsel's April 2, 1956, motion to amend the complaint and the three alternative motions on two principal grounds, namely, the limitations of Section 10(b) of the Act and untimeliness. We shall first consider the applicability of Section 10(b). To the extent that the allegations set forth in the General Counsel's proposed amendment of April 2, 1956, include conduct extending back to April 5, 1954, such allegations, in order to meet the requirements of Section 10(b) of the Act, must be adequately supported by either the original charge filed on July 12, 1954, or the first amended charge filed on October 4, 1954. Both of these charges, in addition to alleging various violations of Section 8 (a) (3) and 8 (a) (5) of the Act, also contain the following allegations : That the company by its aforesaid acts and others, has inter- fered with the employees' right to self-organization, to remain members of and assist the local union, in its right to engage in col- lective bargaining through their own chosen representatives, and to engage in concerted activities for the purpose of collective bar- gaining and other mutual aid and protection. That the company has further restrained and coerced its em- ployees in the exercise of their rights guaranteed under the law. That the company by these and other acts seeks to discourage membership or assistance to the union. [Emphasis supplied.] The foregoing language also appears in the amended charges filed on October 15, 1954, and January 20, March 4, and September 13,1955.58 In Kohler Co., 108 NLRB 207, enfd. 220 F. 2d 3 ('C.A. 7), the Board and the court were confronted with similar charges and also had to determine whether such charges were sufficient to support certain 8(a) (1) allegations in the complaint. In that case the company con- tended that various allegations of the complaint concerning allegedly coercive statements made by company supervisors to its employees were not based on a timely charge. The charges filed alleged only improper discharges, and, generally, that "by these acts and by other acts and conduct the Company . . . did interfere with, restrain and coerce its employees in the exercise of their rights guaranteed in to preserve the earlier rulings of the Trial Examiner for Board review. In addition, Section 10(b) of the Act and Section 102.17 of the Board's Rules and Regulations, Series 8, provide, in effect, that a complaint may be amended upon such terms as may be deemed just at any time prior to the issuance of an order based thereon , upon motion by the Board. In accordance with those provisions, the General Counsel has now, in effect, submitted those motions rejected by the Trial Examiner to the Board for consid- eration. In determining the merits of the motions to amend the complaint, the Board is free to review the earlier rulings of the Trial Examiner with respect to those motions. w The March 4 charge also specifically alleges surveillance of striking employees by means of microphones and other recording and listening devices, and in addition alleges that by "these and other acts and conduct" the employer has interfered with, restrained, and coerced its employees in the rights guaranteed them in Section 7 of the Act, 1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 7 of the Act." The court held that those 8 (a) (1) allegations of the complaint concerning coercive statements were adequately sup- ported by the broad language of the charge. Applying the holding of the Kohler case to the instant proceeding, it is clear that both the original charge filed by the Union on July 12, 1954, and the first amended charge filed on October 4, 1954, support the General Counsel's proposed amendment of April 2, 1956. In view of the foregoing, and the entire record, it is clear that the Trial Examiner was in error in denying the General Counsel's April 2, 1956, motion to amend the complaint to include an 8(a) (1) allega- tion of surveillance on the ground that the proposed amendment did not meet the requirements of Section 10 (b).11 As set forth above, the Trial Examiner also denied the motion to amend the complaint on the ground that the General Counsel unduly delayed seeking the 8 (a) (1) surveillance amendment. We do not agree. While it is true, as the Trial Examiner indicates, that the General Counsel sought to amend the complaint 1 day before resting its case on rebuttal, the General Counsel did not propose to introduce any additional evidence, but chose to rely on that evidence already in the record. Moreover, it was not until the Respondent's case-in-chief and even later during its own rebuttal that the General Counsel learned of the extensive dossiers Respondent maintained on several hundreds of the strikers. And, it was not until near the end of its rebuttal that the General Counsel first learned of the complete strike incident file maintained by Respondent's counsel, Desmond. Indeed, it was just 5 days after the General Counsel first examined the strike incident file that it moved to amend the complaint to include an allegation of surveillance based principally on the compiling, the methods of com- piling, and the contents of the strikers' dossiers and the strike incident file. We do not believe that the foregoing shows any undue delay on the part of the General Counsel.60 as Apart from the foregoing , it also appears that as the March 4, 1955, amended charge specifically alleged surveillance , albeit of a different nature than that urged in the April 2, 1956, amendment, all allegations of surveillance occurring 6 months prior to March 4, 1955, would be adequately supported within the terms of Section 10(b). N.L.R.B. v. Pant Milling Company , 360 ILS 301. In addition, as we have found that the Trial Examiner erred in denying the April 2, 1956, motion to amend the complaint, and as the General Counsel's three alternative motions described above merely limit the April 2, 1956, amendment , it is clear that the Trial Examiner also erred in rejecting each of the alternative motions. OD During the course of the hearing the Trial Examiner expressed continuing interest in the circumstances surrounding the failure of the General Counsel to include, early in the hearing, an allegation of surveillance of the picket line by microphone . It appears from the record that the Trial Examiner also seized upon the General Counsel's actions in this respect to deny the motions set forth above. The Board cannot conceive that the failure of the General Counsel to amend the complaint in this single respect fore- closed the General Counsel from later seeking to amend the complaint to add 8(a)(1) allegations of surveillance by a different means. This is particularly true where the amendments now is issue were based on evidence first brought to light later in the course of the hearing and evidence of which the General Counsel apparently had no knowledge at the time it first sought to obtain a recess in order to amend the complaint. KOHLER CO. 1099 In addition to those motions discussed above, during the course of the reopened hearing the General Counsel again moved to amend the complaint to include an allegation of illegal surveillance based on new evidence of the employment, activities, and reports of detectives hired by the Respondent. As set forth above, the Trial Examiner found that this issue was barred by the Board's Order reopening the record, and he denied the motion to amend. However, the Trial Examiner set forth various aspects of the Respondent's conduct which he would find as violations of Section 8(a) (1), should he have misconceived the scope of the Board's Order. As set forth above, we have already found that the Trial Examiner misconceived the scope of the Board's Order directing further hearing in this matter, and that he erred with respect to those rulings denying the General Counsel's earlier motions to amend the complaint as described above. It follows then that surveillance was in issue at the time the Board directed the reopened hearing, and the Trial Examiner improperly rejected the General Counsel's proposed amendment to the complaint based on newly dis- covered evidence as to the employment, activities, and reports of the detectives hired by the Respondent. Accordingly, we overrule the Trial Examiner's denial of the General Counsel's motion to amend the complaint made during the reopened hearing, and shall consider the merits of the 8 (a) (1) allegation relat- ing to the employment, activities, and reports of the detectives hired by the Respondent. As more fully set forth in the Supplemental Intermediate Report, the record shows that the Respondent received, freely accepted, and paid for many detective reports concerning matters plainly outside the scope of lawful inquiry. More specifically, the Respondent re- ceived detective reports concerning (1) the beliefs, sentiments, and attitudes among the strikers themselves on the issues involved in the strike, as to whether the strike was broken or lost, and on the likelihood that the Union was ready to settle for less than currently indicated; (2) investigations into the private life of Robert Burkart, including mail checks and telephone covers, and investigations of Robert Brown, Frank Wallich, and Robert Treuer, International union officials; and (3) checks and reports on the coming and going of union officials from union headquarters, and elsewhere, and reports showing that constant surveillance was maintained at various strike headquarters, taverns, and the like in the area of Kohler, Sheboygan, and Sheboygan Falls, Wisconsin. As the Respondent caused to be prepared, received, freely accepted, and paid for those detective investigations and reports specifically described above, we find that the Respondent engaged in unlawful surveillance and independently violated Section 8(a) (1) of the Act.61 at As set forth above, we have found that the Trial Examiner erred in not permitting the General Counsel to litigate the issue of whether the Respondent engaged in surveillance 1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In addition to the foregoing, the record further shows that the Re- spondent also caused to be prepared, received, freely accepted, and paid for other detective reports relating to interviews with Ralph Knox concerning strike breaking plans at the Respondent's plant and 'Conger's subsequent trip to Detroit, Michigan, to confer with Knox, ,other reports showing that the detectives suggested the possibility of "bugging" the union rooms at the Grand Hotel, and plans advanced by the Madson Detective Agency calling for a system of secret plant informants and a comprehensive investigation of all new employees. With respect to these latter reports and plans, the Board finds, as did the Trial Examiner, that such reports do not serve as a basis for finding a violation of Section 8(a) (1) because there is no evidence in -the record showing that the plans under consideration were actually ,carried out. However, we do find that these reports clearly expose the Respondent's claim that it employed the detectives only to obtain information as to the perpetrators of violence and vandalism, or to obtain subversive activity material or impeachment material on certain union officials. Moreover, such reports also clearly buttress our earlier findings that at all times after June 1, 1954, except for those limited periods of time between June 29 and August 5, and between August 18 -and September 1, the Respondent failed to bargain in good faith. 14. During the course of the reopened hearing the General Counsel and the Union offered in evidence certain detective reports concerning 'an investigation made on Albert Gore, counsel for the General Counsel, and also reports of Gore's activities in investigating certain aspects of this case for trial. The General Counsel and the Union contended before the Trial Examiner that the proffered exhibits refuted Re- sspondent's claim as to the purpose for which the detectives were em- ployed, and the General Counsel also contended, in effect, that the proffered exhibits also showed possible violations of Section 12 of the Act. The Trial Examiner rejected the exhibits, among other reasons, ,on the ground that Section 12 allegations were outside the scope of the reopened hearing. We do not agree with this ruling of the Trial Examiner. Section 12 of the Act provides : Any person who shall willfully resist, prevent, impede, or inter- fere with any member of the Board or any of its agents or agencies and violated Section 8(a) (1) of the Act, in part, by the compiling and maintenance of the strikers' files and strike incident list. While most of these files and the strike incident list have been received in evidence for other purposes, the issue as to whether the Respondent violated Section 8(a)(1) by compiling and maintaining such files and lists was not litigated. In such circumstances , the Board could remand the case to the Trial Examiner for further hearing. However, in the instant case, to resort to such a procedure at this stage of the proceeding would be unconscionable. Accordingly, in view of the foregoing, and as we have already found that the Respondent violated Section 8(a)(1) by otherwise engaging in surveillance , we find it unnecessary to deter- mine whether or not the Respondent violated Section 8(a) (1) In the compiling and main- taining of the strikers' files and strike incident list. KOHLER CO. 1101 in the performance of duties pursuant to this Act shall be pun- ished by a fine of not more than $5,000 or by imprisonment for not more than one year or both. In view of the very purpose of this section of the Act, it is clear that allegations of Section 12 violations are not limited by the pleadings or the issues in a proceeding. Indeed, alleged violations of Section 12, and any supporting evidence thereof, may be brought to the Board's attention either formally or informally at any time during- the course of a proceeding. Thus, in the instant case, as the proffered evidence did not come to light until the Senate hearing described else- where herein, it was proper for the General Counsel to raise this matter during the reopenedhearing. In view of the foregoing, it is clear that the Trial Examiner erred in rejecting the proffered exhibits. Accordingly, we hereby reverse- his ruling, and receive in evidence General Counsel's Exhibits Nos. 337,. 338, and 339, and the Union's Exhibits Nos. 29 and 30. The detective reports we have now received in evidence include two separate series of reports. The first series covers an incident in the office of the Chief of Police on April 29, 1955. From the reports it appears that Police Chief Wagner, Sheriff Mosch, and two private detectives hired by Respondent were together in Wagner's office when Gore appeared. Gore was unaware of and was not informed as to. the identity of the private detectives. Gore, in questions directed to Police Chief Wagner and Sheriff Mosch, attempted to obtain infor- mation as to who was responsible for the vandalism in the Sheboygan area during the course of the strike, and he (Gore) also commented as to the effect of such vandalism on the instant case then in progress. Gore's questions and comments during this interview were reported- in detail to the Respondent by the private detectives. The remaining reports concern a separate investigation of Gore.. Thus, a report dated April 4, 1956, indicates that the private detec- tives, at the request of the Respondent, investigated to some extent the background of Gore and Gores parents. Then, on two occasions,. and by "using a suitable pretext," the detectives contacted Gore's- wife in Chicago, Illinois, to inquire, among other things, whether or not her father-in-law was in the hospital, when he would be released, and whether his mailing address could be obtained. The foregoing reports and Respondent's conduct in connection therewith, while not warranting, in our opinion, prosecution under Section 12 of the Act, must be condemned. These reports, prepared for and freely accepted by the Respondent, together with other detec- tive reports showing a plan under consideration for the possible "bugging" of the Grand Hotel with a wall microphone capable of picking up conversations anywhere in the hotel at a time when the General Counsel's trial staff was quartered in the hotel, are astounding. 1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The possible ramifications of such conduct is beyond comprehension. Moreover, the Board can envision no justifiable excuse for the employ- ment of detectives to spy upon and investigate its attorneys or other personnel while they are engaged in the performance of their duties pursuant to the Act 62 15. On March 1, 1955, under circumstances described in the Inter- mediate Report, the Respondent discharged 90 strikers. After amended charges had been filed, the General Counsel was permitted to amend the complaint to allege that 78 of the discharged strikers had been discharged because of their union membership or activities or because they had otherwise engaged in concerted activities. There- after, the Respondent, in its amended answer, asserted that each of the 78 strikers was discharged for strike misconduct. More spe- cifically, the Respondent pleaded that the dischargees had participated in illegal picketing and/or had participated in other illegal conduct in connection with the strike and/or had instigated, directed, or con- trolled illegal picketing or other conduct in connection with the strike and/or had participated in unlawful conduct in connection with the strike since their discharge which would bar a remedial order of reinstatement. Those general types of misconduct principally relied on by the Respondent were the mass picketing (from April 5 to May 28), home demonstrations (in August), and employment office picket- ing (in December and January 1955). The Trial Examiner found that although the General Counsel did make out a prima facie case of discriminatory discharge with respect to each of the 78 strikers named in the complaint (all of the strikers were discharged because they had engaged in concerted activities in support of the strike), the real issues were whether the dischargees had engaged in the strike activities for which the Respondent dis- charged them and whether their conduct was such as to remove them from the protection of the Act. The Board agrees with these con- clusions.83 Accordingly, the Board shall turn to the Respondent's defenses. 87 Respondent's claim that the investigation of Gore was made only to determine whether or not Gore had made a truthful application for adjournment of the bearing, namely, illness in the family, is refuted by the contents of the detective report. This report is not limited to that matter alone. Indeed, the report received, freely accepted, and paid for by the Respondent covers Gore's place and time of birth , some background information on his father and mother, comments as to whether his father and mother were separated or divorced , and even includes the fact that his father was born in Russia. av In view of the entire record, and contrary to the contentions of the General Counsel, the Board finds that Respondent 's procedures for investigating strike misconduct and for recording and indexing the evidence thereof were not designed or operated for the purpose of laying a pretextual basis for a later discriminatory discharge , and that those reasons given by the Respondent for the discharge were not mere pretexts. KOHLER CO. 1103 From April 5 until May 28, 1954, except for 3 days early in May, Respondent's plant was "SHUT DOWN LIKE A DRUM" by the mass picketing of up to 2,500 pickets." The pickets stationed in front of the Respondent's plant moved in a double line along the sidewalk across the driveways and plant entrances, in both directions for two city blocks. In addition to the main picket line, another group of pickets formed in the roadway to meet groups of nonstrikers who ap- proached the picket line to enter the plant. This advance guard, on a number of occasions, would physically block, push, shove, and prevent the nonstrikers from entering the plant. In addition, when nonstrikers approached the plant entrances, the double line of pickets would close any space in the line, and engage in conduct that has been commonly called "belly to back" picketing while the advance guard was attempt- ing to prevent the nonstrikers from even reaching the picket line. Those other entrances to the plant not affected by the above described picketing, were also barred, and while the picketing at these gates was not conducted on the grand scale described above, it was nevertheless effective in preventing ingress to or egress from the plant. In many instances the pickets refused to permit entrance to the plant property despite requests of police to let the workers into the plant, and on those occasions when nonstrikers were attempting to enter the plant the pickets yelled and shouted such things as, "Hold the line," "No one gets through," and "Go home scab, go home." In addition to the foregoing, the Union also put into effect and maintained during this period a "pass" system under which persons desirous of entering the plant, the main office, the employment office, or even the medical department were required to procure passes from the Union's strike headquarters some distance away 55 The General Counsel concedes that the picketing of the type de- scribed above which occurred in April and May was unprotected activity and that generally the Respondent could lawfully discharge all those strikers who engaged in it. However, the General Counsel contends, inter alia, that the Respondent condoned and waived as a ground for discharge participation in the above-described picketing. With respect to the contention of condonation, briefly the record shows that prior to the strike the Respondent notified all of its em- ployees that it would not reemploy any employee who engaged in illegal conduct during the strike. Thereafter, during a September meeting with Judge Murphy, the Respondent pointed out that there " In its radio broadcast of April 19 , the Union boasted that some 2,500 pickets walked in a double picket line extending for 2 blocks in front of the Respondent 's plant. a: Apart from those persons who obtained passes from the Union , only the office em- ployees and supervisors were permitted to enter the plant property during the above- described period. 1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were certain strikers whom it could not be expected to rehire because they were participating unlawfully in the strike, and Conger esti- mated this number to be about 50 strikers, "subject, of course, to a change up or down, depending upon developments." The record also shows that prior to the discharge of the 90 strikers, Respondent had reinstated many strikers who were known to have engaged in the mass picketing. In November, it had also offered reemployment to shell department employees, some of whom were known to have engaged in the mass picketing. Respondent also knew on March 1, 1955, that many of the strikers who were not included among the 90 dischargees had also engaged in the mass picketing. It also appears that Conger testified that in some cases lie had not considered mere presence on the picket line to be misconduct warranting discharge, and on another occasion testified, ". . . there were certain items that might be con- sidered misconduct; for example, I am sure I stated that in- a far- fetched view we probably would have the right to discharge anyone who had ever participated in a mass picket line, but that I was not recommending that." Relying on the foregoing facts, the Trial Examiner concluded that the Respondent did condone and waive as a ground for discharge mere participation in the mass picketing, i.e., mere presence on the picket line, where unaccompanied by evidence of other overt acts of misconduct, e.g., active participation in denying admittance to em- ployees and others and in the enforcement of the Union's pass system. Members Bean and Fanning also view the foregoing, and the entire record as showing that the Respondent did condone and waive as a ground for discharge mere participation in the mass picketing. However, a majority of the Board, namely, Chairman Leedom and Members Rodgers and Jenkins, disagree. They conclude that the record does not preponderantly establish that the Respondent con- doned and waived the mass picketing as a ground for discharging those strikers now in issue. In the majority view, the record clearly shows that the picketing during April and May had as a purpose, barring all ingress to and egress from the plant. It is also plain that all those participating in this picketing, whether marching in the picket line or joining in as part of the advance guard, must have been aware of this object of the picketing, and did, by their participation, in whatever capacity, actu- ally deny admittance to nonstrikers and others every bit as much as those pickets who were shown to have actually physically engaged in the blocking of those persons attempting to enter the plant. More- over, by the very nature of their picketing, it is also plain that each of the pickets, wherever located, was actually enforcing the union pass system. Accordingly, the majority cannot dismiss mere par- KOHLER CO. 1105 ticipation in the mass picketing as something less serious than pushing, shoving, or blocking of nonstrikers and others. Under such circumstances, condonation of the mass picketing as a grounds for the discharge of those strikers now in issue may not be lightly presumed, but must clearly appear from a preponderance of the evidence. Thus, while it is true that the Respondent reinstated many strikers who were known to have engaged in this unprotected activity and may have offered to hire still others, it cannot be inferred that the Respondent condoned and waived the misconduct of all par- ticipants 86 Moreover, it is clear that even prior to the discharges the Respondent indicated that there were some strikers who would not be taken back because of their misconduct. This does not reveal an atti- tude of forgiveness on the part of the Respondent, nor is there any other evidence showing express forgiveness by the Respondent of the dischargees participating in the mass picketing (Chairman Leedom and Member Rodgers do not mean to suggest that such an expression is indispensable to a finding of condonation). 67 In addition, while it is true that in some cases participation in mass picketing was not considered in the selection of those to be discharged, and while Conger did not recommend that all participants in the mass picketing be dis- charged, such testimony, taken at its face value, in the majority view, shows nothing more than the Respondent exercised its privilege of selecting those strikers to be discharged. Accordingly, in view of the foregoing, and after a. careful examina- tion of the record, Chairman Leedom and Members Rodgers and Jenkins conclude that the General Counsel did not establish by a pre- ponderance of the evidence that the Respondent condoned or waived the mass picketing by the dischargees now in issue as a ground for their discharge. The Board unanimously agrees, however, that the Respondent did not condone and waive the strike committee's direction and control of the strike during the mass picketing period, and all Board Members agree that the Respondent did have sufficient cause for discharging Allan J. Grascamp, Arthur E. Bauer, Egbert H. Kohihagen, Edward C. Kalupa, Leo J. Breirather, Elmer A. Oskey, Gordon Majerus, Elmer Gross, Kenneth C. Nitsche, Bernard Majerus, Curtis Nack, Leo Prepster, and John Konec, members of the strike committee. ee N L R.B. v. Fansteel Metallurgical Corporation, 306 U. S 240 ; Wilson & Company v. N.L.R B., 120 F. 2d 913 (C.A 7) ; N.L R.B. v. Clearfield Cheese Co., Inc., 213 F. 2d 70 (C.A. 3) ; Longview Furniture Company, 100 NLRB 301. 87 Member Jenkins deems that ( 1) forgiveness and (2) restoration of the offending party to that position he would have occupied but for the offense is essential to con- donation. He finds no attitude of forgiveness on the part of the Respondent . He finds no restoration of the offending party to that position which he would have occupied but for the offense committed . He reiterates the position in regard to condonation which he took in Plasti-Line, Incorporated, et at, 123 NLRB 1471 , 1474, which position was sus- tained by the United States Court of Appeals in Plasti-Line, Incorporated v. N L R.B., 278 F. 2d 482 (C.A. 6). 1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent also urged as a ground for the discharge of some of the strikers their participation in the home demonstrations. As more fully described in the Intermediate Report, during the month of August a series of demonstrations occurred in Sheboygan at the homes of several nonstrikers. The home demonstrations commenced early in August, and at first appeared to be small neighborhood name-calling affairs. However, as the result of the Union's various publicity media and the public news media, the home demonstrations mushroomed rapidly. Within a short time, as described by the Trial Examiner, "They became disgraceful spectacles of mob proportions, with as many as 400, 500, and even 700 persons assembled." Each of the home demonstrations occurred in somewhat similar fashion. Thus, prior to the arrival of the nonstriker at his home after work in the afternoon, the demonstrators would commence to assemble near or around the nonstriker's home. Upon his arrival, various persons in the assembled crowd, including many of the strikers, would shout and yell at the nonstriker as he entered his home. The non- strikers, although never assaulted or prevented from entering their homes, were called vile names, and insults, derisive epithets, and even threats were shouted out at them. The Trial Examiner found that the treatment of the nonstrikers at the home demonstrations was plainly coercive and intimidatory as regard their employment by the Respondent. However, he concluded that as the strikers constituted only a small percentage of those as- sembled, and as some of the strikers present were identified only as present in the crowd but not identified as actively engaged in the yelling, jeering, etc., and as there was no evidence that any striker had attended the home demonstrations at the direction or suggestion of the Union or any of its representatives, mere identification of particular strikers as present did not establish their participation in unprotected activity nor did it support a good-faith belief of such participation unless accompanied by other evidence or report of some overt act. Accordingly, he found that certain of the dischargees who were present at the home demonstrations were discriminatorily dis- charged because there was no showing that they had actively par- ticipated in the coercive and intimidatory conduct. Members Bean and Fanning agree with the Trial Examiner. However, a majority of the Board, namely, Chairman Leedom and Members Rodgers and Jenkins, do not agree. They find that by being present at the home demonstrations the strikers did contribute to the coercion and intimidation of the nonstrikers, and that the Respondent had a valid ground for discharging all those strikers who were identi- fied as being present at the home demonstrations. Thus, the majority views the record as showing that it was not only those who actively, engaged in hurling the jeers, threats, vile names, insults, and derisive KOHLER CO. 1107 epithets who intimidated and coerced the nonstrikers, but also those who by their presence swelled the assemblage to mob proportions and tacitly lent approval to the entire scene even though they did not join in the yelling and shouting. In other words, in the majority view, the coercive effect of this conduct was not only produced by those actively yelling, jeering, etc., but by the entire spectacle of mob pro- portions. Clearly, then, by their presence, all strikers present con- tributed to this coercive effect. Moreover, the strikers were well aware of the nature of the home demonstrations and some had even attended several of the demonstrations. Thus, by their very presence such strikers lent tacit approval of these unruly mob demonstrations, and all strikers who were identified as being present were equally guilty of the resulting coercion and intimidation." The Respondent also relied on participation in the employment office picketing as a grounds for the discharge of some of the strikers now in issue. The employment office picketing occurred generally in December 1954 and January 1955. The scene of this picketing was the entrance to the employment office and the approaches to that entrance. The pickets, usually numbering from 15 to 25, normally did not form a picket line as such, but assembled in groups along the sidewalk in front of the employment office. On occasion, when job applicants approached to enter the employment office building, some of the pickets, and on occasion all of the pickets, would interpose themselves between the approaching applicants and the entrance to the employment office. In many such instances the applicants either had to push their way through the pickets or walk around them, but in the latter event the pickets sometimes again shifted to interpose themselves between the applicant and the door. On many occasions the applicants could not make their way into the employment office until the Kohler Village Police came over and ordered the pickets to open up. Frequently there were instances when groups of pickets actively blocked, pushed, shoved, bumped, spat upon, tripped, kicked, and otherwise impeded the entrance of persons into the employment office. The Trial Examiner found, in effect, that where it had been estab- lished that a dischargee had pushed, shoved, kicked, spat upon, bumped, or tripped an applicant, the Respondent had valid grounds for the discharge but that no such grounds existed where the evidence showed only that the dischargee was in the group during such epi- sodes. Members Bean and Fanning agree with the Trial Examiner's resolution of this issue. Chairman Leedom and Members Rodgers and Jenkins, constituting a majority of the Board, find that where it has been shown on the record that the dischargees were present at those employment office 68 H. N. Thayer Company, 115 NLRB 1591. 1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD incidents, the Respondent had valid grounds for discharging them. In the majority view, the record amply establishes that almost daily -during the months of December 1954 and January 1955 the pickets in front of the employment office were engaged in a type of picketing designed and intended to prevent free access to the employment office. While it was not as effective in preventing all ingress to the employ- ment office as was the mass picketing described elsewhere herein, -nevertheless, like the mass picketing, it was unprotected on those numerous occasions when the pickets interposed themselves between the applicant and the entrance and would not permit the applicant to enter until the police directed that the line be opened, and also on those many other occasions when the applicants were pushed, bumped, shoved, kicked, and spat upon while making their way into the employment office. The Board majority also concludes, as it did -with respect to the mass picketing, that all those pickets present during these incidents were engaged in unprotected activity, and to the extent the Respondent relied on this misconduct for their dis- charge, it did not violate the Act. Accordingly, in view of the foregoing, the Board majority concludes that as the Respondent did not condone and/or waive participation in the mass picketing as a grounds for discharge, and as it affirmatively appears from the record that the remaining 65 strikers listed in the complaint 69 were discharged for engaging in, and had in fact en- gaged in, the mass picketing and/or the home demonstrations and/or those phases of the employment office picketing described above, their discharges were not unlawful.7° 16. The Trial Examiner, relying on National Carbon,71 and also relying on his finding that the Respondent unlawfully discharged some 35 strikers, concluded that the Respondent violated Section 8(a) (5) on or about February 21 and March 1, 1955, by refusing to negotiate with the Union with respect to the identity of employees -whom Respondent considered ineligible for reinstatement upon termi- nation of the strike. As a majority of the Board, consisting of Mem- bers Bean, Jenkins, and Fanning have found that Alex Dottei was in fact unlawfully discharged, the majority agrees with the Trial Examiner's conclusions that the Respondent did separately violate 81 The Board has aready unanimously determined that those 13 members of the union strike committee set forth in the complaint were lawfully discharged. 70 A majority of the Board , Members Bean , Jenkins, and Fanning, finds , however, that Alex Dottei should be ordered reinstated . Members Bean and Fanning agree with the Trial Examiner that Dottei's conduct was not such as to remove him from the protection of the Act, and did not warrant Respondent's selection of him for discharge. Member Jenkins would find that Respondent , by announcing at the hearing that it had determined to withdrawn Dottei's discharge and later objecting to the presentation of certain evidence concerning Dottei on the grounds that "the Company has offered to reinstate [Dottei] and will send this man an offer to reinstate him," in effect , confessed error in his dis- charge, and is now estopped from litigating this matter. 71 National Carbon Division, Union Carbide and Carbon Corporation and National Carbon Company, Inc., 100 NLRB 689 , 694-695. KOHLER CO. 1109 Section 8(a) (5) of the Act by refusing to negotiate pursuant to the Union's requests.72 The same Board Members also find, in agreement with the Trial Examiner, that by refusing to bargain pursuant to the Union's request, Respondent contributed to the prolonging of the strike. Chairman Leedom and Member Rodgers find that all 78 of the discharges were validly discharged, and therefore the Respondent did not violate Section 8 (a) (5) of the Act by failing to negotiate pursuant to the Union's requests of February 21 and March 1, 1955. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. (a) As we have found herein that on June 1, 1954, the strike was converted into an unfair labor practice strike and was thereafter pro- longed as such by Respondent's unfair labor practices, and as the record does not establish that the strikers have abandoned the strike or are available for reemployment, we shall order that the Respond- ent shall, upon application, offer to each striking employee (except those whom the majority of the Board have found herein were law- fully discharged) who had not been permanently replaced prior to June 1, 1954, immediate and full reinstatement to his former or sub- stantially equivalent position without prejudice to his seniority or other rights and privileges, dismissing, if necessary, any person hired on or after that date. If after such dismissal, there are insufficient positions remaining, those strikers, for whom no employment is im- mediately available, shall be placed upon a preferential hiring list with priority determined among them by such system of seniority or other nondiscriminatory practice as heretofore has been applied in the conduct of the Respondent's business and thereafter, in accordance with such list, shall be offered reinstatement as positions become avail- able, and before other persons are hired for such work. We shall also order that the Respondent make whole those strikers who are entitled to reinstatement for any loss of pay they may suffer by reason of the Respondent's refusal, if any, to reinstate them in the manner provided above, upon request, by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period beginning 5 days after the date 72 Member Jenkins finds that by confessing error as to Dottei 's discharge and by its conduct at the hearing which estopped Respondent from urging the lawfulness of the discharge, Respondent "disciplined a worker who did not in fact commit the acts forming the reasons for the disciplinary measure"-and thus violated 8(a) (5) within the meaning of National Carbon Division, etc., 100 NLRB 689, at 695, only with respect to Dottei, and not with respect to the other 77 disch 'argees. 577684-61-vol. 12 8- 71 1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on which he applies for reinstatement and terminating on the date of the Respondent's offer of reinstatement, such loss to be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 71 (b) With respect to the discharged shell department employees, we have found that their discharges were discriminatory and in violation of the Act. Ordinarily, a discriminatorily discharged employee is entitled to backpay from the date of his discharge. However, in cases where employees are discharged while on strike, it is the Board's established, practice to award backpay from the date on which the employees make an unconditional application for reinstatement on the theory that it cannot be said there was a loss of pay caused by the employer's conduct until the strikers indicate a willingness to return to work.74 While it is true, in the instant proceeding, that the Respondent made a discriminatory offer of reemployment on November 22, 1954, to the discriminatorily discharged strikers in the shell department, we do not believe that the offer, in the instant case, warrants a departure from our established practice with respect to backpay described above. Thus, here the record does not establish that the strikers failed to return to work because the offer was discriminatory. In these cir- cumstances, the Board cannot say that there was a loss of pay caused by the Respondent's discriminatory offer.75 Accordingly, with respect to all those discharged shell department employees who did not return to work pursuant to the Respondent's discriminatory offer of No- vember 22, 1954,76 we shall order that the Respondent shall, upon application, offer them reemployment on the same basis as accorded the nonstriking shell department employees, i.e., permanent jobs with retroactive seniority to the date of their original hire. However, none of the foregoing employees are entitled to displace permanent striking employees who are herein found to be entitled to reinstatement. With respect to the foregoing shell department employees, we shall also order that the Respondent make them whole for any loss of pay they may suffer by reason of the Respondent's refusal, if any, to reemploy them in the manner provided above, upon request, by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period beginning 5 days after the date on which he applies for reemployment and terminating on the date of the Respondent's offer of reemployment, such loss to be 78 Tom Thumb Stores, Inc., 123 NLRB 833, at 835-836; Morris Fishman & Sons, Inc., 122 NLRB 1436, 1438-1439 . Happ Brothers Company, Inc., 90 NLRB 1513. 74 Dunkirk Broadcasting Corporation, et at., 120 NLRB 1588. 76 Compare Ekco Products Company ( Sta-Brite Division), 117 NLRB 137, 152. 7e James Rogers, Lavern H. Kuhlow , Mrs. Lucille M. Strutz, Margaret A. Balnaitis, and Mrs. Susie Trester were reinstated as permanent employees with full rights and privileges ion or before November 22, 1954, and were thereafter given retroactive seniority back to the date of their original hire. As the Respondent has already adequately remedied and removed the effects of its discriminatory discharge with respect to these five em- ployees, they shall not be included in our order. KOHLER CO. 1111 computed in the manner set forth in F. W. Woolrworth Company, supra. With respect to shall department employees Marion Haas, Yvonne Pantel, Florence Temme, and Arline Wunsch, the record shows that they returned to work pursuant to the Respondent's discriminatory offer of November 22, 1954. It appears, however, that they have since been given permanent jobs, but have been credited with seniority only back to the date of their rehiring. In view of these facts we shall order that the Respondent grant them seniority back to the date of their original hire. (c) As we have found that the Respondent discriminatorily served eviction notices on, and thereafter required, striking tenants to vacate their rooms at the American Club or surrender their occupancy of dwelling and garden plots,77 we shall order that the Respondent offer to each such person immediate occupancy of his former, or sub- stantially equivalent, living quarters or leased premises on the same terms accorded other employees, and make him whole for any loss he may have suffered by reason of his eviction by payment to him of a sum of money equal to that which he has had to pay as rental for other living quarters or leased premises from the date of his eviction to the date he is offered occupancy in the manner set forth above, plus such additional expenses as he may have incurred during said period as a direct result of his eviction, but less the amount he would normally have paid to Respondent as rent for his living quarters or leased premises during said period 78 (d) In view of the nature of the unfair labor practices which we have found that the Respondent committed, the commission by the Respondent of similar and other unfair labor practices may reason- ably be anticipated. The remedy should be coextensive with the threat. We shall therefore order that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act."' 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 'l'T As it appears that at the time of the hearing Henry Arnoldi had been ordered to vacate the dwelling and garden plot he was renting from Respondent , but bad not yet moved, we shall include him in our order. If, however, Henry Arnoldi continued to occupy those premises, or substantially equivalent premises , on the same terms accorded other employees by the Respondent, then the Board's Order shall not be construed as applying to Henry Arnoldi. ' W. T. Carter and Brother, et al., 90 NLRB 2020, 2027, and cases cited therein. See also L. J. Williams d/b/a L. J. Williams Lumber Company, 96 NLRB 635. ''B See May Department Stores d/b/a Famous-Barr Stores v. N.R.L.B., 326 U.S. 376, affirming as modified 146 F. 2d 66 (C.A. 8) ; N.L.R.B. V. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4 ) ; N.L.R.B. v. Globe Wireless, Ltd., 193 F. 2d 748 (C.A. 9) ; Liberty Coach Company, Inc, 128 NLRB 160 1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Board hereby orders that the Respondent, Kohler Co., Koh- ler, Wisconsin, its officers, agents, successors, and assigns, shall : 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Local 833, UAW-AFL-CIO, International Union, United Automobile, Air- craft & Agricultural Implement Workers of America, as the exclusive representative of its employees in the unit found to be appropriate, namely, All production and maintenance employees of Respondent's Koh- ler, Wisconsin, plant, including shop office stenographers, American Club employees, all employees described in the October 23, 1950, Sup- plement "B" of the contract executed on August 31, 1950, between Respondent and the Kohler Workers Association and all employees described in Supplement "F" of the contract, including employees doing experimental work in the development department, but exclud- ing general office and clerical employees, draftsmen, technicians, clerks in the medical department, employees in the employment de- partment, doctors, dentists, nurses, engineers, employees in the chem- ical and physical laboratory, confidential employees, watchmen, guards, and supervisors as defined in the Act. (b) Discouraging membership in Local 833, UAW-AFL-CIO, International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, or in any other labor organization of its employees, by discriminatorily discharging them or refusing them reemployment or reinstatement on the same basis as other employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. (c) Threatening and promising benefits concerning the handling of grievances by union stewards; soliciting and promising benefits to procure the return to work of strikers; serving eviction notices on striking employees and evicting them from their living quarters or leased premises because they are on strike; engaging in unlawful surveillance. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Local 833, UAW-AFL- CIO, International Union, United Automobile, Aircraft & Agricul- tural Implement Workers of America, 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 re- frain 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 KOHLER CO. 1113 Section 8 (a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Local 833, UAW- AFL-CIO, International Union, United Automobile, Aircraft & Ag- ricultural Implement Workers of America, as the exclusive repre- sentative of all employees in the aforementioned appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Upon request, furnish Local 833, UAW-AFL-CIO, Interna- tional Union, United Automobile, Aircraft & Agricultural Implement Workers of America, with information concerning incentive earnings as requested by it on January 20 and February 6, 1954, respectively. (c) Upon application, offer to the employees whose names are listed in Appendix A (except James Rogers, Lavern H. Kuhlow, Mrs. Lucille M. Strutz, Mrs. Margaret A. Balnaitis, Mrs. Susie Trester, Marion Haas, Yvonne Pantel, Florence Temme, and Arline Wunsch) reemployment on the same basis as accorded the nonstriking shell department employees, i.e., permanent jobs with retroactive seniority to the date of their original hire, and make them whole in accordance with the Board's remedial policies (Chase National Bank, etc., 65 NLRB 827; Crossett Lumber Company, 8 NLRB 440; F. W. Wool- worth Company, 90 NLRB 289) for any loss of earnings which they may suffer by reason of the Respondent' s refusal, if any, to reinstate them in the manner provided above and more fully described in the Remedy, by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period beginning 5 days after the date on which he applies for reinstatement and terminating on the date of the Respondent's offer of reemployment. (d) Immediately credit Marion Haas, Yvonne Pantel, Florence Temme, and Arline Wunsch with full seniority dating back to the date of their original hire. (e) Upon application, offer Alex Dottei and each other striking employee (except those 77 strikers whom the majority of the Board have found herein were lawfully discharged) who had not been per- manently replaced prior to June 1, 1954, immediate and full reinstate- ment to his former or substantially equivalent position without prej- udice to his seniority or other rights and privileges, dismissing if necessary, any person hired on or after that date. If after such dis- missal, there are insufficient positions remaining, those strikers, for whom no employment is immediately available, shall be placed upon a preferential hiring list with priority determined among them by such system of seniority or other nondiscriminatory practice as here- tofore has been applied in the conduct of the Respondent 's business 1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and thereafter, in accordance with such list, shall be offered reinstate- ment as positions become available, and before other persons are hired for such work. The Respondent shall also make the foregoing em- ployees whole in accordance with the Board's remedial policies re- ferred to in paragraph (c), above, for any loss of earnings which they may suffer by reason of the Respondent's refusal, if any, to reinstate them in the manner prescribed above, by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period beginning 5 days after the date on which he applies for reemployment or reinstatement and terminating on the date of the Respondent's offer of employment. (f) Offer to each of the employees whose names are listed in Ap- pendix B immediate occupancy of his former, or substantially equiv- alent, living quarters or leased premises on the same terms accorded other employees, and make him whole for any loss he may have suf- fered by reason of his eviction by payment to him of a sum of money equal to that which he has had to pay as rental for other living quarters or leased premises from the date of his eviction to the date he is offered occupancy in the manner set forth above, plus such additional expenses as he may have incurred during said period as a direct result of his eviction, but less the amount he would normally have paid to Respond- ent as rent for his living quarters or leased premises during said period. (g) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary to determine the reinstatement rights, back- pay due, occupancy of living quarters or leased premises, and losses which may have been incurred by the evictions. (h) Post in its plant at Kohler, Wisconsin, copies of the notice attached hereto marked "Appendix C." 80 Copies of such notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (i) Notify the Regional Director of the Thirteenth Region, in writ- ing, within 10 days from the date of this Order, what steps the Re- spondent has taken to comply herewith. 80 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." KOHLER CO. 1115 IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges violations of the Act not found herein. MEMBER JENKINS, concurring and dissenting : I do not agree with the majority that the Respondent bargained with the Union in good faith prior to the strike. I find that it did not8i I do not agree with the majority that the strike was an eco- nomic strike at its inception. On the contrary, I find the strike was caused and prolonged by unfair labor practices on the part of the Respondent. The "totality" of Respondent's conduct (as disclosed by the record) shows that Respondent had a fixed intention from the time the Union started to organize its plant to rid itself of the Union. It was never, at any time, the intention of the Respondent to accept the Union as collective-bargaining representative in good faith. It never did accept the Union in good faith. On the contrary, the record discloses Re- spondent's firm and fixed intention to undermine, weaken, and eventually destroy the collective-bargaining relationship. It was Respondent's ultimate intent to return to itself unilateral control of matters otherwise subject to free collective bargaining. I am convinced that never, at any time, during the time preceding its first and only collective-bargaining agreement with the Union, during the life of that agreement, during the negotiations preceding the strike, or at any time after the commencement of the strike, did the Respondent abandon its fixed purpose to rid itself of the Union, and, to paraphrase its own words, to assure itself of another 20 years of industrial peace. In reaching the above conclusion, I have considered the record evidence showing: (1) The previous relations of the parties; (2) antecedent events explaining behavior at the bargaining table; (3) the course of negotiations; and (4) Respondent's conduct after the strike began. When the whole record is considered, a consistent pattern of conduct emerges which is compatible with only one theory-i.e., that Respondent never intended to accept the principle of collective bargaining as that term has been legislatively defined and judicially determined. For more than a decade and a half, Respondent denied its em- ployees the benefits of collective bargaining by means of a labor organization (the KWA) it instigated, dominated, and financially maintained. 61 The majority purports to affirm the Trial Examiner in this part of the case. The Trial Examiner found "that the evidence fails to support the contention that Respondent engaged only in surface bargaining prior to the strike " (See p. 1153 ) The majority, however, goes one step further and equates what the Trial Examiner deems to be "insuf- ficient evidence" as supplying affirmative proof that Respondent satisfied its duty to bar- gain in good faith. 1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When the UAW (hereinafter called the "Union") was organizing Respondent's plant, the Respondent resisted organization by violating Section 8 (a) (1) and (3) of the Act. These violations of the Act were found by the Board and judicially enforced .112 The Respondent entered into its one and only contract with the Union after 15 months of negotiations, and then only after the Gen- eral Counsel had issued a complaint alleging violations of the Act. Further, this contract was so phrased that its effective administration was dependent on information only Respondent could supply. After entering into this contract the Respondent sought to undermine the status and influence of the Union as collective-bargaining representa- tive by (a) failing to supply information necessary to the effective administration of the contract; (b) taking coercive action toward union stewards; (c) and otherwise making processing of grievances difficult. For example, information vital to the contractual commit- ments of 1953 concerning the so-called wage-incentive system was withheld from the Union. Many employees complained that they were receiving less take-home pay by virtue of production standards manipulation, but the Union could never determine the truth or falsity of this claim because Respondent refused to supply it with needed information. All of the foregoing is more fully explained hereinafter. My basic disagreement with the majority stems from their failure to consider the "totality" of Respondent's conduct as bearing on its "state of mind" toward the principle of collective bargaining. Re- spondent's conduct should not be fragmentized, nor should single events be isolated from a consideration of all the facts and circum- stances causing and prolonging the strike. The General Counsel properly phrased the nature of the issue as being one of "motivation" or "state of mind." 83 He asked that we determine that issue in accord with time-honored tests of the "totality" of Respondent's conduct and in conformity with judicially accepted definitions of the broad statutory concept of "good faith" bargaining.84 Because of their import to the disposition of this case, I deem it appropriate to set some of these forth. The courts have given us extended definitions of the duty to bargain (described in Sections 8(a) (5), 8(b) (3), 8(d), and 204 of the Act). They vary only in phraseology. All make it clear that, in outlining the obligation to bargain, Congress did not mean to reduce it to a e2i108 NLRB 207, enfd . 220 F. 2d 3 (C.A. 7). 83My colleagues have expressly recognized in opinions they have recently signed that "good faith is essentially a matter of underlying attitude or motivation ." See for exam- ple, American Aggregate Company, Inc, et at. 125 NLRB 909. 84 Although differing with the General Counsel as to the extent and nature of the statutory requirements of "good faith ," and to the kind of evidence which supplied proof of its presence or absence, the Respondent also urged that we apply "totality" tests to determine the ultimate issue here. KOHLER CO. 1117 verbal concept. For example, we are advised by Mr. Justice Frank- furter that : "Good faith" in the performance of the statutory duty "means much more than merely going through the motions of negotiating; it is inconsistent with a predetermined resolve not to budge from an initial position. But it is not necessarily incompatible with stubbornness or even with what to an outsider may seem unrea- sonable." N.L.R.B. v. Truitt Mfg. Co., 351 U.S.149, 154,155 as More recently, we have been told by the Fifth Circuit Court of Appeals that : The obligation to bargain in good faith does not require the yielding of positions . . . fairly maintained. It does not permit the Board, under the guise of finding bad faith, to require the employer to contract in a way the Board may deem proper.... On the other hand, while the employer is assured these valuable rights, . . . one must recognize as well that bad faith is pro- hibited though done with sophistication and finesse. Conse- quently, to sit at the bargaining table, or to sit almost forever, or to make concessions here and there, could be the very means by which to conceal a purposeful strategy to make bargaining futile and fail. Hence, we have said in more colorful language, it takes more than mere "surf ace bargaining" or "shadow boxing to a draw" or "giving the Union a runaround, while purporting to be meeting with the Union for the purpose of collective bargaining." [Emphasis supplied.] 86 Nonetheless, though we have such authoritative explanations of the "good faith" duty and we otherwise recognize that its presence or absense is dependent upon a "totality" of the record made, their ap- plication always demands, at the outset, a difficult judgment as to what are the significant or relevant "raw facts." Here too, however, we have the benefit of judicial guidance. Mr. Justice Frankfurter tells us that, in drawing the appropriate inferences "from what is often confused and tangled testimony about all this," we should properly consider the "previous relations of the parties, antecedent events explaining behaviour at the bargaining table, and the course of negotiations" as constituting the "raw facts." N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149, 155. The majority of the Supreme Court, in that same case, advises that we may properly consider "claims of the s' To the same effect, see the Supreme Court's approval of the meaning of collective bargaining as set forth by the Board in its First Annual Report, and as quoted by the Court in its majority opinion in N.L.R.B. v. Insurance Agents' International Union, AFL-CIO (Prudential Insurance Company of America ), 361 U.S. 477, 485. s' See N.L.R.B. v. Herman Sausage Company, Inc., 275 F. 2d 229, 231, 232 ; rehearing denied 277 F. 2d 793. Accord: Reed and Prince Manufacturing Company, v . N.L.R.B., 205 F. 2d 131 (C.A. 1), cert. denied 346 U S. 887; N.L.R.B. v. Remington^Rand, Inc., 94 F. 2d 862 (C.A. 2) ; N.L.R.B. v. Darlington Veneer Company, 236 F. 2d 85 (C.A. 4) ; L. L. Majure Transport Company v. N.L.R.B., 198 F. 2d 735 (C.A. 5) ; N.L.R.B. v. Harold Hibbard, et al., d/b/a Hibbard Dowel Company, 273 F. 2d 565 (C.A. 7). 1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargainer" vis a vis his opposite to determine whether they are "honest claims." Ibid., at p.152. Further, in the most recent decision of the Supreme Court on the subject, Mr. Justice Frankfurter explains that: [The Supreme Court] has recognized that the significance of conduct, itself apparently innocent and evidently insufficient to sustain a finding of an unfair labor practice, "may be altered by imponderable subtleties at work, which it is not [the Court's] function to appraise" but which are, first, for the Board's con- sideration upon all the evidence. Labor Board v. Virginia Electric and Power Company, 314 U.S. 469, 479. Activities in isolation may be wholly innocent, lawful and "protected" by the Act, but that ought not to bar the Board from finding, if the record justifies it, that the isolated parts "are bound together as the parts of a single plan (to frustrate agreement). The plan may make the parts unlawful." Swift & Co. v. United States, 196 U.S. 375, 396. . . . See also Aikens v. Wisconsin, 195 U.S. 1,94, 206.87 I find, with few exceptions, that the General Counsel's "case" on the "good faith" issue rests on wholly relevant evidence within the purview of the above precedents. I find, further, that his theory of the resulting violation demands no more-but no less-by way of ultimate Board determination than the judicially honored standards compel. Thus the General Counsel has asked that we look to all of the labor relations history of the Respondent-both past and present-to, evaluate the Respondent's conduct of negotiations. Inter alia, he points to "background" record evidence leaving no doubt of the Re- spondent's long implemented, and persistent show of animosity to- wards the institution of collective bargaining, as well as to present evidence similarly postured. What he seeks to prove by way of ulti- mate fact, is that the Respondent has never hesitated to implement its opposition to the policies of the Act either by affirmative interference with its employees' efforts to achieve genuine representation of their interests; or by withholding affirmative action, when its employees legitimately requested it through grievance procedures or other bar- gaining channels, in order to frustrate their desires for freedom to bargain with it on matters vitally concerning them. He claims that, from all this, there emerges a recognizable pattern of interference with, and frustration of, its employees' organizational objective. And he maintains, ultimately, that the Respondent's conduct of the ne- gotiations here in issue, subtle in some instances, more flagrant in er See N.L.R.B. v. Insurance Agents' International Union, etc., supra, footnote 85, at pp. 505-506. KOHLER CO. 1119 others, was consistent with this past pattern of interference with, and frustration of, genuine and effective bargaining. It is the thrust of his argument that if we find this to be factually so, even ambiguous behavior by the Respondent at the bargaining table (falling short of establishing a violation of the standards of "good faith" if viewed in isolation) should properly be viewed as one part of a purposeful plan to avoid the obligations of collective bargaining. For reasons herein appearing, I am satisfied that his argument is factually supported and legally sound. The facts favorable to the Respondent's position on this basic issue of its "good faith" have been set forth and discussed in the main opinion. All those favorable to the General Counsel's case have not. I shall hereafter undertake to supply the omissions. As a backdrop for the discussion of these facts, however, I begin with a statement of the various constituent and interrelated parts comprising the whole of the "fabric of the evidence" 88 developed by the General Counsel on the basic issue of "bad faith." In setting out to prove the ultimate fact that the Respondent never engaged in the procedure of collective bargaining in "good faith" during any of the negotiations here in issue, the General Counsel de- veloped substantial evidence supporting the following subsidiary findings of mixed fact and law : 1. The Respondent had denied its employees an effective oppor- tunity to seek the benefits of collective bargaining for more than a decade and a half by the conduct of its labor relations in that period through a labor organization it had instigated, dominated, and finan- cially maintained. 2. The Respondent engaged in unlawful interference, restraint, and coercion of its employees in violation of Section 8(a) (1) and (3) of the Act during the conduct of the Union's organizational campaign and had otherwise demonstrated to its employees that it did not want a genuine union in its plant. It engaged in this conduct in order to preclude its employees' achievement of collective bargaining through a union it could not hope to dominate and control. 3. After the Union became the bargaining representative, and ulti- mately succeeded, in obtaining its first and only contract with the Respondent, the Respondent undermined the contract and the bargain- ing relationship by the commission of unfair labor practices violative of Section 8 (a) (5) and (1) of the Act in that : (a) the Respondent failed, after due request, to supply the Union with comprehensive job classifications and average incentive earnings information, although the contract guaranteed the Union the right to participate with it in a study of these matters and to negotiate for adjustments on them; (b) failed, upon due request, to supply the Union with specific in- se See N.L.R.B. v. Truitt Mfg. Co., supra, at p. 156. 1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD centive earnings information of brass tool and diecasting operators needed to process a very serious grievance of these workers concerning Respondent's alleged reductions in the pay rates; (c) exerted coer- cive pressures on the chief steward of the Union in order to discourage his performance of the grievance representation function. By these unfair labor practices, and by other peripheral conduct during the term of the contract, the Respondent sought to demonstrate to its employees the futility of their continuing a bargaining relation- ship through a union the Respondent did not want. 4. During the conduct of the 1954 negotiations preceding the strike, the Respondent demonstrated its lack of any serious intent to engage in "give and take" collective bargaining by: (a) failing, after due request, to supply the Union with comprehensive information con- cerning its wage structure, although the information was essential to the effective and intelligent presentation by the Union of its position on matters in issue; (b) framing and offering the Union as the sole basis upon which it would contract, from January 25 until February 26 (2 days before the expiration date of the 1953 agreement) a pat- ently unacceptable proposal withdrawing from the grievance-arbi- tration structure many of the vital matters of legitimate concern to its employees and their bargaining representative; reducing certain other benefits; and offering no new benefits of any consequence up to February 26; (c) offering the Union on February 26, as a sole "alter- native" proposal for agreement on a "take it or leave it" basis, either a 3-cent wage increase on the condition that it accept as a "package" the January 25 contract proposal together with the modifications to which Respondent had agreed up to that time, or the whole 1953 con- tract, as a "package" without any modification; (d) preventing there being in the conference room an atmosphere conducive to bargaining by the constant characterization of the discussions and negotiations as "futile" and a "waste of time"; (e) cutting down the time during which the Union could make an effective presentation of its position; and (f) refusing the request of the Union to extend the terminating contract for 1 month so that negotiations could continue within the framework of orderly bargaining procedures. 5. The Respondent unlawfully negated the status of the Union on or about June 1 by its unilateral grant of a general wage increase of 3 cents (at or about the time of the first bargaining meetings held since the strike) under conditions never offered to the Union. It did so with the deliberate intent of discrediting it as a representative. 6. The Respondent unlawfully employed extensive espionage serv- ices in June and July 1954 for the purpose of considering methods to "break" the Union and the strike and to intrude upon the Board's effectuation of its statutory processes. KOHLER CO. 1121 7. The Respondent refused, during the June negotiations, and at all times thereafter, to consider or to offer any proposal for the kind of agreement which might have settled the strike. It did so because of its animosity to the Union and its desire to "break" the strike, rather than for "good faith" economic reasons. 8. The Respondent unilaterally terminated the seniority status of 53 striking shell department employees on July 1, 1954, in violation of its statutory duty to discuss such changes in status with the Union. 9. The Respondent evicted strikers from company-owned housing in December and January 1955 in order to penalize them for striking. 10. The Respondent unilaterally granted a further wage increase of 5 cents to its employees on August 5, 1955, under conditions not offered to the Union, and has at all times since that date conducted its affairs unilaterally. All of the above "independent" unfair labor practices committed by the Respondent during the period covered by the complaint have been sustained by the majority; but only those committed after the occurrence of the strike have been deemed relevant to the basic "good faith" issue. It is by this failure to consider the prestrike unfair labor practices and other peripheral conduct of the Respondent as an inextricable part of the total fabric of the evidence that the ma- jority fails to see the "case" clearly established by the General Coun- sel and denies the complete remedy which should have been afforded.8° I turn now to a seriatim discussion of the record facts persuading me that each of the above "subsidiary" findings is warranted and that the General Counsel has properly established that each of them is an inextricable part of the total proof of the Respondent's "bad faith" in the conduct of negotiations at all the times alleged in the complaint. Some of the facts are set forth in the main opinion, while others are not. I shall attempt to refer to all those which are relevant, bear- ing in mind that repetition is burdensome. I cannot wholly avoid such repetition, however. For portrayal of the Respondent's conduct in chronological, as well as circumstantial context, is crucial to a fair appraisal of the General Counsel's position. e9 The majority ' s finding of "good faith" bargaining prestrike , relieves the Respondent of all responsibility for "causing" the strike . The result is that strikers permanently replaced by the Respondent before June 1, 1954, are denied the protection afforded by the remedial reinstatement order to the remaining strikers. The striker-reinstatement order which protects the job rights of strikers against the risks of replacement by an employer who has theretofore engaged in a purposeful denial of the rights guaranteed employees by the Act, is, of course, in the nature of a remedy fashioned to deprive him of the unrestrained power to continue to do so in the context of his employees ' exercise of the protected right to strike . As we all recognize , the pro- tected right does not , of course, encompass serious acts of strike misconduct for which an employer may discipline an employee where, as here , the employer does take such disciplinary action because of the strike misconduct, his doing so does not offend the statute, and, in litigating his actions before the Board, he is entitled to justify a discharge or other lesser disciplinary action taken for that reason 1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD KWA and the Respondent (1933 to 1950) The events of the more remote period of time in this part of the Respondent's labor history are among those on which I need not dwell at length. The record accuracy of the narrative describing them is not disputed, and relevant portions of it are set forth in the main opinion. These events depict the genesis of KWA at the Re- spondent's instigation in 1933 at a time when some of its employees became members of the AFL; Respondent's intervention in its behalf in 1934 when the AFL supporters went on strike; Respondent's con- tinuous domination of its affairs and its financial support of it for over a decade and a half without regard to the passage of the law we now administer; and the Respondent's withdrawal of financial and other support to it as its leadership became less subservient and more "militant" in its representation of the employees' interests. The General Counsel contended, and I agree, that such evidence should be given weight in the appraisal of the Respondent's admin- istration of its bargaining relation with the Union, where, as here, the complaint charges purposeful conduct directed to undermining and destroying that relationship, despite the legal mandate. This the majority has failed to do because it finds apparently, that the Re- spondent's negotiation with the Union in 1952 and 1953 and its con- summation of a contract with it placed in a "locus poenitentiae." However, as I find below, there was proven absence of "good faith" in the administration of the contract produced by those negotiations, and of unfair labor practices during its term. It is for this reason that I would not find the inferences properly to be drawn from the above and other "background" evidence below detailed and the light they cast on the issue here before us "refuted" by the subsequent con- duct of bargaining with the Union eo The Advent of the Union and Its Achievement of Bargaining Status (1950-52) This portion of the Respondent's labor relations history, although also "background" for this proceeding, is of more immediate concern to us, since it depicts the Respondent's attitude towards the Union during the critical period of its organizational campaigns, and the negotiations which followed the Union's achievement of its collective- bargaining status. Most of the detailed facts portraying this history are incorporated in the now judicially enforced Kohler case.sl The now adjudicated findings in that case establish, inter alia, that the Respondent coerced, restrained, and discriminated against its employees in violation of 90 The effect of the majority finding is to deny the "background" evidence any real meaning so far as the determination of the crucial motivation issue is concerned. 91 Kohler Co., supra, footnote 82. KOHLER co. 1123 8(a) (1) and (3) of the law because of their union activity and in order to forestall the advent of the Union. They prove affirmatively that as was true in the years before, Respondent was not seriously concerned with the requirements of the statute in the conduct of its labor relations. Despite the filing of the unfair labor practice charges against it alleging the violations which the court sustained, the Respondent took no remedial action on the matter until long after the court had issued its decree.92 It is a fair inference that the effect of these unfair labor practices (committed during 1951 and 1952) beclouded the conduct of the negotiations which ultimately produced the March 1, 1953, contract between the Respondent and the Union (the first "outside" union to achieve bargaining status in its history). As of the date that contract was consummated, more than 15 months had elapsed since its terms were first subjected to negotiation 93 There is little doubt that, as was here testified, union representatives had encountered extraor- dinary difficulty in achieving Respondent's agreement to a contract resolution of the differences over the terms and conditions of employ- ment about which they bargained. Some evidence illustrating the stormy climate of these negotiations was in any event otherwise provided by the following record facts : In April 1953, the Respondent made unilateral changes in the work- ing conditions of enamel shop employees (a division containing a strong group of UAW supporters) which KWA unsuccessfully pro- tested in their behalf in the meetings it held with the Respondent before its affiliation with the Union. On April 19, 1952, the KWA (now financially weakened by the Respondent's withdrawal of the vending machine privileges) consider the taking of strike action and then voted against it. Dissatisfied enamelers then resorted to self- help action which culminated in the discharge of 12 of them (see the earlier Kohler decision, supra, footnote 82). In May 1952, KIN A. filed charges with the Board alleging that in violation of Section 8(a) (5) and (1) of the Act, the Respondent had refused and was refusing to bargain with it in good faith. Later that month, KWA finally decided to affiliate with the Union, and, following this vote of affiliation, the above 8 (a) (5) charges were withdrawn. The Union took over the negotiations in August 1952, with all the issues in dispute during the KWA's negotiations still remaining un- resolved. Respondent's agreement to this one and only contract it 92 The Board 's records show that not until 1957 was there full compliance with the Board's order and the decree enforcing it. We may, of course, take official notice of these records. The negotiations for the contract consummated in 1953 had been begun by KWA in 1951, just prior to the expiration of its last contract (Jan. 30, 1952 ). It affiliated with the Union after several months of effort to obtain agreement had failed. The Union then took over. 1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ever consummated with the Union was obtained only after : (1) the Board issued its complaint in the first Kohler case (Feb. 14, 1953) ; (2) the union membership had voted to take strike action; and (3) the mediation and conciliation services of the Government were employed. In the context of all this, I have difficulty, at the outset, in seeing how the Respondent's consummation of the 1953 contract "amply refutes" (as the majority finds) the inferences fairly to be drawn from all of the Respondent's prior conduct 94 This might be so had the Respondent administered this contract and its statutory obliga- tions "in good faith" during its life. But, as the majority admits (and we all find), Respondent violated both its contractual and its statutory obligation to its employees during that contract term. I must spe- cifically dissent, therefore, from their view that the Respondent's consummation of the 1953 contract evidenced the Respondent's sub- stantial deviation from the regrettable attitude towards its statutory obligations that it had entertained (and implemented) for the past 20 years. I turn now to the period of time which the complaint specifically covers. The Respondent's Administration of the 1953 Contract The complaint alleged that, during the life of the 1953 contract, the Respondent willfully impaired the bargaining relationship as fol- lows : (1) By interfering with, restraining, and coercing the Union's chief grievance representative (himself an employee) in the perform- ance of his functions in connection with the presentation and prose- cution of grievances; (2) refusing and failing to furnish the Union, on request, with wage earning information needed to process and prosecute outstanding grievances; and (3) failing and refusing to give the Union, on request, wage information which it needed to obtain the benefits of the Respondent's contractual commitments concerning the negotiation of the wage-incentive system. While the majority sustains each of these violations, and I concur in that determination, I strongly disagree with: (1) its failure to consider these violations as part of the relevant circumstances bearing on the Respondent's "good faith" during the concurrent contract bargaining; and (2) its determination that refusal-to-furnish allegations were not proven as of the dates alleged in the complaint (as I would find), but rather as of dates subsequent to the strike. My reasons follow. w I do not regard the Union's description of the contract as a "good" one which "we can accept with pride" as having much significance in disposing of this case. This is so whether or not these statements represented the fact or whether, as the union repre- sentative here testified, they represented "puffing" attempts to obtain ratification of the contract by the membership. KOHLER CO. 1125: I address myself first to the date of the violations of the duty to furnish information in this period, and the context in which they were committed. As the majority opinion indicates, the complaint charged the Re- spondent with separate violations of the duty to furnish pay rate and earnings information to the Union on or about January 20, 1954, and February 6, 1954, respectively and the continuing violations of that duty at all times thereafter. The first violation involved a comprehensive request for wage- incentive earnings information, first made by the Union in October 1953. This request was an incident to the effectuation of the contrac- tual rights the Respondent afforded to the Union during the 1953 negotiations in response to union proposals for a contractual settle- ment of wage inequities issues. As the majority correctly notes, the right thus afforded the Union was to participate with it in a joint study of the wage-incentive structure with a view to the achievement of a negotiated settlement during the contract's term, of differences concerning the number of existing classifications and their interrela- tionship, and the adjustment of inequities in the wage structure. When the initial request for information necessary to effectuate this right was made, the Union agreed that the Respondent could furnish this information one division at a time. But it did not agree to the Respondent's accomplishment of this duty at some future time unre- lated to the purpose of its request. A small part of the total information involved was furnished on December 7; no more was ever furnished during the life of the con- tract, and a substantial part was never furnished. As set forth in the main opinion, no "good faith" reason for the refusal to comply was proven. On January 20, 1954, some 13 days before the negotiations for a new contract began, the Union put into writing its previously renewed oral request for the same incentive information it had first asked for in October (except for the part already furnished). On February 2, 1954, at the first bargaining meeting of the parties the Union again made a request for that wage information, asserting that it now needed it in order to formulate its new contract proposals . (While stating that some of this information had already been compiled and promis- ing to furnish it within a week, Conger was concurrently proposing its January 25 draft of a new contract proposal withdrawing the Union's rights to bargain with it on the equitable pay standards.) There- after, as indicated by the facts on which we all agree, the Respondent failed, despite repeated requests, to supply the Union with any part. of the information during the period of the prestrike negotiations;- and it never complied with all that the request contemplated. 577684-61-vol. 128-72 1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I cannot, on the facts before me, justify finding this violation of the "good faith" bargaining duty proven as of a date later than the request. For I am satisfied that the Respondent never intended to give the Union the kind of affirmative cooperation imposed on it by the statutory duty to furnish wage information under exclusive mana- gerial control,95 where essential to a union's ability to function effec- tively as a representative. I find, accordingly, that the Respondent's unlawful refusal to comply with the Union's information request was proven as of a date no later than January 20, 1954, as to that part of the information related to the prior contract; and no later than Febru- ary 2, 1954, as to that part of the request related to the negotiation of the new contract terms. As above noted, the other violation was alleged as of February 6, 1954. It involved the Union's information request for the incentive earnings of the individual machine operators for specific periods of time. It was presented as an incident to the Union's consideration and prosecution of a serious grievance filed by these workers on a prior date. The request was presented to the Respondent in the course of grievance discussions conducted during the contract nego- tiations among the same parties engaged in bargaining for the con- tract and in the same place. The facts on which we all agree show that the grieving workers claimed that the Respondent, by an alleged manipulation of its work or production standards,96 had deprived them of the wage increase benefits promised by the collective contract. They claimed that they earned less after the 1953 contract than they had earned before and therefore were denied the contract's 3-cent increase. Whether or not this claimed violation of the wage provisions of the contract had substance, is something that the Union was never able to determine. For the Respondent never supplied the information needed to deter- mine the facts. It is clear that, by so doing, the Respondent denied its employees-and their representative the benefits of the grievance rights guaranteed them both by the contract and by the law. For reasons similar to those I stated in connection with the Re- spondent's other violations of its information duty, I find that the Respondent's failure to furnish the information requested by the Union on February 6 was proven as of the date of the request. Additional record facts relating to the Respondent's administra- tion of the 1953 contract were supplied by the uncontroverted testi- mony of union representatives concerning their difficulties in process- ing grievances. At the first grievance meeting between the Union and e1 See, e.g, J. I. Case Company v. N.L.R.B ., 253 F. 2d 149 (C.A. 7), in addition to the cases cited in the main opinion at footnotes 21 and 22. 9° These standards formed a part of the means by which the wage incentive earnings were eventually computed. KOHLER CO. 1127 the Company following the execution of the contract, the union representative pointed out that there "had been a strained relationship between the union and the company for a lengthy period of time .. . that their difficulties ran back over many years" and that "it would be well to let bygones be bygones" and try to "develop a relationship for the future that would be beneficial to both parties." The union rep- resentative "likened the relationship between the company and the union to a marriage." Conger replied to this request : "You may liken this to a marriage, but if it is, it sure as hell was a shotgun wed- ding." At other grievance meetings held throughout the year, Conger frequently disparaged grieving employees as being "malinger- ers and finaglers." In these and in other ways, the Respondent con- sistently manifested so uncooperative an attitude and rendered the processing of grievances so difficult that: (1) many employees felt it useless to submit grievances, and (2) the Union had trouble in getting employees to serve as job grievance stewards. These and the foregoing demonstrations of "bad faith" administra- tion of the bargaining relationship were provided by the actions of the officials ultimately responsible for the effectuation and determina- tion of the Respondent's labor policy. It is expectable that their attitude would be echoed by supervisors at lower levels of the hier- archy. And there is clear proof that it was. Thus, as all of us here find, unfair labor practices were also committed at the lower levels of supervision during the contract's term, involving, as in the situa- tions portrayed above, the Union's function in presenting grievances. As is narrated in the main opinion, two of Respondent's supervisors, at two separate times (placed at about February 1954) subjected Majerus, the Union's chief steward, to coercive pressures in an effort to prevent his effective representation of grieving employees. I find the consequent violation of Section 8(a) (1) also material to the crucial issue of "bad faith." In evaluating the nature and the significance of all of the above unfair labor practices to the crucial allegations of the complaint, the majority has treated them as if they were incidental violations of the duty to bargain only peripherally related to that crucial issue. In so doing, the majority has afforded no weight to the character of the contract to which these violations had reference; to the identity of the individuals committing the violations and the extent and nature of their authority on the Respondent's behalf; or to the time of their commission. But, in my view, these factors have important bearing on the ultimate disposition of the complaint, and I so find. My reasons follow. The contract to which these violations had reference was not a com- prehensive instrument containing full and well-defined employer com- mitments covering all important terms and conditions of employ- 1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment. It was, rather, an instrument leaving exact determinations of the extent of the economic rights secured by contract to the em- ployees in many vital areas, an open question to be resolved through the grievance machinery or through further collective bargaining 87 Under such terms, the power left to the employer-party to the con- tract may be used by those administering it if they be so inclined, to strike at and even to render futile a right to bargain or to grieve- during its administration. 98 I am convinced that Conger so knew when he consummated the agreement, that he "entered upon its per- formance with all mental reservations of hostility to the Union that [he] possessed before entering into the contract," and that he ad- ministered the above basic provisions of its terms in "bad faith.""' On due consideration of all the relevant circumstances, I am per- suaded that Conger's commissions of the violations amounted to serious and deliberate attempts to undermine the bargaining relation- ship and to demonstrate to the employees-that contract or no con- tract, law or no law-their achievement of a bargaining relationship, had little meaning. For there can be no doubt, from the record, that Conger knew what he was doing. As found above, all these violations were committed during the critical overlapping period of the expiring contract relationship and the pendency of new contract negotiations. Those committed by Conger, occurred, as the majority admits, within the confines of the bargaining room. All of them were negations of the duty to "bargain 97 That the 1953 contract , as a whole , did not represent a definitive or comprehensive adjustment of all the matters sought to be settled during the long negotiations is indicated by the terms of the agreement itself-particularly those leaving to management's exclu- sive control the wage-incentive system's operation and effect on the wage structure, subject only to Respondent's contractual promise to negotiate on the disputes concerning it during the contract' s term. As appears from the facts set forth in the main opinion, such promise contemplated both the negotiation for contractual definitions of details of that system, and the interim application of the grievance procedure to employee com- plaints concerning its inequitable application . The parties were, of course, free to make such an agreement , and I do not mean to imply that their doing so was unlawful. I mean only to develop why violations of the duty to bargain during the administration of such a contract may have more than incidental effect on the rights secured by contract. 98 See J. I. Case Company v. N.L.R.B., 253 F. 2d 149 (C.A. 7), for an excellent discus- sion of the nature of the bargaining duty during a contract's term. See also, on the same subject : Cox, "The Duty to Bargain Collectively During the Terms of an Existing Agreement," 63 Harv. L. R. 1097. 99 Speaking of an employer contention as to the proof of "good faith" supplied by the making of a contract in a related fact context, the court said (Rapid Roller Co. v. N.L R B., 126 F. 2d 452, 456 (C A. 7)) : Whatever force there may have been in this contention was lost by reason of the fact that the officials at the Company, after they entered into the collective bargaining agreement, did not cease their opposition to the Union but continued to manifest that same character of hostility that had so clearly characterized their attitude prior to entering into the collective bargaining contract. Their attitude towards the Union had not changed in the slightest, and they thought that therir act in entering into the contract with the Union was under duress and that they entered upon its performance with all the mental reservations of hostility to the Union that they possessed before entering into the contract . It was the same pattern of hostility and opposition to the Union after the contract as it was before, as made manifest . . . after the collective bargaining with the Company was in force and bargaining be- came necessary . [Emphasis supplied.] KOHLER CO. 1129 in good faith." All amounted, in context, to serious manifestations ,of a "mood indicative of a determination not to bargain" loo with the Union for a contract stabilizing the bargaining relationship and •effectuative of the statutory concept of that relationship. I so find. The Negotiations : January 25-April 5 I turn next to an examination of the deliberations of the parties for the purpose of determining whether the failure of the negotiations of April 5 was the regrettable result of an adamant position, "fairly maintained," 102 or, as alleged in the complaint, the expectable result of a purposeful strategy to give token recognition to the Union as the bargaining agent, on the one hand, while intending to undermine its authority and its power so to function on the other. While, like the majority, I find that the entire plan and existence of this purposeful strategy became wholly exposed sometime after April 5, I also find the evidence of its existence both in the proposals made by the Respondent before that date, and in the strategy it utilized to give a semblance of "good faith" to what I find to be a predetermined adamancy upon its basic terms. My analysis follows. The documented evidence of the prestrike negotiations, shows that the initial contract proposal of the Respondent (dated January 15) remained, without substantial modification in any of its basic terms, the only contract proposal that it offered the Union as a basis for agreement from January 25, until February 23. It was cast in the form of a full contract proposal, repeating the specific language of the prior agreement as to terms it would renew, and adding to or de- tracting from the language of the prior agreement as to terms it now proposed. It was offered as a new proposal for a full contract, notice to terminate the 1953 agreement having been given by Respondent in December 1953. The Respondent's proposed contract terms, viewed as a whole, and in terms of the 1953 contract, were framed to reduce nonmonetary benefits afforded employees and their representatives under the 1953 contract; to remove from the authority there given the Union as a bargaining representative and back to the unilateral determination of the Respondent, matters of vital concern to the employees and their representatives; and to afford no new economic benefits. By compari- son of the proposal to the 1953 contract, the new proposal expanded the preexisting area of the Respondent's power, should it so choose, to 1°° See N.L.R.B . v. The Truitt Mfg. Co., supra, at p. 157. 1°1 As many of the foregoing details concerning the conduct of the negotiations are not incorporated either in the Intermediate Report, or in the main decision , I have assured myself, before undertaking to report them, that they meet the credibility tests utilized by the Trial Examiner . ( See Intermediate Report, section III, B.) 102 See N.L.R.B. v. Herman Sausage Company, Inc., supra, at p. 231. 1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD deal with the employment relationship without regard to the collec- tive-bargaining relationship. This it did by the dual device of broad- ening the clause concerning "management functions" and by foreclos- ing effective use of the substitute means of union-balancing control offered by grievance-arbitration machinery as to those matters. It withdrew the right of the Union to negotiate on alleged inequitable pay standards. It deleted the Company's prior commitment to con- sider the determinations of the arbitrator either as to his jurisdiction or as to arbitrability of a dispute as binding upon it.10' And it con- tained other less obvious reductions in the Respondent's prior con- tract commitments involving the operation of the grievance machinery and the employees' presentation of grievances, in that, inter alia, it : (1) imposed greater restrictions on the performance by union stew- ards [whose selection was limited to employees] to handle grievances arising during working hours; (2) reduced the Company's obliga- tions, as set forth, in the prior agreement to permit use of paid work- ing time to stewards and other union officers during the performance of their grievance functions; (3) expanded the time within which the Company would be obligated to rule on grievances at certain steps,, while it maintained the Company's right to refuse to hear grievances not filed within 30 days after the events giving rise to the dispute; (4) narrowed the Company's obligation to make retroactive adjust- ments in pay on the matters subjected to grievance; (5) expanded the probationary period of employment on the one hand, but maintained, without change, terms permitting the Respondent to lay off or dis- charge employees freely and with no right to grieve during the proba- tionary period; (6) decreased the guarantees of pay for employees chosen for transfer by the Company (the transfer of employees was a matter the Company reserved under the management functions clause) ; and (7) qualified employee rights to make requests for shift transfers or to grieve about denials of the requests. The proposal maintained in status quo pension and other fringe benefits and the across-the-board wage rates. Extensive union objections to this proposal were voiced as to its destructive effect on the employees' right to enjoy a stable bargaining relationship and on its ability effectively to perform its representation functions under a contract so framed. But the Respondent refused to modify any of the basic terms of its proposal in any meaningful respect which might have produced agreement throughout the con- 103 A specific modification of the 1953 arbitration clause removed the Company's obliga- tion to consider the determinations of the arbitrator as to the arbitrability of a dispute, as binding on it. Under such contract provision the Respondent could effectively prevent a dispute from being arbitrated and escape responsibility for violating its agreement. This it could do merely by questioning the arbitrability of the dispute and rejecting the arbitrator's determination concerning his jurisdiction to make the award. KOHLER CO. 1131 ferences held up to February 23.104 It yielded none of the terms it had removed by its contract proposal to its right of unilateral control. Of course, the Respondent was not required to recede from its basic proposal, and its refusal to do so, does not alone prove "bad faith." But, here the Respondent's demand of the right of unilaterality over clearly bargainable matters occurred in a context of proven use of a lesser right so as to undermine the benefits of the bargaining relation- ship. In such a situation, as the courts have indicated, a stigma of "bad faith" may attach to the demand which could be removed only by the affirmative evidence of good-faith "engagement in the `give and take' of collective bargaining." 105 I am unable to find such evidence here. The documented records of the negotiations authenticated by the Trial Examiner's credibility findings and by the parties themselves during the course of the hearing, fail to show Respondent's willingness to modify its January 25 proposal in any meaningful respect. Such modifications as were accepted went to "minor" areas of dispute and involved, in most instances, the reinstitution of certain of the language of the 1953 contract's formulation of the Respondent's explicit com- mitments.100 They did not affect Respondent's basic demands for unilateral control. It is true, as the majority points out, that virtually all the month of February was consumed in "going through" the parties' proposals point by point. This procedure was agreed upon by the parties and was directed primarily to reviewing their modifying effect on the 304 At that time, as noted below, Respondent reoffered this initial proposal with the relatively minor modifications it had agreed to make in it in response to union objections. 106 See N.L.R.B. v. L. L. Majure Transport Company, 198 F. 2d 735, 73 '8 (C.A. 5), in which the court sets forth this proposition and adopts the Board's application of it to somewhat related facts See also American Aggregate Company, et al., 125 NLRB 909, where my colleagues (Chairman Leedom and Members Fanning and Bean ) adopted, in toto the following statement by the Trial Examiner of principles applicable here. While "refusal by an employer to concede any of the Union's economic demands, standing alone, is not proof of bad faith on its part, an employer is not required to make economic concessions to avoid a charge of bad faith bargaining. If, however, extreme, unyielding and adamant insistence respecting virtually all the normal economic desires of a union is accompanied by other conduct indicative of an underlying resolve never to reach an accord , an employer' s entire conduct, including inflexible denial of any economic concessions , may show bad faith in the statutory sense " loa The record notes of the negotiations as to the following are illustrative of the kind of "concessions" made by Respondent during the extensive conferences described. The expiring contract contained language concerning the mechanics of the grievance machinery which subjected the right of union stewards called upon by employees in other divisions to process a grievance , to leave the department for that reason to the foreman's grant of permission with only the following conditional language : "but such permission will not be unreasonably withheld." The Company's January 25 proposal as phrased initially, modified this specific provision of the 1953 contract by the elimination of the quoted language . The Union's initial proposal for modification of that same provision removed the right of the foreman to withhold permission. After many hours of discussion were consumed on this matter and after extensive effort by the Union, the Company agreed to reinstate the quoted language as part of its proposal. 1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,explicit terms of the 1953 contract. While it may be true that discus- sion of "minor" areas of dispute occurred at the Union's suggestion, the fact is that the proposal of such procedure did not confer on the Respondent the privilege of removing the "major" areas of the pend- ing relationship from the "give and take" process of collective :bargaining. But, it is clear from the following facts that this is what it did. On February 24, the Respondent refused the Union's request for a 1-month extension of the contract so that during the pendency of negotiations there would be orderly procedures in the plant for bar- gaining until a new contract was worked out. The Respondent's letter of refusal to extend the contract stated that a "total of 69 hours in bargaining had been consumed"; 107 that "most" of this time had been consumed on "proposed clauses which would increase the power of the UAW-CIO over the individual employee" ; 108 that the Company had submitted two complete proposals for a new contract"' and that "so long as your contract committee continues to insist on exorbitant ,and unrealistic demands which would jeopardize the future of the `Company and the jobs of its employees, a short term extension of the -present contract will not serve any purpose." On February 24, at the conclusion of the letter above referred to, the Respondent offered as a package proposal, the existing contract without change for 1 year; and on February 25, the Respondent 'offered as an alternative package proposal to the 1-year extension of the present contract, a 3-cent wage increase "on condition that the 'Company's last contract offer dated February 15, 1954, with the changes agreed upon to date become the new contract for a one-year period." The Union requested the assistance of the Federal Mediation Serv- ices and it so advised the Respondent at the February 26 negotiation meeting. While the Union came prepared to bargain further preced- ing the arrival of the conciliators, Conger refused, stating that he saw no useful purpose tobe served in meeting further until the conciliators arrived. 107 There is evidence that, during this 69 hours of the conferences held in February, the Respondent ( who had insisted on a limited schedule of hours ) cut down the time during which the Union could make an effective presentation of its proposals by engaging in long and extended philosophical dissertations on matters having little relevance to the framing of a mutually satisfactory contract (such as inflation , the situation at the Studebaker plant and union objectives generally ) whenever the Union presented its demands 308I find nothing in the Union 's contract proposals prejudicing the rights of individual employees or otherwise unrelated to the normal needs of the employees and their interests in the maintenance and stabilization of the bargaining relationship. 108 The Respondent had submitted only one proposal up to that date. It had agreed to make changes in certain terms of minor import to the basic objectives of its proposal. It then redrafted in the form of a full contract , the initial document with the changes to which it had agreed . The second draft was dated February 15. KOHLER CO. 1133 Beginning with March 3, when the conciliators arrived on the scene, until the date of the strike, the Respondent adopted a "take it or leave it" attitude with respect to its alternative proposals of February 26. It variously rejected the extended effort of the conciliators and the Union to persuade it to explore the possibility of compromise in the "major" areas of dispute, frequently characterizing a further discus- sion in those areas as a "waste of time"; and describing its "package" proposals as the "final position" to which it could or would recede."O The refusal of the Respondent to open up its "package" proposals to the "give and take bargaining" is evident from the following summa- tion of the exchanges of the parties in this period : Soon after their arrival, the conciliators asked the Union and the Respondent to pre pare their respective statements of position on the points in dispute as of that time. The Union's statement, dated March 8, summarized the disputed "major" issues, and indicated a willingness to accept parts of the Respondent's proposals provided the Respondent would com- promise on others. This was true, for example, as to the 1953 contract arbitration clause and the proposed management functions clause, the acceptance of both of which represented substantial recessions by the Union from its initial proposals. The Respondent's March 10 state- ment, which it also prepared at the request of the conciliator, was set forth as its "final" position. It reasserted its alternative full con- tract offer as its "final" offer, and stated that "On the various issues listed as in dispute in your [Union's] memorandum of March 8 you have our final position." It concluded as follows : "We are not in accord with changing the contract, except as indicated in our contract proposal, dated February 15, 1954, with other changes agreed upon since that date." On March 9, 1954, the Union sent a letter to Respondent's president, H. V. Kohler, requesting that he participate in the negotiations, and on March 14, Kohler replied, declining to participate. Noting that the negotiating committee had acted with his knowledge and approval he also stated : The offers which the Company has made represent the max- imum which a fair and realistic approach of the situation permits. Unless your bargaining committee is prepared to revise its position by eliminating demands only to increase the power of the Union as such and to accept the Company's offers on many 70 The concessions made by the Respondent to the Union's position subsequent to the strike and as early as June 1954 and the Union's then concurrent modification of demands establish that there was, in fact, room for compromise. For there is no evidence to indicate that the Respondent's failure to offer these concessions to the Union during the crucial period preceding the taking of strike action was predicated upon any "good faith" economic considerations. 1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD matters which are not only fair but generous in view of the eco- nomic situation, there is no point in further negotiation. [Em- phasis supplied.] As is set forth in the majority opinion, the Union voted on March 14 to reject the Respondent's "package" offers and authorized the union executive board to call a strike. On March 15, Respondent commenced preparing for the strike in the manner indicated in the main opinion. At the subsequent meetings Respondent foreclosed all -hope of "give and take bargaining" by stating as the majority in- dicates, that the only real issue was whether or not the Union would accept either of the Respondent's package proposals and there was no point in wasting any further time. No meetings were held by the Respondent and the Union between March 19 and April 2. At the April 2 meeting, a top official of the Union asked that "the issues be reviewed in a spirit of working out an agreement under which the Respondent and the Union could live with each other and work out desirable labor relations." After an initial "review" of the issues, the Union offered suggestions that the issues be "narrowed." Conger's reaction was negative. He stated that he saw nothing to be accomplished by "just continually rehashing and re- hashing"; that he had made the Union an offer and "that was it"; as far as he was concerned "there wasn't anymore." At the negotiation meeting of April 3, the last meeting held before -the strike, the Union modified a number of its major demands in an effort to obtain some "real give and take" bargaining on the matters they involved. Conger rejected each and every one of these modifica- tion proposals and offered no counterproposals [other than the alter- native package contracts offered on February 26]. In response to the Union's request for a clear explanation of the dual "final" proposals of the Respondent, Conger described that to which his 3-cent wage increase offer was tied, as his understanding of the effect of the 1953 contract terms; and his offer of the old contract with no change in language as the one not including the 3-cent increase. Towards the conclusion of these unproductive discussions, the Union advised Respondent that the executive board of the Union would meet that following morning and that, if the Respondent "changed its mind overnight" or had anything further to offer, it should con- tact the Union's representatives "no matter what the hour" was; that such representatives would be willing to negotiate further in an endeavor to work out an agreement. The union representatives also pointed out that a mass meeting of the membership had been called for April 4, to hear the union representatives' report on the 11th hour negotiations; and that if the Respondent decided that there was KOHLER CO. 1135 something more it had to offer, the Union could ask that the mass meeting be postponed until the parties obtained an opportunity to sit down and consider such offer. Again Conger advised the Union that there was no more that the Respondent could or would offer. In a final effort to dissuade Respondent from the maintenance of this attitude, the Union noted that a strike situation engenders bit- terness between the parties and that ultimately the parties would have to sit down and bargain an agreement. Conger became very irritable, remarking that the Company "had seen the strike coming for a long time." At this point the Respondent's representatives began to leave, and one among them said : "If we must have a showdown, it might as well come now." Weighing the respective attitudes of the parties in the prestrike negotiations, I find much in the Union's attitude, throughout the con- ferences prior to April 5, 1954, which evidences a conciliatory mood •on its part and a desire to have the bargaining process produce some agreement. Indeed, what little area of agreement was reached during that period of time resulted from its willingness to recede from and to compromise initially proposed modifications in the 1953 contract. I cannot, therefore, attribute the Respondent's "take it or leave it" attitude to anything in the Union's conduct in the negotiations beyond its normal desire to enjoy the benefit of collective bargaining as de- fined in the Act and as judicially explicated. I find much in the Respondent's attitude both before and after February 26 (when it finally offered its alternate "packages" to the Union) going beyond an unobjectionable attitude of firm refusal to yield from a position "fairly maintained," 111 and evidencing a failure to "exert every reasonable effort to make and maintain" an orderly bargaining relationship."2 One fact on which we all agree establishes that the Respondent impaired the Union's right fully to bargain on a mutual "give and take" agreement, by failing to comply with union requests for comprehensive wage information only it could supply to render understandable the Respondent's complete wage structure, and to make an effective and intelligent presentation of its position on the matters in issue. It thus rendered the Union unable to formu- late wage proposals which might have been the subject of intelligent bargaining and ultimate agreement. Another fact of import is that Respondent rejected the Union's request for a 1-month extension of the contract beyond its terminal date. It thus denied the Union affirmative assurance of its willingness to continue the bargaining re- lationship with it. As of that date, it had proposed, as the only basis m See, and compare N.L.R.B . v. Herman Sausage Company, Inc., supra, at p. 231. See Section 204(a )(1) of the Act. 1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for agreement, a contract detracting from the then existing bargaining relationship and withholding from it the customary benefits of that relationship.113 It thus is clear that by the "package" nature of alternative proposals on February 26, and its adamant insistence on them, the Respondent withheld from the Union a fair opportunity further to engage in the "give and take" process of bargaining with it. And I cannot explain or justify its adamancy on "good faith" grounds of economic consid- erations. For, on or about June 1, it unilaterally established a wage increase retroactive to April 5 on conditions it never offered to the Union. According to Conger's own explanation of his "alternative" proposals: 114 (1) Conger offered the Union a 3-cent wage increase and the January 25 proposal (as modified in substantial areas by the subsequent meetings) ; (2) Conger offered the old contract with no changes and without the 3-cent wage increase. Thus concededly, Conger never offered the Union the 1953 contract plus the 3-cent wage increase. As Respondent's top labor relations officer, Conger had ignored and undermined the Union's bargaining relationship under the only contract to which Respondent had agreed; he only proposed as an alternative to broaden the powers which had afforded him the means to do so (subject to the commitment to increase employee wages by 3 cents). The unilaterality of the wage increase action on June 1 exposed finally to the employees the attitude of contempt Respondent enter- tained towards the bargaining relationship and its interest in under- mining it. The effectuation of such increase at the crucial period of the opening of the post-strike negotiations constituted both a nega- tion of the Union's authority on this important matter of collective bargaining, and a deliberate attempt to discredit it in the eyes of the employees. If there were nothing more, this action would in itself provide, to use the words of an applicable Board opinion, "the final insight" into the Respondent's conduct of the negotiations. 115 It would convince me, in the total context in which it occurred, that the Respondent's offer to the Union before the strike, of either of the two "package" contract proposals, was part of a predetermined strategy of token compliance with the labor law; and that it was always the Respondent's design to undermine the Union and to deprive it of any 133 See N L B B v Herman Sausage Company, Inc, supra, p. 231, where the court affirmed the Board's view in that case that an Employer's refusal, in a related fact context to extend a contract during the pendency of negotiations might properly be viewed as a manifestation of bad faith. 114 At the last meeting of the parties before the strike. 135 Fant Milling Company, 117 NLRB 1277, 1282, enfd. in toto by the Fifth Circuit Court of Appeals, 272 F. 2d 773, following the Supreme Court's remand 360 U.S. 301., KOHLER CO. 1137 possible claim of credit for any "improvement" in the 1953 contract terms it was now willing to grant its employes apart from the Union. But, as I have indicated, there is far more in the total context which supports this view of the Respondent's strategy. The prior labor relations history supports it; its proven unfair labor practices and violations of the contractual bargaining relationship it guaranteed the Union in 1953, supports it; and the post-strike actions ultimately wholly expose the entire plan of the Respondent's strategy. For, on the facts all of us find, the Respondent's intent to destroy the Union became ultimately revealed. It engaged in flagrant violations of the Act in pursuing this objective, including the employment of "shock- ing" methods of espionage, to seek ways "to avoid agreement with the Union [and] to avoid settlement of the strike, while it considered methods of breaking the strike, supplanting the Union, and prevent its future infiltration of the plant." 118 And it even went so far as to "spy upon" Board personnel. I am aware, of course, that the Union went far beyond the bounds of lawful strike pressures in its conduct of the strike. I do not condone it. But, I am convinced that the Respondent used the occurrence of this conduct as a shield to hide behind, in the pursuit of a subjective intent it always entertained; namely, to oust the Union and thus to return to itself the unilateral control of matters otherwise subject to collective bargaining. The same individuals responsible for the post-strike actions and flagrant unfair labor practices upon which the Board unanimously predicates a finding of "bad faith," are the same individuals who con- ducted the prestrike negotiations. True, the purposeful design to undermine, weaken, and eventually to "break" the Union was openly exposed, beyond peradventure of reasonable doubt, by the post-strike activities. Once so exposed, however, the many facets of the Respond- ent's prestrike actions fall into place as part of a single plan-a pur- poseful strategy to thwart collective bargaining, to make it futile, and to make it fail. I find, accordingly, on the totality of all the evidence, that the Re- spondent failed and refused to bargain collectively with the Union in good faith at all times here material. I find further the under- lying attitude of the Respondent towards the whole institution of collective bargaining could not but prejudice the effective operation of the bargaining process as a means of arriving at an agreement com- patible with the "good faith" concepts of the Act, and that, accord- ingly, the unfair labor practices of the Respondents were serious causative factors of the strike. Therefore, it follows under applic- lla The quotations are from the Supplemental Intermediate Report of the Trial Exami- ner in the section entitled, "B. The Union's evidence." 1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD able precedent,"' that even if there were economic reasons contributing to the employees' decision to strike, the strike was nonetheless an unfair labor strike at its inception. I would, therefore, extend to all the strikers the benefit of our rein- statement remedy. Conclusion To leave no doubt as to where I stand in terms of the many vio- lations found by my colleagues in the main opinion, I here affirm all parts of that opinion except (1) that portion interpreting Respond- ent's prestrike negotiations and prestrike conduct, and (2) that por- tion holding irrelevant all the long labor history developed by the General Counsel as background for the complaint. I find that (1) the labor relations history of the Respondent, (2) its domination and control of KWA, (3) its illegal opposition to the Union's organizational efforts, (4) its entering into the 1953 contract with mental reservations concerning its future relationship with the Union, (5) its violation of both its statutory and contractual obli- gations during the 1953 contract, (6) its reproposal of the 1953 con- tract which it had rendered unworkable by its own acts, (7) its only other proposal, to modify the 1953 contract in such a manner that it would hamstring the Union, if accepted, (8) its granting of a 3-cent increase to its employees immediately after the strike began on terms never offered to the Union, (9) and its subsequent violations of the Act as found by the majority, such as its espionage, eviction of employees from homes, spying on an attorney assigned to the case by the General Counsel, and so forth, all add up to a single logical and consistent pattern leading to only one reasonable conclusion, i.e.; Re- spondent contracted with the Union with great reluctance in 1953, sought immediately to undermine it during the life of the 1953 agree- ment, entered into negotiations in 1954 with a fixed intent to precipi- tate a situation which would enable it to rid itself of the Union, and has never deviated from that purpose. I find the strike to be an unfair labor practice strike at its in- ception. I find that the unfair labor practices of Respondent caused the strike. I join with my colleagues in finding that Respondent's unfair labor practices after the strike prolonged the strike. I differ with my colleagues in their failure to consider the "totality" of Re- spondent's conduct in evaluating the evidence. na Cf. N.L R.B. v. Stilley Plywood Company, Inc. 199 F. 2d 319 , 320-321 (C.A. 4) ; N.L.RB. v. Herman Sausage Company, Inc , supra; N.L.R.B. v L. L. Majure Transport Company, supra, footnote 86; N.L.R B. v. Wooster Division of Borg-Warner Corporation, 236 F. 2d 898 , 906 (C A. 6) ; N.L R.B. v. Remington Rand, Inc, 94 F. 2d 862, 872 (C A. 2) ; N.L.R.B. v. Boss Manufacturing Company, 107 F. 2d 574 (C A. 7), enfg. 3 NLRB 400, 416; The M. H. Ritzwoller Co. v. N L.R.B., 114 F. 2d 432, 437 (C.A. 7) ; Stewart The Casting Corporation v. N.L.R.B., 114 F. 2d 849, 855-856 (CA 7). KOHLER CO . 1139 To my mind it is crystal clear that all of Respondent's conduct evidences a calculated plan designed to frustrate its employees' rights to collective bargaining. APPENDIX A SHELL DEPARTMENT EMPLOYEES DISCHARGED Willard A. Braun James A. Johnson Mrs. Wilma M. Bonasky James Rogers Robert D. Reineking Donald L. Goetsch Leonard Schneider Mrs. Lillian L. Hochrein William R. Ploetz Celilia B. Winebrenner Arthur F. Ziliner Alton J. Klein Henry C. Hoppert Bernard B. Novotny Dennis G. Tetschlag Viola A. Gilpin Beatrice I. Gessler Donald G. Kempers Emily Oehldrich Mrs. Leila L. Katte Elvera A. Konopik Marilyn G. Schultz Delores A. Leithner Kathryn Kleefisch Yvonne C. Pantel Edna DeVriend Virginia Jackson JULY 1, 1954 Marion E. Haas LaVern H. Kuhlow Mrs. Alvina Dross Mrs. Bernice M. Chvarak Mrs. Susie Trester Mrs. Marcella G. Marksthaler- Mrs. Delores A. Heimer Mrs. Jeanette A. Zelle Mrs. Lucille M. Strutz Mrs. Rosabelle Klinzing Mrs. Florence A. Temme Shirley H. Meissner Mrs. Laura E. Piontkowski Mrs. Dolly Schimpf Mrs. Margaret A. Balnaitis William M. Hinz Darlene M. Gillingham Arline Wunsch Mrs. Norma H. Bohenstengel' Mrs. Inez H. Osthelder Mrs. Emily M. Leng Ann I. Leonhard Walter H. Schmidt James M. Seubert Jacob Vander Kuyl Marjorie Damrow APPENDIX B Henry Arnoldi Carl Faas Ervin Siech Peter Gasser Frank Novak John Siech Walter Siech Gordon Daniels Lee Blandin Ove Gjersten 1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX C 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, we hereby notify our employees that : WE WILL NOT discourage membership in Local 833, UAW- AFL-CIO, International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, or in any other labor organization of our employees, by discriminatorily dis- charging them or refusing them reemployment or reinstatement on the same basis as other employees, or by discriminating in any other manner in regard to their hire or tenure of employ- ment or any term or condition of employment. Wn WILL NOT threaten or promise benefits concerning the handling of grievances by union stewards; solicit or promise benefits to procure the return to work of strikers; serve eviction notices on striking employees or evict them from their living quarters or leased premises because they are on strike; engage in unlawful surveillance. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organi- zation, to form labor organizations, to join or assist said Local 833, 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 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 by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer to the following employees : Willard A. Braun James A. Johnson Mrs. Wilma M. Bonasky Robert D. Reineking Donald L. Goetsch Leonard Schneider Mrs. Lillian L. Hochrein William R. Ploetz Celilia B. Winebrenner Arthur F. Zillner Alton J. Klein Henry C. Hoppert Edna DeVriend Virginia Jackson Mrs. Alvina Dross Mrs. Bernice M. Chvarak Mrs. Marcella G. Marks- thaler Mrs. Delores A. Heimer Mrs. Jeanette A. Zelle Mrs. Rosabelle Klinzing Shirley H. Meissner Mrs. Laura E. Piontkowski Mrs. Dolly Schimpf KOHLER CO. Bernard B. Novotny Dennis G. Tetschlag Viola A. Gilpin Beatrice I. Gessler Kathryn Kleefisch Donald G. Kempers Emily Oehldrich Mrs. Leila A. Katte Elvera A. Konopik Marilyn G. Schultz Delores A. Leithner 1141 William M. Hinz Darlene M. Gillingham Mrs. Norma H. Bohensten- gel Mrs. Inez H. Osthelder Mrs. Emily M. Leng Ann I. Leonhard Walter H. Schmidt James M. Seubert Jacob Vander Kuyl Marjorie Damrow reemployment on the same basis as accorded the nonstriking shell department employees, i.e., permanent jobs with retroactive sen- iority to the date of their original hire, and make them whole for any loss of earnings which they may suffer by reason of our refusal, if any, to reinstate them in the manner provided above and more fully described in The Remedy section of the Board's Decision and Order, by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period beginning 5 days after the date on which he applies for reinstatement and terminating on the date of our offer of reemployment. WE WILL immediately credit employees Marion Haas, Yvonne Pantel , Florence Temme, and Arline Wunsch with full seniority dating back to the date of their original hire. WE WILL, upon application, offer Alex Dottei and each striking employee (except those 77 strikers as to Whom the Board has dismissed the complaint ) who had not been permanently replaced prior to June 1, 1954, immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges, dismissing, if nec- essary, any person hired on or after that date . If after such dis- missal , there are insufficient positions remaining, those strikers, for whom no employment is immediately available , shall be placed upon a preferential hiring list with priority determined among them by such system of seniority or other nondiscrim- inatory practice as heretofore has been applied in the conduct of the Respondent's business and thereafter, in accordance with such list, shall be offered reinstatement as positions become available, and before other persons are hired for such work. We will also make the foregoing employees whole for any loss of earnings which they may suffer by reason of our refusal, if any, to rein- state them in the manner described above, by payment to each of them of a sum of money equal to that which he normally 577684-61--vol. 128-73 1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would have earned as wages during the period beginning 5 days after the date on which he applies for reinstatement or reemploy ment and terminating on the date of our offer of employment. WE WILL offer to Henry Arnoldi, Carl Faas, Ervin Siech, Peter Gasser, Frank Novak, John Siech, Walter Siech, Gordon Daniels, Lee Blandin, and Ove Gjersten immediate occupancy of his former, or substantially equivalent, living quarters or leased premises on the same terms accorded other employees, and make him whole for any loss he may have suffered by reason of his eviction by payment to him of a sum of money equal to that which he has had to pay as rental for other living quarters or leased premises from the date of his eviction to the date he is offered occupancy in the manner set forth above, plus such addi- tional expenses as he may have incurred during said period as a direct result of his eviction, but less the amount he would nor- mally have paid to us as rent for his living quarters or leased premises during said period. WE WILL, upon request, furnish said Local 833 with informa- tion concerning incentive earnings as requested by it on January 20 and February 6, 1954, respectively. WE WILL, upon request, bargain collectively with said Local 833 as the exclusive representative of all our employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees of our Kohler, Wisconsin, plant, including shop office stenographers, Amer- ican Club employees, all employees described in the October 23, 1950, Supplement "B" of the contract executed on August 31, 1950, between us and the Kohler Workers Asso- ciation and all employees described in Supplement "F" of the contract, including employees doing experimental work in the development department, but excluding general office and clerical employees, draftsmen, technicians, clerks in the medical department, employees, in the employment depart- ment, doctors, dentists, nurses, engineers, employees in the chemical and physical laboratory, confidential employees, watchmen, guards, and supervisors as defined in the Act. KOHLER Co., 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. KOHLER CO. TABLE OF CONTENTS 1143 Page Statement of the Case---------------------------------------------- 1143 Findings of Fact--------------------------------------------------- 1145 1. The business of Respondent-------------------------------- 1145 II. The labor organization involved----------------------------- 1145 III. The unfair labor practices---------------------------------- 1145 A. Introduction and background; summary of main events and issues ----------------------------------------------- 1145 B. The negotiations and the negotiators; the witnesses and credibility------------------------------------------- 1147 C. The prestrike period------------------------------------ 1148 1. Surface bargaining before the strike------------------- 1149 2. Refusal to furnish information------------------------ 1153 D. The seven major issues---------------------------------- 1157 1. Seniority------------------------------------------- 1157 2. Insurance------------------------------------------ 1157 3. Pensions------------------------------------------- 1158 4. The enamel shop------------------------------------ 1158 5. Arbitration----------------------------------------- 1159 6. Union security-------------------------------------- 1160 7. Wages--------------------------------------------- 1162 E. The poststrike period----------------------------------- 1162 1. The wage increase of April 5------------------------- 1163 2. The discharge of the shell department employees-------- 1165 3. The May 7 meeting; WERB; the Federal court action--- 1168 4. Negotiations, June to September---------------------- 1170, 5. Developments since September 1954------------------- 1176 6. Respondent's affirmative defenses--------------------- 1181 F. Solicitation; interference, restraint, and coercion------------ 1182 G. The evictions------------------------------------------ 1186 H. The discharge of the strikers----------------------------- 1189 1. Introduction; the Prima facie case; the issues----------- 1189 2. The Rubin Bros. defense; the General Counsel's rebuttal theories------------------------------------------ 1190 3. The mass picketing; condonation; the strike committee-- 1192 4. The home demonstrations---------------------------- 1195 5. Employment office picketing------------------------- 1196 6. The General Counsel's case for condonation ------------ 1198 7. The individual discharges---------------------------- 1199 Summarizing findings---------------------------------- 1240 1. The cause of the strike and of its prolongation------------- 1240 IV. The remedy------------------------------------------------ 1241 Conclusions of Law---------------------------------------- 1242 INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, was heard in Sheboygan, Wisconsin, on various dates between February 8, 1955, and February 28, 1957. All parties were represented by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally, and to file briefs and proposed findings and conclusions.' The original complaint, based on charges duly filed and served, was issued on October 26, 1954, by the General Counsel of the National Labor Relations Board 2 and alleged that Respondent had engaged in various unfair labor practices pro- 'Briefs were filed by all parties , as well as proposed findings and conclusions, as requested by the Trial Examiner on certain phases of the case, i e, the refusal to furnish information and the discharge of shell department employees . The proposed findings are disposed of in accordance with the findings in sections III, C, 2, and III, E, 2, infra. 2 The General Counsel and his representatives at the hearing are referred to herein as the General Counsel, and the National Labor Relations Board as the Board . Kohler Co. Is referred to as Respondent and as Company , and Local 833, UAW-AFL-CIO, Interna- tional Union , United Automobile, Aircraft & Agricultural Implement Workers of America, is referred to as the Union and as Local 833. 1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD scribed by Section 8(a)(1), (3), and (5) of the Act. Numerous amendments, both written and oral, were made from time to time, both to the complaint and to Re- spondent's original answer, filed on November 5, 1954. Numerous attacks, both written and oral, were also made by the parties on opposing pleadings, and most of the rulings thereon were made orally during the hearing. Because of these facts, the voluminous record leaves somewhat obscured the exact issues which were ulti- mately raised by the pleadings and litigated by the parties. A brief summary will therefore be made. The Pleadings The original complaint charged no unfair labor practices prior to the strike, which occurred on April 5, 1954; it was confined to the alleged discriminatory discharge on July 1, 1954, of 53 employees of the shell department 3 and to an alleged refusal to bargain based on the following: (1) A unilateral wage increase on April 5; (2) a breakoff of negotiations on June 29; (3) the discharge of the striking employees in the shell department on July 1, and the transfer of the nonstrikers to other depart- ments without negotiation with the Union; and (4) a breakoff of negotiations on August 18, 1954. On December 3, 1954, the General Counsel filed amendments which enlarged the bases of the alleged refusal to bargain in two respects: (1) A course of surface bargaining from February 1954 "to date"; and (2) a refusal to give, or an unreason- able delay in giving, wage rate information requested by the Union on January 20 and February 6, 1954. On May 27, 1955, during a recess in the hearing,4 the complaint was further amended to charge that: (1) The strike had been caused by the refusal to bargain as alleged in the December amendments and had been prolonged by subsequent unfair labor practices as alleged; (2) Respondent had in December 1954 and January 1955 discriminatorily served notices of eviction on certain of its striking employee tenants and had discriminatorily evicted certain others (see Appendix B); (3) on March 1, 1955, Respondent had discriminatorily discharged 78 striking employees (see Appendix C); and (4) Respondent on February 21 and March 1, 1955, refused to bargain with the Union, on request, concerning the striking employees whom it considered ineligible for reinstatement and had retaliated to the Union's request by discharging the 78 strikers. On June 21, 1955, near the end of the General Counsel's case-in-chief, the com- plaint was further amended to allege some 25-odd acts of interference , restraint, and coercion , consisting mainly of interrogation and solicitation of strikers . On Sep- tember 16, the complaint was amended orally to allege another unilateral wage increase on or about August 5. Finally on April 2, 1956, 1 day before resting their rebuttal case, the General Counsel's representatives moved to amend to allege that since the strike Respondent had engaged in a course of surveillance of union and strike activities. Respondent's objections to the amendment on various grounds, including the Section 10(b) limita- tion, were sustained and the amendment was disallowed.5 Respondent filed an answer and various amended answers and amendments in which it denied all unfair labor practices alleged in the complaint . It pleaded also various affirmative matters and special defenses which can be briefly summarized as follows : 3 See Appendix A, which includes one employee who was added by oral amendment. [See Appendix A attached to Decision and Order ] 4 The hearing was recessed on February 10 on motion of the General Counsel's trial representatives, because of a vacancy In the office of the General Counsel and their asserted need to obtain authorization for making six specified amendments (see General Counsel's Exhibit No. 1 ww, and see footnote 5, infra). 5 The lengthy recess more than a year earlier had been granted and later extended to enable the General Counsel's representatives to obtain authorization to move for six specified amendments (see footnote 4, supra), one of which was surveillance, albeit of a somewhat different type. Their later amendment of May 27, 1955, omitted any alle- gation of surveillance. A similar situation had existed as to their February specification of an amendment to include Respondent's failure to furnish the Union reports relating to the financial situation of the Company, which was likewise omitted from their May motion. Though an attempt was made In June to litigate that issue without amendment (General Counsel's Exhibit No. 69 rejected), it was admitted finally that authorization from the General Counsel's office was necessary before that particular amendment could be moved Respondent's objections were sustained to the attempts to litigate that Issue weekend, but by the same token it did not condone the Union's action in deliberately engaging in illegal activities because it believed the Company to be stalling. KOHLER CO. 1145 The shell department employees were temporary employees whose employment was terminated on conclusion of a defense contract pursuant to their contract of employment and with the knowledge and understanding of both the Union and the employees. The 78 strikers were discharged for various types of strike misconduct, and 29 of them since their discharges engaged in further strike misconduct of such a character as to warrant the denial of reinstatement. The alleged unilateral wage increases were put into effect only after they had been offered to and refused by the Union and after an impasse in bargaining had been reached. The breakoffs of negotiations on June 29 and August 18, 1954, respec- tively, were due to an impasse having been reached and to the fact that the Union was engaging in coercive and illegal strike misconduct and was itself not bargaining in good faith. Respondent pleaded further that from April 5, 1954, "to date," the Union was not itself bargaining in good faith because it engaged in a course of illegal conduct in connection with the strike (e.g., threats, intimidation, assaults, mass picketing, obstructing plant entrances, etc.), all with intent to force Respondent's capitulation to the Union's demands as a price of securing discontinuance of the illegal conduct; that the Union's real intent and purpose in bargaining was not to reach an agreement but to force a change in Respondent's management, replacing it with one subservient to the Union's demands; and that its intent was to refuse any offer of an agreement unless Respondent would permit it to dictate the choice of Respondent's bargaining representatives in violation of Respondent's rights under Section 8(b) (1) (B) and in violation of Section 8(b) (3) of the Act. Prior to June 7, 1955, Respondent's pleadings had admitted the allegations of the complaint as to the Union's representative status. Upon resumption of the hearing on that date, Respondent sought by amended answer to raise a question as to the Union's majority status, basing its alleged doubts on such matters as member- ship defections during the strike, the acceptance by strikers of permanent jobs else- where, the hiring of replacements, etc. During the argument of objections made by the General Counsel and the Union, Respondent's counsel made a further oral amendment limiting the majority issue to the period beginning with the adjournment of the hearing on February 10, 1955. The amendment was allowed on that basis. Numerous motions were made by the parties during the course of the hearing and were disposed of with the exception of a few instances where ruling was reserved pending issuance of this report. Such motions are now disposed of in accordance with the findings and conclusions herein made. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Wisconsin corporation with its principal office, place of business, and manufacturing plant at Kohler, Wisconsin, is engaged in the manufacture and sale of plumbing fixtures, heating equipment, electrical appliances, air-cooled en- gines, and precision parts. During the year 1953 it purchased from extrastate points raw materials valued in excess of $1,000,000, and during the same year it manu- factured, sold, and shipped to extrastate points finished products valued in excess of $1,000,000. Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 833, UAW-AFL-CIO,6 International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, is a labor organization which admits to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. Introduction and background; summary of main events and issues Respondent is one of the larger manufacturers in its field. Its plant, which is located at Kohler Village (population roughly 1,800) near Sheboygan (population roughly 45,000), employed some 3,300 employees in March 1954. This case grew out of a strike which began April 5, 1954, and which is now in its 4th year; it is only one phase of an unedifying industrial conflict-more typical of a bygone era of labor relations-which has been fought simultaneously on several 6 UAWV-CIO before the merger 1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fronts with constant bitterness and frequent fury. Various aspects of the conflict, particularly in relation to its effects on the surrounding community, have reached national attention through press, radio, and television reports, and through feature articles in magazines of national circulation. One writer commented-not too inaptly-that the strike (when 1 year old) was an example of labor's irresistible force meeting management's immovable object and that the real question had become one of survival. There are still no signs that the conflict is nearing an end; the combatants are seemingly locked in a struggle which will end only in the com- plete exhaustion of one or both. The immediate background to the conflict can be briefly stated. Kohler Workers' Association (herein called KWA), an incumbent, independent union of many years' standing, affiliated with Local 833, UAW-CIO, in April 1952. The latter won a Board election in June 1952 in the production and maintenance unit (conceded herein to be appropriate), and has since been recognized by Respondent. After several months of bargaining-from August 1952 to February 1953-and after threats of a strike by the Union and preparations for a strike by both Union and Company, a contract was reached which was terminable on March 1, 1954. After due notice by both parties, negotiations for a new contract began on February 2, 1954, and a strike was called on April 5, no agreement having been reached. Considerable evidence of a more remote period was also offered concerning the genesis of KWA and the history of Respondent's bargaining relations with it prior to the affiliation. Briefly summarized, that evidence showed that KWA's organiza- tion in 1933 was instigated and sponsored by Respondent under such circumstances as to justify the characterization under present-day standards that it was a "dom- inated" union. In 1934 a violent strike occurred during efforts by AFL to organize the plant. In the same year KWA won an election which was conducted by the old National Labor Relations Board under Section 7(a) of NRA to determine whether AFL or KWA was the majority representative. Though AFL filed pro- tests urging that KWA was company-sponsored, the Board rejected the protests and on March 26, 1935, directed the Company to recognize KWA. In 1946, the Wisconsin Employment Relations Board (herein called WERB) held an election, again between KWA and AFL. KWA won and was certified by WERB. In March 1951, the National Labor Relations Board conducted an election between KWA and UAW-CIO, as a result of which KWA again won and was certified. Following the affiliation the Board, in June 1952, held a final election between CIO, AFL (UAW), and an Independent Unaffiliated Kohler Workers' Association which had been formed by a dissenting faction of KWA members. CIO won that election and was certified by the Board. The background evidence showed that Respondent had given "assistance" in various forms to KWA up until the affiliation, though "domination" as such had faded rapidly in the late 1940's, with the emergence of a militant KWA leadership, and had ceased in any practical sense sometime prior to the 1952 election. In the meantime, and concurrent with the growing independence of KWA, Respondent began a withdrawal of various privileges and forms of assistance. Much of such assistance had been withdrawn before the affiliation; what remained was withdrawn shortly thereafter. Other background evidence will be referred to as it becomes relevant to specific alleged unfair labor practices. The main events which are relevant to the present proceeding began on February 2, 1954, with the opening of negotiations for a new contract. The course and subject matter of those negotiations, together with the conduct of the strike and other happenings growing out of it, supply by far the great bulk of the matters and events which are of greatest importance under the issues herein. Miscellaneous events which are pertinent to the issues are the two unilateral wage increases-the discharge of the (striking) shell department employees on July 1, 1954, and the eviction of (tenant) strikers in December 1954. The General Counsel also offered evidence as to a number of instances of alleged unlawful interrogation and of solicitation of returning strikers, beginning in June 1954. On March 1, 1955 (after the hearing opened), Respondent discharged 90 strikers because of their alleged participation in misconduct in connection with the strike. The complaint was amended to allege that 78 of them were discriminatorily discharged The strike events which are of chief relevance to Respondent's defenses occurred in the main during certain periods, as follows: Respondent offered evidence that from April 5 to May 28 (excepting May 7-9), the Union engaged in a course of mass picketing, the blocking of plant entrances, the coercion and intimidation of nonstrikers, etc.; that in late June various acts of violence and vandalism occurred for which Respondent held the Union responsible; that during negotiations in KOHLER CO. 1147 August, a course of home picketing began, also allegedly inspired by the Union; that from late November 1954 through January 1955, illegal picketing and other illegal strike conduct occurred, mainly in front of the employment office; and that on July 5, 1955, a "not" occurred (allegedly fomented and inspired by the Union) at the Hildebrand docks in downtown Sheboygan, upon the arrival of the SS. Fossum with a cargo of clay destined for delivery to Respondent. The most important issue in the case is whether Respondent refused to bargain as charged in the complaint and, if it did, the time at which the refusal occurred.? This is so because a refusal to bargain is the only unfair labor practice charged against Respondent prior to the strike , and is the one specifically assigned as the cause of the strike . It is also the only one, under the evidence , which could have had any causal connection , for the first few months at least, with prolonging the strike. The cause and character of the strike is, of course, a most important issue, because on its determination will ultimately depend the reinstatement rights of several hundred strikers , though no direct issue is presented herein as to any one or more of them (the record showing no refusal by Respondent to reinstate any striker upon application ), save for 78 of those who were discharged on March 1, 1955. Also important are the issues arising from those discharges , because included were all of the officers of the Union and the members of its executive board , as well as some of its other leaders. B. The negotiations and the negotiators; the witnesses and credibility Negotiations opened on February 2, 1954, and continued through more than 65 meetings (consuming more than 250 hours ), including approximately 7 meetings held during the course of the hearing. Beginning on March 7 , 1954, all meetings were held before a conciliator or a panel of conciliators of the Federal Mediation and Conciliation Service. Except for a few so -called 2-man meetings in June, August, and September , 1954, both sides were represented by panels of from 4 to 10 members each . Respondent's panel was headed by its counsel, Conger, who was chairman of its management committee ; and the Union's panel was usually headed by Robert Burkart, an International representative , who was usually accompanied by three or more members of the Local 's committee (usually Allan J. Graskamp, Arthur E. Bauer, vice president, and Egbert H. Kohlhagen , secretary ), and some- times by other officers and International representatives of the International Union. Conger was the chief-almost the only-spokesman for Respondent , and Burkart was the chief spokesman for the Union except when other International representa- tives and officers were present. More than 20 meetings, consuming more than 100 hours, had been held prior to April 3, when negotiations were broken off on the eve of the strike . A single meeting was held on May 7, ending in a breakoff lasting to June 1. Extensive negotiations were held in June , but were broken off by Respondent on June 29, on the claim of an impasse and a claim of the Union's illegal conduct in connection with the strike . Negotiations were resumed early in August, but were broken off on August 13 at the Union's invitation , and again by Respondent on August 18. A number of meetings were held in September and a single meeting in November. Thereafter several meetings were held in Chicago in 1955 (January 4, April 21, July 27, 28, and 29, and August 1 and 2). The final meeting during the hearing was held in Chicago on March 19 , 1956.8 The chief witnesses who testified to the entire length of the negotiations were Burkart for the General Counsel, and Conger and Hammer for Respondent , except that Burkart and Hammer had not participated in the two-man meetings. The General Counsel also called from the Local 's committee Graskamp, Bauer, and Kohlhagen, though their examination covered limited fields. Harvey Kitzman, regional director, and Emil Mazey, secretary -treasurer of the International Union, ?The record presents no real issue as to the Union 's majority status Aside from the fact that Respondent 's pleadings raised no issue on the point prior to February 10, 1955, the evidence established the fact of such status . Even were a loss of majority assumed, it would have occurred long subsequent to the time hereinafter found, when Respondent's unfair labor practices converted the strike to, and prolonged it as, an unfair labor prac- tice strike. Such a loss of majority, being attributable to Respondent's unfair labor practices , would not affect the Union's representative status s Reference to an "off-the-record" conference in Washington in January 1955 was stricken by agreement. There was also one appearance of the parties-not strictly a bargaining session-before a Senate Subcommittee in Washington on June 3, 1955. 1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified to the portions of the negotiations in which they had participated, as did Circuit Judge Arold F. Murphy, who had participated as a volunteer mediator during the September meetings. Generally, it can be said that Conger's testimony was corroborated by Hammer, while Burkart's, with some exceptions, was corroborated by the other union ne- gotiators . The only wholly disinterested witness was, of course, Judge Murphy, and because of his impartiality and objectivity , his testimony has been fully credited in all respects, including those where conflicts exist with the testimony of Conger, Hammer, and Herbert V. Kohler, Respondent's president, who was called by the General Counsel as an adverse witness. Hammer was the only witness who made and kept notes throughout the ne- gotiations . He had used them to refresh his recollection before testifying, and he produced them on request of the General Counsel, who examined them and who cross-examined Hammer on them with specific reference to a few points. Hammer's testimony has, therefore, been accorded somewhat more weight than that given to other corroborating witnesses. Although there were many conflicts in the testimony, most of them related to immaterial or at least minor matters and statements which were injected more for color and prejudice than for their bearing on the disputed issues. Conflicts on ma- terial matters have been resolved by reconciling the testimony so far as possible, and where not possible, by ascertaining which version was best supported by un- disputed evidence , documentary and otherwise , or was most compatible with the preponderance of the evidence as a whole and with the inherent probabilities. Numerous exhibits on both sides disclosed the general course of the negotiations. In the latter field Respondent 's various contract proposals and Burkart's various summaries of the negotiations were particularly helpful, both in showing the progress or lack of progress on specific issues and in reconciling conflicting testi- mony and resolving credibility. Because of the extreme length of the record, it would needlessly burden this report to discuss all the testimony on the disputed points. It will suffice to state that in making the findings herein the Trial Examiner has considered and weighed the entire evidence and that such testimony or other evidence as is in conflict with the findings and is not specifically discussed hereinafter is not credited . See Carnegie- Illinois Steel Corporation (Joliet Coke Plant), 95 NLRB 763, 765, footnote 4, where the Board employed a similar technique in making its own findings and con- clusions in a case of considerably less volume and subject matter than the present. Though some of the findings have been based on partial acceptance and partial rejection of the testimony of a number of witnesses , such fact in nowise affects their force because "It is no reason for refusing to accept everything that a witness says, because you do not believe all of it; nothing is more common in all kinds of judicial decisions than to believe some and not all." N L.R.B. v. Universal Camera Cor- poration (L. I-Iand, C. J.), 179 F. 2d 749, 754 (C.A. 2); H. N. Thayer Company (Supplemental Decision ), 115 NLRB 1591, 1593-1594, footnote 5, and cases there cited. In order to avoid a report of inordinate length it has been necessary to confine the summaries of the evidence to matters which are of chief relevance and signifi- cance to the finding of the ultimate facts. This has led, of course, to omission of many details, both pro and con, some of which afford cumulative support for the ultimate findings and some of which were considered immaterial or without suffi- cient weight to be persuasive-alone or in congeries-of a contrary finding. C. The prestrike period As a primary issue in the case is whether the strike was an unfair labor practice strike in its inception , it is necessary initially to consider the events of the prestrike period separate and apart, so far as is practicable , from the events which followed. What the complaint charges in this respect is that the strike was caused by a refusal to bargain based on (1) a course of surface bargaining beginning in February 1954, and (2 ) a refusal to give, and unreasonable delay in giving, certain wage information requested by the Union on January 20 and February 6 Those points will be covered in order, though the treatment of the second point will make it necessary to consider certain limited aspects of the poststrike negotiations con- cerning the furnishing of information. The question whether such unfair labor practices as are found here and at later points in this report had any connection either with causing or prolonging the strike is reserved for discussion in a later section . See section 1, infra. KOHLER CO. 1149 1. Surface bargaining before the strike a. Background evidence of bad faith; preparations for the strike The position of the General Counsel and the Union that Respondent had refused to bargain in good faith before the strike is based in substantial part on background evidence, both ancient and recent . From it they urge the conclusion that Respond- ent was unalterably opposed to the principle of collective bargaining, unalterably opposed to dealing with any but a dominated union , and that it was opposed in particular to dealing with CIO. Certainly the evidence showed that Respondent openly made known its opposition to CIO, during both the 1951 and the 1952 campaigns. (Also see N.L.R.B. v. Kohler Co, 220 F. 2d 3, 9, enfg. 108 NLRB 207.) Also, immediately after the affiliation it ceased all remaining forms of assistance to KWA . The evidence showed further that even prior to that time Respondent regarded KWA with diminishing favor (and rewarded it with diminishing favors ) as the KWA leadership became increas- ingly militant in its attitude and demands .9 Further than that the evidence did not go. Much of the evidence which the General Counsel offered and which he relied on was met and refuted by Conger 's explanations and by undisputed facts concerning the negotiations for and the results obtained in the 1953 contract and the supple- ments. Despite final arguments suggesting the contrary , the evidence supports no claim that Respondent did not then fully meet its obligation to bargain with CIO. Indeed, the record shows that the lengthy negotiations then had covered many of the same issues on which the arguments were renewed ( and repeated) in the new negotiations . Though there were wide differences in opinion and position , Company and Union were able to compose and to compromise them and to reach a satis- factory agreement . Thus Burkart quoted Conger as having stated , in reference to the earlier negotiations, that the Company had tried to compromise on certain provisions and to go along with some things in the 1953 contract with which it was not wholly in accord. And though one may question whether the Union itself was particularly enamoured with the contract, certainly it was satisfied to sign (despite extensive strike prepa- rations ), and it publicized widely both its satisfaction and its praise. Thus it termed the contract a "good" one, and one "we can accept with pride." It referred to the "important" and "tremendous" gains which had been made , to "key concessions" which the Company had made, "particularly on arbitration and in union security," and to the Company's full acceptance of the Union on a permanent basis.1° It estimated its wage gains , including fringe benefits, at 18 cents per hour. Nor did the execution of the contract terminate the 1953 negotiations . The con- tract contained a 3 months' wage reopening provision, and the Union promptly requested reopening on May 23 . Negotiations continued until August 20, when a settlement was reached for a 3-cent increase retroactive to May 23.11 Those ne- gotiations also covered the subjects of the enamel shop and wage inequities; and the settlement included acceptance of the Company's detailed proposal of May 5 "There was also a suggestion , from some of Conger 's comments during the two-man meetings, that Respondent may have assumed that it would avoid having to deal with the old KWA leadership by recognizing and bargaining with CIO It is difficult to believe that this could have been more than a faint hope at best in view of the known fact that the KWA leadership had led the affiliation movement and in view of the known custom that leading representatives of a local union participate in bargaining ne- gotiations. Furthermore , any such hope would have been wholly dispelled during the negotiations for the 1953 contract and its supplements , in which the Union's committee was composed largely, if not predominantly, of the old KVi A leadership. The most that can be made of this is that Conger may have been attempting divisive tactics between International and local representatives , since in other settings complaints were made that "outsiders from Detroit " were taking over. If such were the purpose, the tactics were no more than a counterpart of the Union's frequent sniping at Respond- ent's representatives , Conger, President Kohler, and Edmund J. Biever ( plant manager), which Respondent magnified into a claim that the Union was seeking to force a change in management and in management's representatives. 10 Most of these expressions were contained in Mazey's report to the membership, published in The Kohlerian (the Union's official organ ) on February 26, 1953. Mazey also quoted Christ Zittel , ex-president of KVV-A, as having stated that CIO had made more progress in contract improvements in the single set of negotiations than was made under KWA in 17 years. 0 "Again the Union took a strike vote ( purporting to show 918 percent affirmative) and publicized statements of its officers intimating that a strike was imminent unless a settlement were reached. 1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD covering the enamel shop, and it provided for further study by a joint committee of the inequities problem. For the purposes of the latter study, the Company began, in October 1953, to compile information on incentive earnings and other wage data requested by the Union. See section C, 2, infra. The General Counsel and the Union also rely heavily on the fact that Respondent made extensive strike preparations. There is no question that such preparations were made or that they closely resembled the preparations which had been made during the 1952-53 negotiations, including the reactivation of certain equipment which had been used during the violent strike in 1934. However, it is also undis- puted that the Union had repeatedly threatened a strike, had taken a strike vote of its membership which resulted in an overwhelming vote in favor of striking, and was contemporaneously engaged, to Respondent's knowledge, in making extensive strike preparations on its own part. Being thus faced with definite prospects of a strike, Respondent was entitled to prepare for it in the light of its decision, also wholly legitimate, to continue to operate its plant to the extent it was able to do so. It was not required to await the actual advent of the strike before making preparations; a pedestrian is entitled to leap for the curb before being struck by a speeding truck. And though some of Respondent's fears were overdrawn (of armed attack, for example) and though some of its preparations were unnecessaryand possibly illegal (tear gas and riot guns, for example), Respondent was correct, as events were to prove, in assuming that the strike would be attended by a certain amount of violence. What Respondent did was to renew the same sort of strike preparations which it had made during the 1952-53 negotiations when a strike appeared imminent immediately prior to the reaching of an agreement. It had also begun similar preparations in August 1953, following the strike threats which preceded reaching the supplemental agreements. Those facts led the General Counsel and the Union to charge that Respondent had actually been planning for the present strike since the execution of the 1953 contract and that it had bargained, during the prestrike negotiations, not to reach an agreement but to provoke a strike by not reaching one. The facts, however, support entirely different conclusions. Thus, because of its two earlier bargaining experiences with the Union, Respondent could well have assumed that the strike threats and strike preparations were only part of CIO's standard bargaining strategy to bluff it into yielding further concessions. See, e.g., Ryder, Strategy in Collective Bargaining Negotiations, 7 Lab. L.J. 353-358 (June 1956). Certainly the earlier results would have encouraged it to meet preparations with preparations and to stand firm in the belief that the Union would finally yield without calling a strike. There was nothing of substance in the actual course of the negotiations which supports the contention of General Counsel and Union on the present point save for certain disputed comments made by Conger and Howe at the very moment of the breakoff in the meeting of April 3. The General Counsel's witnesses attributed to Conger a statement in substance that the Company had been preparing for a strike for a long time and to Howe a statement in substance that the Company had been looking for a showdown. However, there was no agreement as to the actual words used. Kitzman and Kohlhagen testified that Conger referred to having prepared "for a long time." Burkart originally testified he said "for a year"; Graskamp, "for a whole year"; and Bauer, "for years." Yet when called in rebuttal, Burkart and Graskamp both testified that Conger said "for a long time." As for Howe's statement, Bauer testified that Howe said, "If there had to be a show- down . . ."; Kohlhagen testified that he said, "If there is going to be a strike . ."; and Graskamp testified in rebuttal that he said, "If we are going to have a show- down.. . Conger and Hammer testified that Conger's statement was that the Company had seen the strike coming for a long time, and that what Howe said was that, "If we must have a showdown, it might as well come now." They both denied that Howe said, as one of General Counsel's witnesses testified, that the Company was "looking for a showdown." Though there is little in the conflicting versions to choose between, the Conger-Hammer testimony is accepted since the General Counsel's witnesses were not in agreement as to the statements made and because of variances in their testimony as given at different times. It is therefore concluded and found that the present aspect of the case lends no support to the contention that Respondent did not bargain in good faith before the strike. b. Prestrike negotiations The rejection of the contentions under the previous section leaves with little support the claim that Respondent indulged only in surface bargaining prior to the strike. KOHLER CO. 1151 Negotiations began on February 2, with contract proposals by both parties on the table, as well as the 1953 contract. The first round of negotiations was devoted to going through the proposals point by point, by way of preliminary exploration, to note the differences of opinion between the parties. The second round began around February 12 or 15, and was completed late in February.12 Although on this round the arguments became more vehement as the parties went more deeply into the points of disagreement, Burkart's first summary of negotiations, as of February 26, contained frequent references to compromises which had been made and to agree- ments reached, and it showed as well many other instances where the parties had proposed changes and counterchanges. Similarly, Burkart's summary of the points in dispute as of March 8 showed that further progress had been made, and that the negotiations since February 26 had resulted in reducing substantially the number of issues on which the parties were not agreed. Although the Union and the General Counsel contend that agreement was confined strictly to minor points and that no agreement was reached on major issues, Burkart's summaries showed that progress was made on some of those issues by narrowing the area of disagreement. Furthermore, the record shows that much of the "shadow- boxing" at this stage was due to the Union's strategy and bargaining techniques. Thus Conger testified without denial that he complained that the Union was insisting on discussing matters of slight importance to the neglect of the major issues and that he suggested they turn to the "meat" of the contract. The Union yielded, though objecting that this might lead to the minor issues being "lost in the shuffle"; and thereupon the parties turned to the seven major issues, which, as Burkart testi- fied, "are on the bargaining table to this date," i.e., arbitration, union security, seniority, pensions, insurance (life, medical, and hospitalization), wages, and a 4- percent paid lunch period in the enamel shop.13 In the meantime, around February 23, the Union called attention to the imminent expiration of the contract and requested that it be extended through the month of March to insure ample time for orderly bargaining. Respondent replied on February 25, rejecting the proposal, but offering instead an extension for 1 year, including the provision for a wage-reopener once each quarter. The Union rejected that offer at the February 26 meeting, charging that Respondent intended it more as a propaganda weapon than as a reasonable proposal.14 On the same date, 13 Negotiations were continuous during the first round except for weekends, and were continuous on the second round except for a 3-day recess requested by the Company The Union had suggested lengthy hours, including evening sessions and weekends, but Conger objected to such "marathon negotiations" and suggested a regular schedule from 9 to 5 on normal workdays. Though the Union voiced objections, the latter schedule was agreed on and was generally followed. Despite suggestions to the contrary, the record showed no failure or refusal by Respondent to meet and to confer at all reasonable times 13 The positions of the parties on those issues, during both prestrike and poststrike periods, are briefly summarized under section D, infra. Respondent's position on the union-security issue afforded the most support for the General Counsel's position that Respondent failed to bargain in good faith before the strike. See section D, 6, infra. In fact a considerable part of the negotiations was conducted in an arena where simultaneously a constant battle was being waged for publicity and propaganda, with both parties seeking public support and approval of their respective positions. The fol- lowing excerpts from Burkart's testimony show that this was openly recognized during the negotiations : And this was the tenor of their propaganda, their publicity on the pension plan.... On the other hand we continually pointed to the fact, and we hammered away at them publicity-wise on the fact, that workers now retiring were not getting decent pensions . . . At this time we asked our publicity department to tone down a bit on some of the things they were doing, and we put out some optimistic statements at that time.... We pointed out that the Company had been making a big hullabaloo about it in the newspapers and other places, trying to convince the public the Union was reaching for power . . . . Such a method of conducting bargaining negotiations renders more difficult, of course, the problem of resolving the underlying issues of good faith, since there were frequent charges and countercharges that particular proposals were motivated by propaganda purposes Furthermore, there was both visual and oral evidence throughout the lengthy 1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent wrote the Union submitting as an alternative proposal to a 1-year extension an offer of a 3-cent per hour general wage increase effective March 1, con- ditioned on acceptance of the Company's last contract proposal of February 15, with such changes as had been agreed upon and with the existing pension and insurance plans to remain in effect. The Union rejected that proposal also, and requested that bargaining continue pending the arrival of a conciliator from the Federal Mediation and Conciliation Service, whom the Union had called in. Respondent refused on the ground that it would be necessary to go over the entire matter again when the conciliator arrived, and the parties might as well start then. In the subsequent meetings before the conciliator from March 3 to 8, Burkart's first summary was used at the bargaining table, and he later prepared at the con- ciliator's request a summary of the points in dispute as of March 8. On a similar request for a statement of Respondent's position, the Company wrote the Union under date of March 10, repeating its alternative offers of February 25 and 26. Referring specifically to the various issues listed in the Union's summary, Respond- ent stated, "You have our final position." In the meantime, the Union had an- nounced at the March 8 meeting that it had reached its basic position and that it would take a strike vote on March 14.15 Negotiations were resumed on March 17, 18, and 19, but no substantial progress was made. The Company adhered to its alternative proposals, and there were references on both sides to the negotiations as a waste of time. The last meeting ended in a heated exchange and an angry statement by Jess Ferrazza, an Interna- tional representative, suggesting that the Company make certain preparations for a strike. Later meetings on April 2 and 3 were conducted in the atmosphere of the Union's announcement that a strike had been called for April 5. Though some of the major issues were discussed, no progress was made. There was discussion of the approach- ing strike deadline, and Kitzman suggested that "the articles of war" be drawn up in order to avoid damage to the plant. Specifically he suggested that the Union was prepared to agree on the number of maintenance employees who would be issued passes through the picket lines. Conger rejected the Union's offer, stating that Respondent intended to operate the plant without its help. Concluding Findings 16 The record showed plainly that after the second round through the proposals, the negotiations became largely a repetitious hashing and rehashing of familiar argu- ments and that they so continued long after the positions of the parties had been thoroughly explored. Indeed, even Burkart demurred momentarily at one stage when one of the conciliators suggested that the parties make another seriatim tour of the provisions of the various proposals then on the table. The record showed as well that the failure to reach a contract (which was the sole cause of the strike-see section I, infra) was the fact that the negotiations became deadlocked on the major issues. All the disputed issues, however, fell squarely within the area of compulsory collective bargaining prescribed by Section 8(d) of the Act, i.e., "wages, hours, and other terms and conditions of employment," in which, though the obligation to bargain is mandatory and may not be evaded, the bargainer is not compelled to accede to or to compromise demands. He is entitled to bargain hard for acceptance of his position by the other party, and is free to reject opposing demands no matter how unreasonable he appears so long as he is bargaining in good faith.17 Within hearing that the parties were continuing their daily battle for publicity. If the question of fault on this score is material , it must be found that Respondent and Union were equally guilty is Contemporaneously the Union had invited President Kohler to participate "in our deadlocked negotiations," and Kohler had declined, stating that the positions taken by the Company's representatives were with his full knowledge and approval That and other subsequent refusals by Kohler to participate is treated in more detail, infra, sec- tion E, 5. The present refusal lent no support to a claim of lack of good faith in bargaining. Ii Though the conclusions here reached relate specifically to the prestrike period, much that is said applies as well to the general course of the subsequent negotiations. Though, as will be seen , the record does not support the conclusion that Respondent bargained before the strike with intent to avoid reaching an agreement, there came a time when that was no longer so See section E, infra 17 Though good-faith bargaining is inconsistent with a predetermined resolve not to budge from an initial position, "it is not necessarily incompatible with stubbornness or KOHLER CO. 1153 that area the bargainers are free to insist upon their respective positions to the point of refusing to enter into any contract at all except upon terms acceptable to them, N.L.R.B. v. Jones & Laughlin Steel Corporation, 301 U.S. 1, 45; 18 and if an impasse results, the employer may unilaterally establish the terms of the particular condition of employment, at least within the limits of his proposal to the union. N.L.R.B. v. Crompton Highland Mills, Inc., 337 U.S. 217, 224. The fact that Respondent here proved much the tougher trader, yielding little while holding fast to much, does not establish a claim of bad faith, unless it occurred in connection with other circumstances which reflect that its adamancy was itself part of a technique to avoid reaching an agreement. For it is not the function of the Board , where the record points only to hard bargaining, to intrude upon the negotiation by evaluating how much each party gives at the bargaining table and how much it asks. Here the record showed marathon negotiations , during which Respondent main- tained its position on the various issues by supporting arguments which were legiti- mate, and, in the main, reasonable, though they failed in persuasion . Cf. N.L.R.B. v. Truitt Mfg. Co., supra, at p. 155 . Of course, from the Union's point of view the Company might reasonably have yielded on all seven of the major issues ( though Burkart conceded as a witness that it was not required to yield on any given one). To an outsider, the Company might reasonably have yielded on some one or more of them; yet using the lunch-time allowance for the enamel shop as an example, Respondent advanced reasonable arguments for refusing to yield, particularly since the evidence established that the Union's demand actually amounted to a 4-cent increase in incentive rates for that department. The record showed, too , that the strategy and techniques on both sides followed patterns which are recognized, familiar, and accepted. Thus the realities of true collective bargaining have imposed an important but time-consuming "ritual" which requires the negotiators to waltz through an elaborate minuet, particularly during the earlier stages of negotiations . See Bargaining Techniques , Labor Costs on Con- ference Agenda, 39 LRRM 304-306 (February 25, 1957). Since the very idea of bargaining implies a give and take, with each party free to seek the best and most favorable bargain, it is seldom that a party can present his last position in the first instance and be said to be bargaining . Initial positions are taken from which both parties well know recessions will be made. Humphrey, The Government at the Bargaining Table, 6 Syracuse L. Rev. 130, 139 (fall, 1954). And as the bargaining advances, each may attempt to create an illusion of finality of position , which is simulated and not real, in the hope of obtaining concessions on the one hand and of conserving its own bargaining cushions on the other. For a further description of the various stratagems employed to create and to buttress such "false breaking-off positions," see Ryder, Strategy in Collective Bar- gaining Negotiations , supra, 7 Lab. L.J. at pp. 356, 358 . That article, though of later publication, reads as though it has served as the handbook of the negotiators in the present case . Thus the record here showed walkouts by company negotiators on more than one occasion, sometimes at the invitation of the Union ; the Union threatened a strike, took a strike vote, and suggested that the Company prepare for a strike . Open and obvious strike preparations were made on both sides. Yet, significantly, the same sort of strategy had led on two earlier occasions (the '53 contract and the August '53 supplements ) to the reaching of agreement. It is therefore concluded and found that the evidence fails to support the con- tention that Respondent engaged only in surface bargaining prior to the strike. 2. Refusal to furnish information What the complaint charges specifically in this respect is that Respondent refused to comply with or unreasonably delayed in complying with two requests by the Union for certain information on pay rates, one made on or about January 20, 1954, and the other on February 6. The first request was for the average incentive earnings in all incentive operations in the plant (except the pottery division, previ- ously furnished by the Company), which information was desired for bargaining even with what to an outsider may seem unreasonableness " N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149, 154-155 (concurring and dissenting opinion) ; cf. Commercki Printing Company, 99 NLRB 469, 477. 18 Save that they may not insist upon a substantive provision which would violate an express provision of the Act, American Radio Association, et al., 82 NLRB 1344, or which is in conflict with some underlying policy of the Act. National Maritime Union of America, et at. (The Texas Company), 78 NLRB 971, 981-982, enfd. 175 F. 2d 686 (C.A. 2), cert. denied 338 U.S. 954. 1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on and for adjusting any existing inequities in wage rates and earnings. The second request was for the incentive earnings of the individual machine operators (about 50 in number) in the brass diecasting department for the last 3 months of 1952 and the last 3 months of 1953. The latter request was not related to the inequities problem, but arose from and was discussed as a grievance matter. The record contained evidence of requests for other types of information on January 4, 21, and 22, and of Respondent's alleged failure to furnish it. Since those matters were outside the scope of the pleadings and since the failure to comply was not shown to have affected the contract negotiations in the slightest, I shall make no finding herein concerning them. a. The January 20 request The 1953 contract provided for a joint committee to study the question of wage inequities . Some proposals were later interchanged and some discussions were held, but no agreement was reached . By stipulation and agreement (a supplement to the contract ) dated August 30, 1953, a 3-cent wage increase was given, retroactive to May 23, 1953 , and provision was also made for a continuation of the joint com- mittee and for study of the inequities problem. In October (after Burkart's advent) the Union orally requested the incentive earnings for the entire plant in order to prepare a proposal on inequities . When Conger pointed out the tremendous task involved and length of time required (about 65 percent of all the employees were incentive workers at the time of the strike ), the Union suggested that one division be furnished at a time. Respondent agreed, and subsequently furnished the infor- mation on the pottery division on December 7. The Union thereafter drafted a proposal for pottery, and the Company a counterproposal , but no agreement was reached. During those discussions , Conger suggested that the Union's request for the remainder of the earnings be put in writing, and the Union's letter of January 20 followed. Shortly after the contract negotiations began on February 2, the subject of inequities came up again , and the Union renewed its request for the remaining incentive earnings . The testimony is in conflict as to the exact tenor of the dis- cussions and as to what understanding was then reached . Reconciling those con- flicts, I find on the basis of the entire evidence that when the Union asked for the earnings, particularly for the enamelware division , Conger stated that they were on his desk and that the Union would have them within a week . 19 So far as actual negotiations on the inequities was concerned , Conger proposed that the subject be postponed until the other issues were settled, as had been done in bargaining for the earlier contract. Though the Union did not agree that the matter could be dropped, it was mutually agreed that the point should be left until later in the negotiations 20 Though the record showed that the subject was referred to again prior to the strike, there was no identification as to dates , and the evidence as a whole indicates that such references as were made were casual and incidental to the discussion of other subjects. The next direct demand for the information was made on June 11, by Bauer, who inquired somewhat heatedly when Conger was going to furnish the earnings for the enamelware division . Conger replied that he had the material on his desk, but that the Union had kept him busy on negotiations and on other things, and that he had had no time to check it. When asked why he did not delegate the chore to an assistant, Conger stated he wanted to handle the matter personally. In an interview with Attorney Squillacote and a field examiner for the Board on July 13, 1954, Conger stated that the Company still planned to furnish the information if the Union wanted it. It was not until early in August that the information on the enamelware division was actually delivered ; it was dated June 14. Together with that previously furnished for pottery, it covered about 65 percent of the incentive workers. The information on the remaining 35 percent has never been furnished, though, con- trary to Respondent's contention, the record shows two later requests . Thus, in 19 This finding accords generally with Burkart's testimony on the point during his first appearance in June 1955. However, when called in rebuttal in February '1956, Burkart fixed the time of Conger's statement as in December 1953. 20Though this finding rejects testimony by some of the union witnesses to the con- trary, it again accords with Burkart's testimony on his original appearance on cross- examination. Actually, as some of the union witnesses pointed out, intelligent negotia- tions on inequities could not have been conducted until the information was supplied. KOHLER CO. 1155 its August 10 letter to President Kohler (Appendix D) the Union, in submitting its modified demands, included the following item: Establishment of procedures to resolve any existing wage inequities inside the plant and to reduce the number of existing wage classifications. The company is to furnish the union with necessary wage and other data required to make an intelligent study of wage inequity problems. In replying on August 13 (see Appendix E), President Kohler stated the Com- pany's position on that demand as follows: In the contract last year the company agreed to a procedure intended to reduce the number of existing wage classifications and eliminate any inequities. This procedure did not function due to the union's insistence on another general wage increase thinly disguised as an inequity adjustment and on the union's insistence that the company compile data not available and not necessary for bargaining, [Emphasis supplied.] Burkart testified that a further (and final) request for the information was made during the September negotiations. Concluding Findings It is now well settled that the authority conferred by Section 9(a) of the Act upon a union representing a majority of the employees in an appropriate unit entitles the union to all wage information essential to the intelligent representation of the employees and that it is the employer's duty on the union's request to furnish such information where it is reasonably available only from the employer's records. Whitin Machine Works, 108 NLRB 1537, 1538-1539, and cases cited at footnotes I and 2; see also concurring opinion of Chairman Farmer at pp. 1541-1542, and the opinion of the court of appeals, ordering enforcement, 217 F. 2d 593, 594 (C.A. 4), and cases there cited. This is not to say that the employer is required to furnish all information at the exact time or in the exact manner requested. "It is sufficient if the information is made available in a manner not so burdensome or time-consuming as to impede the process of bargaining." N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149, 151, quoting with approval from Old Line Life Insurance Company of America, 96 NLRB 499, 503, and The Cincinnati Steel Castings Company, 86 NLRB 592, 593. And, as always, the surrounding facts and circumstances must be considered, for each case must turn on its particular facts. Truitt Mfg. Co., supra, at p. 153. Obviously the information here requested was both appropriate and necessary to performance of the Union's function, and there was no suggestion by Respondent to the contrary prior to President Kohler's letter of August 13. We turn then to the matters upon which Respondent relies to excuse its delay and its failure to comply. It is true, as Respondent contends, that it was agreed in February that negotiations on the inequities problem should be postponed until a later time. But this was due in part, as the Union's witnesses pointed out, to the fact that receipt of the information itself was a necessary prerequisite to formulating and discussing pro- posals concerning that problem. And though it is also true, as Respondent con- tends, that the inequities question was not among the seven major issues on which the contract negotiations foundered, it was still a live issue, and one which, if resolved, could well have formed the foundation for reaching further agreements. Thus the furnishing of the information would have furthered, not impeded, the bargaining process. Although the compiling of the information constituted a heavy and a time-con- suming task, the Union readily agreed that it might be performed in segments, and Respondent set about the task on that basis without objection. It was able (without difficulty, so far as the record shows) to compile and to deliver the earnings for the pottery division in December, within 2 months of the original request; and 2 months later Conger stated that the enamelware earnings had reached him and that the Union would have them within a week (thus completing roughly two- thirds of the task). Yet 4 months later, when the Union's demands became insistent, Conger used his former excuse: he had the material but had been unable to check it, and he refused to consider delegating that clerical chore to an assistant. It was nearly 2 months more before the data was finally delivered to the Union, and then, significantly, it was dated June 14. Though Respondent's delay, prior to June 11, in delivering the enamelware earn- ings may well be excused on the ground that there was no apparent urgency about the Union's request, such was not the case thereafter in view of Bauer's blunt in- 1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quiry. Furthermore, the evidence showed that even if the data were not ready in February, it was ready in any event no later than June 14, 3 days after Bauer's request. Respondent's excuses for delaying delivery beyond that date cannot be accepted. The fact that the Union made no later proposals based on that data supports neither a claim of a temporary withdrawal or postponement nor Respondent's present suggestion that the Union did not really need the information.21 Indeed, the record shows that proposals and counterproposals were made and discussions were had after submission of the pottery earnings in December. The failure then to reach an agreement forecast no future lack of success, since once the Union had before it for analysis the complete information requested, it would have been enabled for the first time intelligently to advance proposals and to enter upon negotiations on an issue which had remained open throughout the life of the 1953 contract. The remaining third of the information has never been furnished despite the renewed requests on August 10 and in September; and so far as the record shows Respondent has done nothing toward compiling the information. Though Re- spondent states in its proposed findings that it raises no issue as to the Union's right to the data, this was not so when the issue was one of current consideration during the August negotiations. President Kohler then stated the Company's posi- tion to be that the Union had requested data which was not available and not neces- sary for bargaining. It is difficult to read that statement as other than a rejection of the Union's renewed request of August 10 to be furnished necessary data bearing on the inequities problems; and that conclusion is buttressed by the subsequent long- standing failure to supply the data and the further failure to suggest at any time during the lengthy hearing that Respondent had even entered upon the task of compiling it. But Respondent attempts by its proposed findings to show that agreement was reached in August on procedures for solving the inequities problem, and it argues that until negotiations are resumed on the subject pursuant to those procedures, the information is unnecessary and Respondent is under no duty to furnish it. The evidence on which Respondent relies consists mainly of Conger's testimony that in the August negotiations with Mazey it was agreed that in connection with the bargaining on inequities the Union's committee might make job surveys in the plant in lieu of accepting written job descriptions by the Company. However, that testimony showed explicitly that the procedure related to resolving questions as to job content and job standards; it was unrelated to the question of earnings, and indeed there was no reference to the latter subject or to Union's request for the data. Furthermore, the August negotiations were broken off on August 18, shortly after delivery of President Kohler's letter, which had placed the Company's position on a different and an inconsistent basis. It is therefore concluded and found that on or about June 14, 1954, Respondent refused to bargain with the Union by failing to furnish the Union the incentive earnings for the enamelware division, thereby unreasonably delaying compliance with the Union's request of January 20, 1954, and that on August 13, 1954, Respond- ent refused to bargain further by failing and refusing to furnish to the Union the remainder of the information requested on January 20, 1954. b. The February 6 request The Union's February 6 request had resulted from complaints in the brass die- casting division that due to artificial limitations which had been placed on pro- duction, the employees' earnings were no greater than prior to the granting of the 1953 wage increase. Though the matter arose and was handled as a grievance, the record showed that sometimes during the bargaining period the parties would take out sufficient time from negotiation sessions to discuss current grievances. In fact the original discussion of this grievance had occurred at a negotiating meeting early in February, and Conger promised to investigate. On February 6, the Union put in writing its request for the information which it earlier had requested orally. There were later references to the matter during negotiation meetings , and Conger stated that the Company would have to have a little more time. The information was never furnished. 21 On the latter point Respondent cites N L.R.B. v F. W. Woolworth Co., 235 F. 2d 319 (CA. 9) That decision was reversed, per curiam, by the Supreme Court, 352 U S 938 Significantly, Respondent's latter claim accords closely with the position taken by President Kohler in his August 13 letter. KOHLER CO. 1157 It is true, as Respondent contends, that the grievance which led to the Union's request for earnings was not treated as a part of the inequities problem , but was to be disposed of separately as a grievance. And though it is also true that grievance questions were not a part of the contract negotiations, it does not follow, as Re- spondent further contends , that the present issue was not comprehended in the issues as framed by the complaint or that it had no relation to the issues in the case. To the contrary, the complaint specifically charged the failure to furnish the information as a refusal to bargain. But Respondent argues further that a refusal to bargain cannot be found because Respondent's failure to comply did not affect the course of the contract negotiations. Respondent's conclusion is of course fallacious ; it is based on the false assumption that the scope of the Union 's agency included only the matter of contract negotia- tions, and it ignores the Union's other function as the statutory agent of the em- ployees to represent them in bargaining concerning their grievances as well as in all other matters pertaining to their conditions of employment . It ignores as well the contract itself, which contained explicit recognition in its grievance provisions of the functions of the Union as the representative of the employees. Here, as in Hekman Furniture Company, 101 NLRB 631, 639, enfd . 207 F. 2d 561 (C.A. 6), "The information was not sought, nor did the Union seek to justify its production, on the ground that it was needed for contract negotiations . Instead, the Union's requests were motivated by the Union's inability to perform its other important functions in administering the contract and in representing employees in the filing and processing of grievances." [Emphasis supplied.] The request being quite limited in scope (not over 50 employees were involved), there was here no claim that the compiling of it was either burdensome or time consuming. Obviously the assembling of the data was a clerical task, and Respondent conceded in oral argument that it could have been compiled in a few days under ordinary circumstances. The fact-which Respondent urges-that its negotiators were contemporaneously engaged in negotiations with the Union would thus afford no excuse for substantially greater delay in assembling the information . Though Respondent was entitled to a reasonable time in which to comply, even the most generous allowance could not have exceeded a month 's time under all the circumstances. It is accordingly concluded and found that on or about March 6 , 1954, Respond- ent, by failing and refusing to furnish the information requested by the Union on February 6, 1954, refused to bargain within the meaning of Section 8(a)(5) and (1 ) of the Act. D. The seven major issues Before turning to the negotiations of the poststrike period, and although a certain amount of repetition will be entailed , there will be inserted here, for convenient reference , a brief outline of the positions on the seven major issues , covering periods both before and after the strike. 1. Seniority Though the parties had successfully negotiated comparatively detailed seniority provisions in their 1953 contract , both Company and Union proposed a number of changes during the course of the 1954 negotiations . Burkart testified that because of certain experiences with grievances , the Union anticipated difficulty with the Company on the seniority issue because the Union's "philosophy" on seniority was far different from the Company's. Despite this, and though no agreement was reached prior to the strike , the evidence showed that during the June meetings the parties were able, by compromise and by concessions on both sides , to resolve tem- porarily all their differences , although the Union felt that in certain respects the agreement was still distasteful and not up to "the best standards." Later in June, however, it developed for the first time that the parties differed on their interpretations of the so-called 10-percent deviation clause which had been a part of the 1953 contract and to which amendments had been agreed. Thus what had been thought to be agreement on the issue turned out to be no agreement at all. The arguments , pro and con, need not be summarized ; they showed only an honest difference of opinion . Respondent also points to the fact that there had never been an occasion to apply the provision in question because there had not been a layoff for over 16 years. In any event , the issue was never resolved. 2. Insurance The Union sought increases in the amounts of life insurance and in disability cover- age and benefits, as well as a full-coverage type of hospital plan which would cover 577684-61-vol. 128-74 1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all bills no matter what the amount. The Company proposed no changes; it pro- posed to continue its indemnity type of hospital plan, which paid a certain amount per day for room and board, with a schedule of incidentals, as well as a surgical schedule. There was no dispute on the surgical schedule. In June the Company offered to increase the hospital benefits from $6 to $8 a day, to increase the benefits period from 31 to 70 days, and to cover dependents from birth instead of from 14 days after birth. Though there was dispute on certain details, such as increased costs, the Union accepted those offers. There was also a discussion of maternity benefits, and the Company indicated it would not be inflexible, though no agreement was reached. During the August meetings, and prior to receiving the Union's letter of August 10, the Company offered a further increase in the benefits period from 70 to 120 days, and offered also to change the maternity benefits from a flat $100 fee with no surgical benefits, to a maximum of 8 days' hospitalization, plus a $60 surgical fee. The Union's letter of August 10 announced acceptance of those benefits. 3. Pensions The Union proposed its standard form of pension plan, which was a funded, non- contributory plan, to be jointly administered. The Company expressed pride in its existing plan and proposed no changes in it. The Union's chief objections to the Company's plan were that it was voluntary, that it required contributions from the employees who participated in it, and that the benefits were inadequate, especially to employees who were currently retiring. There were no changes in position prior to the strike and none until the June negotiations, when the Company offered an amended proposal under which it would increase at its own cost the benefits to participating employees currently retiring sufficient to meet the payments under the Union's plan. The Union still objected to the voluntary character of participation, and also pointed out that the Company, except for the supplementary payments, would be using the employees' contributions. Burkart admitted, however, that the Company's offer was a concession and that it represented an improvement over the Company' s original proposal. On August 5, the Union asked the Company to consider making the plan com- pulsory and to consider the question of reinstatement of employees who had with- drawn. Respondent replied on August 9, stating why, from its analysis of certain Wisconsin statutes, the plan could not legally be made compulsory, but outlining the conditions under which reinstatement might be made of employees who had with- drawn from the plan. In its letter of August 10, the Union listed among its "modified" demands a "Non- contributory Pension Plan guaranteeing minimum standards equal to UAW-CIO benefits." Respondent's reply of August 13 referred to its earlier offer of supple- mental benefits and rejected the request that the plan be made noncontributory. During the September meetings there was dispute over the Company's claim that the provision would be illegal, and it was suggested that the parties request an opinion from the Attorney General, but Respondent refused on the ground that such a ruling would not be a binding decision which would protect Respondent. 4. The enamel shop The enamel shop had long been a sore spot in the Company's labor relations. Working conditions there were arduous and had posed thorny problems dating back into KWA days. One phase of those difficulties was reflected in unfair labor practice charges against the Company during the late days of the KWA regime, on which a Section 10(b) proceeding by the Board was processed after the affiliation with CIO. See 108 NLRB 207, enfd. 220 F. 2d 3 (C.A. 7). Indeed that litigation did not reach ultimate decision until after the bulk of the present negotiations had taken place. Though the Company won the earlier case insofar as it concerned the enamel shop situation, a substantial residuum of bitterness remained which rendered more difficult current negotiations relating to the other enamel shop conditions. Thus, although the present Union continued its efforts to secure improvement in the working conditions in the enamel shop,22 the Company was inclined to view the complaints as emanating from "malingerers" and "prima donnas," an appraisal which seemed to receive a modicum of color from some of the findings in the earlier case. At different times in the past the enamel shop had operated both on a continuous 6-hour-shift basis and on a continuous 8-hour-shift basis. On neither basis was an 22 A mass of evidence, largely repetitious, was introduced into the present record but need not be summarized here A general description of the conditions appears in the earlier Board decision, supra, 108 NLRB at pp. 213-214. KOHLER CO. 1159 actual lunch period provided ; the employees ate on the job as lulls in their duties permitted. At the time of the affiliation a 6-hour shift was in effect , but after affiliation and before the election Respondent unilaterally changed the shift to 8 hours and made other changes in working conditions. In the interim prior to the 1952 election, the Union requested that a lunch time allowance be instituted , but Re- spondent refused. The 1953 contract as finally negotiated provided for a 4-percent lunch time allow- ance in certain departments other than the enamel shop "when operating on a 3 -shift, 24-hour per day basis" ; it provided further that "when an operation in those depart- ments is performed on a cycle which does not provide sufficient time for eating on the job, such employees will be granted a 20-minute lunch period and will be paid an additional 4 percent of their actual earnings where the employee works the entire shift on incentive pay." The issue concerning the enamel shop was left to further negotiation , and Re- spondent submitted on May 5, 1953, a detailed proposal of some four pages which provided among other things for increases in certain incentive rates but which made no provision for a lunch time allowance . Negotiations were held, with the Union seeking to extend to the enamel shop the provision for a 4-percent lunch time allow- ance which existed as to some other continuous shift operations . The matter was settled, however, by the stipulation and agreement of August 20, which provided for acceptance of the Company's offer on the enamel shop and also provided for extension to the enamel shop of the 3-cent general wage increase which had been concurrently negotiated under the Union's wage reopener. During the early part of the 1954 negotiations, the Union made a number of demands concerning the enamel shop but by early March had abandoned them all (including one for a special enamel shop supplement ) except for a 4-percent lunch time allowance and for two 10-minute rest periods Respondent's position was that the 4-percent lunch allowance proposal was a mere subterfuge for a 4-percent increase in pay; that this was so because the men would eat their lunch on the same basis as formerly ; that the operation permitted the eating of lunch without interrupting of production while the piece to be enameled was heating; that Respondent did not grant a paid lunch period where the eating of lunch was possible without interruption of work; that the contract had specified what departments those were ; and that less than 4 percent of Respondent's em- ployees (around 100 ) received a paid lunch period. In its June 5 proposal , however, Respondent agreed to establish two 10 -minute rest periods per shift in the enamel shop . Burkart's summary of June 20 referred to that offer and stated that agreement on it was contingent on settlement of the enamel shop problem. 5. Arbitration Arbitration had been an issue in the negotiations for the 1953 contract , and agree- ment was reached on a provision for arbitration at the fifth step of the grievance procedure, subject to a further provision for judicial challenge in the event of dispute concerning either the jurisdiction of an arbitrator or whether a grievance was arbitrable. Three cases were taken to arbitration during the life of the contract , the Company winning one and the Union two . The Company also brought one judicial action challenging the arbitrability of a grievance , but the case was never decided. Some differences of opinion also arose over the meaning of some of the arbitration provi- sions, including the question whether discipline and discharge cases were arbitrable. Respondent proposed numerous changes in or exclusions from the arbitration pro- vision, which Conger testified were of two main kinds : one to clarify and to exclude explicitly the things which Respondent thought were excluded by implication in the former contract, and the other to delete the provision for judicial challenge of the arbitrator's jurisdiction and to substitute a provision that the arbitrator 's decision as to the extent of his jurisdiction would not be final and that proceeding with arbi- tration would not constitute a waiver of the right to challenge either the arbitrator's jurisdiction or the arbitrability of the dispute. The Union proposed no change in the existing clause except for elimination of the provision for judicial challenge of the arbitrator's jurisdiction. The subject of arbitration was discussed throughout the negotiations. By and large it can be said that the Union wanted as many things as possible to be subject to arbitration and that the Respondent wanted to eliminate as many as possible. No progress was made before the strike in resolving their differences. There was extensive discussion of the issue in June, and sometime after June 20 the Union capitulated on all exclusions except for the arbitration of discipline and discharge. 1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Again in the September meetings with Judge Murphy, there was extensive dis- cussion of the issue, the real core of controversy still being the arbitration of disci- pline and discharges. Various suggestions were made by Judge Murphy, Chairman Gooding of the WERB, and by the Union, but none was acceptable to the Com- pany. These included suggestions that WERB be appointed as arbitrator; that the arbitration clause be eliminated; and that a clause be substituted to the effect an employee could not be discharged except for good and sufficient cause. Conger refused all of the suggestions, tLough admitting that the last KWA contract had contained a "just cause" discharge clause. He countered with other arguments and other suggested language which provoked the irritation of Judge Murphy, who testified in that connection, "I think that was probably the only time I was irritated at any of the meetings, but I thought the Company's proposal amounted to quibbling, and so expressed myself." Conger also contended that because there was argument about the meaning of the old arbitration clause, to accept it would amount to "buying a lawsuit." At another time, Judge Murphy pointed out that without an arbitration clause with some teeth in it, Respondent could discharge the very men sitting on the union side of the table. Conger agreed that was so, but contended that the Union would have a remedy in the courts and before the National Labor Relations Board. However, when Judge Murphy inquired further, "Well, supposing all the people on this side of the table . were discharged for some other thing other than union activity, what recourse would they have?" Conger replied, "None." Relevant here also is an exchange concerning the old contract which will also be referred to under the wage issue. Judge Murphy stated at one point that he was unable to understand why, in view of their good experience under the old arbitration clause, the parties could not "live with" the old contract clause. Raskin reiterated the Union's willingness to accept the old clause, but Conger stated that in that case the Union would have to take the entire old contract without the 3-cent wage increase. 6. Union security The negotiations for the 1953 contract had covered the subject of the union shop, the Company had then explained its position, and a contract was reached which con- tained no union-shop provision. The Union renewed its request for a union shop during the 1954 negotiations. Respondent proposed no change in the union-security provisions of the contract, which were limited to a dues checkoff clause under which the Company recognized checkoff cards executed after the date of the contract, to be good only for 1 year or the termination date of the contract, if sooner. A dis- pute over the interpretation of that clause was enmeshed with the union-shop issue. The Union claimed it had the right to have cards signed prior to the expiration date of the contract and to submit them to Respondent after a new contract was signed. Respondent contended that the cards must be signed after the new contract was executed, and notified the Union that it would (as it later did) change its con- tract proposal to insure its interpretation (which seemed the correct one under the wording of the old contract). The General Counsel and the Union rely on two main contentions to support their claim that Respondent did not bargain in good faith in failing to make con- cessions on the union-shop issue. The first was that Respondent had at one time offered a union shop to KWA and the other was that the Union made progressive reductions in its demands, first seeking a union shop, then a modified union shop, then maintenance of membership, and finally an irrevocable checkoff. Burkart stated at the outset of the negotiations that the Union was "prepared to fight" for a union-security clause, and Conger stated the Company's position to be (as thereafter consistently maintained) that it was opposed "in principle" to any form of compulsory unionism whereby an employee was required to join or remain a member of a union as a condition of employment, and that their employees should be free to make their own choices whether to join or not to join.23 The Union replied that no matter of principle could be involved because of an earlier offer of 23 Respondent openly and widely publicized its opposition to the union shop and to any form of compulsory unionism. As late as November 1955, Kohler, in a speech at Birmingham, and still later in January 1956, Lawrence O'Neil (Kohler's personal secre- tary), in a speech at Manitowoc, referred to the Union's "principal" or "major" demand for union security and stated that Respondent would not concede it. Kohler denied, as a witness, that he had stated in his Birmingham speech that he would never agree to the union shop, and testified that that was not his position. His testimony as to that speech is accepted. KOHLER CO. 1161 the union shop to KWA. Conger explained that the offer had been made subject to certain conditions,24 one of which was that any increase in dues should be approved by a secret ballot of the membership (such a provision was in conflict with the con- stitution of the International Union), that it was part of a package offer , and that when the offer was not accepted , Respondent withdrew it, having decided it was a mistake in the first place. Respondent refused the Union's suggestion that it put on the table the union-shop offer as made to KWA. The evidence is in conflict as to when the Union began to reduce its union -security demands. Although some of the union witnesses testified that as early as mid- February the Union began dropping down from the union-shop level, Burkart's own summaries showed that as late as June 20 the Union was still proposing "a standard Union Shop clause requiring all employees , after their 90-day probationary period, to become and remain members of the Union." Respondent's witnesses were thus corroborated that during the negotiations the Union, in referring to the lesser forms of union security , were suggesting only the possibility of retreating, without actually abandoning its demands for the union shop, and that the Union's letter of August 10 (Appendix D) was the first definite retreat from union shop to maintenance of membership . Their testimony received further corroboration from Graskamp , whose testimony threw considerable light on what the Union's representatives may have considered a "dropping " of demands. For example, Graskamp testified at one point that Burkart asked Conger whether he would consider the modified union shop. He testified further that at the January 4, 1955, meeting in Chicago , Kitzman asked, "Suppose the maintenance of member- ship was by the wayside, would you then agree to the self-renewing check-off?" Graskamp testified that he interpreted Kitzman 's statement to constitute a dropping of maintenance of membership. In any case, Conger's position as stated during the negotiations was that the self- renewing checkoff was just another form of compulsory unionism and that Respond- ent would not consent to it. Whether the Union had actually dropped maintenance of membership or whether it, too, considered the checkoff to be a form of union security was left uncertain on the entire record. Thus, as late as June 3, 1955, Mazey, in his appearance before the Senate Subcommittee , expressly referred to "union security " as one of the issues in the strike 25 Respondent's adamancy on the union-security issue does not establish a lack of good-faith bargaining . Although union-shop contracts are widely prevalent, the matter of union-security remains one of the most divisive and one of the most bitterly fought of all the issues in labor-management relations, 38 LRR Analysis No. 39 (September 17, 1956, pp. 77, 78); and powerful arguments have been marshalled, pro and con. Railway Employees' Dept. v. Hanson, 351 U.S. 225, 233. Respondent's objections were on grounds which have been commonly urged in opposition , and its views are apparently shared by a substantial segment of American industry. Thus, in 1954, of workers covered by collective -bargaining agreements not regulated by the Railway Labor Act, 36 percent were employed under contracts which contained no union-shop provisions . Id., footnote 3, citing 78 Monthly Review, No. 6, 649. Respondent's refusal to offer its union -shop proposal as made to KWA does not support the contention that it failed to bargain in good faith . In the first place, Respondent's position on the issue had been explained during the 1953 negotiations, and its rejection then of the Union 's demand had not prevented the reaching of an agreement. Furthermore, KWA had accepted a contract without a union-shop clause after Respondent offered and withdrew its offer of a union shop. 24 Respondent's offer to KWA was contained in a contract proposal submitted in November 1949 and April 1950, and was subject to the qualification that it would not be effective as to any dues increase unless approved by a majority vote of all employees eligible to join KWA. KWA rejected the proposal , Respondent withdrew the offer, and a contract was reached which contained no union-shop provision 25 There is , of course , nothing unusual about referring to or characterizing a checkoff as a form of union security See, e g , Harbison and Coleman , Goals and Strategy in Collective Bargaining ( 1951 ), p 32; and see the language of the Board in United May Mines Corporation, 102 NLRB 1368 , 1370. where in summarizing a portion of the negotiations, it stated : [The union ] suggested , as a substitute for the voluntary check-off clause , a provision giving union members the right to refuse to work with nonunion employees The Respondent refused to grant union security in any form . [ Emphasis supplied ] 1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD But the General Counsel's own evidence supplied another and more cogent reason which exposed the basic fallacy in his contention. Thus he went to great lengths to prove KWA's status as an assisted and/or dominated company union. The granting of union-shop contracts to company unions has long been recognized as a device for continuing domination. For example, prior to its amendment in 1951, the Railway Labor Act had explicitly forbidden both the union shop and the checkoff. The original ban had been enacted in 1934 at the request of the unions themselves at a time when the carriers were using the union shop and the checkoff as devices for maintaining carrier-dominated unions; and it was not until 1951, when company unions had virtually disappeared from the industry that Congress concurred in the drive by the railway unions for validation of a limited union shop. See Hanson case, supra, at p. 231; and see Pennsylvania R. R. Co. v. Rychlik, 352 U.S. 480, 489, footnote 18, decided February 25, 1957. Since a union-shop offer to an assisted union is only another form of assistance, it does not, of course, establish bad-faith bargaining to show that an employer later refused to make the same offer to an unassisted union. 7. Wages Much of the evidence concerning the wage issue is being summarized in more detail under the sections which deal directly with the two unilateral wage increases which Respondent made effective as of April 5, 1954 (section E, 1, infra) and on August 5, 1955 (section E, 5, infra), respectively. Here will be mentioned briefly the main developments on the issue. Respondent originally proposed no change in wages. The Union's demand was for a 20-cent general wage increase , plus 10 cents additional for skilled trades workers. During certain two-man meetings late in June, the Union suggested that if it could "wind up a package ," it was willing to reduce its wage claims from 20 and 10 cents to 10 and 5 cents. Conger responded as usual that the Company had given the Union its final wage offer before the strike and that to give more than 3 cents would constitute both an admission that the Company was wrong and a reward to the Union for having gone on strike , which Respondent proposed never to do. Conger also contended that the Union had made no real reduction in its wage claims but had only come down to a figure which it originally had hoped to get. Up to the time of the June 29 breakoff Respondent continued to adhere to its alternative offers as made before the strike, and no agreement was reached. On August 10, the Union put in writing its reduction in its wage claims , including it with its other "modified" demands for a settlement . See Appendix D. Respond- ent's reply of August 13 (Appendix E) rejected that offer. During the September negotiations Judge Murphy informed Conger and Kohler in his private meetings with them that a wage offer of 7 cents , or even 5 cents 26 (including the 3 cents already granted), would settle the entire dispute, and that the Union would yield on all other disputed issues. Respondent, through Conger, rejected the offer with the flat statement that there would be no increase in wages. During the later open negotiation meetings in September, Respondent continued to adhere to its alternative wage proposals as made before the strike Thus, Conger countered the Union's acceptance of the old arbitration clause with the statement that the Union would have to take the entire old contract without the 3-cent increase. There was no change of position on the wage issue in the November meeting or on January 4. During the July-August 1955 meetings in Chicago , Respondent offered as a part of a strike settlement proposal to make a general wage increase of 5 cents an hour and an additional 5 cents to nonincentive workers to be effective August 1. There was no discussion of the wage proposal except to state it, and there was no discussion of it after the termination of the meetings . On August 4, Conger notified the Associated Press, and on August 5 the Union, that the Company was putting that wage increase into effect retroactive to August 1. E. The poststrike period Under this heading will be summarized events and negotiations which are pri- marily related to the refusal-to-bargain issues, though some of them bear as well on the allegations of discrimination (i.e., the discharge of the shell departments em- ployees and the discharge of strikers on March 1, 1955). Reserved for separate 20 In an earlier private meeting with union representatives, Judge Murphy had been expressly authorized to make the 7-cent offer. See section E, 4, infra, for a more detailed summary of the September negotiations KOHLER CO. 1163 treatment are alleged unfair labor practices which the complaint does not relate to a refusal to bargain, i.e., interrogation and solicitation of strikers and the eviction of strikers, as well as Respondent's defense of strike misconduct to the March 1955 discharges. Two events occurred during the period from April through September 1954, which the General Counsel claims separately to constitute refusals to bargain, i.e., the wage increase of April 5 and the discharge of the shell department em- ployees. To minimize the interruption of the chronological summary, they will be first considered and disposed of. 1. The wage increase of April 5 The wage issue had not assumed major importance before the strike. Thus, as Graskamp testified, there was no real discussion of wages prior to the strike, it being the Union's position that wages were a minor part of the disagreement and that it was willing to modify its wage demands provided the Company would give some ground on such matters as arbitration, seniority, etc. On February 23, the Union referred to the imminent expiration of the contract and requested Respondent to extend it for 1 month so that negotiations might pro- ceed in more orderly fashion. Respondent refused, but following the Union's inquiry as to what the Company's practices would be after the expiration of the contract, Respondent represented that it would continue the past practices and operate along the lines of the expiring contract. On February 25, Respondent put in writing its rejection of the Union's request for a month's extension but offered an extension for 1 year, including a provision for a wage reopener each quarter. The Union rejected that offer on February 26, and on the same date Respondent made an alternative proposal for a 3-cent wage in- crease on condition that the Union accept its last contract offer of February 15, with such changes as had since been agreed upon and with existing pension and insurance plans to remain in effect. The Union rejected that proposal also, taking exception to the fact that Respondent had made it contingent on accepting the contract as a whole. On March 10, Respondent retendered its alternative proposals, stating that they represented Respondent's final position. On or about June 1, Respondent put the 3-cent wage increase into effect, without notice to the Union, making it retroactive to April 5. In other respects Respondent observed the terms of the 1953 contract as to the working conditions of the em- ployees. Although the complaint alleged that the increase had been granted on April 5, General Counsel conceded during oral argument that the evidence did not establish that date or any other definite date, but argued that it could be inferred from the evidence that the increase was given during the first week in June. Re- spondent's counsel similarly conceded that the evidence did not show definitely when the increase was given. The colloquies on the point, however, indicated general agreement that it was given shortly after May 28 (when the Union announced that it would comply with the terms of the WERB order) and probably on the first workday thereafter, i.e., June 1. Certainly the ncrease was given during the first days of June, since the matter was referred to in negotiation meetings as early as June 6. The testimony is in conflict as to how the Union first learned that the increase had been given. Union negotiators testified that they first learned of it through tavern talk around town and that they "threw it up to" Respondent during one of the June meetings. Conger testified that he informed the Union the increase had been given. The point is not of great significance, since there is no dispute that Re- spondent put the increase into effect without notice and without discussion or negotiation with the Union. Although there is no dispute that Respondent stood on its alternative wage pro- posals before the strike, there was sharp conflict on the question whether it did so after the strike. The Union's negotiators testified that Respondent at no time offered the 3-cent wage increase together with the provisions of the 1953 contract. Conger and Hammer testified to the contrary, claiming that on all occasions follow- ing the strike (including specifically the June meetings) when the Union inquired whether the 3 cents would go along with the old contract, Conger replied that as the raise had been put into effect there was no way of revoking it. Certain docu- mentary evidence, plus the testimony of a disinterested witness (Judge Murphy), corroborated the union witnesses and impel the rejection of the Conger-Hammer testimony on the point. Thus, in July 1954, Respondent was furnished with a copy of a detailed report of an interview made on July 13 by Frances P. Dom, field examiner of the Board, which 1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD covered an interview by her and Attorney Squillacote with company officials, in- cluding Kohler, Conger, and Hammer. Respondent was requested to point out any inaccuracies in the report. That report contained, in part, the following reference to the present point: Attorney Squillacote asked the company representatives if the Company ever proposed that the old contract be continued another year with the 3t increase. Conger stated that no such offer was made to the Union; that the 3¢ increase was offered if the Union would accept the modifications proposed by the Com- pany. However, Conger stated that the Union never stated that it would accept the old contract with the 3¢ rates. Conger replied on July 24 acknowledging the report to be "substantially accurate," with the exception of certain corrections and supplementations, none of which related to the above-quoted matter. Furthermore, Judge Murphy testified (as did the union witnesses) that during the September meetings Conger expressly stated that if the Union accepted the old arbitration clause, it would have to take the entire old contract, without the 3-cent raise. It is therefore concluded and found on the entire evidence that both before and after the strike (at least through the September negotiations) Respondent refused to offer the 3-cent wage increase to the Union along with continuation of the 1953 contract. Concluding Findings Respondent argues in its brief that it was legally entitled to put the increase into effect unilaterally after it had been offered to and not accepted by the Union, because "negotiations had become deadlocked on wages, as well as on other issues, an impasse [had been] reached and a strike [had been] called." Though that defense would have had at least colorable support if the increase had actually been granted on April 5, even that support evaporated when it developed that the increase was given at the very time that the parties were engaged in or were entering upon nego- tiations. The wage issue was one on which negotiations were being resumed, but Respondent by its secret unilateral action deprived the Union both of opportunity to consider the increase and of obtaining any share of credit or reward for its granting. The disparagement of the Union and the prejudice to the collective- bargaining process was obvious. N.L.R.B. v. Crompton Highland Mills, Inc., 337 U.S. 217, 224-225; N.L.R.B. v. J. H. Rutter-Rex Manufacturing Company, 245 F. 2d 594 (C.A. 5). Nor does Respondent fare better if the increase were regarded as given on the date (April 5) to which it was made retroactively effective. It is plain that the February-March offer of the 3-cent increase was a conditional one in that it was tied to complete acceptance of a particular contract proposal, that it was at no time discussed separate and apart from other issues, that it was not offered together with the provisions of the old contract, that Respondent gave the Union no indication that it proposed to grant the increase, and that what it put into effect unilaterally and without notice to the Union was not the offer which it had made (i.e., 3 cents along with Respondent's last contract offer, with changes as agreed upon), but one which it had refused to make (i.e., 3 cents plus continuation of the 1953 contract terms). It is true, as Respondent argues, that the Union never offered to accept the 3 cents and the old contract. But what is material on the present question is that Respondent never made such a proposal during the prestrike negotiations, but continued to frame its proposals in the alternative. What the Union rejected were the separate alternative offers, not the admixture of the two which Respondent put into effect unilaterally. Respondent relies upon a line of cases which uphold an employer's right to put wage increases into effect unilaterally in a true impasse situation. The Board has thus stated the rule (Albert Leonard, et al. d/b/a Davis Fut+niture Co., et al., Supplemental Decision and Order, 100 NLRB 1016, 1020) : Faced with an impasse in bargaining, the employer still retains control of the terms of employment so long as production continues. He is free to continue the existing terms without any contract or, indeed, unilaterally to institute any previously proposed changes in those terms. [Emphasis supplied.] But as in Crompton-Highland, supra, "We do not here have a unilateral grant of an increase in pay made by an employer after the same proposal has been made by the employer in the course of collective bargaining but has been left unaccepted or even KOHLER CO. 1165 rejected in those negotiations." [Emphasis supplied.] And see Lan glade Veneer Products Corporation, 118 NLRB 985. Even if it be assumed that an impasse had been reached on the wage issue prior to April 5, it was one which existed on Respondent's offers as alternatively framed and not on some unknown combination of their features which had been chosen by Respondent for unilateral action but which it had not previously offered to the Union. Respondent's change of position, if announced to the Union, "would effec- tively have broken any impasse that might theretofore have existed." Fant Milling Company, 117 NLRB 1277, and cases there cited at footnote 4; Langlade Veneer Products Corporation, supra. Instead, by withholding such announcement Re- spondent fomented continuation of the impasse. Furthermore, and still assuming that the prestrike impasse extended to the wage issue as such, it would have been broken by the change in circumstances developing from the commencement of the strike. N.L.R B. v. United States Cold Storage Cor- poration, 203 F. 2d 924, 928 (CA. 5), cert denied 346 U.S. 818, enfg. 96 NLRB 1108, 1109, where the Board observed, "What seemed a rigidity of bargaining posi- tions before strike action afterwards might very well have become a model of flexible compromise." Also see R J. Oil & Refining Co., 108 NLRB 641. 644. Respondent argues finally that it is unnecessary to resolve the conflict concerning the offer of the old contract plus 3 cents because there was only a nebulous and pedantic distinction between the old contract and Respondent's February 15 pro- posal in that the changes which it had proposed were mainly for clarification and to effectuate its interpretation of the old contract provisions. That argument is exposed by the fact that there were substantial differences between the two proposals, particularly on the two issues of arbitration and seniority, and by the fact that Respondent itself recognized the differences to be crucial ones on the arbitration clause. Thus, as has been pointed out above, Respondent insisted during its Sep- tember negotiations that the Union's acceptance of the old arbitration clause would be at the price of taking the entire old contract without the 3-cent wage increase. The disparagement of the Union and of the collective-bargaining proceedings and the prejudice to the rest of the negotiations (Crompton-Highland Mills, supra, at pp. 224-225) is plain from all the circumstances Respondent, though continually stating that it would refuse to reward the Union for having struck by increasing the wage offers which it had made before the strike, effectually prevented the Union from obtaining either credit or reward by putting into effect a proposal which it had given the Union no fair opportunity to accept or reject. Under all the circumstances Respondent's action in granting a 3-cent wage increase on or about June 1, 1954, showed, as in Crompton-Highland, supra, at p. 225, that respondent "was not acting in good faith during the negotiations, and is manifestly inconsistent with the principle of collective bargaining." See also Langlade Veneer Products Corporation, supra; N L R B v. Rutter-Rex, supra. It is therefore concluded and found, on the evidence as a whole, that by unilaterally granting the wage increase on or about June 1, Respondent refused to bargain with the Union within the meaning of Section 8(a)(5) of the Act. 2. The discharge of the shell department employees The contract provided that employees hired for temporary departments estab- lished for the production of articles for defense would be temporary employees, and that they would acquire seniority only in the temporary department and might be released whenever there was no work available for them in that department. It provided also that regular employees who were transferred to a temporary depart- ment would continue to hold and to acquire seniority and that employees who were transferred from a temporary department to a permanent department would attain seniority from the date of their original hiring after 3 months in the perma- nent department. The shell department was the only temporary department at the time of the strike and there were employed in it both temporary employees and permanent (transferred) employees. On March 2, 1954, the Company notified the Union that its shell contract was being terminated by the ordnance department on June 30, 1954, that "Temporary help will be released on or before that date," and that permanent help which had been transferred into that department would be returned to their previous jobs or comparable jobs if possible. On March 4 the Company posted on its bulletin board a notice to employees of similar tenor. On March 26 the Company notified the Union that temporary employees in the shell department who had 1 year or more 1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of continuous service and who were "actively employed" as of June 30, or on the day their employment was terminated, would receive 1 week's vacation pay.27 On July 1 the Company by formal notice terminated the employment of 53 temporary employees who were on strike. Twenty-nine temporary employees who were not on strike were transferred (on or about July 1) to permanent jobs in which, after 90 days, they acquired full seniority from the beginning of their em- ployment. Permanent employees (transferees) in the shell department who were not on strike were transferred to other permanent jobs, but permanent employees who were on strike were not notified of a transfer. Five of the temporaries, who had been discharged, later applied for and were accorded reinstatement (four on July 26 and one on October 19), and they later acquired seniority reverting back to their original hiring date. On November 22, 1954, the Company wrote each of the temporary employees previously terminated (except the five who had been rehired) informing them that it had received a supplemental shell contract and offering them employment for the duration of that contract on the same basis as their original employment. Four of them accepted and were rehired as temporary employees. The supplemental contract was completed in May 1955, and the temporary employees then working were transferred to permanent jobs and acquired seniority, after 90 days, dating back only to the date of their rehiring. We turn now to the matter of negotiations insofar as they concerned Respond- ent's handling of the shell department employees. After the notice of March 2 there were discussions of the temporary employees, with the Union seeking a contract provision for their transfer into permanent departments with seniority from their original hiring, or alternatively for recall rights after layoffs. Respondent was willing to consider transfers only where other jobs were available at the time the shell contract was completed, and was willing to give the temporaries "considera- tion" for rehiring, but it would not agree to give them a contractual right to be rehired. During the June negotiations agreement was reached that the temporaries would be given consideration for rehiring for 90 days, if jobs were available, and that if rehired within 90 days they would have seniority from the date of their original employment. Agreement was also reached as to the continuation of insurance for the temporary employees. In the discussions concerning the shell department employees no differentiation was made as between strikers and nonstrikers, and the Respondent at no time prior to July 1 notified the Union of its intention or plan to differentiate between them with respect to their tenure, status, seniority, or transfer rights. Neither did Respondent notify the Union of the discharges on July 1, of the basis of its selection, of the identities of the dischargees, or of the fact that it was according transfer and seniority privileges to the nonstriking temporaries whom it retained. Cf. Olin Mathieson Chemical Corporation v. N.L.R.B., 232 F. 2d 158 (C.A. 4), enfg. 114 NLRB 486, affd. 353 U.S. 1020. Nor did Respondent notify the Union of its disparate treat- ment of striking and nonstriking permanent employees in the shell department. In July the Union requested Respondent to furnish it certain information concern- ing the temporary employees who had been transferred to other departments, which information Respondent supplied (after some delay) on July 30. Although the General Counsel contends that the information was incomplete and was unduly delayed, there was no evidence that the Union complained on either score or that it raised any question of discrimination concerning the shell department employees prior to the filing of an amended charge shortly before the issuance of the complaint. Concluding Findings The complaint alleges both discrimination and a refusal to bargain in connection with the shell department employees. As to discrimination, the only issue pleaded is whether the 53 temporary employees were discharged because of their union and/or strike activities and whether Respondent has since refused them reinstate- ment. The evidence summarized above plainly shows that they were discharged for the sole reason that they were on strike. Thus, though all who were on strike were discharged, all nonstriking temporary employees were transferred to perma- nent jobs and were accorded seniority, after 90 days, back to the dates of their 2' The contract provided for such vacation pay to employees who were on the payroll. who were "actively employed" as of July 1 of the current year, and who had 1 year or more of continuous service Agreement has been reached during negotiations that the temporary employees who otherwise qualified would receive their vacation pay if released before July 1 KOHLER CO. 1167 original hiring. Cf. Olin Mathieson Chemical Corporation, supra; California Date Growers Association, 118 NLRB 246. There is no claim and no suggestion that the basis for selection for transfer was related in any manner to seniority within the shell department. Respondent's records showed conclusively that it was not so related. The evidence showed further and continued disparate treatment after the dis- charge. Thus, those who abandoned the strike and applied for reinstatement prior to the renewal of the shell department in November were given permanent jobs and were accorded seniority privileges, after 90 days, back to the dates of their original hiring; whereas Respondent offered and gave to those who responded to its letter of November 22 only temporary employment, despite the fact that Respondent was contemporaneously giving permanent employment to new employees without prior experience with Respondent. Furthermore, though Respondent, subsequent to the completion of the last shell contract, gave permanent jobs to the temporaries who returned after November 22, their seniority was limited to the date of their rehiring. Respondent contends first that its action of July 1 was in strict accord with the old contract and with the agreement reached in June 1954. Though neither agree- ment circumscribed Respondent's right to release the temporary employees, neither justified the basis on which it made its selection . Indeed, the June agreement re- lating to temporary employees was without differentiation as between striking and nonstriking employees and was reached without discussion of any differentiation and without notice to or knowledge by the Union that the Company proposed to terminate only such temporary employees as were on strike. Significantly, the Respondent's notice to the Union in March had indicated that all temporary help would be released. Respondent defends further by placing itself on and by extricating itself from the horns of a false dilemma. Thus it contends that under the General Counsel's theory of discrimination it would have been required either to terminate shell em- ployees who were not on strike (which, it argues, would have constituted a lock- out) or else to offer transfers to those who were on strike (which, it argues, would have constituted unlawful solicitation). It is unnecessary to follow and to refute the specious reasoning by which the Respondent dissolves that dilemma, since the alternatives were not true ones. Though the availability of other jobs seemed apparent under all the circumstances in the case, and though Respondent was entitled (if not, indeed, required under the June agreements) to offer them to temporary employees, all that was required of it was to make the offer on a nondiscriminatory basis. And this would not have required of Respondent, as it argues, the commission of another unfair labor practice, i.e., the solicitation of strikers to return to work in derogation of the Union's status as their bargaining agent. Obviously the offer could and should have been made through the Union as such representative. If there were fewer available jobs than there were temporary employees, the basis for selection was obviously a subject appropriate for negotiation. Yet though the June negotiations covered the subject of the temporary employees in general fashion, and included the Respondent's agreement to give "consideration" to the temporaries for other employment, Respondent gave no hint of its plan to transfer only the nonstrikers, thereby removing from the orbit of the bargaining negotiations a matter with which the Union as the statutory representative of all the employees was directly concerned and on which it was entitled to bargain. Certainly, in view of the imminent termination of the shell contract, the subject was most timely and appropriate for discussion. The absence of a specific request from the Union to bargain, to which Respondent points, does not avail Respondent since its original notice had indicated that all temporaries were to be released and since it concealed its intent to discriminate as between strikers and nonstrikers. Thus whether negotiations on the subject would have been successful or unsuccessful, they were a necessary step in performance of Respondent's obligation to bargain with the Union and to avoid unilateral action which would derogate from the Union's status as the bargaining representative of all the employees. Nor was failure necessarily to be expected, since agreement had been reached to the extent that the subject of the temporary employees had been brought into the June negotiations. Indeed, from the standpoint of Respondent's interests in protecting its legal po- sition, the negotiations could in no case have been futile since, even if unsuccessful, Respondent would have performed its obligation to bargain and would have been freed, after impasse, to proceed unilaterally. N.L.R.B. v. Crompton-Highland Mills, Inc., supra. In sum, what the evidence shows is that Respondent, in feigning 1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD avoidance of two imaginary unfair labor practices , proceeded to engage in two real ones. It is therefore concluded and found on the entire evidence that, ( 1) Respondent on or about July 1, 1954, discriminatorily discharged the 53 employees whose names are listed in Appendix A (attached to the Decision and Order ) and there- after discriminatorily failed to offer them reinstatement on the same basis as non- strikers similarly situated , thereby discouraging membership in the Union; 28 and (2) Respondent failed and refused to bargain with the Union in June 1954, by discharging said striking temporary employees and by transferring the nonstrikers to other departments without notification to and without negotiation or consultation with the Union as their exclusive bargaining representative. 3. The May 7 meeting , WERB ; the Federal court action There were no negotiation meetings from April 5 to May 28, except on May 7. The General Counsel stipulated, however, that excluding May 7, 8, and 9, Respond- ent's refusal to meet with the Union during that period should not be considered in determining whether Respondent had refused to bargain .29 Whether Respondent refused to bargain during the excluded period turns mainly on the excuse which the Respondent gave at the close of the May 7 meeting in refusing to continue negotiations over Saturday and Sunday. Respondent's justification or lack of it can be evaluated only in the light of the setting in which the negotiations had been renewed. On April 15 , Respondent had filed its complaint with WERB charging that the Local and the International Unions and various officers, International representa- tives, etc., were committing unfair labor practices within the meaning of the Wis- consin Employment Peace Act , Wisconsin Statutes , 1953, c. 111, p. 1903, Sections 111.04, 111.06 (2), and 111.07. It was alleged that the union members had engaged in mass picketing, thereby obstructing ingress to and egress from the Kohler plant; had interfered with the free and uninterrupted use of public highways ; had prevented persons desiring to be employed by Kohler from entering the plant ; and had threatened them and their families with physical injury. See UAW v. WERB, 351 U.S. 266, affirming the Wisconsin Supreme Court 269 Wis. 578 ; 70 NW 2d 191. At a hearing on May 4, counsel for the Union moved for an adjournment on the ground, among others , that he needed time to prepare briefs in a pending action in the Federal court in which the Union was seeking to enjoin WERB from pro- ceeding. Respondent opposed the adjournment on the ground that the Union had filed the injunction action solely for the purpose of delay. Without ruling on the matter, the board called counsel into chambers and proposed that the parties resume bargaining and that they agree on what would constitute legal picketing. The parties were unable to agree , however (testimony by union witnesses to the con- trary was refuted by the record of the proceedings ), and the Board thereupon excused them and later announced that it would grant the Union 's motion for adjournment on certain conditions , which involved in part a limitation on picketing. Union counsel was allowed until the following afternoon to decide whether to accept or reject the conditions . Raskin inquired of Conger when the Company would be willing to begin bargaining in the event the Union accepted the con- ditions, and Conger suggested Friday (May 7). It is unnecessary to review the discussions at the later meeting . There was some jockeying initially as to whether the strike had resulted in the earlier proposals having been withdrawn on both sides, with a reversion to the respective positions of February 2, but this talk was quickly abandoned . Though the issues were again discussed, nothing was accomplished, and there is no evidence that either party The strike was manifestly a union activity The proscriptions of Section 8(a)(3) include "discrimination to discourage participation in union activities as well as to discourage adhesion to union membership " Radio Officers' Union, etc (A H. Bull Steamship Company) v N.I, R B., 347 U.S. 17, 39-40 21 The Union refused to join in that stipulation , the consideration for which was in part the withdrawal by Respondent of certain evidence as to the type of picketing during the period in question. There remained, however, ample evidence in the record as to mass picketing and the blocking of entrances to justify-even absent the stipulation- Respondent's refusal to negotiate during the period See Phelps Dodge Copper Products Corporation, 101 NLRB 360, 368; Valley City Furniture Company, 110 NLRB 1589, 1592, enfd. 230 F. 2d 947 (C A. 6). Furthermore, the Union though accorded an opportunity offered no contrary evidence. Cf. Borg-Warner Corporation, 113 NLRB 152 , 154, enfd. 231 F. 2d 237, 242 (C A. 7). KOHLER CO. 1169 suggested compromise or made concessions on any issues . According to Burkart, the Company simply reiterated its position on the various issues, stating that it had given the Union its final offer prior to the strike. As the meeting neared the normal closing time , the Union suggested that negotia- tions continue that evening and over the weekend . Conger objected strongly that Respondent did not wish to submit to a "wearing-down process" through "lengthy marathon negotiations" and that he needed the weekend to prepare his brief in the Federal court action, which was due on Tuesday. He stated, however, that he would not ask for any time off from regular bargaining sessions as they had been conducted in the past and that he would be willing to meet again on Monday. To the Union's suggestion that it join with Conger in requesting an extension, Conger replied by repeating his earlier claim that the Union had brought the Federal court action solely for delay and that the Union had also sought adjournment of the WERB hearing using the brief as an excuse. The Union did not accept Conger's offer to meet on Monday; instead it resumed picketing of the same type which had gone on since April 5.30 These facts will not support a finding that Respondent failed to bargain at the May 7 meeting. It proposed no deviation from earlier negotiation practices, and the excuse it assigned for refusing the Union's suggestion was identical with that which the Union had assigned in procuring the adjournment of the WERB hearing. Cer- tainly the time Respondent sought was not unreasonable since it would have required no interruption of the normal bargaining schedule as conducted in the past. Indeed, what is mystifying about this part of the case is why under all the circumstances the Union chose to end the WERB truce by resuming mass picketing.31 Nor did the later developments in the Federal court hearing (on which General Counsel and Union also rely ) support any different conclusion. On May 14, follow- ing argument on the injunction proceedings , Judge Tehan called counsel into chambers and made an attempt to have the parties settle their differences. He criticized Conger for using the brief as an excuse for not continuing the bargaining on May 7, suggested that negotiations be resumed , and proposed the following "formula" for arriving at a contract: 1. The Union to agree to the reinstitution of the picketing limitations of the WERB truce. 2. The Union to scale down its wage demands, 3. The Company to "make some movement" on arbitration, seniority, insur- ance, and wages. The parties were to notify Chairman Gooding of WERB of their decision. Union counsel agreed to recommend the formula , and notified Gooding immediately after the hearing that the formula was acceptable to the union representatives . Conger agreed to submit the matter to Respondent's board of directors at Judge Tehan's suggestion, but stated that it would be without his recommendation. He later con- sulted with the directors by telephone , found that they would not agree to the Tehan formula, and so notified WERB. In the meantime, WERB proceeded with its hearing, and on May 21 it issued its order directing the Union to cease and desist from certain specified conduct , including obstruction or interference with ingress and egress from the plant , hindering or preventing by mass picketing, threats, intimidation , or coercion of any kind the pursuit of work or employment by persons desirous thereof, the intimidation of the families of such persons , and the picketing of their domiciles. The Union informed its membership that the order was not enforceable and would not change the picketing in any way. On May 28, a hearing was scheduled in the Circuit Court of Sheboygan County on WERB's application for an enforcement order; and this time Judge Schlichting took a hand at trying to get the parties together. The Union stated its willingness to comply fully with the WERB order and Conger finally agreed to resume negotia- tions on June 1, but stated (as usual) that Respondent would not trade negotiations for law and order and that it would break off negotiations if the Union violated the order. 3' As WERB later found the facts, after the Union announced its withdrawal from the truce agreement , it "again commenced to block driveways , and to forcibly prevent persons desiring to enter the plant from entering." ii WERB was severely critical of both parties . Its view was that if Respondent had honestly desired to settle the dispute it would have continued to bargain over the May 7 weekend, but by the same token it did not condone the Union's action in deliberately engaging in illegal activities because it believed the Company to be stalling. 1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The court, thereupon, entered an order adjourning the hearing from day to day and providing that the matter might be called up for hearing on 12 hours ' notice "if any violation occurred " and that a final hearing on enforcement of the WERB order might be held at any time after June 8, on 24 hours' notice . At no time, up until August 27 or 28, did Respondent attempt to call the matter up for hearing pursuant to those notice provisions. The General Counsel relies on one final matter immediately prior to the June negotiations as evidence of bad faith. On May 31 , the Milwaukee Journal published a report of an interview with President Kohler in which the following statement appeared: He believes that collective bargaining has a part in labor -management relations, but adds: "You don't have to give them anything to bargain." Kohler testified that what he meant and what he said was that an employer need not give any specific thing. Thus Kohler's somewhat inartificial phrasing of Re- spondent's legal obligation was substantially consonant with the statutory definition in Section 8(d). See, e.g., National Carbon Division, et al., 100 NLRB 689, 691; N.L.R.B. v. Taormina Company, 244 F. 2d 197, 198 (C.A. 9). 4. Negotiations, June to September Negotiations were carried on almost daily from June 1 to 25. On the surface, at least, substantial progress was made toward reaching an agreement . Burkart testified that during those meetings Respondent made "the most important concessions" which it had made, and his summary of negotiations of June 20 showed numerous conces- sions and changes proposed or agreed to on the major issues of seniority , pensions, and insurance, as well as on the other matters . Speaking on the Union's daily radio program during this period, Burkart similarly acknowledged that improvement had been made in the contract , and Graskamp referred to the Company's apparent bar- gaining in good faith on major issues . The daily strike bulletins also carried similar comments on the Company's apparent sincere willingness to explore avenues of agreement 32 It is unnecessary to summarize the lengthy discussions ; no ultimate agreement was reached . As found above (section E, 1) Respondent continued to adhere to its wage proposals as alternatively framed before the strike , despite the fact that this effectually withheld from the Union consideration of the increase on the basis on which it had been put into effect , i.e., 3 cents plus the old contract. On June 24, Conger began to point out that impasse had been reached, that the issues had been covered many, many times , that the Company's position was final and the Union's appeared to be, and that there was no point in further negotiations. In the June 23 meeting, Conger raised the issue of violence and vandalism , referred to a number of instances , and notified the Union that it would discontinue bargaining if such conduct continued . When the Union denied responsibility for the violence, Conger referred specifically to an assault on a nonstriker named Van Ouwerkerk by William Vinson , an International representative, and stated that the Union could not deny responsibility for that.33 On June 24, Conger repeated his warning concerning violence and illegal activities. Ferrazza, another International representative, stated that "the trouble hasn't even started yet. We haven't gone into high gear yet but we are just about to do so." Kitzman said, "I hope you will never go the route of soliciting employees because then the trouble will start." Mazey added, "No one has a right to scab despite the law." No progress was made on the contract issues on the 24th or 25th , and the negotia- tions were broken off on June 29 during a short meeting, with Respondent notifying the Union that it was discontinuing bargaining because violence and vandalism was continuing and because an impasse had been reached. In addition to the earlier incidents of violence and vandalism , Conger referred to a shotgun blast through the window of a nonstriker named Harold Curtiss. sa The Union had begun the issuance of a daily strike bulletin on the first day of the strike and was continuing it at the time of the hearing Though not acknowledging that the strike bulletin was an "official publication" of the Union , Burkart testified that it was used in part as a means of disseminating information to the strikers and also as a means of setting forth the Union's position to its membership and others on various matters. ss Vinson was later convicted in the Circuit Court of Sheboygan County and sentenced to a 2-year term. KOHLER CO. 1171 The Union disclaimed knowledge of or responsibility for the Curtiss incident, stating that it did not condone violence, and asked the Company to establish how the Union was responsible . However, the Company's representatives left the meet- ing, stating that it would take more than a just a temporary discontinuance of violence or vandalism before they would return to the bargaining table, that it would have to be something that would be lived up to over a period of time. There were no meetings from June 29 to August 4. On July 8, Gov. Walter Kohler wrote Respondent and the Union proposing that the unresolved contract issues be submitted to arbitration. The Union accepted the Governor's proposal. On July 9 Respondent replied in a lengthy letter of rejection (published on July 10 as a full-page ad in the Sheboygan Press ) in which, in part, it reiterated its usual arguments against arbitration and the union shop. On July 10 the union membership adopted a resolution calling upon President Kohler either to negotiate a contract, or to arbitrate, or to resign his presidency. On July 23 the Union wrote President Kohler requesting a resumption of negotia- tions and suggesting July 26 as a potential date. Kohler replied on July 29 stating that Respondent's representatives would attend a meeting which the Federal con- ciliators had scheduled for August 4. He summarized Respondent 's position on wages, seniority, pensions , and insurance, as well as the Union 's position on various issues as of June 29 , he referred to the impasse on those issues, suggested that the Union be prepared to submit in writing its present proposals on August 4, and concluded: If your position has not varied substantially from the position you were insisting on when negotiations were discontinued June 29 there will be no point in further long and protracted meetings. All issues have been fully discussed many times in past meetings . It is not willing to discuss negotiating sessions interminably after a deadlock has been reached, to gratify a futile hope that exhaustion will result in further concessions or to support your publicity that the Company is about to capitulate. From August 4 to 13 several meetings were held, some between full committees and some between two-man committees . The discussions centered around the seven major issues, but no progress was made; in fact there appeared to be no change of position on either side. At some point after both parties stated that they were at their final position, Fleishmann (a conciliator ) requested the Union to put its position in writing. On August 10, the Union wrote Kohler that in an effort to settle the dispute it was modifying its demands on the seven major issues in specified respects. See Appendix D. The letter was handed in and discussed at the August 10 meeting. Conger's position was that the letter represented no real change in the Union's position ; that maintenance of membership and self-renewing checkoff , for example, were only other forms of compulsory unionism , to which Respondent was opposed. On August 13 Respondent handed in Kohler's reply of that date to the union letter. See Appendix E. It stated that the Union 's demands were virtually the same demands which had been made orally before June 29 and varied in terminology rather than in substance from demands prior to the strike . The letter outlined Re- spondent's own position on the seven issues, stated that the Union 's current demands offered little prospect of a settlement , and that if the situation still appeared to be deadlocked and an impasse were reached at the August 13 meeting , further negoti- ations would be useless until such time as the Union was willing to take a more realistic view of the situation. All the issues were discussed on August 13, centering around the question whether the Union's proposal involved any real reductions . Conger's view was that on most points there were no real differences and that on others the Union was asking for what it had originally thought it might get. Kitzman asked if Respondent's letter was its final offer and Conger stated that it was. Kitzman stated that the strike could not be settled on that offer, and commented that it amoun to asking for an un- conditional surrender from the Union. Conger agreed that that was correct. Graskamp also inquired if the Company had made its final offer and if there was room for any further movement on the Company's part. When Conger stated the offer was final, Graskamp replied, "If this is the Company's final offer, the hinges on the door are in good working order and you can use them." Respondent's representatives got up and walked out. There was disputed testimony concerning heated statements made by Burkart , Kohlhagen, and William Rawlings (another member of executive board), but none of the statements have a material bearing on the issues. In the meantime Respondent had mentioned at the meeting on August 10 the matter of home picketing or home demonstrations which had begun in Sheboygan 1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shortly before . Respondent claimed that the conduct violated the WERB order, that it was also illegal strike conduct, and that the Union was responsible. The Union disclaimed responsibility . Conger again raised the matter on August 13, and stated that Respondent would not continue bargaining if the home picketing continued. On August 16 the Union advised Respondent that the membership had voted to reject the August 13 offer and to continue the strike . On August 18 Respondent wrote Conciliator Fleishmann, enclosing a copy of a news release it had issued that day. The release stated that after the August 13 meeting the conciliators had suggested that negotiations be resumed and that Respondent had agreed provided nonstnking employees were not subjected to coercion . The release referred to a continuation of the campaign of home picketing , and stated that the Company would not resume negotiations under the coercion of such illegal conduct. The letter to the conciliator stated that since discontinuance of the meetings (on August 13), picketing of the homes of nonstrikers had occurred and had reached mob proportions. There were no further negotiations until September 1, and the resumption then was sparked by Judge Arold F. Murphy, of Marinette , who had been called in to hear WERB 's application to the Circuit Court of Sheboygan County for an order enforcing its cease -and-desist order against the Union. Judge Murphy, called as a witness for the General Counsel, testified that he had had some experience in arbi- tration and mediation, that after granting the enforcement order from the bench on August 30, he immediately called counsel for the parties into chambers, sug- gested that meetings be resumed, inquired what the troublesome issues were, and "invited" himself into the negotiations as a volunteer mediator. The Union quickly agreed, but Conger stated that any further meetings would be futile. Judge Murphy replied that that was true if the parties went into negotiation meetings with that attitude. However, a meeting was arranged for September 1, to be attended also by the Federal conciliators. Thereafter, Judge Murphy attended several meetings , including some with and some without the conciliators. He also met separately with union and company representatives , including one meeting with Conger in Manitowoc, and two meetings with Conger and Kohler in Kohler's office. Just as Conger had predicted in advance the futility of further meetings , so also he soon set the tone for what was to follow. Thus, early in the September meetings, Judge Murphy testified that when Conciliator Despins stated, "Of course you realize that the acceptance of the three cents by the Union at this time would amount to complete capitulation," Conger agreed that that was so . Judge Murphy's testimony continued: Mr. Conger very frankly stated that in the past they had on some occasions where wages, where increases were being negotiated , that the company had made an offer slightly less or some less than they intended to finally offer, and then did increase the offer. He said he found that was a mistake, and he was not going to make that mistake again ; that their offer was their best offer, and their last offer, and that in the past, when they had finally made their final and best offer that the union would invariably go all out and insist on mediation on the question of wage increase. He said that there had been a bitter strike in 1934; that it resulted in twenty years of labor peace, and that he was going to insist that this strike bring to the company twenty years of labor peace, and that at some place along the line, he said "We are going to teach the union a lesson." Judge Murphy added that, "On the question of twenty years of labor peace , I heard that said many times, and everybody did." Around September 3, Judge Murphy had a private meeting with Conger in Manitowoc, during which all disputed issues were discussed , with wages in the fore- front. Conger assured the Judge more than once that the door was closed on the question of increases. Judge Murphy's first private meeting with Kohler was also early in the September meetings. Judge Murphy testified that though almost everything was discussed, particularly wages, which was principally his theme, Nothing resulted from that meeting at all. It was very courteous, everybody was very polite , certainly everybody was very gracious to me, but it was fruitless kindness. That appraisal was wholly confirmed by Kohler's testimony, whose view was that Judge Murphy was only a volunteer and without any official standing as a negotiator, and that the Company needed only to be courteous and to listen to him, as it did, and KOHLER Co. 1173 that it was under no compulsion to make any response to his suggestions of settle- ment because its bargaining was in the hands of its bargaining committee. Judge Murphy later arranged another private meeting at the plant with Kohler, Conger, and L. L. Smith (vice president). In the meantime, he had met with the Union's representatives, who had informed him that they would accept a 7-cent wage offer. Furthermore, though the Union had not indicated "authoritatively" that it would drop all other issues , Judge Murphy had been convinced in his talk with Kitzman that if there could be an increase in wages, there was in his considered judgment more than a reasonable chance of settling the strike. In the meeting with Kohler, Judge Murphy again emphasized the importance of the wage issue, informing the Company that the strike might be settled for 7 cents or even 5 cents (to include the 3 cents previously granted) but was surprised by Conger's unequivocal statement that there would be no further increase in wages. Judge Murphy testified that he "went all out in that meeting," that, I pleaded-I placed the proposition of settlement on the question of charity; upon what I thought were Christian principles, and I pleaded to be given au- thority to say that there could be some increase above the 3 cents, and more than once during that meeting I definitely made the statement, "You can forget about seniority. That is all over with. You can forget about arbitration in the con- tract and substitute just a discharge clause. The question of a 20-minute lunch period for the enamel workers; forget it. The question of insurance as offered by the company agreeable. The question of pensions, let the company write their own pension plan as they had in the past . . . and I said assuming all of those things are out of the way now, isn't there some chance of settling on the question of increase of wages." The only response to this was an expression of doubt by Smith as to whether certain issues like seniority were out of the way and whether the matter could be settled by a mere wage increase, despite the fact that Judge Murphy kept assuring Respondent's representatives that, I knew what I was talking about sand that I was not there just to talk, that I was convinced that what I was saying was true and that it would be acceptable to the Union. On further examination Judge Murphy readily agreed that his impressions had been gained from his conferences with union representatives alone, but he added: But I repeat, I just was not just talking, I was not going out there because I wanted to take a look at the Kohler office nor to have lunch-I went out there with the purpose and I thought I was pretty well authorized. I am 59 years old and I have dealt with people a good many years and I think that some of the impressions and ideas I get might be quite authentic. Other evidence confirmed the accuracy of Judge Murphy's impressions. Thus Kitzman testified that when Judge Murphy met with the union bargaining committee, he kept reminding them that they had better "whittle this down to a couple of things," and that, Finally the Union told the Judge that he could tell Mr. Kohler that we would take last year's arbitration clause, take our chance with it, and that we would take 7 cents and 3 cents for the skilled trade workers. If that could be agreed to we had an agreement. . . . We told him that all the other issues in dispute would be washed out by this agreement. Judge Murphy testified further that during the group negotiations he commented in reference to the arbitration issue that he could not understand, in view of their good experience under the 1953 contract, why the parties could not live with the old contract clause. Raskin expressed for the Union willingness to accept 'the old clause, but Conger replied that in that case, "it would have to be the entire old contract, without the 3-cent raise." [Emphasis supplied.] There were also discussions in September concerning the return of the strikers. During the private meetings in Kohler's office, Conger informed Judge Murphy that Respondent intended to discharge some of the strikers who had participated in illegal conduct and stated that there might be about 50 such cases, depending upon develop- ments. Conger also agreed, on Judge Murphy's inquiry, that the figure would likely include the Union's representatives around the bargaining table. The matter was also adverted to during the open meetings, particularly in connection with the arbitration issue. See section D, 5, supra. Again during two-man meetings late in 577684-61-vol. 128-75 1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD September, Judge Murphy remarked that he thought that wages, arbitration, and the. return of the strikers were the main issues which were keeping the parties apart. Mazey (who had not been present when the Union authorized Judge Murphy to. make the earlier settlement proposal) disagreed, stating that the rest of the issues were still in the picture, but that the return of the strikers was not because the Union would insist on every striker being returned to his job. Further summary of the negotiations is unnecessary. However, some of the things which Respondent was publicizing during the September meetings are of significance. The September 8 issue of People contained the following: The real issue in this strike is not wages, hours or working conditions. It is whether or not a militant minority by mass picketing, picketing of homes, violence and intimidations can prevent American citizens who desire to earn their livelihood from doing so. We are convinced that so long as coercion by labor unions is rewarded by settlements which increase union power-so long will violence and coercion accompany strikes. We have told the Union that we have nothing to offer as the price of law obedience on their part . . We intend to ride it out and will not yield to coercion and violence. This was at a time when negotiations were actually in progress. Respondent offered no evidence that the Union was guilty of any act of coercion or violence during the course of the September negotiations; it had not hesitated to break off negotiations on other occasions (June 29 and August 18) when there was claim of such conduct by the Union. On September 11 and 12, the Chicago Tribune published articles on the Kohler strike which had been written by its feature writer, Chesly Manly, who had obtained his material in part from the Company Respondent ran reprints of 'those articles in People in the September 22 issue Manly's article began with the blunt statement that the Union had lost the strike; it continued: Responsible public officials say the prevailing opinion in Sheboygan county is that the union has lost the strike, and this conclusion is s::ppoited by abuadunt evidence [Emphasis supplied.] Manly went on to say that the Company had attained a production rate of more than 67 percent of normal and that the figure was rising steadily as strikers returned to work and as new employees were hired He also quoted a reference by Kohler to the Union's "desperate efforts to keep the strike going " 34 The articles ended with the suggestion that there were two solutions possible by which the strike could be ended one, the acceptance by the Union of the Company's offer, and the other, which was deemed more probable, was the continued refusal by the Union to sign a contract on the Company's terms, with more and more strikers drifting back to work and production eventually returning to normal. Concluding Findings Specific findings of certain unfair labor practices which occurred in June have been made in sections preceding this, i e., refusal to furnish information on June 14, section C, 2, supra; discrimination and refusal to bargain concerning shell department employees, section E, 2, supra; and a refusal to bargain through the unilateral granting of a wage increase on or about June 1, section E, 1, supra It was only the latter which was directly connected with and which affected the course of the contract negotiations in June and thereafter. Aside from it, and on the surface, the negotiations proceeded in June with the indicia of good faith, i.e., with concessions, counterproposals, and changes on major as well as on minor issues. Indeed, but for its position on the wage issue, Respondent might well have relied on its claim of impasse at the time of breakoff. Thus though Respondent had granted the increase unilaterally during the very course of the negotiations and while continuing in effect the terms of the old contract, it still adhered to its prestrike offers as alternatively phrased, refusing to offer, in negotiation, the old contract plus 3 cents. Its lack of good-faith bargaining on the wage issue continued throughout the June negotiations; if impasse resulted, it was impasse which was attributable to Respondent's own unfair labor practice and which, therefore, does not avail it as a defense. 34 As early as July 28, Respondent had jibed at the Union through People for its futile efforts in trying to keep alive its "dying strike." KOHLER CO. 1175 The same situation prevailed during the August negotiations, with further indi- cation of Respondent's lack of good faith appearing from Kohler's claim that infor- mation which the Union sought and which Respondent had agreed to furnish was not available and not necessary for bargaining. See section C, 2, a, supra. But in any event, the final insight into Respondent's true attitude and intent was supplied during the September meetings . The upshot of those meetings, as Conger had predicted in advance, was futile. But what the evidence showed was that the futility was due to Respondent's deliberate contriving, that Respondent was bargain- ing not to reach but to avoid agreement; that it was seeking the Union's complete capitulation, not simply for a normal contract term, but that pursuant to its an- nounced intention "to teach the Union a lesson" (for having called the strike), it envisioned a settlement which would bring the Company 20 years of labor peace, as had the 1934 strike. Thus, as charged by the Union at one point during the September meetings, Respondent was seeking to bargain for posterity, not for the terms of a contract. Instead of bargaining in good faith with intent to reach an agreement, Respondent was intent on penalizing the Union for having started the strike; and the penalty was not to be simple capitulation on contract terms but the reduction of the Union to impotency as an effective bargaining representative of their employees. In its private meetings with Judge Murphy, Respondent did not even pretend to go through the motions of collective bargaining, despite the Judge's repeated assur- ances that a slight wage increase would settle all issues in dispute. Indeed, to fore- stall any possibility that the Union might even settle for the 3 cents which it had granted unilaterally in June, Respondent imposed as a condition to the Union's acceptance of the old arbitration clause that it would have to give up the 3-cent wage increase. Respondent's adamancy had not only become part of a technique for avoiding agreement, but it insured a failure to reach one by strict insistence that the Union choose between Respondent's earlier alternative proposals, though Re- spondent had itself put into effect unilaterally a combination of the two which it refused to offer the Union. Though the circumstances are sufficient to establish a lack of good-faith bargain- ing, it is both interesting and illuminating to consider the reason for the Company's change of attitude which, though not expressly stated, is apparent from the record. The reason was that the Company recognized and publicized the fact that it had been successful in breaking the strike. The Manly articles showed that explicitly, since Manly relied in large measure on information supplied by the Company for the "abundant evidence" which he cited as supporting his conclusion. Indeed, Kohler's own reference to the Union's "desperate efforts," which Manly quoted, were only a continuation of earlier claims by the Company relative to the "dying strike." It is apparent from the entire evidence that Respondent had entered the September negotiations with the intent to avoid an agreement. Conger had demurred to Judge Murphy's suggestion of a resumption with his prediction of futility; and his statements to Judge Murphy about teaching the Union a lesson and about a settle- ment which would insure 20 years of labor peace had occurred early in the Septem- ber meetings, as had also Respondent's insistence that the Union's acceptance of the old arbitration clause would require revocation of the 3-cent raise. It is therefore concluded and found from the entire evidence that on September 1, 1954, and throughout the September negotiations, Respondent failed and refused to bargain with the Union in good faith. It has been found above that from on or about June 1 Respondent did not bargain with the Union in good faith during the course of the actual negotiations. The question remains whether Respondent was also guilty of separate refusals to bargain by breaking off negotiations on June 29 and August 18, as contended by General Counsel and Union.35 Respondent's defense of impasse having been rejected, there remains for considera- tion its assertion that the Union was contemporaneously engaged in a course of il- legal conduct. It is unnecessary to summarize the evidence in detail . Near the close of the June meetings, Conger made several references to a campaign of violence and vandalism connected with the strike Though disclaiming responsibility, the Union's representative made statements which seemed both to imply endorse- ment and to warn of worse things to come Other union representatives also made as General Counsel also urged in oral argument that Respondent broke off negotiations on August 13 The complaint seemed more specifically directed at August 18 ; moreover, the evidence is undisputed that it was at the Union's invitation that Respondent's representatives walked out of the August 13 meeting 1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD public statements implying that harassment of nonstrikers, peaceful and otherwise, would be continued. The Union's International representative, Vinson, had per- sonally committed a brutal assault on a nonstriker.36 It is concluded and found that Respondent was justified in breaking off negotiations under all the circum- stances shown by the record. The August 18 breakoff was based on the continuation of so-called home picket- ing which the evidence showed had reached the point-correctly described in Re- spondent's letter to the conciliator-of "mob proportions." Respondent contended both that the Union was promoting or instigating the picketing and that it was a violation of the WERB order 37 The Union disclaimed responsibility for the "home gatherings," claiming that they were spontaneous gatherings and demonstrations by neighbors, nonemployees, and curiosity seekers. The evidence as a whole does indicate that in their inception the home gatherings were both small and spontaneous, constituting no more than name-calling incidents between strikers and their families and friends and non- striking Kohler employees residing in the neighborhood. The evidence is just as clear that the Union immediately began a publicity campaign which was plainly designed to encourage the continuation, spread, and enlargement of the demonstra- tions, with such success that they soon became a matter of almost daily occurrence with hundreds of persons present (although many were mere onlookers). It was in this setting that Respondent broke off the August negotiations and called up for court hearing the matter of enforcing the WERB order. The demon- strations ceased immediately and were never resumed. The evidence plainly justified Respondent's assertion that the Union was encourag- ing the home demonstrations. The conduct involved was sufficiently serious to warrant Respondent in suspending negotiations while the conduct continued. Cer- tainly, the demonstrations, which had become widespread and which had reached scandalous proportions, constituted coercion and intimidation of nonstriking em- ployees of the most flagrant type. It is therefore concluded and found that Respond- ent was justified in breaking off negotiations on August 18. Based on the foregoing findings, it is concluded and found that Respondent was not guilty of a refusal to bargain at any time between June 29 and August 4 or between August 13 and September 1. Although negotiations were broken off from time to time thereafter, Respondent did not in any of such breakoffs assign unlawful conduct by the Union as the reason for discontinuing negotiations. It is therefore concluded and found that at all times on and after September 1, 1954, Respondent failed and refused to bargain with the Union in good faith. 5. Developments since September 1954 Negotiations subsequent to September 1954 require only brief summary; they are significant mainly in that certain aspects not only confirm the earlier finding of a refusal to bargain but show affirmatively that Respondent engaged in further acts and conduct which independently constituted refusals to bargain, as well as dis- crimination. Briefly it can be found that no progress was made on the contract issues, and that the question of the reemployment of strikers became more and more of an obstacle, particularly after Respondent discharged 90 strikers on March 1, 1955. There were no meetings in October and a single meeting was held in November. Mazey suggested that an attempt be made to reach an agreement within the frame- work of contracts with Respondent's chief competitors (American Standard , Crane, Briggs) but Respondent refused . It also refused Mazey's suggestion of arbitration "There was also credited testimony that John Gunaca, a member of a Detroit local, who had come to Sheboygan and spent some 21/ months actively participating in strike activities, engaged in a similar assault on two nonstrikers on the night of July 4 However, Respondent failed to establish that Gunaca was connected with either Local 833 or the International Union, or that either was responsible for the assault which he committed. 87 That order, based on a finding of fact as to the Union's conduct, prohibited in part the picketing of the domiciles of persons employed by Respondent. Enforcement was granted by Judge Murphy at the hearing on August 30, after argument on the record, but without the taking of testimony On November 23, WERB issued its findings of fact, conclusions of law, and a final order in which it repeated its findings as to home picketing and its cease and-desist order relating thereto. KOHLER CO. 1177 with a limitation that the arbitrator might not go beyond any provision in the contracts with the competitors.38 In December and early January occurred the eviction of strikers , which is covered under section G, infra. The next negotiation meeting was held in Chicago on January 4, 1955, with the parties covering the seven major issues without result save to agree that they were the points in dispute. The main issue raised by the testimony, whether the Union dropped down from maintenance of membership to a self-renewing checkoff, has been covered under section D, 6, supra. The first session of this hearing was held on February 8 to 10, 1955. President Kohler, the only witness, gave testimony indicating that the Company would not re- instate strikers who had engaged in violence ; he testified further that although he had no list of names of employees who would not be reemployed for that reason, Conger might have such a list. On February 18, the Union wrote Kohler, referring to his testimony, and requested that it be furnished with such list; it also notified Kohler that it demanded the right to negotiate in the matter and that it was ready and willing to meet. On February 21, Kohler directed the Union to make its request to the management committee, and on February 25 the Union did so. On March 1, without notice to the Union, Respondent discharged 91 strikers "because of misconduct in connection with the strike." On the same date, Respond- ent wrote the Union, acknowledging the letter of February 25, and informed the Union that 91 strikers whose names were listed would not be reemployed because of misconduct in connection with the strike and that they were being sent noti- fications of discharge. One of the discharges, made through error, was later revoked. The next negotiation meeting was held in Chicago on April 21, also during the recess in the hearing. There was no real discussion of the issues ; both sides stated that there was no change of position. Mazey made some observation that because of the discharges there were 97 issues at the time instead of 7. Mazey also made some effort to discuss the issues , starting with arbitration, but Conger stated that there was no point of getting into the issues and that unless the Union was prepared to accept Respondent's last offer there was no point in continuing the meeting. As a result of certain radio interviews of Conger and Kitzman on April 22 and 23, the suggestion was made that Kohler meet with Reuther at the bargaining table. The Union agreed. Respondent rejected the suggestion , branding it as a publicity device, and stated that it would not relinquish its right to choose its own repre- sentatives and that its committee was fully authorized to make a contract and would meet with Reuther or any other representative of the Union. The record does not indicate that the Union ever attempted to bring Reuther into the negotia- tions with Respondent's committee. Around April 27 the city counsel of Sheboygan passed a resolution calling upon the parties to avail themselves of the mediation facilities of the State and Federal Governments and the mayor wrote Respondent and the Union urging them to com- promise their differences and reach a settlement . The Union agreed to follow the suggestion . Respondent replied on May 3, rejecting the suggestion and concluding: You have suggested the possibility of "compromise" by both parties. The only thing the Union has to "compromise" is demands for something it does not have and never did have. Kohler at all times since the beginning of the strike has had and still has one or more written proposals on the bargaining table which it was and is willing to sign. On May 5, Conger was interviewed by an Associated Press reporter, Dion Henderson, in the presence of William Carpenter 39 Henderson testified that he informed Conger he was doing a "situation story" similar to the one he had done the year before and asked if there had been any changes in the Company's point of view. Conger replied "not substantially" and that the issues in dispute were "'Some of the Union's witnesses testified that at different times Conger referred to having made a few "little wiggles " in the June negotiations Conger and Hammer denied that he had used the term , and their testimony received corroboration from Mazey, who testified that the term was one of his favorite expressions "The record does not establish the exact nature of Carpenter's connection with the Company though apparently he was acting in the capacity of publicity or press agent. Thus Henderson described Carpenter in his testimony as the company official over whose signature official company statements had been issued for some time and that Associated Press regularly received telegrams over Carpenter 's signature quoting company notifica- tions of one sort or another, pursuant to which Associated Press published articles concerning such statements. 1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD primarily the same. To his inquiry about the eventual outcome of the strike Conger replied, "They started the strike; they can come back to work any time." Henderson then asked what Conger expected to happen Conger replied that he did not wish to speculate what would happen, but that he would tell Henderson, as he had told other reporters, that if they wished to speculate on the basis of what happened after the 1934 strike, they were at liberty to do so Henderson inquired if it really appeared to Conger to be a question of union survival in the strike, and Conger replied that if it were, they had brought it on themselves, that the Union had created some issues, had forced the Company to take stands on others, and that it was possible that the Union had gotten into a position from which it could not retreat, that possibly it had burned its bridges behind it. On Henderson's further inquiries Conger cited the discharge of the 90 strikers as an example of an issue the Union had created in seeking a list of em- ployees who would not be employed after the strike Conger also stated that union propaganda had forced the Company to take the position that the jobs offered new employees were permanent (the propaganda was to the effect that the new em- ployees would be laid off when the strike was settled).40 On June 3, Mazey, Kitzman, Conger, and Howe appeared as witnesses at a hearing in Washington on S 1760,41 before a Senate subcommittee (Labor and Public Welfare). Though pressured by committee members to negotiate a contract then and there, Conger refused on the ground that he had come to testify against the bill, not to negotiate, and that he did not have the rest of the bargaining com- mittee with him Nevertheless, there was some general discussion of the issues, during which Howe undertook to answer the Union's references to its contracts with Respondent's competitors as follows: First, I understand that the operations of two of them are substantially different from Kohler Company. Secondly, they do not mention other competitors. They have recently signed a contract with [Universal] Rundel Corporation which is a competitor to Kohler and actually it is nearer than any of the others. . . . No mention is made of that contract In many respects that contract incorporates practicaily what we have offered the Union and they have refused for a year to take it. I Emphasis supplied.] After some brief discussion Kitzman replied. First, it has to be understood that this is the first agreement in Universal Rundel and : want to s, -y this, Mr. Chairman: We will take the same agreement in the Kohler Company word for word, including the union security that we have in the Universal Rundel Corporation. and adopt that, lock, stock, and barrel Conger and Howe immediately backed down, with statements about not aping competitors and emphasizing the differences between Respondent and its competitors. The Senators finally suggested arbitration to settle the remaining issue, but Conger refused, stating the usual ground that Respondent would not let an arbitrator write a contract for it. The Union expressed its willingness to accept arbitration, to include both the contract issues and the 90 discharges At the request of Joseph F Finnegan, director of the Federal Mediation and Conciliation Service, the Trial Examiner granted recesses of the hearing from July 21 to August 11, to enable the Service to make further efforts toward bringing the parties into agreement. Meetings were held in Chicago on July 27, 28, and 29 and on August 1 and 2. 4°Following the interview, Carpenter conducted Iiemlerson on a tour of tho plant At one point Henderson inquired whether the prospect of losing a largo crew of veteran skilled workers was not of concern to the Company, but Carpenter replied that manage- ment felt that the supervisory force which had trained one labor force could train another Henderson then observed that the Company would not grieve if the Union were broken in the strike and the strikers never came back to the plant Carpenter agreed, saying, "They sure don't, so long as the supervisory force remained intact " Immedi- ately following publication of Henderson's article, which attributed to "officials" of the Company the statement that Respondent would not grieve to see the Union broken in the struggle, Respondent disavowed the statement Carpenter did not testify It is concluded and found under all the circumstances that Respondent cannot be held re- sponsible for Carpenter's statement 41 A bill to require compliance with the Act as a condition of receiving Government contracts KOHLER CO. 1179 .. Respondent submitted two strike settlement proposals, one on July 27 and one on August '2. In the first one Respondent offered to enter into a 1-year contract incorporating provisions it had previously agreed to, to change its pension and insurance plans as previously proposed, to grant a general wage increase of 5 cents, plus an additional 5 cents to all nonincentive workers; and to offer reemployment within 3 months to a -minimum of 500 employees then on strike (employees dis- charged for misconduct to be excluded). There was also a provision that the Union should withdraw all pending charges with prejudice and that it would file no further charges concerning any occurrence prior to the date of settlement The second offer differed mainly in the proposal for reemployment of strikers, i e., qualification was to be on the sole basis of 15 or more years of seniority as of April 5, 1954 The Umon also submitted a strike settlement proposal on August 2, which provided for acceptance of the Company's offer on the insurance plan, which re- treated on union security and checkoff to the provisions of the 1953 contract, but which otherwise closely adhered to its earlier position on other contract issues. Its wage demand was for a general wage increase of 10 cents, plus 5 cents additional to nonincentive workers. The Union also agreed to withdraw all pending charges, but proposed that all strikers be reinstated without discrimination. The discussions centered almost entirely on the latter question, with the Union insisting on reinstatement of all strikers, including the 90 who had been discharged. As to the 12 whom the General Counsel had omitted from the complaint, the Union agreed only to consider some penalty short of discharge. There was practically no discussion of contract issues. As to the wage proposals, for example, there was no discussion save to state them, nor was there later discussion between the parties concerning them. Neither did Respondent inform the Union that it intended to put the wage increase into effect if settlement was not reached On August 3 or 4, the Union held a mass meeting and rejected Respondent's strike settlement proposals. Respondent immediately put its wage proposal into effect, retroactive to August 1, and on August 5 notified the Union it had done so. In the meantime, having seen press reports of Respondent's announcement of the increase, the Union wrote Respondent on August 5, stating in part its position that no impasse had been i eached at the Chicago meeting on the subject of wages and that Respondent was not justified in granting the increase. It also warned Re- spondent that it would file unfair labor practice charges. On August 6, Respondent acknowledged the letter and inquired whether it should consider the letter as notice that the Union was' accepting the wage offer. Though characterizing the Union's letter as a protest against the increase, Conger testified at the hearing that the increase was actually put into effect after receipt of the letter Conger also admitted that on August 4, he had released information to the newspapers that the wage increase would be instituted. On December 22, 1955, Reuther telegraphed President Kohler offering to meet with him face to face in an effort to reach a settlement and suggesting in the alter- native that the issues be submitted to an impartial arbitrator to be selected by President Eisenhower. Kohler rejected the offer by wire on December 23, branding it as an obvious publicity device. On December 30 Reuther repeated by telegram the suggestion of arbitration Respondent rejected it on January 3, 1956. Concluding Findings The Union's letters of February 18 and 25 concerned a matter which had become a major obstacle to a settlement, i e., the reemployment of strikers who the Company claimed had engaged in strike misconduct. The Umon sought information as to the identities of those whom the Company proposed not to reemploy and claimed the right to negotiate about the matter. Both General Counsel and Respondent rely in part on National Carbon Division, 100 NLRB 689, 695, where the Board stated: In our view, an absolute right is granted to employers under the law to take disciplinary measures against strikers who in fact engage in serious acts of misconduct, which measures may go as far as absolute discharge. It follows that: (1) No obligation can be imposed upon an employer to treat the exercise of such a right as "bargainable"; and (2) as the Employer's right to discipline in such a situation extends as far as discharge, his imposition of a lesser penalty, in this instance the grant of reinstatement on "probational" conditions to certain of the strikers, must necessarily be deemed valid. True it is that by refusing to negotiate about such matters, and by insisting upon unilateral exercise of its disciplinary powers, the Respondent ran certain risks. Thus, if it became es- tablished' later to the Board's- satisfaction that the Respondent disciplined a 1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD worker who did not in fact commit the acts forming the reason for the disci- plinary measure, both his refusal to negotiate on the matter and the disciplinary action itself could be found violative of the Act. As in that case, Respondent here had an absolute right to discharge strikers who in fact engaged in serious acts of misconduct and to refuse to negotiate concerning the matter. But here also Respondent by acting unilaterally in the exercise of its disciplinary powers ran the risk of being wrong, of discharging some strikers who did not in fact commit the acts for which they were discharged. Indeed , Respond- ent's announcements at the hearing concerning the withdrawal of Alex Dottei's discharge seemed tantamount to a confession of error in his and possibly other cases. See section H, 7, infra. But whether or not its representations amounted to a con- cession (denied by Respondent during final oral argument), it is found under said section that Respondent's action in making 35 of said discharges (including Dottei's) was violative of the Act. Negotiations with the Union might well have dissuaded Respondent from discharging many if not all of those . In any case Respondent, having assumed the risk and having been found wrong in their cases, violated the Act in refusing to negotiate at the Union 's request. Similarly, Respondent was guilty of a refusal to bargain in granting unilaterally the wage increase of August 5. There was no impasse at the time on wages or any of the other contract issues. All that had occurred was an exchange of proposals and a statement of positions . The discussions were confined to questions concern- ing the reinstatement of strikers, and it was solely on that issue that negotiations had broken down. Furthermore, Respondent's failure to notify the Union of its inten- tion to put the increase into effect, coupled with its announcement of the increase through the newspapers , were further indications of its lack of good-faith bargaining and of its deliberate disparagement of the Union and of the collective-bargaining proceedings. See section E, 1 and 4, supra. It is therefore concluded and found that Respondent's unilateral grant of the wage increase on August 5 constituted a separate and independent refusal to bargain within the meaning of Section 8(a) (5). Further evidence indicative of Respondent's intent to avoid a contract was sup- plied by Howe's statements to the Senate subcommittee on June 3. Though Respondent was not required to engage in negotiations at that time, both Howe and Conger undertook to defend Respondent 's position on some of the disputed issues. Despite Howe's representation that Respondent had offered the Union a contract which in many respects was identical with the Union's contract with Universal Rundel Corporation, he and Conger promptly reneged when Kitzman announced the Union's willingness to accept that contract . They made no attempt then or later to explore with the Union what differences existed in Respondent 's operations as compared with Rundel 's or to adapt or reconcile provisions in that contract which might not strictly be applicable. The findings made here and in earlier sections of this report have covered the most important points on which General Counsel and Union have relied in claiming a continuous course of bad-faith bargaining by Respondent . Of matters which have not specifically been referred to, there are two points of sufficient importance to be mentioned : One related to Conger's attitude as a negotiator and one to Kohler's refusal to meet with Reuther. Neither point requires extended treatment. It is unnecessary to summarize the testimony concerning Conger's attitude at the bargaining table. Judge Murphy, who had participated in negotiations for a solid month, was questioned specifically about Conger's attitude; he gave an answer which laid to rest the claims of Union's witnesses that Conger had misconducted himself. Judge Murphy found nothing objectionable in Conger's conduct; his testimony is fully accepted here as it has been elsewhere. Nor can Kohler's refusals to enter the negotiations with Reuther be found indica- tive of bad faith. The Act (Section 8 (b) (1) (A)) gave Respondent the right freely to select its representatives for collective bargaining , and its management com- mittee was at all times fully authorized to act for it. Furthermore, the evidence as a whole supported Respondent's assertions that the suggestions for a Reuther- Kohler meeting were mainly for publicity purposes . It must be assumed that Reuther was as much interested as Kohler in settling the dispute, yet he made no attempt to enter the negotiations with Respondent's duly authorized representatives. The only explanation advanced by the Union was the suggestion 'of its counsel during oral argument that some matter of prestige may have been involved. There is no requirement that bargaining proceed among representatives of corresponding rank with their respective principals; indeed the Act clearly implies that it need not, in giving both employer and employees the right to bargain through representatives of their own choosing. KOHLER CO. 1181 6. Respondent's affirmative defenses Respondent's defenses to the breakoff of negotiations on June 29 and August .18, 1954, respectively, have been upheld insofar as they were grounded on the assertion of a course of illegal strike misconduct, section E, 4, supra. However, Respondent's answer pleaded further that from and after April 5, 1954, the Union was itself not bargaining in good faith because of its course of illegal conduct in connection with the strike and that such conduct was engaged in with intent to force Respondent's capitulation to the Union's demands as the price for securing discontinuance of the illegal conduct. Neither in brief nor in oral argument did Respondent endeavor to support that defense, which was apparently based, at least in part, on the Board's holding in Textile Workers Union of America, et al. (Personal Products Corporation), 108 NLRB 743. There the Board found that the Union was not bargaining in good faith because it decided to force the employer's hands in the negotiations, not by a strike in the commonly understood sense of the word, but by a series of unprotected harassing tactics, i.e., an organized refusal to work overtime, an unauthorized exten- sion of rest periods, the direction of employees to refuse to work special hours, slow- downs, unannounced walkouts, and inducing employees of a subcontractor not to work for the employer. However, in denying enforcement, the court of appeals, 227 F. 2d 409, 410 (C.A.D.C.), pointed out that although courts have held similar union tactics to be "unprotected," Until now no court, as far as we know, has been called upon to consider the Board's theory that such tactics are evidence that a union is not bargaining in good faith and may therefore be forbidden. The theory will not stand analysis. There is not the slightest inconsistency between genuine desire to come to an agreement and use of economic pressure to get the agreement one wants. As the Board intimated, the Union might have called a strike; no inference of failure to bargain in good faith could have been drawn from a total withholding of services, during negotiations, in order to put economic pressures on the employer to yield to the Union's demands. Furthermore, as the court pointed out, the Board's order had also directed the Union to cease and desist from "threatening" employees with "reprisals" for working overtime and for giving testimony in the proceeding before the Board; from blocking plant entrances so as to prevent ingress and egress of employees, etc., which order as the court pointed out, was not based on collective-bargaining requirements of the Act but on Section 8(b)(1)(A). The court continued: The Board did not find, and does not suggest, that misconduct in general or abuse of employees in particular is evidence of a refusal to bargain in good faith with an employer. Respondent also pleaded that the Union's real intent and purpose in bargaining was not to reach an agreement but to force a change in Respondent's management, replacing it with one subservient to the Union's demands and that its intent was to refuse any offer of an agreement unless Respondent would permit it to dictate the choice of Respondent's bargaining representatives. No evidence was submitted as to any statement or occurrence at the bargaining table which supports those defenses even slightly. The union representatives met and bargained freely with Respondent's management committee without any suggestion whatsoever that they were seeking any such changes. It is true that on two or three occasions, outside the negotiations, the Union sought to have Kohler enter the negotiations, but there is no more reason to find bad faith on the Union's part on account thereof than there was to find it on Respondent's part because of Kohler's refusal to participate. Nor did the member- ship's resolution of July 10, 1954, which called upon Kohler either to negotiate a contract, or to arbitrate, or to resign his presidency, constitute a bargaining demand; indeed, the evidence does not show that it was even referred to during the negotiations. Respondent also offered a number of excerpts from the Union's publications which were critical both of Respondent's management and of its negotiators and which suggested or predicted that the strike would result in certain changes, but most of such exhibits were rejected as without substance.42 By an amended answer Respondent also charged the Local and International Unions and their officers, agents, and members, with engaging in a conspiracy re- garding the clay boat incident on July 5, 1955, with violent and unlawful conduct *' One such exhibit, for example, was the photographed legend on a picket sign, "Whoop-de-do, Biever's thru." 1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in carrying out said conspiracy, and with abusing the processes of the Board in that connection. Respondent made no reference to that defense either in brief or in oral argument and has presumably abandoned it. In any case , the record fails to establish it. The evidence as a whole showed plainly that the Union 's representatives were at all times bargaining with good -faith intent to reach an agreement It showed, more- over, that until the strike, and for some time thereafter, the Union hoped to procure an agreement on its own terms, or certainly close to them ; but this was only a counter- part of Respondent 's own hope and intent. As time went on, particularly after May 28, when the enforcement proceedings forced the opening of the picket lines, the Union's position weakened rapidly. It surrendered on most of the major issues in June, and in September , Judge Murphy 's testimony (corroborated by Kitzman) showed that it was ready to settle all contract issues for a slight additional wage increase. Respondent was well aware of the weakness of the Union 's position, as shown by its July 28 jibe at the dying strike and by its publication of the Manly articles. Indeed, implicit in its rejection of some of the arbitration proposals (in- cluding particularly the first one by Governor Kohler ) was recognition that the Union was willing to accept any face-saving solution. Respondent's defenses based on its claim that the Union was not bargaining in good faith are rejected in toto. Cf J. H. Rutter-Rex Manufacturing Company, 115 NLRB 388, enfd. 245 F. 2d 594 (C.A.5) F. Solicitation; interference, restraint, and coercion This portion of the case was brought in by an amendment to the complaint, near the end of the General Counsel's case-in-chief. The amendment alleged some 25 specific acts of interrogation, solicitation, etc., attributed to specific supervisors on specified dates, all but 2 of which were after the strike began. Before resting his case-in-chief the General Counsel had offered evidence in support of the specific allegations of the amendment, except as to one item as to which a motion for dis- missal was granted.43 That evidence will be summarized chronologically Gordon Majerus was the chief steward of the Union Some 5 or 6 weeks before the strike, while Majerus was processing a grievance for another employee, his foreman, Willard Kohlhagen, told him he was "a fine fellow," who "could go far" with the Company, and that he should not "stick his neck out" for the kind of fellow whom the grievance concerned. Majerus replied that he believed the employee had a legitimate grievance and that he would continue to process it Kohlhagen told Majerus that it would not do him any good to do so and that it would put Majerus in "a bad light," which Majerus understood to mean that it would hurt his record with the Company. Majerus testified to a somewhat similar conversation with Foreman Smith about 3 or 4 weeks before the strike 44 Smith, who knew Majerus to be a steward, told him that he was making a mistake to be battling for the Union, that it was going out on strike, and when it did, a majority of the workers would come back into the plant and leave Majerus out in the cold. Smith inquired why Majerus did not "lay off the union business" and accept a job on a different floor. Robert R. Dean testified that at a time "when the picket line was closed," 45 President Kohler's car was stopped from driving into the entrance to the main 43 Daring the course of the General Counsel's rebuttal, other evidence of somewhat similar incidents was developed, usually in connection with its bearing on some other issue, and the General Counsel now assigns that evidence independently in seeking- findings of further violations of Section 8(a) (1) An examination of the evidence con- cerning each incident so relied on discloses, however, that none of them falls within the allegations of the complaint and none is connected with the incidents developed in support thereof, nor was the new evidence in any respect in rebuttal of anything which Respondent offered in defense of the 8(a) (1) allegations Indeed, the record shows that the new incident to which the General Counsel devotes the most space in his brief is one on which he disclaimed reliance on the record for 8(a) (1) purposes For the foregoing reasons and because no motion was made to amend the complaint or to reopen the main case, no Section 8(a)(1) finding will be based on such evidence: it will be considered only for such relevancy as it may have on the other issues in the case 44 The supervisory status of each company representative involved in the Section '8(a) (1) incidents was established either by stipulation or by undisputed evidence 4s Although Dean endeavored to fix the date of the incident as between June 7 and 15, other evidence establishes that the Unian ended the "closed" picket line on May 28, when it announced that it would comply fully with the WERB order. KOHLER CO. 1183 offices, that Kohler got out and walked to the main office, and then turned and shouted at the pickets who had blocked the entrance, "When I get through with you guys, you will be so hungry and weak that you will be crawling on your bellies and begging for your jobs back." Dean testified further that the pickets had instructions to have salesmen and other persons desiring to enter to leave their cars across the street and to obtain a pass from the soup kitchen (the Union's strike headquarters) before they would be permitted to pass through the picket line. Upon leaving the main offices, such persons were required to surrender the pass to the picket captain. Martin Crneckiy was first interviewed by Buffington on June 22, and noticed that his name had a red circle around it on a list which Buffington had Crneckiy was sent to the employment office and there interviewed by Ireland and Desmond. One of them asked him if he was through picketing and what he thought about the "situation." Crneckiy replied that he was all through and was ready to go to work; he explained that the only reason he went on the picket line was that he needed strike assistance. Alois Forstner had been employed some 14 or 15 years as a color mixer, a skilled operation which could be done by few people. He lived in St. Cloud. He went out on strike and remained out. Forstner testified that around June 23 or 26, his foreman, Fred Nack, came to St. Cloud and invited him and his wife down to a tavern where Nack persistently solicited Forstner to return to work, promising that Forstner could collect his holiday pay and a week's vacation; that he would get a 3-week vacation and could work as many hours a day 'as he wanted to and as many days a week as he wanted to, which were liberties Forstner had not had before the strike. Forstner's wife testified that in a separate conversation with her, Nack urged her to tell her husband to go back to work and promised that if he would do so he would have a 3-week vacation and could work as many hours as he wanted to. Respondent offered no testimony in contradiction but argues in its brief that Nack was not authorized by Respondent to approach Forstner. However, during his rebuttal case, the General Counsel offered testimony by Chadwick R. Fischer that Nack had also solicited him and had made arrangements to take him into the plant for reemployment Frank Ribbeck went back to work on June 29, and was sent to see Superintendent Reinemann who asked him what he had been doing, whether he had done any picketing, and whether he got any strike benefits. Ralph Schwonek went back to work on June 30, and was later questioned by Supervisor Raymond Herriott, who asked whether he got strike assistance and how much, explaining that he wanted to know because someone had told him how much the strikers got and he wanted to confirm it Ted Panzer, Jr., returned to work during the month of June and was interviewed by Marvin Messner, who asked him if he had "got enough" of picketing and if there would be any trouble if he went back to work again. Panzer was returned to his old job. William Zimmerman returned to work the week after July 4, and was interviewed by Ireland, who stated he was glad to see Zimmerman back, asked him if he had been on the picket line, and told him he had seen him there. James Hall went back to work on July 6, and was first interviewed by Buffington who told him that since he had worked in the shell department which was then closed down, he would see about getting him transferred to his old department. Hall was later interviewed by Ireland and Desmond Ireland stated he had seen that Hall was quite active on the picket line at gate 7, and there was some discussion between Hall and Desmond about whether that was on company property Ireland also asked Hall about some other striker at Plymouth where Hall had once worked and asked whether there had been any trouble in Plymouth. Oscar Korff also returned to work on July 6 and was put back on his old job. Later, Supervisor Herwaten asked him if he had seen some of the other fellows who had worked there and told Korff that he would have top seniority. Korff testified that he did not think that he had top seniority before the strike because there were others in the department who had worked longer than he Respondent offered a seniority list in Korff's department which showed that of employees then at work, Korff did have top seniority. However, the list also showed that there were other employees who had not worked since the strike who had greater seniority in the department than Korff. Joseph Buchberger returned to work on July 9 and was interviewed by Messner and then by Ireland and Desmond. Ireland asked him why he had been on the picket line, and Buchberger explained he needed the $15 47 a week in strike assistance which he had received. He was put back to work. About a month later, he was called back to the employment office and again interviewed by Ireland who showed, Buchberger a picture of himself on the picket line on a Monday morning when there had been a fight Ireland asked him whether he could identify someone showp* on the photograph, but Buchberger could not do so. 1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Raymond Schneider returned to work on July 23. Buffington asked him what he had been doing, whether he had been picketing, and whether he had received any strike aid. After being returned to his job, Superintendent Strace also asked him if he had been picketing. Harold Groskoff returned to work on July 24, and later on the same day went in on his own and had a friendly conversation with Hildebrand, who, asked him what he thought about coming back and what help he had gotten from the Union. Elwin Taubenheim went back to work late in July and was told to report to his old job . Later in the day, he was called in by Reinemann who asked Tauben- heim what gate he had picketed at, why he had returned to work, and whether he had been getting strike assistance. Selby Bubb first went back to work on July 6. Messner told him that since his former employment had been in the shell department which had been closed down, he would have to have a transfer, and later told him to report to his old job in the brass room . Bubb worked only on that day and did not report again until August 2 He was called into the employment office and interviewed by Ireland , who asked him why he had stayed off during that 4 months (of the strike ), whether he had picketed, and where and what strike benefits he had received. Marvin Schmolze returned to work on August 9 in his old department. Super- intendent Herwaten asked him where he had been and where he had picketed. Schmolze volunteered the statement that he had picketed to get strike assistance. Herwaten assigned Schmolze to his regular job. Gerald Emely was first interviewed on August 11 by Messner who asked him at what gate he had picketed. He was interviewed again by Ireland and Desmond on August 12. Ireland asked him why he had returned to work. Neither Ireland nor Desmond inquired whether he had been a picket captain, but Emely informed them that he had been a picket captain part of the time. Emely had also told them, in explaining why he had come back to work, that he did not like the way the strike was run because "there was too much rough stuff." He was told that there was a nice peaceful group on the job and that he could come back to work and would not get in trouble. Alvin G. Kappers returned to work on September 14. He was interviewed by Supervisor Mallman who asked Kappers if he had been on the picket line and who stated that some of his good men were on the line. Daniel J. Seidlitz resigned from the Company on June 30 (having found employment in Milwaukee after the strike began ). He later applied for reemployment on September 20. He was inter- viewed by Messner who asked whether Seidlitz had participated in picketing or other activities. William Bradford returned to work early in October and was first interviewed by his foreman , Mondloch , who was a good friend of his. Mondloch inquired what Bradford had been doing and Bradford told him he had been out on the picket line. Alphonse Faust returned to work in October. He was directed to the em- ployment office and there interviewed by Desmond , who asked Faust whether he had thrown any stones while on the picket line and whether he broke windows in any homes . Desmond also asked him how much strike assistance he received from the Union, how he felt about the Union , and what made him decide to come back to work . He was also asked whether he knew that Leland Dyke got a black eye, and was told that Respondent would not tolerate illegal picketing. Faust also testified that he was shown a picture of himself on the picket line "where there was a mob," and that it was in that connection he was asked if he knew about Dyke's black eye. William Kasten , Jr., returned to work the last week in January 1955. He was later interviewed by Superintendent Hildebrand , who asked him what strike benefits he had received in the way of food vouchers and cash benefits and also whether he had done picket duty . Elmer Bridson returned to work in February 1955. He was first interviewed by Buffington , who asked whether he ever picketed and who told him to go back to his old job. Later, Reinemann also asked Bridson whether he had picketed and where. Concluding Findings The instances of alleged threats and promises will be treated separately; the various instances of interrogation will be considered together. Kohlhagen's conversation with Majerus was plainly directed at discouraging Majerus' activity as chief steward in the presentation and prosecution of grievances. Such activity falls squarely within the guarantees of Section 7, interference with or restraint of which will violate Section 8(a)(1). N.L.R.B. v. Phoenix Mutual Life Insurance Company, 167 F. 2d 983 , 988 (CA. 7); The Ohio Oil Company, 92 NLRB 1597 : Thomas W. Dant et al., d/b/a Dant & Ruscell , Ltd., 92 NLRB 307, enfd. 207 F. 2d 165 (C.A. 9); Salt River Valley Water Users' Association v. N.L.R.B., 206 F. 2d 325, 328-329 (C.A. 9); N.L.R.B. v. Moss Planing Mill Co., KOHLER CO. 1185 206 F. 2d 557 , 559-560 (C.A. 4) and cases cited. Kohlhagen's remarks were clearly of a restraining character . Thus Majerus was told that he was a "fine fellow" who could "go far" with the Company, but that he should not "stick his neck out," and that his grievance handling would put him "in a bad light" with the Company. Implicit in these statements was the suggestion that Majerus' future with Respondent would be jeopardized by the continued prosecution of grievance, a concerted activity in which he was entitled to engage . But threats need not be explicit to be proscribed by the Act; an implied threat derives no protection as free speech. Smith's remarks, like Kohihagen's, were directed at discouraging Majerus' activi- ties as steward, though here the statements were implemented by suggestions of other employment, that is by promises rather than by threats . However, Section 8(c) does not avail Respondent in either case. It is therefore concluded and found that both by Kohlhagen's remarks and by Smith's, Respondent violated Section 8 (a)( 1 ) of the Act. Kohler's remarks, if viewed alone and unrelated to the setting in which they were uttered, would obviously have constituted restraint and coercion of the strongest type. The setting, however, supplied circumstances which mitigate , if indeed they do not entirely dissolve, the violative force of the statement. Thus, the incident occurred at a time when the Union was maintaining "closed" picket lines and when the pickets at the main office were enforcing union instruc- tions that persons desiring entrance procure passes from strike headquarters. Koh- ler's car was physically blocked from entering, and it was necessary for him to leave the car at the picket line. The conduct of the pickets was plainly unprotected and unlawful. Kohler's angry outburst was provoked by that unlawful conduct and was directed specifically at the participants . Undoubtedly, the legal right existed then and there to discharge or to threaten to discharge employees for engaging in such misconduct. That right would seem to extend to Kohler's threat of a different character; but whether or not that is so, there was ample justification for his raging threat, provoked as it was by the unlawful treatment he had received at the hands of the pickets . It is therefore concluded and found that under all the circumstances no violation of Section 8(a) (1) was committed. Evidence concerning Nack's conversation with Forstner and his wife plainly established the allegation of the complaint that on or about June 26, 1954 , Respond- ent, through Supervisor Nack, solicited an employee to return to work and made promises of benefits to such striking employee to induce his return . Respondent's argument that Nack's action was unauthorized is unpersuasive . Nack was Forstner's supervisor and was obviously acting within the scope of his apparent authority in seeking to procure Forstner's return to work. He later not only solicited Fischer successfully but also accompanied him to the plant for his reinstatement . Respond- ent is responsible for such acts of its supervisors in relation to its employees. It is therefore concluded and found that by Nack's solicitation of Forstner and by his promises of benefit to induce Forstner to return to work, Respondent engaged in conduct which is proscribed by Section 8(a)(1) of the Act. N.L.R.B. v. Wooster Division of Borg-Warner Corporation , 236 F. 2d 898, 905 (C.A. 6). Herwaten's statement to Korff regarding top seniority is charged as a promise or grant of a benefit upon Korff's return to work . The evidence as a whole does not establish that to be so; it can as easily-or more easily-be concluded that Her- waten's observation was directed at the point that Korff had top seniority among the employees then at work in his department . Respondent's exhibit showed that to have been the case as of July 6, 1954 . Since it is clear that the statement was made after Korff had been reinstated and returned to his job and since Korff's testi- mony as a whole is somewhat equivocal , it is found that the General Counsel did not establish by a preponderance of the evidence that Herwaten 's statement constituted a promise of a benefit to return to work. All the instances of interrogation grew out of interviews which had been con- ducted mainly because of Conger's instructions that returning strikers should be in- terviewed with respect to possible illegal strike conduct and many of the inquiries, though indirect, were aimed at developing that information. In many cases, also, the striker was already on the job when the interview was had , and generally the inquiries were casual and friendly and sometimes motivated by idle curiosity. Re- spondent was entitled , of course , to investigate concerning strike misconduct and in doing so to interview returning strikers as to such misconduct by themselves and others. In the cases of Buchberger and Faust, for example, Respondent was ob- viously seeking information concerning such misconduct. Aside from inquiries directly or indirectly related to strike misconduct , the bulk of the questions related to strike benefits. Of course, that was no proper matter of 1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concern to the Company, but under all the circumstances the inquiries cannot be found coercive. Thus the Union's strike assistance program was a matter of com- mon knowledge in Sheboygan, and the Union periodically publicized information concerning it. Some of the inquiries in this connection were obviously due to the curiosity of the supervisors, and in some instances the striker volunteered the information. It is therefore concluded and found on the record as a whole that Respondent did not engage in interference, restraint, or coercion by reason of the items of interrogation alleged in the complaint. G. The evictions 1. The American Club The American Club is a hotel operated by the Company under a hotel license issued by the State of Wisconsin It is located directly across the street from the entrance to the main offices and is also across the street from and near the main entrance to the plant. It has approximately 100 rooms and 117 beds. There were some 73 beds for men and 22 for women, and there were also 22 which were reserved for transient guests and which were rented by the day. Ten of the rooms reserved for permanent guests had been allotted to offices. The club also con- tained a cafeteria and a bar which were open to the general public before the strike, but after the strike began the Respondent closed the bar completely and also closed the cafeteria except to residents of the club. There was no requirement that any employee reside at the club, nor was residence there restricted to employees. School teachers, policemen, retired employees, and other nonemployees were among the permanent residents. There was no showing that the rates were either abnormally high or low, that they were substantially less than for other comparable accommodations, or that employees were charged less than nonemployee residents The decisive factors as to occupancy by employees appeared to be the convenient location, the choice of the individual employee, and the availability of a room. Three of the evicted strikers had sometimes resided at the club and sometimes elsewhere Walter Siech, Ervin A. Siech, John Siech, Peter Gasser, Jr., Frank Novak, Gordon Daniels, Ove Gjersten, and Lee Blandin, who were all striking members of Local -833, were permanent guests who continued to occupy their rooms after the strike began. On or about December 16, Respondent served on each of them the following notice: Due to a shortage of rooms which has developed at the American Club, it will no longer be possible to continue your status as a roomer after January 1, 1955. In order to provide a greater number of rooms to persons actively employed by Kohler Co., you are hereby notified that we will not be able to provide a room for you after January 1, 1955, and you are ordered to vacate the room you are personally occupying on or before January 1, 1955. Five of the tenants (the three Siechs, Daniels, and Gjersten) moved out prior to January 1. Lee Blandin was awakened on the morning of January 1 and told to start packing. He moved out that day. Gasser was also awakened on January I and was told that he would be evicted if he did not move. Gasser, who had obtained legal advice, refused to move. Later, Dorman Ball (manager of the club) and Hammer returned, packed Gasser's belongings into boxes and trunks, inven- toried the contents at Gasser's request, and stored them elsewhere. Gasser, him- self, left the room after 2 p.m , after being informed that the door would be double locked against him. Novak was evicted the same day under circumstances similar to Gasser. - There was no evidence that any of the tenants were delinquent in the payment of rent; in several cases the rent was being paid to Respondent directly by the Union. The evicted strikers had been employed for periods ranging from 3 to more than 30 years, with an average service of more than 12 years. They had lived at the club for periods ranging from 2 to 11 years, with an average tenancy of more than 6 years. All of them had gone on strike and had participated in strike activity of various kinds. Following the strike the matter of their residence at the club was called to Conger's attention but his decision then was to do nothing about it as long as there was room at the club and as long as they did not create a disturbance. In November, however, Ball reported that he was getting short of rooms and r-- KOHLER CO. 1187 ,quested advice. Having decided that Respondent needed the rooms to house men who were actively employed and who were being referred to the club by the em- ployment office, Conger issued the eviction notices for the reason stated therein, that is, to provide a greater number of rooms for persons who were actively working. However, Respondent served no eviction notices on several male nonemployees who were permanently residing at the club, on one or two retired employees, on one school teacher, and on one policeman who had never worked for Respondent. In other words, only strikers received eviction notices; and all such who resided at the club were evicted. 2 The tenancies Carl Faas and Henry Arnoldi, striking employees, were tenants of the Company under formal annual leases of dwellings and garden plots (one-quarter acre and one-half acre, respectively) in Sheboygan County. Both leases expired by their terms on December 31, 1954. Both Faas and Arnoldi were actively engaged in strike activity. On or about December 13, Respondent notified both tenants of the expiration of the leases on December 31, and informed them that they were expected to surrender possession of the premises on that date pursuant to the terms of the leases, which obligated the tenants to deliver up possession at the termination, or sooner determination, of the leases. Faas' earlier lease dated December 29, 1952, had contained the following clause: 19. This lease is entered into by lessor because of the employment by lessor of lessee, and for this reason, the annual rent is fixed at the sum named herem. If the lessee should at any time voluntarily or involuntarily quit the service of the lessor or decline or refuse to perform the work for which said lessee is employed or the lessor for any reason desires possession of said premises; in either of said events lessor shall have the right to terminate this lease and re-enter upon and take possession of said premises upon thirty (30) days written notice to vacate said premises, either given to the lessee in person or by leaving a copy of said notice upon said premises. [Emphasis supplied.] When renewed in December 1953, that clause was omitted, although the rental was continued at the same rate, i.e., $40 a month. Arnoldi's lease, which was also dated December 1953, contained no such clause as Faas' and the rental was fixed at $45 a month. However, Arnoldi testified that in a conference on January 3, 1955, when he asked the reason why his lease was being canceled, Desmond stated that the Company "would like them to be active employees." Faas refused to vacate on the basis of legal advice that the notice had not given adequate time. After some discussion with the Company, Faas wrote it that he had not found a suitable place to move to and requested per-mission to remain until his children finished their school year Thereafter he and the Company entered into a new lease under the same terms except that it was to run for 6 months and recited that it was made on the express understanding that Faas would surrender possession on or before June 30, 1955, without further notice. Arnoldi also failed to vacate on December 31. He requested an extension for a year, but was informed that the Company would give him one for only 6 months. Respondent later tendered, and Arnoldi signed, a 6-month lease similar to Fa as' Faas' 6-month lease was later extended for 1 month and thereafter Faas vacated the house. Arnoldi was also given a month's extension. He later requested a further extension, but Respondent did not reply, and he was still occupying the house in mid-August 1955 during the course of the hearing. Faas had worked for Respondent for 18 years, had rented houses from Respond- ent for 9 years, and had rented his present house for 5 years. Arnoldi had worked for Respondent for 15 years and had rented his house for 21/2 years. Renewals had been freely granted prior to the strike Respondent rented a total of seven houses similar to those occupied by Faas and Arnoldi, two of which were occupied by nonemployees. Respondent also had two village residences and six apartments which were rented to nonemployees. None of the nonemployee tenants were served with eviction notices. Conger testified that he had recommended that the leases not be renewed be :ause "we needed those houses for occupancy by people who were being employed L,r the Company," and that the original extensions had been granted to permit occupancy until the end of the school term and thereafter extended an additional month by letter, though no formal extensions weie given after June 30 1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Concluding Findings Considering first the American Club residents, the General Counsel relies on the eviction of the strikers as violating both Section 8(a)(1) and (3) of the Act. Respondent's defenses raise a fundamental question as regards the allegation of discrimination under Section 8(a) (3), i.e., that there was no evidence that residence at the club was a term or condition of employment and that none of the strikers in question was required either by rule or by the force of circumstances to live at the club. Respondent distinguishes the many cases where discrimination has been found, on two points, (1) that in each case the eviction accompanied a discriminatory discharge, (2) that the occupancy of the premises constituted a condition of employ- ment, either because of free or nominal rental constituting a part of wages, or because company rule or force of circumstances compelled occupancy as an incident to employment. Respondent's distinction on the second point appears to be a valid one. However, the case of L. J. Williams d/b/a L. J. Williams Lumber Company, et al., 93 NLRB 1672, amended by supplemental decision, 96 NLRB 635, casts considerable doubt on the validity of the first one. There both Trial Examiner and Board made originally a finding of discrimination as to employee Henderson because of his eviction from a company-owned house despite the fact that the eviction was not accompanied by a discriminatory discharge. Although the Board later amended its decision so as to eliminate the finding that the eviction violated Section 8(a) (3) of the Act, it was solely for the reason that the complaint had charged only a violation of Section 8(a) (1). Furthermore, the finding that Henderson's tenancy was rent free, sup- ported, even under Respondent's theory, the Board's original holding that his eviction constituted discrimination "with respect to his hire or tenure of employment," 93 NLRB at p. 1677, supra. The court of appeals specifically enforced the Board's order as to Henderson as amended by the supplemental decision, 195 F. 2d 669, 672-673 (C.A. 4); cert. denied 344 U.S. 834. It is unnecessary, however, definitively to resolve the validity of Respondent's first point of distinction because there is no question that Respondent is correct on the second one and because the evidence here supports its contention that residence at the American Club was not a term or condition of employment. I therefore con- clude and find that the notices of eviction and the eviction of the strikers from the club did not constitute discrimination in violation of Section 8(a)(3) of the Act. The evidence, however, plainly supports the General Counsel's contention that Section 8(a)(1) was violated, since the strikers were plainly discriminated against (i.e., treated differently) for the sole reason that they were on strike, albeit the discrimination was not such as was reachable under the proscriptions of Section 8(a)(3).46 Thus Respondent had never made active employment 'a condition of residence at the club. It continued to receive and to house both transients as tem- porary guests and other nonemployees as permanent guests. Furthermore, though Respondent purportedly required a large number of rooms for its actively employed employees, its eviction notices were sent only to strikers; it made no effort to evict other tenants who were not employees, it made no effort to reassign transient rooms to employee use, and it did not offer the transient rooms to the strikers. Indeed, the evidence showed that there were at least some vacant rooms available for assignment both on December 16 and on January 1. The General Counsel also points to other facets of the evidence as showing that Respondent's acts were not only discriminatory but were in fact retaliatory and coercive because the tenants were continuing on strike. These included the harsh manner of the physical evictions of Gasser and Novak, particularly in the light of their long service with the Company, and the fact that both were suffering from silicosis. Relevant here, also, was Arnoldi's testimony that Desmond assigned as the reason for cancelling Arnoldi's lease that the Company "would like them to be active employees " But whether viewed as simple discrimination, or as retaliation for continuing on strike, or as coercion to abandon the strike, the evictions were an unlawful restraint on the employee tenant's right to engage in the strike as guaranteed by Sections 7 and 13 of the Act. The tenant strikers still remained employees under the Act, and Respondent could not lawfully restrain or coerce them in the exercise of those rights. 46 It is well settled that discrimination against employees because of their engagement in concerted activities protected by the Act, which for some reason does not qualify as discrimination within the meaning of Section 8(a) (3), constitutes unlawful interfer- ence, restraint, and coercion. N.L R B. v. Phoenix Mutual Life Insurance Company, 167 F. 2d 983, 988 (C A. 7), cert. denied 335 U S 845; Gullett Gin Co., Inc., v. N.L.R.B., 179 F. 2d 499, 502 (CA. 5) ; Mac Smith Garment Company, Inc., 107 NLRB 84. KOHLER CO. 1189 It is therefore concluded and found that by serving notices of eviction upon the eight sinking tenants of the American Club and by the physical eviction of two of them (Gasser and Novak), Respondent violated Section 8(a)(1) of the Act. The above findings of restraint and coercion apply as well to the cases of Faas and Arnoldi , except that in Faas' case the factor is found which brings the dis- crimination also within the proscriptions of Section 8(a)(3). Thus by its explicit terms the 1952 lease resulted from the fact of Faas' employment , which also entered into the fixing of the rental . Though the clause was not contained in the 1953 renewal, the rental, significantly, remained the same, despite the fact that since December 1952, there had been an average increase in rents , nationwide, of 5.7 percent.47 Faas' employment had plainly remained a factor in the fixing of the same rental in the 1953 contract ; his tenancy was inseparably linked with the terms and conditions of his employment . Discrimination against him for the sole reason that he was on strike ( i.e., "not actively employed" ) had the natural consequence and the obvious effect of discouraging membership in his union , whose action he was supporting by staying on strike and by engaging in strike activities. Radio Officers' Union etc. (A. H. Bull Steamship Company ) v. N.L.R .B., 347 U.S. 17, 45-46. It is therefore concluded and found that by serving the eviction notices on Faas and Arnoldi and by requiring Faas to surrender his occupancy , Respondent inter- fered with, restrained, and coerced its employees within the meaning of Section 8(a)(1), and that by its said acts as to Faas it also engaged in discrimination within the meaning of Section 8 (a) (3). H. The discharge of the strikers 1. Introduction ; the prima facie case ; the issues On March 1 , 1955, Respondent discharged 90 strikers "because of misconduct in connection with the strike," under circumstances which have been set forth under section E, 5, supra. Upon the filing of an amended charge and after investigation, the General Counsel amended his complaint to allege that 78 of them had been discharged because of their union membership or activities or because they had otherwise engaged in concerted activities . Appendix C contains the names of the strikers whom the General Counsel included in his complaint and whose discharges he chose to litigate . The 12 who were omitted were Leo Bartz, Roger Bliss, Roger Fredricks , Raymond Kiel, William Rawling , William Rettela, Jr., Roger Ross, Franklyn Schroeder , Douglas Strebe, Nick Vrckovic, LeRoy Ward, and Charles Wirtz. The General Counsel also moved to withdraw the complaint as to six dischargees (Frank Makarevicze, John C. Bowser, Roland Buhk, Lyell F. Clark, Rudolph Gunderson, and Andrew Lofy) whom he did not call on rebuttal but who were put up by the Union.48 Ruling was reserved on the Union's objection . The General Counsel having handled his case so as to permit the Union to litigate the fact of misconduct, the Trial Examiner now rejects the General Counsel's contention, made during oral argument , that his motion must be granted out of hand without dis- closure of the basis on which he acted. Cf. United Aircraft Corporation, Pratt & Whitney Aircraft Division , 91 NLRB 215 (Ruling on Appeal ). The 6 cases covered by his motion will therefore be considered on their merits, thus leaving for dis- position herein all of the 78 cases on which the General Counsel originally elected to proceed. The evidence plainly established that all of the strikers were discharged because they had engaged in concerted activities in support of the strike . The strike being manifestly a union project and undertaking a prima facie case of discriminatory dis- charge was made out as to each , since the proscriptions of Section 8(a)(3) include "discrimination to discourage participation in union activities as well as to dis- courage adhesion to Union membership." Radio Officers' Union, etc. (A. H. Bull Steamship Company ) v. N L.R B., 347 U S. 17, 39-40. The real issues as concerned the discharges revolved around Respondent 's defenses as set out in its amended answers, that each of the strikers had been discharged for strike misconduct, such as participation in illegal picketing, or in other unlawful con- duct in connection with the strike , or had instigated, directed, controlled, or ratified 47 U.S. Department of Labor, Bureau of Labor Statistics, Cost of Living Division, Monthly Labor Review, 77 (June 1954 ), p 725. 48The General Counsel's motion did not include four others ( Christ Arnold, Alvin Burkard , Dart Smith , and Gilbert Stuckmann), who were similarly called by the Union. 577684-61-vol. 12 8-7 6 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such unlawful conduct. Respondent also pleaded that some 28 of said strikers 49 .should in any case be denied reinstatement because of unlawful conduct which they engaged in after their discharge. 2. The Rubin Brothers defense; the General Counsel's rebuttal theories Although putting on its case under the Rubin Brothers doctrine,50 Respondent also announced that it would present evidence that in many cases the unlawful conduct had actually occurred. Indeed, Respondent held for surrebuttal only a small pro- portion of the evidence on which it relied to rebut the General Counsel's (and the Union's) evidence that the unlawful conduct did not occur The General Counsel takes certain broad positions with reference to Respondent's defenses which must be disposed of in advance of considering the individual dis- charges. He makes initially a broadside attack on Respondent's advancement of the Rubin Brothers defense which is based mainly on these facts To establish its good-faith belief, Respondent put up Conger during its case-in- chief, who identified and who testified to a mass of reports, affidavits, photographs, and other materials on which Respondent had purportedly relied in determining to discharge the individual strikers.51 Pointing to certain representations of counsel and to certain excerpts from Conger's testimony which attributed to Conger the making of the final decision, the General Counsel argues that these were refuted by testimony of President Kohler when called as the General Counsel's witness in rebuttal during which Kohler assumed the responsibility for the ultimate decision. Actually Kohler's entire testimony, together with Conger's in surrebuttal, established that the decision in each case had been reached in group conferences at which Kohler had presided and at which Conger had submitted, pursuant to Kohler's earlier direction, tentative recommendations. In fact, Conger's original testimony was substantially reconcilable with that version. Thus Conger testified that he was "present" when the decision was made, and that although it was "presumed" that he made the final decision, "The decision was made at a conference with the man- agement committee, and the policy decided upon, and the final cases were reviewable by myself, Mr. Howe, Mr. Hammer, and Mr. Desmond for legal decision on it." At another point Conger again qualified the claim that he made the ultimate de- cision, stating, "I believe probably my opinion carried the most weight, although there was not substantial disagreement on the final outcome." What the entire evidence showed was that Conger originally submitted to the group a list of some 150 cases with a tentative recommendation for discharge, pre- senting the cases seriatim, somewhat in the role of a prosecutor. Several dozen cases were eliminated during the discussions of the individual cases, and the list was reduced to something over 100 employees. On Kohler's suggestion that they go 49 James E Bailey, Walter Barchacky, Arthur Bauer, Ethan Berg, Leo J. Breirather, Alvin G Burkard, Allan J Graskamp, Elmer H Gross Rudolph Gunderson, Edward C Kalupa, Tony J Kissel, Egbert H Kohlhagen, John Konec, Bernard Majerus, Cordon Majerus, Curtis R Nack, John Nisporic, Kenneth Nitsche, Elmer A Oskey, Leo J Prepster, Art Russell, Sr, Roman Slesrick, Paul A. Gall, Ralph Sabish, Frederick Byrum, -Fred Felsinger, Christ Arnold, and Roland Buhk so In Rubin Bros Footwear, Inc , et at , 99 NLRB 610, 611, the Board held : We are now of the opinion that the honest belief of an employer that striking employees have engaged in misconduct provides an adequate defense to a charge of discrimination in refusing to reinstate such employees, unless it affirmatively ap- pears that such misconduct did not in fact occur. We thus hold that once such an honest belief is established, the General Counsel must go forward with evidence to prove that the employees did not, in fact, engage in such misconduct The em- ployer then, of course may rebut the General Counsel's case with evidence that the unlawful conduct actually did occur 'The Board has adhered to that rule (The Cambria Clay Products Company, 106 NLRB 267, 270; New Ryden Coal Company, 108 NLRB 1145, '1148, Kraft Foods Company, 108 NLRB 1164, 1165), and it has obtained court approval (NLRB. v Industrial Cotton Mills, 208 F 2d 87, 91-92 (C A. 4), cert denied 347 U S 935). Though the parties start with a pleaded issue of honest belief, the practical result is that what they litigate is the issue whether the striker actually engaged in the alleged misconduct So it was here 61 By written order of January 19, 1956, the Trial Examiner received such' material in evidence solely on the issue of Respondent's good-faith belief, but held it to be inadmissible and without probative weight on the question whether the alleged miscon- duct in fact occurred See footnote 50, supra, and particularly the Kraft Foods case. KOHLER CO. 1191 through the list again, the final figure was reduced to 91, with all participants con- curring in the decision in each case. As to those who had been eliminated, Conger testified that the group discussions convinced him that his original recommendations were not sound. Thus, the entire evidence showed that the final decision was a unanimous group decision Kohler's acceptance of ultimate responsibility can be credited only in the legalistic sense that he was president of the Company and had presided at the conference at which the decisions were reached And although the decisions were also not Conger's, the evidence showed that he had full, firsthand knowledge of the basis on which the group had acted in each case and was obviously competent to testify. In order to understand what the committee had before it and how Respondent had assembled the information on which it acted, it is necessary to review briefly the steps which Respondent had taken to inform itself of acts of strike misconduct. Shortly prior to the strike Respondent had announced publicly that persons who were guilty of strike misconduct might not be considered for reemployment. It also made preparations, which it put into effect on the first day of the strike, to assemble information of all types which concerned misconduct or possible miscon- duct and to identify by all possible means the participants therein Attorney Gerard A. Desmond, who had not previously been connected with Respondent's labor rela- tions department, was assigned the job, under Conger's supervision, of investigating and accumulating information and evidence of anything he deemed of importance, without attempting to weigh or evaluate the information from the standpoint of a labor lawyer. Desmond testified that in following his instructions he preferred to err on the side of providing excessive rather than insufficient information, and that he gathered all information which he thought might be of interest to Conger or which might be developed at a later date. It is unnecessary to describe in detail the various systems which Desmond used in his efforts to keep abreast of and to list, file, and catalog the data which he was assembling and which was being channeled to him. From time to time, the proce- dures were changed and modified as the volume of the work rendered the existing plan unwieldy or too burdensome Also at times the organization of the material was influenced by its contemplated use at various stages of the WERB proceedings and the contempt action. At some times, individual files were kept. A strike incident "file" 52 was maintained at all times, ultimately reaching a point where it contained close to a thousand names. Separate strike incident lists were compiled from time to time as a sort of index or summary of cases of relatively greater substance. It can be found from all the evidence that Desmond performed his task conscien- tiously, though there were indications that he and his assistants were overwhelmed at times by the mass of details leading to both errors and inconsistencies. In any case, the evidence failed to sustain the General Counsel's claim that the system was de- signed and operated to effectuate Respondent's intent to eliminate all vestiges of CIO and KWA leadership, as well as the leaders in the strike activities. Though it is true that more formidable dossiers were compiled as to many of those who were most active during the strike, that was an inevitable consequence of their participa- tion in a greater number of strike incidents. Significantly, many of the more bulky files covered cases which the General Counsel either omitted from, or moved to withdraw from, his complaint. It is therefore concluded and found on the entire -evidence, contrary to the General Counsel's contentions, that Respondent's proce- dures for investigating strike misconduct and for recording and indexing the evi- dence thereof were not designed or operated for the purpose of laying a pretextual basis for a later discriminatory discharge. But the General Counsel contends further that the reasons which Conger testified to (in purported reliance on the Desmond lists, files, and supporting materials) were also mere pretexts and that Respondent was motivated solely by its great animosity against UAW-CIO, its leadership, and the leadership of the old KWA which had procured the affiliation, i.e., that the underlying basis for Respondent's selection for discharge was its desire to rid its plant of militant unionism. It is unnecessary to consider the various facets of the General Counsel's definition of a militant unionist or to enumerate which and how many of the dischargees fell under each, because the evidence established that in a large proportion of the cases the dischargees had attained no stature as "leaders" either before or after the af£ilia- ei The name was actually a misnomer. It might more properly have been called a general information file, as it was simply a listing in looseleaf binders, under individual -names, of all information of whatever kind pertaining to strike activities. 1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion, had shown no indication of militancy, and had engaged in no more than ordi- nary union activities at any time. Indeed, until hoisted into the limelight by their discharges, they were ordinary run-of-mill members and without distinction either as to membership or participation in union activities until their strike misconduct attracted Respondent's attention 53 The record suggests no reason why an employer, intent on stamping out militant unionism, would reach down and pick out such obscure figures. Cf. N.L.R.B. v. T. R. McGahey, Sr., et al., d/b/a Columbus Marble Works, 233 F. 2d 406, 412 (C.A. 5), enfg. as modified 111 NLRB 1162. The General Counsel concedes that there were "a few" cases which do not fall within the pattern for which he contends, but claims that in any case Respondent would not have discharged them but for the fact that they were on strike. Certainly that final conclusion is correct, but it is without force or logic as support for his basic contention, since the Respondent concedes that all the discharges were made because of strike activities. In any case, the evidence as a whole (much of which is summarized in appendixes filed with Respondent's briefs) having demolished the General Counsel's "pretext" theory, what is at issue is whether the 8(a)(3)'s had engaged in the strike activities for which Respondent discharged them and whether their conduct was such as to remove them from the protection of the Act. The General Counsel also advanced a broad theory of condonation and waiver which, if accepted, would call for rejection of Respondent's defenses to all or practi- cally all of the dischargees. Actually, as spelled out in his brief, the General Counsel applied his theory mainly to defense of the Union's strike committee (exec- utive board), to engagement in mass picketing, and to comparison of the miscon- duct of certain individual 8(a)(3)'s with the conduct of Lawrence Brown, William Banonse, and Roland Behr, whom Respondent failed to discharge.54 His conten- tions as applied to mass picketing and the strike committee are considered in the next section. Evidence concerning Brown, Banonse, and Behr will be summarized in section 6, infra, immediately prior to the treatment of the individual cases, since it will aid in giving perspective to some of the types of misconduct which Respondent relied upon in making the discharges. The main general types of misconduct on which Respondent relied were mass picketing (from April 5 to May 28), home picketing (in August), and employment office picketing (in December 1954 and January 1955). It will greatly facilitate consideration of the individual cases to summarize the evidence which pertains gen- erally to each type of misconduct. 3. The mass picketing ; condonation ; the strike committee Respondent's plant, main office, and employment office fronted on High Street, as did four of the seven plant entrances which are mentioned in the evidence. High Street was a wide thoroughfare, running north and south, with a narrow inlet, called Industrial Road, on the east or plant side. Industrial Road was separated from High Street proper by grass plots or "islands" except for occasional gaps at street intersections and at plant and office entrances; it was bordered on the east side by a sidewalk, which was in turn separated from the office and plant buildings by grass plots. Most of the evidence related to the picketing as it occurred along Industrial Road from a point south of the employment office to a point (gate 5, or brass gate) beyond the main office on the north, a distance of several hundred feet. It is unnecessary to describe the picketing in detail; it can accurately be described as mass picketing on a grand scale. Thus, union spokesmen and publications esti- mated the pickets as numbering, from time to time, 1,200, around 1,800, around 2,000, and over 2,500, and described them as moving in a double line along the sidewalk going in both directions for two city blocks. A shifting group, acting as a sort of advance guard, usually formed in Industrial Road on occasions when groups of nonstrikers approached the lines in an effort to enter the plant. On a 53 The evidence showed little or no activity, either in KWA or in CIO, by the following : Christ Arnold, John Bowser, Roland Buhk, Frederick Byrum, Lester Damrow, Alex Dottei, Ervin Eckhardt, Fred Felde, Jr., Ronald Fischer, Ella Frazier, Clarence Hess, Harvey Klabachek, Raymond Klabachek, Elmer Kraemer, Fred Liebelt, Frank Makarevicze, William Methfessel, Eddie Meyer, Henry Ostermann, Norbert Renzelman, Carl Rothe, Art Russell, Sr., Gretchen Seybold, Roman Slesrick, Earl Smith, Gilbert Stuckmann, Richard Verle, Joseph Westphal, and Elmer Zittel. u In final oral argument the General Counsel also cited, for purposes of comparison, a number of other cases shown by Respondent's strike incident files and by other evidence in the record where other strikers had engaged in varying degrees in all the main types of misconduct far which Respondent had discharged the 8(a) (3)'s. KOHLER CO. 1193 number of such occasions the nonstrikers were physically blocked, pushed, shoved, and prevented from entering. In some instances the pickets refused to permit entrance despite requests of Police Chief Capelle (of Kohler Village) to let the workers into the plant. On those and other occasions the pickets yelled and shouted such things as, "Hold that line," "No one gets through," and "Go home scab, go home." The Union also put into effect and maintained during this period a "pass" system under which persons desirous of entering the plant, the main office, em- ployment office, or medical department (housed in the same building with the employment office) were required to procure passes from the Union's strike head- quarters at Peterson's Tavern, about a mile away. The WERB findings contained a general description of the picketing, which may properly be applied under the evidence in the present case: On Monday, April 5, 1954, between the hours of 5 a.m. and 7:30 a.m. ap- proximately one thousand employees began picketing Respondent Employer's plant site. A great majority of pickets, throughout the strike, have been con- centrating on High Street, a street fronting five gates, including the main gate of the plant property. Pickets were also maintained at three other gates of the property. Picketing continued daily, with the largest number of pickets being present on Monday mornings between the hours of 5 a.m. and 7 a.m. when the pickets normally totalled somewhere in the neighborhood of one thousand or more. On days other than Mondays the number of pickets varied from four hundred to five hundred. Pickets controlling High Street generally walked in an elliptical course on the east sidewalk of High Street in an area covering the two blocks which front the plant property. The picket line has opened to permit only office, supervisory employees, and persons with "passes" to enter the plant property 55 Of course, picketing in substantial numbers is not precluded by the Act unless the manner of its conduct would tend to bar nonstriking employees and others from entering or leaving the plant. The present case is to be compared with Cory Corporation, 84 NLRB 972, 976-977, and Dearborn Glass Company, 78 NLRB 891, where only from 75 to 100 pickets were involved. Obviously picketing on the scale and in the manner as here conducted was reasonably calculated to bar, and had the necessary effect of barring, ingress and egress to and from the plant. The Union recognized that this was so; its boastful banner headline in its newspaper on April 8 correctly described the situation: "SHUT DOWN LIKE A DRUM." That the Union hoped and intended to keep it so was plain from all the evidence down to the time that the enforcement proceedings, brought by WERB, forced the Union to open its picket lines on May 28. The right to engage in strike activities, though fully guaranteed by Sections 7 and 13 of the Act, is nonetheless not unlimited, for strikers may forfeit the pro- tection of Section 8(a)(3) if their concerted activities are carried on for an un- lawful objective, or in an unlawful manner, or are accompanied by serious misconduct. 21 NLRB Ann. Rep. 84 (1956) ; 20 NLRB Ann. Rep. 76 (1955) ; and see Ekco Products Company (Sta-Brite Division), 117 NLRB 137, and cases there cited at footnotes 13 and 14. The Act guarantees as well as the right to strike the right to refrain from striking, i.e., "the interdependent guarantees of Section 8(b)(1) (A) and Section 7 of the Act include the protected right of employees to work in the face of a strike." International Woodworkers of America AFL-CIO, et al. (W. T. Smith Lumber Company), 116 NLRB 507, 508, quoting from Sunset Line and Twine Company, 79 NLRB 1487. It was that protected right which the mass picketing invaded and effectively nullified, thereby forfeiting as to the par- ticipants their own guarantee of protection. Cf. N.L.R.B. v. Thayer Company and H. N. Thayer Company, 213 F. 2d 748, 755-756 (C. A. 1). The General Counsel concedes that mass picketing of the type which occurred in April and May was unprotected concerted activity and that generally an employer would be upheld in discharging all who engaged in it. He concedes further that under certain circumstances an employer could select for discharge whomever among them he wished so long as his choice was not based on a discriminatory reason, such as the employees' participation in, or militancy, or leadership in, protected concerted activity, or on their refusal to abandon the strike. The General Counsel argues, however, in reliance on certain language in the Thayer case, supra, ae The Wisconsin Supreme Court affirmed an injunction order which granted enforce- ment of the WERB order and which enjoined the Union from further engaging in mass picketing, coercion, and other activities. WEBB v. UAW, 269 Wis. 5T8; 70 NW 2d 191. The Supreme Court affirmed 351 U.S. 266. 1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Respondent having provoked, caused, and prolonged the strike by flagrant and pervasive unfair labor practices, the Board's power to determine the validity of the discharges and to order reinstatement of the dischargees is not limited by the consideration whether they had engaged in unprotected concerted activities Although the Board accepted the remand in the Thayer case, it made clear in its supplemental decision, 115 NLRB 1591, 1595, that its failure to seek certiorari did not mean that it agreed with the court's holding. There is no indication that it has yet done s0.56 Furthermore, the principle on which Thayer was remanded is obviously inapplicable to the mass picketing period in view of the finding herein (see section I, infra), that the strike did not become an unfair labor practice strike until June 1, 1954. There remain the General Counsel's contentions regarding condonation of mass. picketing, both as to the strikers themselves and as to the strike committee a. Condonation generally So far as mere participation in the mass picketing is concerned, the record fully supports the General Counsel's claim that Respondent condoned and waived it as a ground for discharge Briefly, the evidence showed the following. In September Respondent offered, through Judge Murphy, to take back all strikers (who had not been replaced) except for about 50. Prior to the discharge it had reinstated many strikers who were known to have engaged in mass picketing. It had also offered reemployment to shell department employees, some of whom were known to have engaged in the mass picketing. It was also plain from all the evidence that on March 1 Respondent knew there were many other strikers who had engaged in the mass picketing. (A supplement to Respondent's reply brief indicates there were 320 such strikes.) Conger's testimony at one point showed that he had not in some cases considered mere presence on the picket line to be misconduct, and elsewhere he testified that in evaluating the items of misconduct before the management committee he had stated that "in a farfetched view, we probably would have the right to discharge anyone who ever participated in a mass picket line, but that I was not recommending that." There was no evidence which related Respondent's discrimination among those who engaged in mere mass picket- ing to the exigencies of its business. The evidence does not show, however, that Respondent waived or condoned participation in certain other activities which accompanied the mass picketing, such as active participation in incidents involving the blocking of nonstrikers or in enforce- ment of the Union's pass system. It is thus concluded and found that what Re- spondent condoned and/or waived as a ground for discharge was mere participation in mass picketing, i e , mere presence on the picket line where unaccompanied by evidence of other overt acts of misconduct. b. The strike committee The affairs of Local 833 generally were in the hands of its executive board, which was composed of its elected officers, i e., president, vice president, recording secretary, financial secretary-treasurer, trustees, guide, and sergeant-at-arms; it was the general governing body of the Local in charge of all union activities. However, the actual running of the strike was the specific function of the strike committee,57 which held daily meetings concerning the control and direction of all strike activities and made policy decisions regarding the conduct and maintenance of the picketing The strike committee was composed of all members of the executive board (i e., all elected officers), the chief stewards of the Local, and the chief picket captain. During the time in question its members and their positions with the Union were as follows- Allan J. Graskamp, president; Arthur E Bauer, vice president; Egbert H. Kohlhagen, recording secretary; John J. Steiber, financial secretary-treasurer; William Rawling, chief steward; Edward C. Kalupa. chief steward; Leo J Breirather, chief steward; Elmer A Oskey, chief steward, Gordon Majerus, chief steward; 16The General Counsel cites only certain laneuage from a concurring opinion by two former Board members in the case of Honolnln Rapid Transit Company, Limited, '10 NLRB 1806, 1812 in suggesting that Thayer has been followed by the Board Not only did that case precede the supplemental decision in Thayer, supra. but the language relied upon supports the General Counsel's argument only in the most general way "The record shows that the strike committee was sometimes referred to as the "strike strategy committee," as the "executive committee," and also as the "executive board " Insofar as such references concerned strike operations proper, they are found to relate to the strike committee. KOHLER CO. 1195 Kenneth Klein, chief steward; Elmer Gross, trustee; Kenneth C. Nitsche, trustee; Bernard Majerus, trustee; Curtis Nack, sergeant-at-arms; Leo Prepster, guide; and John Konec, chief picket captain.58 Through their daily consideration of strike activities, including the operation of the pass system, by reports from Konec, by the Union's publications, and by their own visits to the picket line, the members of the strike committee had actual knowl- edge of the manner in which the picketing was being conducted during the period in question. Indeed, acting as a committee they turned on and off the type of picket- ing at will, as on May 7, 9, and 28. Their responsibility for the picketing was plainly established by the record It has been found that the picketing constituted unprotected concerted activity for which Respondent might discharge the participants It was obviously entitled to discharge their leaders, i.e., those who authorized, directed, and controlled the illegal conduct. Authorization of as well as participation in such conduct con- stitutes cause for discharge within the meaning of the Act. See, e.g., International Ladies' Garment Workers Union, AFL V. N.L.R.B. (B.V D. Company, Inc.), 237 F. 2d 545, 550 (C.A.D.C.). The General Counsel claims broadly that the record "is replete with evidence that Respondent has condoned and/or waived every activity with which the [strike com- mittee] might conceivably be charged with responsibility." To the contrary, there is no evidence that Respondent condoned the strike committee's direction and control of the strike during the mass picketing period. Its condonation of mere mass picket- ing by rank-and-file strikers in no manner affected Respondent's right to discharge those who directed and controlled their activities. Furthermore, Respondent's condonation did not in any case extend to activities beyond mere engaging in mass picketing, e g , active participation in denying admittance to employees and others and in enforcement of the Union's pass system. It is concluded and found on the entire evidence that Respondent had sufficient cause for discharging Graskamp, Bauer, Kohlhagen, Kalupa, Breirather, Oskey, Gordon Majerus, Raymond Majerus, Gross, Nitsche, Nack, Prepster, and Konec because of their direction and control of the strike from April 5 through May 28. It is therefore unnecessary to pass on Respondent's further allegations of misconduct on the part of said persons, either as members of the strike committee or otherwise as individuals See The Patterson-Sargent Company, 115 NLRB 1627, 1631. 4. The home demonstrations During the month of August 1954, a series of demonstrations occurred in She- boygan at the homes of various nonstrikers The record does not establish with certainty how the practice arose, although it strongly suggests that the home gather- ings began as small neighborhood name-calling affairs, in which strikers, and possibly members of their families and friends, heckled and shouted at their nonstriking neighbors as the latter returned from work in the afternoon. Thus, although the first formal "demonstration" of which Respondent takes note in its brief occurred on August 11, in the 1900 block of North 21st Street, the evidence showed that Respondent had reports as early as August 4, 5, and 6 concerning incidents in that block in which strikers (particularly Elmer Zittel) had heckled, annoyed, and in- sulted their nonstriking neighbors, Matt Eberhardy, Robert Hensel, and Marvin Hasenstein. Such incidents rapidly attracted the attention of other neighbors, of passersby and onlookers, as well as the notice of the Union's various publicity media and of the local press. The result was that the demonstrations mushroomed rapidly, both 1-1 the number and distribution of incidents and the number of persons present.59 Is All of the above were discharged except Steiber, who was a retired employee, and Kenneth Klein, who had moved to California Kohlhaeen and Breirather were also editors, respectively, of the Kohlenan and the Strike Bulletin, and as such acted pursuant to authority delegated by the executive board "The Union's strike bulletin of August 17 stated, for example RECEPTION COMMITTEE . . . In a few days the activities of the 12th Street reception committee for the homecoming scabs has grown to such proportion that it now equals anything the North seders can put on . . The gathering of people formed in front of 2216 S 12th shortly after 3:30 on Monday to welcome scab Robert Heling Five more homes were visited before the demonstrations carne to an end Though disclaiming that the demonstrations were planned by the Union, the Union's publicity was plainly designated to inspire and encourage their continuation ,and spread._ 1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Within a short time they became disgraceful spectacles of mob proportions, with as many as 400, 500, and even 700 persons assembled. However, only a small percentage of those present were strikers; the crowds were made up mainly of neighbors and townspeople, of union sympathizers and members of other unions, of passersby attracted by the crowd, and of curiosity seekers. About half of the crowds were women and children. There was no formal picket line and no picketing as such.80 Various people in the crowd, including some of the strikers, shouted and yelled at the nonstrikers, and called names, insults, derisive epithets, and sometimes threats. Some of such activity was directed at the Company's representatives when they were in the neigh- borhood for the purpose of gathering evidence. Though none of the nonstrikers were physically assaulted or prevented from entering their homes, their treatment was plainly coercive and intimidatory as regarded their employment by Kohler. Altogether Respondent's witnesses identified a total of approximately 30 strikers as being present at the various demonstrations, of whom 17 were among the 78 who were included in the amended complaint. For the most part the evidence showed merely that the strikers so identified were present in the crowd. Though in some instances some active participation was testified to (and in some instances admitted or not denied) in the way of yelling, jeering, etc., there was no evidence that any striker who attended or participated had gone to the demonstration at the direction or suggestion of the Union or of any union officer or representative. Indeed, the evidence showed that the demonstrations shortly became a matter of common knowledge in the community, that some of the strikers learned of them from the "general talk around town," or on the picket line, or at the soup kitchen, or "from the grape vine." Some had just followed the crowd or had gone from curiosity to see what was going on. Under the foregoing circumstances the mere identification of particular strikers as present among the crowds would obviously not establish their participation in unprotected concerted activity, nor would it support a good-faith belief of such participation unless accompanied by evidence or report of some overt act. The fallacy of equating presence with guilt in such situations was exposed by the outcome of the arrest by the police of 11 persons on August 17 on a charge of unlawful assembly. Choosing apparently at random from the large crowd, the police loaded 10 of the persons present into the patrol wagon. Eugene Hildebrand's father (not a Kohler employee) having been included, Hildebrand insisted on voluntary arrest, telling the police, "If you take my father, you can arrest me too." In fact, the evidence established that only 6 of the 11 defendants were strikers, and that the other 5 were dismissed during the trial. Hildebrand stood trial and was acquitted, as were the remaining defendants. 5. Employment office picketing In discharging some 30-odd strikers Respondent relied in whole or in part on their conduct during picketing in front of the employment office in the months of December 1954 and January 1955. The scene of the picketing has been described in part in section 3, supra. The entrance to the employment office was some 20 or 25 feet south of the entrance to the main gate, and about 30 feet north of the old main gate (which was not in use). Most of the evidence which Respondent offered concerning the picketing was procured by Paul Jacobi, who was an amateur photographer, and by Joseph Born from their station in the rear of the Kohler Improvement Company building, which fronted north on School Street.61 Their station was almost due west of the entrance to the employment office and was 213 feet away. From that point they endeavored to observe incidents on the picket line in front of the employment office and at the entrance to the main gate, and to identify as many as possible of the pickets who were present. Jacobi was by himself until about mid-December, after which he was assisted by Born. Jacobi was most busily engaged during the occurrence of any incident. Thus, he endeavored simultaneously to operate both a still camera, a movie camera, and at times a tape recorder which had been rigged up with a microphone and an intercom system so as to record sounds on the picket line. The movie camera itself required almost constant attention; it had to be wound every 30 seconds, and the ro Born's testimony that a picket line formed on one occasion on a signal from Chief Picket Captain John Monet was overborne by a preponderance of evidence to the con- trary. Furthermore, Born's earlier affidavit concerning the incident had made no mention of a picket line. His testimony is not credited m School Street intersected the west side of High 'Street a short distance north of the entrance to the main gate on the opposite side of High Street (or Industrial Road). KOHLER CO. 1197 film magazine would run only about 2 minutes without reloading. Jacobi also attempted to make notes at the time at which each of the pictures was taken and to jot down the names of the pickets whom he could recognize. Around mid- December forms were supplied for use in reporting the incidents , and it was also then that Born was assigned to assist Jacobi. Most of Respondent's case concerning the employment office picketing was based on the testimony of Jacobi and Born, on numerous still photographs (of which 8- by 10-inch prints were offered),62 and on the movie film. The movie film was of no great value under all the circumstances which sur- rounded its preparation and identification; it is worthless as evidence of identification of particular strikers in particular incidents and as to their actual commission of alleged acts of misconduct. Thus, the evidence showed that the single reel which Respondent offered had been compiled by cutting and splicing from an even dozen reels which Jacobi had shot altogether. The General Counsel called an expert wit- ness, Henry Ushijima, who had made a careful examination both of the reel which Respondent offered and of a substantial portion of the dozen reels from which it had been compiled. His testimony is accepted in its entirety. That testimony and the other evidence showed that the single reel had been prepared in such a manner that in many cases the scenes were fragmentized, that the entire effect was spas- modic and confusing, and that there was inadequate identification as to specific times and dates with the scenes shown thereon. Aside from that, Respondent did not make any identification of any of the persons who are shown on the film; and the Trial Examiner, who viewed a running of it at the hearing, was unable to identify any of the persons whom Respondent had dis- charged because of their participation in employment office picketing. Further- more, the individual strikers, when called in rebuttal, denied having engaged in bumping, blocking, and the other specific acts of misconduct allegedly shown on the film. Their denials are credited. What the film does show, however, is that there were incidents in front of the employment office when groups of pickets were actively engaged in blocking, pushing, shoving, and otherwise impeding the entrance of persons into the employment office. It thus offers general corroboration of Respondent's witnesses that such incidents occurred, and it refutes similarly general testimony by some of the General Counsel's witnesses that all the pickets did was to stand and engage the jobseekers in con- versation. Thus, what the movie does is to supply the element of motion, missing of necessity from the still photographs, which could show the participants only as frozen Being unable to reflect motion, the still photographs did not show any active instances of pushing, blocking, shoving, the impeding of entrance, or even physical contact, though a few of them are suggestive of motion by some of the participants. Their chief value lay in the means which they afforded for the identification of some of the participants in the incidents which Jacobi and Born testified to and in corroborating their identifications. Though Jacobi and Born made some errors, and though Jacobi in particular attempted to make some identifications which were highly suspect if not ridiculous, many which they made were easily verified by the Trial Examiner when the discharged strikers later took the stand in rebuttal. Indeed, in the few cases where the witness was himself shown the photograph or photo- graphs, he usually confirmed his identification. Jacobi and Born had also made joint affidavits concerning most of the incidents on which Respondent had relied in making the discharges; they were prepared by Desmond and signed by Jacobi and Born usually several days later. The identifi- cations as made in the affidavits were composite ones, and in cases where only one was able to make an identification, the other nevertheless accepted and joined in it. In testifying as witnesses, it became apparent that except for a few instances Jacobi and Born had little independent recollection of particular incidents. In many cases constant refreshment and re-refreshment of recollection from the prior affidavits was necessary, and then sometimes unavailing. Jacobi in particular was candid in admitting that he had no independent recollection, or at best a very vague one, about some of the matters which he testified to after reading the affidavits. 02 Respondent produced in the hearing room the original prints, in smaller size, from which the larger prints had been made, but with one exception the General Counsel made no resort to the originals From the point of view of a layman observer and with regard to practical use rather than the technical aspects of photography , the Trial Examiner finds that the larger prints contained a more satisfactory delineation of the scenes, particularly as regarded the identification of participants. 1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Obviously the Jacobi-Born testimony, in view of all the circumstances, including -their location, their activities , and their opportunities for accurate observation, is subject to considerable discount . That conclusion is further supported by the fact that Respondent called only a few of the many "applicants" who were allegedly blocked, shoved, bumped, etc., although the identities of many were known to it, and though most of them actually entered Respondent's employ. Thus , the evidence showed that of some 90 -odd applicants who were named in Respondent's reliance materials as involved in specific incidents , Respondent called only 12 to support the Jacobi-Born testimony. In rebuttal, the General Counsel called some 25 whose testimony usually showed that no objectionable conduct had occurred as to them, and that in some cases they had so informed Respondent 's representatives during their interviews immediately after entering the employment office. Despite the foregoing, the evidence as a whole established that there were fre- quent instances when groups of pickets interposed themselves between approaching applicants and the entrance to the employment office, that the applicants either had to push their way through or walk around the pickets , and in the latter cases the pickets sometimes again shifted to interpose themselves , as the applicants attempted to sidestep them. Sometimes the applicants either walked out into Industrial Road to get around the pickets on the sidewalk, or onto the grass plot next to the employ- ment office. The evidence showed also that on some occasions one or more of the village police (who were usually stationed across High Street ) came across, if an applicant seemed to be having difficulty, and ordered the pickets to open up and to let the person through . Such directions were obeyed , though sometimes only after further palaver. The evidence also showed that on some occasions when the applicants walked through or around the pickets , some one or more of the pickets bumped , shouldered, pushed , shoved, or tripped the applicant Many of the more flagrant acts of that sort were attributed , however, to dischargees who were either omitted from the complaint or to some of the six as to whom the General Counsel later moved to withdraw. Pertinent for consideration here also were the findings of the court in the contempt proceedings which were brought by WERB against 19 strikers and union officers (11 of whom were 8(a)(3)'s ) and which were based largely on the employment office picketing. Hearings were held on March 21 , 22, and 23, 1955, and on May 25 the court announced its memorandum opinion , and on June 10 it issued its formal findings of fact and conclusions of law. Briefly , the court found serious violations on the part of four dischargees who were omitted from the complaint (Roger Ross, LeRoy Ward, Roger Bliss, and Ray Kiel); it also found violations on the part of John Nisporic , George Klauser, Fritz (Fred ) Liebelt, Ralph Sabish, James Bailey, Lyell Clark, and Frank Makarevicze ( 8(a)(3)'s ) and Leo Bartz, Roger Fredricks, and William Rawling ( non-8 (a)(3)'s), which it characterized as "not as serious as some of the other infractions and . . . not so extensive and conducive to causing disorder on the picket line " The court found no violations by Graskamp or Konec , and it found that although John Martin and William Meth- fessel were guilty of contempt , their violations were of such a minor character, without violence or bodily contact , that no punishment was required as to them The findings of the State court, though of some probative value , are of course not binding Nashville Corporation , et al., 94 NLRB 1567, 1568-1570, and cases there cited. See also H. N Thayer Company, 99 NLRB 1122, 1129-1130 ; enfd. 213 F. 2d 748, 754 (C.A. 1) That is particularly so here, where entirely different issues are involved and where a different case was presented . Furthermore , Respondent could not, of course, have relied upon the contempt convictions in making the dis- charges, since the discharge action had preceded the convictions Respondent's brief also asserts in a number of instances (chiefly those where the record disclosed little of substance in the way of misconduct by individual dis- chargees ) that mere presence in groups of pickets in front of the employment office established a violation of the court injunction. Its contentions are rejected for the following reasons : Only the State court can determine what actions constitute con- tempts of its order Neither Respondent nor WERB brought such matters to the court's attention , and no adjudication was obtained thereon An adjudication, if obtained , would not have been binding on the issues here involved. 6. The General Counsel's case for condonation Because of its value in lending perspective to certain types of misconduct on which Respondent relied in making some of the individual discharges (consideration ,of which follows in the next section), there will be summarized here the most sig- KOHLER CO. 1199 nificant evidence which the General Counsel produced in support of his theory of condonation. Lawrence Brown, who had been employed 2 years as of July 1, 1956, testified that he was arrested in November 1954 for carrying a concealed weapon; that he was tried, convicted, and sentenced to 60 days in the Sheboygan County jail; and that under the Wisconsin Huber Act he worked each day of his term for the Kohler -Company, staying in jail at night and losing no time from work. His supervisor knew the facts concerning the case and Conger also admitted knowing them. William P. Banonse had gone back to work July 23, 1954. In October 1955 he threw paint on the car of Ludwig Razal, a nonemployee, and also threw paint on the car of Conrad Holling, a striker. He was arrested, pleaded guilty, paid a fine of $200 and costs, and made restitution. He was called to the office of the Kohler Company where he told his supervisor about the matter. Conger also knew of it. Banonse testified on cross-examination that Holling had taunted him on the picket line concerning his brother's death. The General Counsel also offered evidence concerning a striker, Roland Behr, who was not discharged He introduced in evidence a news story in the Sheboygan Press, which Conger admitted having seen and read and which showed that Behr had been charged with resisting an officer and aiming a gun at another person. The evidence as summarized in the news story was that Behr had in fact disarmed and held at bay two officers who were investigating a report of gunfire. Behr was convicted and was sentenced to 6 months in jail. Respondent's strike incident file contained a page on Behr, but did not list the above item The Brown and Banonse convictions had also been adverted to in the Sheboygan Press, and Conger admitted having seen newspaper stories concerning them. Testify- ing on surrebuttal, Conger characterized Brown's offense as "rather innocuous" and as "a piece of over-zealousness" on the part of the officers. His view appeared to be that Brown had bought the weapon for target practice, not to defend himself as indicated in the news story which the General Counsel put in evidence. Conger admitted that there was no strike incident file on Brown. As to Banonse, Conger attempted to distinguish between strikers and nonstrikers who engaged in acts of vandalism, testifying that he did not discharge Banonse, because I did not consider that his misconduct, if it could be called such, had anything to do with interfering with having people come into employment of the company; also because I considered it would have been rather unfair to have discharged Mr. Banonse for an act for which there had been acts of about 600 in character perpetrated with the law enforcement officials apparently unable to apprehend anyone except one non-striker He had also paid his fine and paid what obligation he had to society I felt. . . [Emphasis supplied.] If it had been a striker and had been directed toward a company employee with the intent of intimidating him from coming to work, I think it would have been much different. This, as it was represented to me, was in the nature of an act of retaliation for some threats that had been made to Mr. Banonse. Conger's view was that as the law enforcement officers chose to look the other way when such an act was perpetrated against a nonstriker, the Company was under no obligation to discharge a nonstriker who chose to retaliate. 7 The individual discharges This section of the report has been arranged so as to move, generally, from cases of lesser to those of relatively greater substance as regards misconduct. Considera- tion can thus appropriately begin with Alex Dottei, because of the following matters concerning his case which occurred at the hearing and which have a bearing on the consideration of some of the other cases: When Dottei was first called as a rebuttal witness, Respondent's counsel announced that Respondent had determined to withdraw his discharge, but that it had withheld sending him a letter offering reinstatement pending discussion of his and possibly other cases, depending on what the General Counsel might do in settlement negotia- tions. The hearing was thereupon recessed: Although the negotiations proved fruitless, Respondent's counsel later objected to some of the rebuttal testimony con- cerning Dottei as immaterial, representing that, "the Company has offered to rein- state [Dottei] and will send this man an offer to reinstate him." [Emphasis supplied.] During the first oral argument in May 1957, Respondent's counsel did not question the Trial Examiner's observation that Respondent had conceded error as to Dottei, but during the final argument on September 9 Respondent denied that it had con- ceded error, stated that it has not in fact offered reinstatement to Dottei, and that it now adheres to its original contention that it properly discharged him for miscon- 1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duct. Although Respondent's original representations as to Dottei seemed obviously tantamount to a confession of error, the evidence concerning Dottei will be con- sidered on its merits, since it will in any case be of value for purposes of comparison with other cases. Alex Dottei Respondent based Dottei's discharge on (1) a telephone call from Angela Behring that Dottei threatened her during an incident at the main gate on May 10, 1954, saying, "That's all right, we'll get you at your house"; (2) a call from Carl Weber, Sr., on June 29, that Dottei was continuously calling him up and was keeping him from going to work; and (3) an affidavit by John Stockinger that Dottei was in a group picketing his residence on August 18, 19, and 20. (1) Although Behring testified as Respondent' s witness concerning the incident of May 10, she at no time identified Dottei as being present and did not attribute to him a statement of any kind. Dottei denied making the statement and his unrefuted testimony is credited. (2) Dottei testified that in June, Weber's son (with whom he had been good friends), informed him that Weber, Sr., was ready to go back to work; that he called Weber, Sr., to ascertain whether the report was true, but that when Weber con- firmed the report, he said only, "That is up to you." Dottei denied that he had made any threats, and testified that he made only the one call . Weber, also called by the General Counsel, corroborated Dottei's testimony. (3) Dottei admitted that he was twice present in groups (some of whom were strikers) who went to Stockinger's home, testifying that they just milled around and waited for Stockinger to come home. He admitted that he called Stockinger "scab" on his first visit, that on the second visit Stockinger turned the lawn hose on him, and that he called Stockinger "a scab" but did not threaten him. Thus the evidence in Dottei's case, which boiled down to his admitted presence at, and limited participation in, two home demonstrations, established that Dottei's conduct was not such as to remove him from the protection of the Act and did not warrant Respondent's selection of him for discharge. Harvey Klabachek In discharging Klabachek, Respondent relied upon his participation in the mass picketing. During the presentation of Respondent's case, a stipulation was reached between Respondent and the General Counsel by which the General Counsel con- ceded, in consideration of the withdrawal by Respondent of certain photographs relating to the mass picketing, that Klabachek and other named employees had participated in the mass picketing. Respondent also relied upon an affidavit of Maurice H. Durand that he recognized Klabachek among a group of 100 to 150 people who were gathered on the 4 corners of North 12th Street and Lincoln Avenue during a home demonstration on August 17. The affidavit attributed no act and no name calling to Klabachek, whose case thus presented even less subject matter than Dottei's, supra. His mere presence in the crowd did not constitute such misconduct as would remove him from the protection of the Act. Lloyd Frerichs Respondent based its discharge of Frerichs solely on his participation in mass picketing. The General Counsel conceded by the stipulation that Frerichs had so participated. Frerichs testified that he picketed very little during the first part of the strike, that he acted as a bodyguard for Robert Burkart, and that when he was along the front of the picket line he was accompanying Burkart. It has been found above that Respondent condoned or waived mere participation in mass picketing as a ground for discharge. Victor C. Hicks Respondent based its discharge of Hicks on the following: (1) Photographs which purported to show his participation in mass picketing only on April 26 and May 25. The stipulation conceded the fact of his participation in mass picketing. In its brief Respondent now also cites testimony by Henry Sessler that Hicks was present among a group of pickets on May 11 when Sessler was prevented from entering the plant. Neither Respondent's strike incident list nor Conger's testimony based thereon showed that Respondent had relied on the latter incident in making the discharge. Furthermore, Hicks' conduct on that single occasion was not such as to remove from him the protection of the Act. KOHLER CO. 1201 (2) Hicks' authorship of the column "Sense 'N' Nonsense," which sometimes appeared in the Kohlenan and which on three occasions contained material which Respondent considered to be coercive of nonstrikers and as instigation to illegal conduct. Respondent's brief relies on and reoffers two rejected exhibits to support its contentions . They were as follows: Boo of the Week. . . The guy who said Monday "Heck, I don't need a pass to get in this plant." P.S. He didn't get far. Boo Boo of the Week. . . . The scab who drove up to Gate No. 1 and expected the boys to open up for him! Tsk! Tsk! Respondent's motion is denied ; its contention is rejected that the quoted statements amounted to coercion of nonstrikers or as instigation to illegal conduct. Tony J. Kissel Respondent based Kissel's discharge solely on information that he had participated in the mass picketing (conceded by the stipulation). Respondent urges, however, that Kissel should be denied reinstatement because of his participation in the clay boat incident on July 5, 1955. Desmond and Born testified that they saw Kissel "on the picket line" at the Hildebrand docks during that incident. Kissel, who lived near the docks, admitted that he went down there on July 5, but denied that he participated in any picketing or that he saw any picket line. He testified that he got only as close as 30 feet to the gate, that there were a few hundred people milling around, but that he saw no picket line. Kissel, who had picketed at the plant earlier in the morning, denied that he had been directed by his picket captain or by any member of the executive board or by anyone else to go to the Hildebrand docks. His testimony is credited. It is concluded and found that the mere fact that Kissel was among some several hundred persons who were present during the incident does not establish that he had engaged in such misconduct as would warrant denial of reinstatement. Francis "Jim" Olin Respondent based its discharge of Olin solely on information that he had par- ticipated in the mass picketing and on a photograph which purported to identify him on a picket line at the Sheboygan clay docks on May 24, 1954, when the Company was unloading clay. The General Counsel conceded by the stipulation that Olin had engaged in the mass picketing, including one occasion when employees had approached the picket line. Respondent also cites in its brief testimony by Walter Stubbe, who identified Olin as present, "standing on the street" during an incident of mass picketing which occurred on May 24. However, Respondent's strike incident file and Conger's tes- timony based thereon did not show that Respondent had relied on that incident in making the discharge. As to the alleged clay dock picketing, not only was the identification of Olin inadequate, but the evidence does not establish that the picketing was unlawful or that Olin was engaged in any misconduct at the time. For example, though Re- spondent asserts that the picketing constituted an unlawful secondary boycott, no evidence was offered that the independent contractor (Buteyn Bros.) in fact had any employees or any who were induced or encouraged within the meaning of Section 8 (b) (4) (A). Robert Winkel Respondent based Winkel's discharge on information that he had participated in mass picketing (conceded by the stipulation), and on affidavits of Earl Radke and Gilbert Buffington as to Winkel's alleged interference with Radke when the latter attempted to enter the plant on April 18. Winkel's unrefuted testimony concerning the Radke incident was as follows: He was on the picket line in front of the employment office entrance with some five other pickets when he saw Radke, a former classmate, approach the entrance to the main gate; and he ran over, stepped in front of Radke, and told Radke he thought Radke should not go into the plant. Some 10 or 12 company personnel, including Buffington, immediately came out of the main gate, carrying clubs, and ordered Winkel to get back on the sidewalk and start walking because he was trespassing on company property. Winkel complied, and Radke entered the plant. Respondent's counsel disclaimed at the hearing reliance on the simple trespass as grounds for discharge. 1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This evidence does not establish that Winkel blocked or impeded Radke's entrance- into the plant or that his actions constituted misconduct . It showed only that for some half a minute Winkel stood in front of Radke and attempted to persuade him not to enter. Emil Wanta Respondent based Wanta's discharge on information that he had engaged in mass picketing (conceded by the stipulation ), and on information that he had participated in home' picketing on August 16, 17, and 18. Photographs which Respondent relied on did not show Wanta as engaged in any misconduct . All were apparently taken at or near the corner of Dillingham and South 12th Street, in the 1900 block (Wanta lived nearby at 1823 South 11th Street.) A single photograph relating to August 17 showed Wanta standing behind a small group of women and children, past which an unidentified male is walking. Two others relating to August 18 were both taken by a company photographer from a moving car . One simply showed Wanta standing on the fringe of a small group on the corner. The other showed him standing behind a group of some eight or nine persons , including one old lady, who are apparently jeering and making derisive gestures toward the camera. Wanta is doing nothing. The only other material which Respondent relied on was a summary of a telephone call from one Gerold J. Brown concerning an occasion of alleged home picketing at his home on August 16, in which Brown purported to identify Wanta among those present, but did not attribute any act or any name calling to him. The only evidence which Respondent offered as to Wanta's actual participation in home picketing related to an incident which was not relied upon in discharging Wanta. Born testified that he saw Wanta on August 18 at the Schoenborn residence on South 10th Street, where a large crowd had congregated . This was the occasion on which , according to Born's testimony (which has not been credited , see footnote 60, supra), a picket line formed on a signal from Konec. In any event Born testified that Wanta was not in the line but was standing to the side of it, and he testified to nothing Wanta did Wanta's mere presence on the occasion did not establish misconduct on his part. Art Russell, Sr. Respondent based Russell's discharge on information that he participated in the mass picketing (conceded by the stipulation ) and on photographs and an affidavit of Maurice H. Durand as to his participation in home picketing. The photographs which purported to relate to home picketing scenes on August 16, 17 , and 18, did not show Russell to be engaged in any misconduct or in any type of unprotected concerted activity . Durand's affidavit , which related to the 17th, identified Russell as among some 100 to 150 people grouped on the 4 corners of Lincoln Avenue and North 12th Street near the residence of Kenneth Cook, but did not ascribe to Russell any act or any name calling. It stated that at one point "a few," including Russell, walked down to Ed Klein's house , which was nearby, but "they did not loiter there " Durand had taken two of the photographs which related to the 17th and which were presumably directed at capturing the most significant aspects of the incident. They confirm Durand's failure to attribute any acts of misconduct to Russell. Respondent also offered the testimony of Born and Desmond that they recognized Russell among the persons present at a demonstration on August 16. They did not, however, attribute to Russell any act or statement , although they did so as to others who were present on the occasion . The evidence showed only that Russell was among some 500 to 600 persons who made up the crowd Respondent urges further, however, that Russell should in any case be denied rein- statement because of his participation in the clay boat incident of July 5, 1955. Its claims in that connection were based on identifications made by Born and Desmond of Russell as among the persons whom they recognized in the crowd. Russell testi- fied, however, that he was not in Sheboygan on the date in question , and his testi- mony was corroborated explicitly by his daughter-in-law who was with him the entire day . Their testimony is credited. It is therefore concluded and found that the evidence established that Russell did not in fact engage in misconduct. Robert R. Dean Respondent based Dean's discharge solely on his participation in employment office picketing as shown by (1) photographs of alleged incidents on December 13 and January 7 and 10, and (2) on affidavits by Jacobi and Charles Ruffing concern- ing the alleged blocking, bumping , and kicking of Ruffing on December 17. KOHLER CO. 1203 (1) The photographs did not sustain Respondent 's contention that they show Dean's participation in blocking the entrance of applicants or that he was engaged in other misconduct . Respondent attempts in its brief to buttress its reliance on the photographs by relating them to certain affidavits of Jacobi and Born , but its strike incident list and Conger's testimony based thereon showed no reliance on the affidavits. Furthermore, as Respondent concedes, neither the affidavits nor the testimony of Jacobi and Bor'h referred to Dean's participation . The photographs do not support Respondent 's claim of good-faith belief that Dean had engaged in misconduct. (2) The General Counsel called Ruffing as to the December 17 incident . Ruffing testified that he and his companion were closely encircled by some 20 or 25 pickets when they approached the employment office; that the pickets called them vile names such as "scabs," "scum ," "yellow-bellies," and "slimy yellow-bellies" ; and that Dean was the one who stood immediately in front of him and talked with him some 4 or 5 minutes about not going in, while the other pickets crowded closely around, "rubbing" against him, and stepping on his shoes and against his ankles . Ruffing testified that he tried to nudge or work his way through the crowd , but could not do so because there were too many against him blocking his path to the employment office, and that he gained entrance only after two policemen came over and directed the pickets "to open up and leave these guys in " The only participation which Ruffing attributed to Dean was that Dean attempted to persuade him not to enter. Such conduct was , of course, not unprotected, nor did Dean's mere presence in the group under all the circumstances constitute such misconduct as would remove him from the protection of the Act or warrant Re- spondent's selection of him for discharge. Gretchen Seybold Respondent based Seybold's discharge on reports of her participation in the mass picketing, including particularly excerpts from testimony at the WERB hearing concerning her involvement on May 10 in an incident in which Alice Tracey and a group of nonstrikers were prevented from going through the picket line. Re- spondent called both Tracey and Seybold to testify concerning the latter incident. Tracey's testimony in its entirety showed that as the group of nonstrikers was met by a group of strikers which had advanced from the picket line, Jess Ferrazza (an International representative) called for some of the women strikers to come forward, and that the pickets pushed Seybold forward through the line and against Tracey. This led to a brief melee. Tracey testified that, "I lost my temper for a minute and slapped her with,the back of my hand." Seybold admitted being present during the incident and being struck by Tracey but denied that she made any physical contact with Tracey. In any event it is clear from all the evidence that Seybold made no intentional assault on Tracey, and Tracey agreed on cross-examination, "Well I imagine it was accidentally; I could not say." Respondent also relied in part on an excerpt from Angela Behring's testimony at the WERB hearing which purportedly showed that Seybold was the one who had yelled at Behring, "We are going to take the clothes off you." However, the tran- script of the testimony showed that she did not identify Seybold among the persons present at the time, and that she did not recognize the person who had yelled. Behring confirmed that testimony in the present hearing, stating that both a man's voice and a woman's voice had shouted, but that she made no attempt to identify the persons. Indeed, Behring did not identify Seybold as present during any of her various attempts to enter the plant in April or May. Seybold was identified by Police Officer Berlin among persons he recognized on the picket line on May 28, but he attributed nothing further to her. Seybold admitted her participation in mass picketing. It having been found that Respondent waived and condoned meie participation in mass picketing, what remained of its case of misconduct against Seybold was that she had been pushed by other pickets against Tracey and had been struck by Tracey. The evidence thus revealed no such misconduct on her part as would remove her from the protection of the Act. Ella Frazier Respondent based Frazier's discharge on her participation in mass picketing, including particularly incidents when women employees were prevented from entering. The General Counsel conceded by the stipulation that Frazier had engaged in mass picketing. Angela Behring testified to incidents on April 12 and May 10 1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when she and a group of nonstrikers approached the picket line from across High Street and when a group of pickets advanced in a body to meet them pushed them back. Frazier was among the women who were called forward to meet them. Behring's entire testimony, as qualified by the cross-examination may be correctly summarized in the excerpt from her former testimony at the WERB hearing on which Respondent relied, i.e., that Frazier said, "Angela, why don't you join us and be one of us and then after a while we all go back, but if you don't, then don't come here. Don't go and start and try to get in, because you won't get in." Frazier admitted her participation in the April 10 incident but denied telling Behring that she would not get through. She also admitted being on the picket line on May 10, but denied seeing Behring or being present when any group or persons approached the picket line on that date. Behring's testimony is credited as to Frazier's participation in both incidents. Respondent having condoned mere participation in mass picketing, what remained was Frazier's participation in the Behring incidents. Her conduct compared closely with that of striker Cook in Longview Furniture Company, 100 NLRB 301, 305, who, in company with other strikers, stopped a nonstriker and refused him entrance, stating that he could not get in and that no one could go in until the strikers got what they wanted. On the authority of that holding (unreversed by the court of appeals), it is found that Frazier's conduct was not sufficiently serious to remove her from the protection of the Act. Fred Liebelt Respondent based Liebelt's discharge on his participation in mass picketing (con- ceded by the stipulation) and his participation in employment office picketing on November 30, December 20, and January 19, as shown on a single photograph, the movie film, and affidavits of Jacobi, Born, Desmond, and others. The general findings as to the movie film are applicable here. The single photo- graph, which related to an incident on November 30, is valueless because it con- tained no identification of Liebelt. Neither Liebelt nor Vernon Cooper (called by the General Counsel) was able to identify Liebelt thereon, and Respondent's wit- nesses did not attempt to do so. However, Jacobi and Desmond testified that as two applicants walked through the picket line on that date, Liebelt stuck out his foot and tripped one of the two men, who stumbled Their affidavit had also referred to Vernon Cooper as having pushed Hartwell Buelow (one of the men), but their testimony made no reference to Cooper. Desmond also testified that on December 20 he saw Liebelt kick one of three men as they walked through the pickets on the sidewalk on their way into the employ- ment office. Respondent offered no testimony concerning the January 19 incident concerning which the Jacobi-Born affidavit averred that two approaching applicants had to walk around Liebelt and Arthur Russell, Jr., on their way toward the employment office and that one of the men was kicked by an unidentified picket. The affidavit thus showed no misconduct on Liebelt's part. Liebelt denied that he tripped anyone on November 30, that he kicked anyone on December 20, or at any other time. Cooper, who had picketed with Liebelt in November and December, testified that he had never seen Liebelt trip or kick anyone. The foregoing evidence strongly suggests (particularly as regarded the November 30 incident) that Respondent's witnesses were mistaken in their identification of Fred Liebelt. That conclusion is supported by evidence concerning an incident on December 1, which Respondent did not bring within its pleadings but which it now relies upon in urging that Liebelt should be denied reinstatement Respondent's brief cites and relies on a Jacobi affidavit and Jacobi's testimony concerning Fred Liebelt's alleged participation in a blocking incident on December 1. However, Jacobi's affidavit had identified Gustave Leibelt 63 and Ed Leibelt, and his identifi- cation of Ed was corroborated on a photograph which purportedly related to the incident and which was contained in the reliance materials concerning Gustave Leibelt. Though Fred Liebelt was not questioned specifically concerning a December 1 incident, his testimony on cross-examination was sufficiently explicit to constitute a denial that he had participated in blocking anyone. The following circumstances impel the crediting of Liebelt's testimony: (1) His testimony was directly corroborated by Cooper concerning the November 30 inci- dent; (2) Respondent failed to call the applicant involved in the incident ; and (3) 63 Though Fred, Gustave, and Ed were brothers, they spelled their surnames differently. KOHLER CO. 1205 comparison of Jacobi's affidavit, his testimony, and the photograph concerning the December 1 incident showed that Jacobi had confused Fred with Ed. It is con- cluded and found that such confusion of identification of two brothers accounted for the conflicting testimony as to the other incidents, and that the record accordingly establishes that Fred Liebelt did not in fact engage in misconduct as charged. The finding of the State court that Liebelt was guilty of contempt requires no different conclusion. See section 5, supra. Lester Damrow Respondent based its discharge of Damrow on his participation in the mass picketing (conceded by the stipulation); an affidavit that on January 21 he threatened Carl Brachman with, "If you don't walk, you know what will happen to you"; a report of his participation in home picketing on August 18; and an affidavit by Joseph Miller, a Kohler truckdriver, that on November 13 Damrow called him foul names and engaged in a scuffle with him. The General Counsel offered testimony by Damrow, Wilfred Haas, and Gordon Peryam which refuted the material averments of the Brachman affidavit. Damrow's testimony as to August 18, was that he waited outside Raymond A. Leikip's home to talk with Leikip (who was his brother-in-law), about staying out of the plant, and that he left without incident and without seeing Leikip. As to the Miller in- cident, Damrow testified that it began when both were stopped by a traffic light alongside each other at an intersection in Sheboygan; that he and Miller were "growling at one another as a result of his inquiry whether Miller "owned the road"; that he and Miller both got out of their cars; and that Miller struck him. Damrow denied that he struck Miller, but testified that someone whom he did not know kicked Miller. Damrow admitted that he might have called Miller a "scab." Respondent offered no testimony concerning any of said incidents. The un- refuted testimony of the General Counsel's witnesses established that Damrow did not in fact engage in misconduct on the occasions in question. Carl Rothe Though Respondent's strike incident list contained no information concerning Rothe's participation in mass picketing, the stipulation established the fact of such participation. Conger testified that he relied on "information" that the strikers named in the stipulation had participated in the mass picketing. None of Respond- ent's strike incident files or the source materials which it offered contained any such "information" as to Rothe or as to a number of other strikers whose names are included in the stipulation, and Conger's testimony did not point to any. In any event, it has been found that Respondent waived and condoned mere participation in mass picketing as a ground for discharge. Respondent relied otherwise on Rothe's participation in employment office picket- ing on various dates in December and January. Except for the final incident on January 6, Respondent relied entirely on the movie film and on photographs. The general findings as to the movie film (see section 5, supra), are applicable here. The photographs purported to relate to incidents on December 13, 20, 21, and 23 and January 3. The most that the photographs show is that Rothe was present at times in groups of pickets in front of the employment office when some of the pickets appeared to be engaged in conversation with persons who may be job applicants. Other than showing presence, the photographs do not indicate that Rothe was engaging in any misconduct. For example, the photograph relating to December 21 is one of the same which Respondent relied upon as to Anthony Champeau (see his case, infra), and which showed the Union's station wagon in front of the employment office at a time when Champeau was apparently delivering refreshments to the pickets. Rothe was shown only as standing on the steps of the office. Respondent attempts in its brief to buttress its reliance on the photographs by relating them to various affidavits by Jacobi,and Born and to some of their testimony concerning the incidents. Neither the strike incident list nor Conger's testimony indicated that the affidavits were relied on as to Rothe. Furthermore, Jacobi and Born did not identify Rothe or attribute any misconduct to him either in their affi- davits or in their testimony.. Respondent also contends, regarding a single photo- graph purportedly relating to an incident on January 3, that Rothe was not charged in the affidavit with committing any overt act because of "the turmoil" of the incident. What the record shows is that although Born as a witness made a pur- 577684-61-vol. 128-77 1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ported identification of Rothe on a print of the same photograph, the person so identified was almost completely hidden behind a lamppost, and that Jacobi (testify- ing to another print) failed to identify Rothe, though he made identifications of some nine other persons thereon, including two which were "not made under oath." Respondent's final reliance was on a Jacobi-Born affidavit that on January 6 Rothe was in a group of pickets who surrounded, bumped, and blocked an unidentified applicant (purportedly identified on the strike incident list as Melvin VanderWeele). It also offered the testimony of Jacobi and Born in support of their affidavit. Born, whose recollection required repeated refreshment, identified Rothe only as present in a group who surrounded the applicant. Jacobi, whose recollection was similarly refreshed, was unable to recall that Rothe was present. Although the General Counsel had offered no evidence in rebuttal to refute Respondent's case on Rothe, Respondent called in surrebuttal VanderWeele, whose testimony was received under an offer of proof. Although VanderWeele testified that he was kicked and bumped on the occasion, he was unable to identify anyone who did so or any of the pickets who were present. It is concluded and found that the photographs were inadequate to support a good-faith belief of misconduct on Rothe's part and that the testimony concerning the final incident established that Rothe's conduct was not such as to remove from him the protection of the Act. Anthony Champeau Though Respondent's brief asserts reliance by it on information concerning Champeau's participation in mass picketing, the situation here is the same as in the case of Carl Rothe, supra. Respondent relied otherwise on (1) a report that on April 26, 1954, he said to Anton Kalk, "I'll take care of you some time, you damn scab," and (2) photographs, the movie film, and a Jacobi-Born affidavit relating to his participation in employment office picketing on December 17 and 21 and January 3 and 4. (1) No testimony was offered by any party concerning this incident. (2) The general findings in section 5, supra, regarding the movie film are ap- plicable here. The still photographs related to the dates of December 17 and 21. They do not show Champeau to be engaged in any misconduct. Indeed, two of them, relating to the 21st, indicate, when considered in the light of Champeau's testimony referred to below, that he was engaged in serving refreshments to the pickets from the Union's delivery truck. In its brief Respondent attempts to buttress its reliance on the photographs by relating them to other Jacobi-Born affidavits, but neither the strike incident list nor Conger's testimony based thereon showed any reliance on the affidavits. Further- more, the affidavits contained no reference to Champeau's participation; neither did the Jacobi-Born testimony as to the December 21 incident. Jacobi and Born testified in substantial accord with their affidavit concerning the January 3 incident, i.e., that Champeau was an active participant in a group of pickets who blocked, bumped, and pushed a man approaching the employment office, forcing him off the sidewalk and onto the grass between the sidewalk and the building. The General Counsel called in rebuttal Wallace Hecker, the person involved in the incident, who testified that he knew some of the pickets and stopped and talked with them; that they asked him not to go in; and that he was not pushed, bumped, shoved, or shouldered, though, in walking past them, he may have pushed against them or they against him. Champeau testified in rebuttal to what at first appeared to be a complete alibi, i.e., he was not picketing on January 3, but was driving the Union's station wagon making pickups in downtown Sheboygan for the soup kitchen. On cross-exami- nation, however, he testified that he made deliveries of food to the picket line and may have been there for some 10 or 15 minutes on January 3. Champeau denied, however, that he engaged in any picketing, and testified that there was no picket line at the time, though the men may have lined up for refreshments as in a "chow" line. The Hecker-Champeau testimony is credited over that of Jacobi and Born, whose identifications were made of necessity from a point inside the building and loan building, some 213 feet away. Respondent's case against Champeau thus boiled down to the report of his state- ment to Kalk. Standing isolated and in a vacuum, that statement did not constitute such conduct as would remove from Champeau the protection of the Act. Respondent also urges that Champeau should be denied reinstatement because of his alleged participation in other incidents at the employment office on December 13 and 14. It relies mainly on the fact that Champeau was identified on certain photographs which it endeavors to correlate with some of Jacobi's affidavits and KOHLER CO. 1207 some of his testimony on the stand. The photographs do not show Champeau to be engaged in any misconduct, and neither the affidavits nor Jacobi's testimony in support thereof referred to Champeau's participation or attributed to him the doing of any specific thing. Joseph Lorier Although Respondent asserts reliance on Lorier's participation in mass picketing, the situation here is identical with that of Carl Rothe, supra. Respondent relied otherwise on the following. (1) Affidavits that Lorier was one of three men who, on July 15, tried to provoke a fight in the street with Clarence Marcheske and Carl Siegl and called them names. No evidence was offered on either side. Marcheske's affidavit showed that the other two participants were the leaders and that Loner's individual par- ticipation was not clearly defined. In their entirety the affidavits indicate no more than a neighborhood name-calling contest. (2) Press clippings reporting that Lorier was arrested on September 5 at the Sheboygan County Fair and fined $15 and costs for disorderly conduct. Re- spondent's supporting material did not include the press clippings, and there is no suggestion from the entries on the strike incident list whether his conduct involved a nonstriker or was otherwise connected with the strike. (3) Born's affidavit that he identified Lorier among others during a demon- stration at the Schoenborn home on August 18 at a time when there were some 200 or 250 persons present. The affidavit referred to nothing which Lorier said or did. When testifying concerning the incident, however, Born stated that Lorier was among some 20 pickets who formed a double line on a signal from Konec and who walked in an elliptical circle on the sidewalk in front of Schoenborn's home. That testimony has not been credited. See footnote 60, supra. Though Loner did not testify in refutation of any of the foregoing matters, they do not singly or en masse reflect such misconduct as was sufficiently serious to remove him from the protection of the Act. His mere presence in a crowd at a single home demonstration did not establish misconduct of any sort. Compare Alex Dottei, supra. And were it assumed that items numbered 1 and 2 showed misconduct, it was of a minor character, infinitely less serious than that which Respondent had knowingly waived and condoned in the cases of Brown, Behr, and Banonse (section 6, supra). It is therefore concluded and found on the entire evidence that (1) Lorier's con- duct was not sufficiently serious to remove him from the protection of the Act, and (2) assuming to the contrary that his conduct would otherwise have justified his selection for discharge, Respondent had waived and condoned such conduct as grounds for discharge. Richard Verle In discharging Verle, Respondent relied on (1) the undated entry on its strike incident list, "Picketing group on west side of High Street" [emphasis supplied], and (2) Jacobi-Born affidavits concerning his participation in two incidents of employment office picketing on January 13 and 26, involving, respectively, name calling and blocking of Valentine Conrad and shouldering of Jimmy DePagter. The latter incident had resulted in Verle's arrest for disorderly conduct. (1) Conger assumed this entry carried the date April 12 and admitted that Re- spondent had no supporting material for it. In its brief, Respondent claims reliance on the stipulation that Verle had participated in mass picketing and on Verle's testimony that he sometimes picketed at gate 3. In addition to the fact that Re- spondent's strike incident list showed no such reliance, such evidence does not support Respondent's contention since it related to picketing on the east side of High Street and to nearby places. Between the picket line and the west side of High Street lay Industrial Road, the intervening grass plots, and the entire width of High Street proper. Respondent now also asserts reliance in its brief on testimony by Jerome Bersch that on May 25 he and a group of nonstrikers were surrounded and picketed on the west side of High Street by a group of some 40 to 50 pickets who had come over from the main picket line and among whom he recognized Richard Verle That incident could obviously have played no part in Verle's discharge in view of Conger's testimony. (2) Conrad, called by the General Counsel, testified that as he approached the employment office two pickets spoke to him asking what he wanted there and whether he knew they were on strike; that he was not blocked or bumped in any way; that his progress was not impeded; and that he saw no one walking behind or alongside him as he walked in and heard no one call him names. He testified 1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD further that he reported on being interviewed inside the office that he had had no trouble getting in. Conrad's unrefuted testimony established that Verle was not in fact guilty of this item of misconduct. DePagter, also called by the General Counsel, testified that the January 26 incident occurred as he left the employment office and was crossing the street to the west; that as Verle approached from the opposite direction, some of the pickets shouted, "Hit him" or "Get him," and Verle changed his course and struck DePagter with his shoulder. DePagter testified that the blow neither hurt him nor caused him to lose his balance and though police officers parked nearby asked him to file a com- plaint, he refused because he had not been hurt. DePagter testified further that on his first day at work his foreman directed him to report to Chief Capelle at the police station, and that there Capelle told him that an officer had signed a complaint against Verle for disorderly conduct and asked him to testify. DePagter told Capelle he would not testify voluntarily. He was subpenaed, however, and testified. Verle was convicted in the Justice of the Peace's Court, but the conviction was reversed on a de novo trial in the circuit court on the ground that the evidence did not support the charge of disorderly conduct. The court found, however, that the evidence would have supported a charge of assault and battery. Respondent's case against Verle thus boiled down to his shouldering of DePagter. That single act of misconduct was, under the testimony of DePagter, wholly devoid of severity. Certainly Verle's conduct was infinitely less serious than that which Brown, Banonse, and Behr had engaged in. (See section 6, supra.) It is, therefore, concluded and found that Respondent had condoned and waived the single act of Verle's misconduct as grounds for discharge. Harold Lindemann Respondent based its discharge of Lindemann on his participation in the mass picketing (conceded by the stipulation) and on affidavits concerning his participa- tion in home picketing on August 17, 18, and 30. Henry Sessler testified that Lindemann was among those whom he recognized in the crowd in front of his home on August 17, and Born and Desmond identified him as present at different home demonstrations on August 18.64 Desmond testified also that he heard Lindemann say, "Let's go to the next place." Lindemann admitted that he went to home demonstrations on 4 separate days and that on 1 day, the 18th, he attended three demonstrations. He testified that he went to the first one through curiosity to see "what a guy looked like when he comes home" during a demonstration; that he learned about them through hearsay on the picket line; and that he went to places where there had been prior demon- strations on the assumption that they would recur. He denied Sessler's testimony as to his presence at a home demonstration on August 17, testifying that he was at work in his father's garage at the time, and produced timecards which corroborated his testimony. His denials are credited. Lindemann denied that he was a "leader" of any group or that he had said, "Let's go to the next place," as Desmond testified. Lindemann's denials are credited in view of Respondent's failure to corroborate Desmond, whose affidavit showed that he was accompanied by Jake Kopf at the time. Lindemann also admitted being in front of Elwin Taubenheim's home around August 30, but denied that he cursed or yelled at Taubenheim. He testified that Taubenheim had formerly been a good friend of his who had picketed with -him, and that he went to Taubenheim's home to see whether "we could not talk him out of going into the plant"; that he talked to Taubenheim from the sidewalk, telling him that he was surprised that Taubenheim had turned traitor by going in to work. Compare Alex Dottei, supra. Lindemann testified that he did not go to the demonstrations at the direction of his picket captain, of the chief picket captain, or of any member of the strike committee or the executive board. It is concluded and found on the entire evidence that Lindemann's conduct during the home demonstrations was not sufficiently serious as to forfeit as to him the protection of the Act. ea Born's testimony nt pp 11, 151-153 of the transcript was originally rejected, subject to being connected and reoffered. Respondent having renewed its offer, that testimony is mow received. Torn, at another point, identified Lindemann as among those who formed a picket line at the Schoenborn home on a signal from Konec. That testimony is rejected. See foot- note 60, supra. KOHLER CO. 1209 Leon B. Losey Respondent based Losey's discharge on the following matters: -(1) His participation in the mass picketing, which was conceded by the stipulation. (2) Gretchen Seybold's testimony at the WERB hearing that Losey was picket captain on the morning of May 10, at a time when Alice Tracey was kept from going through the picket line. The excerpt on which Respondent relied showed only that Losey was a picket captain at the employment office on the morning in question, and did not indicate that he had participated in any manner in the Tracey incident. No other evidence was offered that he had done so. (3) An affidavit by Millard Bell that on May 9 Losey was with a group of strikers (including Edward Kalupa and Seraphino Marchiando) who came into a tavern where Bell was tending bar and made embarrassing and unpleasant remarks to him. However, none of the remarks were attributed to Losey or Marchiando, ,and Bell recognized that those which Kalupa made were in a "ribbing" vein. Aside from that, all the affidavit showed was that when Bell tried to serve the group they all ordered water. Thus, the affidavit was without substance as constituting grounds for discharge. (4) An affidavit by Marion Haas that when she went in to work on December 13, Losey "and a couple of other guys" gave her a "rough time," calling her "a filthy scab," "dirty, rotten, slimy scab," and such things. Haas was not called by Respondent to testify to the incident although she testified for the General Counsel on other matters. Losey testified that Haas had once been a striker and had picketed on the line when he was picket captain; and that he had gone to her home earlier in December to talk to her about coming back on the picket line and had promised that if she did the pickets would not "razz" her. He admitted that when she came through the line on December 13, he called her "a scab" and that other pickets in the group called her "filthy scab" and "dirty rotten scab." It is concluded and found that Losey's participation in the mass picketing was of the same character as that which Respondent had waived and condoned, and that his participation in the single instance of name calling was not such conduct as removed him from the protection of the Act. Cf. Alex Dottei, supra. Raymond Klabachek Respondent based Klabachek's discharge on his participation in mass picketing (conceded by the General Counsel in the stipulation ) and on his participation in employment office picketing on December 13, 17, and 20 and January 3, 6, and 7, as shown by the movie film, photographs, and a Jacobi-Born affidavit. The general findings regarding the movie film are applicable here. The pho- tographs show only that Klabachek was present; they do not show, as Respondent contends, that Klabachek was "actively participating" in the incidents or that he was otherwise engaged in any misconduct. The Jacobi-Born affidavit as to January 6 was that Klabachek was one of a group of pickets who blocked at the curb two approaching applicants and that after the police crossed over the pickets opened up. Born's testimony was in substantial accord. As to January 7, the affidavit averred that Klabachek was in a large group of pickets through whom an approaching applicant passed and that Klabachek gave the man a hard kick. Jacobi and Born testified in substantial accord with the affidavit, fixing the time as 11:54 a.m. Klabachek testified, credibly, that he was not on the picket line on January 7, at the time in question, because he left at 11 a.m. (as he did every Friday morning) to pick up his food voucher at the Standard Hall in Sheboygan. It is concluded and found that Jacobi and Born were mistaken in their identification of Klabachek on the occasion Klabachek admitted having picketed at the employment office in December and January but denied blocking or bumping anyone. He denied specifically that he bumped or blocked anyone on December 20 and January 3 and 6. His testimony is credited Born's contrary testimony as to January 6 is rejected in view of his distant station and in view of the fact that no corroboration of his testimony was offered. It is therefore concluded and found that Klabachek did not in fact engage in misconduct during the employment office picketing. Norbert Renzelman Respondent based Renzelman's discharge solely on his participation in employment office picketing on January 7, as shown by photographs and a Jacobi-Born affidavit. 1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The affidavit, as summarized on Respondent's strike incident list, charged Renzelman with (1) bumping Denis Keefe, impeding his progress; (2) being in a group of pickets who shoved, pushed, and manhandled Arthur Joas and Erwin Rabe, impeding their progress until the police cleared their way; (3) bumping Harold Ottman, im- peding his progress; and (4) impeding the progress of Robert and Guylene Camp- bell and grabbing Robert Campbell's arm and holding him. The photographs were related to the second incident. Respondent called none of the jobseekers who were involved in the four incidents. Jacobi and Born testified to numbers 1, 2, and 4, but apparently not to number 3. Their testimony as to numbers 1 and 2 varied substantially as to details, as well as from their affidavits. As to the first incident, for example, Jacobi testified that Renzelman bumped one of two unidentified men twice, and Born that Renzelman kicked at the men. Renzelman denied that he bumped or kicked anyone on January 7 and his denials are credited. As to the second incident Jacobi's testimony made no reference to Renzelman as a participant, although he identified Renzelman on some of the photographs which related to it. Born named Renzelman as present but testified to nothing which Renzelman did. Although the Jacobi-Born testimony showed acts of misconduct by other strikers (e g , Henry Osterman and Ralph Sabish), it showed only that Renzelman was present. The photographs similarly showed only that Renzelman was standing in the crowd after arrival of the police. They lend confirmation to Renzelman's testimony that he took no active part in the incident and that he was "on the other side" of the pickets who met and talked with the men. Renzelman denied specifically that he pushed, shoved, or manhandled anyone on the occasion. His testimony is credited. Respondent having offered no testimony concerning the third incident, Renzel- man's unrefuted denials that he bumped anyone are credited. Although Jacobi and Born testified in substantial accord with their affidavit as to the fourth incident, their testimony was refuted by Renzelman and by Robert and Guylene Campbell, who were called by the General Counsel in rebuttal. Renzelman testified that as Campbell approached, he recognized him as the young friend and classmate of his son, and that as Campbell walked by he took hold of Campbell's arm and asked him what he was doing there and urged him not to go in for a job. The Campbells corroborated Renzelman's testimony. They also testified that after they entered the employment office, they were questioned about whether they had any trouble getting in and that they reported they had none. Renzelman's testimony as corroborated by the Campbells is credited The entire case of misconduct against Renzelman thus boils down to the fact that he was present on the picket line on a single day and at a time when other pickets were shown to have engaged in misconduct. It is concluded and found that his con- duct under the circumstances was not such as to remove from him the protection of the Act. Ervin Eckhardt Respondent relied solely on Eckhardt's participation in employment office picketing on January 5, 13, 14, and 21, as shown by photographs, the movie film, and Jacobi-Born affidavits. The general findings as to the movie film (section 5, supra), are applicable here. The photographs, which related to the 5th and the 13th, did not show that Eckhardt was engaged in any misconduct. Respondent in its brief attempts to relate the photographs of January 5 to a Jacobi-Born affidavit, but neither its strike incident list nor Conger's testimony based thereon showed that Respondent had relied on the affidavit. Furthermore, neither the affidavit nor the Jacobi-Born testimony which Respondent cites in its brief referred to any participation by Eckhardt Respondent did rely on Jacobi-Born affidavits which related to Eckhardt's alleged bumping and blocking of Cyril Abler on January 13, his blocking of James Boettcher and Marvin R. Claus on January 14, his shouldering of an unidentified man on January 21, and meeting and talking with an unidentified man on January 21. Jacobi and Born testified that Eckhardt bumped and blocked an approaching applicant (unidentified) on January 13, and that on January 21 he had bumped two unidentified men Respondent offered no testimony concerning the Boettcher in- cident or the Claus incident on January 14. The General Counsel called both Boettcher and Claus. Boettcher's testimony established that he was not in fact blocked. He testified that the pickets talked with him as he hesitated or stopped momentarily, that he then walked in, and that inside the office he was interviewed by someone who asked if he had had any trouble coming through. He reported that he had none. Claus testified that the pickets did KOHLER CO. 1211 not actually block the sidewalk but that he "took it for granted that they weren't going to move so [he] walked around them." He testified that no one touched him. Eckhardt denied that he had bumped, blocked, or shouldered anyone on any of the dates in issue. He admitted that he and other pickets sometimes stepped in front of approaching persons to talk with them and if the persons did not want to listen they would walk around the pickets and sometimes make contact in going by, but he denied that he ever intentionally made contact with any applicant. As is seen, Respondent offered Jacobi-Born testimony only as to incidents which involved unidentified applicants. The General Counsel supported Eckhardt's testi- mony with the corroborating testimony of Boettcher and Claus as to two incidents where the applicants were identified. These circumstances, plus the fact that Jacobi and Born viewed the scene from a distant point, impel the crediting of Eckhardt's testimony. It is therefore found that his conduct during the employment office picketing was not of such a character as to remove him from the protection of the Act. Walter Barchacky In discharging Barchacky, Respondent relied on the following matters: (1) Barchacky's participation in mass picketing (conceded by the stipulation). (2) An affidavit by Walter Stubbe that on August 14, at Judge's Tavern, Bar- chacky called him a "slimy scab," "dirty scab," and "rotten scab" and threatened, "We'll get you, yet." Barchacky admitted having called Stubbe a "scab" on the occasion, but denied the threat to "get" him. Though Respondent called Stubbe as its witness, he did not testify concerning the incident. Barchacky's unrefuted testi- mony is credited. (3) A joint affidavit by Hammer and three other Kohler employees that on August 17, Barchacky, upon arrival at a home demonstration at the Harvey Schmidt home, said to the affiants: This isn't Kohler. No pictures will be taken here. What should we do with the camera, smash it? Squad car or no squad car, no pictures will be taken here. Although Hammer testified that Barchacky made a direct threat to smash the camera, Merit Hiers testified that Barchacky's remark was addressed to other people in the crowd, i.e., "What shall we do with their camera, smash it?" George Wirtz' testimony was in substantial accord with Hiers, whose version is accepted over Hammer's, since it comports with their prior affidavit. Barchacky's denials that he made any of the statements attributed to him are not credited. (4) An affidavit by William Gier, a foreman, that Barchacky threatened em- ployee Ruben Groene in his presence at Weiss' Tavern; that when Gier told Bar- chacky not to threaten Groene, Barchacky used foul language and started pushing Gier; that the bartender intervened and ordered Barchacky to "shut up or get out"; and that on a later date (September 25) Barchacky asked Gier at the same tavern how it felt to be a foreman over a bunch of "stinking scabs." Gier did not testify. Barchacky admitted being in the tavern on a single occasion in September and engaging in a conversation with Groene during which Gier sought to persuade Groene to come back to work and Barchacky sought to dissuade him from doing so. Barchacky denied all other significant portions of the affidavit. Though Respondent argues in its brief that Barchacky's testimony is completely dis- creditable, it makes no explanation of its failure to call its foreman, Gier, or Groene, or the bartender. Under these circumstances, Barchacky's unrefuted testimony is credited. Thus, the only evidence of misconduct on Barchacky's part was his presence at a single home demonstration, his statement to company representative that no pictures would be taken, and his inquiry of others in the crowd concerning the camera. His conduct thus compared closely with Alex Dottei's, supra. In any event it is concluded and found that Barchacky's conduct on the single occasion was not sufficiently serious as to forfeit as to him the protection of the Act. Joseph Westphal In discharging Westphal, Respondent relied solely on his participation in employ- ment office picketing on November 11, December 16 and 28, and January 3, 7, and 21, as shown by affidavits, photographs, and the movie film. The general finding in section 5, supra, is applicable to the movie film. Single photographs were relied on for alleged incidents on December 16 and 28, respec- tively. Neither showed Westphal to be engaged in any misconduct. Respondent attempts in its brief to buttress that reliance by relating the photographs to affi- davits by Jacobi and Hollander (an employment office employee), though neither its strike incident list nor Conger's testimony showed any reliance on the affidavits. 1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Furthermore, the affidavits did not identify Westphal as a participant in either incident nor did Jacobi's testimony (taken as an offer of proof, as to the December 16 incident). Indeed, Respondent concedes in its brief that the December 28 pho- tograph does not appear to relate to the affidavit or show any overt activity on the part of the pickets. The affidavits related to incidents on (1) November 11, (2) December 3, (3) January 7, and (4) January 21. (1) Affidavits by Messner and Donald Smith (another employee of the employ- ment office) averred that while they were in the employment office they saw some 15 to 20 pickets, including Westphal, surround and block Patrick Nikolay and saw Westphal strike him in the back. Westphal admitted being in the group but denied that he was closer than 4 or 5 feet from Nikolay as the latter forced his way through the pickets. Westphal denied that he pushed, kicked, or struck Nikolay. Messner and Smith apparently did not testify to this incident. Pagnucco, who did testify on surrebuttal, did not identify Westphal as a participant or otherwise refute Westphal's denials, which are credited. (2) Born testified, in substantial accord with the affidavit, that on January 3 Westphal and Roger Fredricks met two men and one woman as they approached and that Fredricks bumped one of the men. Jacobi, whose recollection was refreshed by the affidavit, purported to identify both Fredricks and Westphal as bumping. Westphal admitted going toward the three persons but denied blocking or bumping any of them. Since the joint affidavit did not charge him with bumping and since Born's testimony did not corroborate Jacobi's that Westphal bumped anyone, Westphal's denial is credited. (3) Affidavits that on January 7 Westphal attempted to pull the airhose between the cab and the trailer of a Scherer truck which had been stopped by a police officer on the west side of High Street after leaving the plant. Testimony by Jacobi and Born was stricken on the General Counsel's motion as not establishing that Westphal had engaged in an act of misconduct on the occasion . Although their testimony showed that Westphal had laid his hand on the airhose, it showed further that he was stopped by Andrew Fulton, another employee of the Company. (4) A Jacobi-Born affidavit that on January 21 an approaching applicant (identi- fied on the strike incident list as Donald Stemper) passed between Ed Shircel, who was playing cards on the sidewalk, and Joseph Westphal to the east of Shircel; and that Westphal stepped forward and Shircel backward, thereby colliding with the man, "which in our opinion was probably done [intentionally] by the pickets." The affidavit thus suggested the possibility that the bumping could have been accidental, particularly when it is kept in mind that Jacobi and Born viewed the scene from a distant point. Jacobi and Born testified in substantial accord with their affidavit. Stemper was not called. Westphal admitted having watched card games on the sidewalk on occasion but denied that he had ever bumped anyone while doing so. His denials are credited. Even assuming that such an incident occurred, it may well have been accidental. In any case it was too trivial to constitute misconduct. It is concluded and found on the entire evidence that Westphal's conduct during the employment office picketing was not such as to forfeit as to him the protection of the Act. Respondent urges, however, that Westphal should in any case be denied reinstate- ment because he was identified on a photograph of an incident on December 8. The photograph showed only that Westphal was present on the sidewalk at a time when an applicant is apparently on the point of entering the employment office; it shows no misconduct by Westphal. Respondent cites neither affidavit nor testi- mony as to Westphal's participation in any incident on the occasion. Frederick Byrum Respondent based its discharge of Byrum upon (1) affidavits concerning his participation in home demonstrations on August 1-1, 13, 16, and 17, and (2) an affidavit of Raymond Boje that Byrum harassed and threatened him on Janu- ary 7, 1955. (1) Born, Desmond, and Jacobi 65 testified to Byrum's presence at the home demonstrations, but except for the 11th they simply identified him as among those whom they recognized in the crowds. 65 Jacobi's testimony insofar as it related to home demonstrations was originally rejected but was taken as'an offer of proof on Respondent's motion. The ruling is reversed and the testimony is now received ; It is mainly corroborative of that given by Born and Desmond, who were more specific as to details and identifications. KOHLER CO. 1213 The demonstration on the 11th was at the homes of nonstrikers Matt Eberhardy, Robert Hensel, and Marvin Hasenstein. The testimony was that Byrum was among some 150 to 200 persons gathered on the street, many of whom shouted, yelled, and called names as the nonstrikers came home from work. Born and Desmond testi- fied that Byrum himself ran into the street at one point as a car approached and yelled "scab," "slimy scab," and "I thought Herb Kohler fired you years ago." Desmond also testified that Byrum was present while Eugene Hildebrand was "fast talking" the company representatives and annoying them with his "chatter" about the strike. See Eugene Hildebrand case, infra. Desmond and Jacobi identified Byrum in the crowd of some 350 to 400 persons at the same location on August 13 and Desmond testified further that Byrum was "One of the fellows that [he] recognized going down . . . in the direction of the Robert Hensel home," upon Hensel's amval at home. Byrum was also identified in the crowd of some 500 persons in the 1900 block of North 21st Street on August 16 and in the crowd of some 700 persons in the same block on August 17. Byrum was among the 11 persons who were arrested by the Sheboygan police on the latter occasion, but he was acquitted on trial. See section 6, supra. Respondent dis- claimed reliance on the arrest, and there was no evidence of Byrum's participation in the demonstration other than being present in the crowd. Byrum made no denial of his attendance at the home demonstrations. (2) Byrum testified in refutation of the Boje affidavit, admitting that he shouted "scab" at Boje (who was standing at a bus stop in Sheboygan) as he drove past in his car. He testified that when Bole made an obscene gesture and an obscene re- mark, he turned back, approached Boje, and referred to the motion which Boje had made. Boje denied making the motion and the remark, the bus came along, and Bole boarded it. Byrum denied threatening "to knock the hell out of [Boje]" and denied saying "I'll get you sometime." Boje, called in surrebuttal, testified that after Byrum shouted "scab," he returned and accused Boje of making motions at him, that he (Boje) denied having done so, and that Byrum said he was going "to knock the hell" out of Boje and would get him sometime. Boje testified that he had made no motions at Byrum and that he had kept his hands in his pockets. However, in his affidavit on which Respondent had relied, Boje averred that when Byrum yelled at him he put his hand in his pocket to get a match to light a cigarette which he held in his other hand. It was also developed on cross-examination that Boje had given a field examiner a prior affidavit which was in substantial conflict with his testimony (and with the affidavit he had given the Company) regarding the alleged threats which Byrum had made. Under the circumstances Byrum's version of the incident is credited and it is found that he did not in fact harass or threaten Boje or engage in any misconduct on the occasion. Though Respondent amended its answer in February 1956, to include Byrum among those who should be denied reinstatement because of participation in the bowling alley incident on February 6, its brief omits any reference to the incident. In any case, the General Counsel corroborated Byrum's testimony that he was elsewhere at the time, thus refuting Jacobi's purported identification of Byrum among those whom he recognized as present. In sum the evidence in Byrum's case boils down to a single instance of limited participation in a home demonstration on August 11 when Byrum called names at the occupants of a passing car. Cf. Alex Dottei, supra. Though he was present at other demonstrations, the evidence showed no participation by him. It is there- fore concluded and found on the entire evidence that Byrum's presence at home demonstrations and his limited participation in the one of August 11 was not such misconduct as would remove from him the protection of the Act. Eugene Hildebrand Respondent relied on the following matters: (1) The following item in its strike incident lists: 4/5/54 Car blocking entrance to northeast gate-T61-871. Respondent in its brief points to testimony of Harold Jacobs that as he drove toward that gate on the morning of April 5, there were three cars parked across the entrance to the gate, blocking the entrance. Jacobs did not identify as one of those cars one bearing the license No. T61-871, did not otherwise identify one of the cars as Hildebrand's, and did not identify Hildebrand as present among the pickets. Since Respondent's evidence failed to attribute to Hildebrand any act of misconduct, his failure to testify concerning the matter is without significance. 1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) A report dated May 10 that Hildebrand was "intimidating men who want to come to work " Respondent did not refer to that item in its brief and Hildebrand denied it. His unrefuted testimony is accepted. (3) An affidavit by Born and Arthur Sommers (a supervisory employee) that on July 21, as nonstriking employees drove through the northeast gate, Hildebrand said, "You want your house painted?" Born testified in substantial accord with the affidavit. Hildebrand denied making the statement. Respondent did not call Sommers to corroborate Born or to confirm his affidavit. Hildebrand's denials are credited. (4) An affidavit by Crist Hert that on the evening of August 6 he was accosted by Hildebrand (a former neighbor) on the street in Sheboygan and that after Hert confirmed that he was going through the picket line, Hildebrand called Hert "damned scab" and other names, and made abusive remarks, although he did not swear or curse or use filthy words or threaten Hert. Hert did not testify. Hildebrand admitted discussing the strike with Hert in a conversational tone, admitted calling him a "scab" not more than twice, but denied that he called Hert a "damned scab" or that he used other abusive, foul, or vulgar language. Hildebrand's unrefuted testimony is credited. It establishes that he engaged in no misconduct on the occasion. (5) Affidavits and photographs concerning Hildebrand's alleged participation in home picketing on August 11, 13, 16, and 17. Born testified that he recognized Hildebrand on August 11 in a crowd that con- gregated in the 1900 block of North 21st Street; and that Hildebrand came over to the car which contained Born, Desmond, Jacobi, and Art Sommers and spoke at length about the strike. When Desmond complained about being annoyed, Hildebrand said that it was really something for a lowly picket to be annoying one of the Company's big shots, but then added that he was not really picketing, he was only there. Desmond testified in substantial accord with Born, stating that Hildebrand "kept on an unending chatter" about the strike and that he (Desmond) told Hildebrand he did not want to be annoyed and asked Hildebrand to leave. Hildebrand testified that he had gone to the location out of curiosity, having heard that there had been some razzing of "scabs" as they came home from work. His testimony was in substantial accord with Born's and Desmond's concerning his discussion of the strike with them. He testified also that Desmond stated that it was his experience that a person who talks too much is liable to get into trouble. Desmond testified that on August 13, following a demonstration at the Eberhardy home, he saw Hildebrand, who had been standing near the car occupied by the Kohler representatives, go in the direction of the Robert Hensel home as another demonstration began there upon Hensel's arrival. Although Hildebrand testified that he may have been present at as many as five demonstrations, he could recall none between the 11th and the 16th. Assuming Desmond correctly identified Hildebrand on the 13th, his testimony did not show that Hildebrand engaged in misconduct. Born, who was present in a car with Desmond, Jacobi, and Ray Hanson, testified that on the 16th he recognized Hildebrand among the "numerous gatherings of people" on both sides of the street in the 1900 block of North 21st Street Although he testified that some of the people were shouting at the company representatives, he identified only Andrew Lofy and Carl Felsinger as strikers who did so. Desmond's testimony was in substantial accord, although he testified that Hildebrand came over to the car and attempted to engage the occupants in conversation. Hildebrand testified that he went to the demonstration on the 16th to pass out literature to the Company's representatives, whom he assumed would be present as they had on previous occasions; and that he began a repetition of some of his previous remarks and handed them some other literature which they took. Apparently only Hildebrand testified concerning his presence at a demonstration on the 17th. He testified that he assumed from rumors and from what had occurred previously that there would be another demonstration on the 17th, and that he drove there from his home 3 blocks away; that he again spoke to Desmond in the car and asked him whether he had read the literature, but got no response. This was the occasion on which Hildebrand and 10 other persons in the crowd were arrested. See section 4, supra. It is concluded and found that Hildebrand's presence at home demonstrations and his attempts to discuss the strike with Respondent's representatives did not constitute such misconduct as would forfeit as to him the protection of the Act. KOHLER CO. 1215 Eddie Meyer Respondent based Meyer's discharge solely on his participation in employment office picketing as shown by the movie film, photographs, and Jacobi-Born affidavits. The general findings as to the movie film are applicable here. Two of the photo- graphs related to an incident on December 21 to which Jacobi and Born testified. See item No. 6, below. Another photograph relating to January 11 showed only that Meyer was standing in a group of pickets on the sidewalk while an "applicant" entered the employment office from the top of the steps. Though Respondent endeavored in his brief to relate the photograph to an affidavit by Jacobi and Born, it conceded that Meyer was not mentioned as participating The photograph showed no participation by him, as whatever incident may have occurred was apparently concluded. The affidavits charged Meyer with participation in seven incidents, which involved mainly the blocking, bumping, and shouldering of applicants who were identified on Respondent's strike incident list. Though Respondent called none of the applicants, the General Counsel called seven of those who were involved in five of the incidents, which were summarized on Respondent's strike incident list as follows: 12-21-54 Blocked and bumped James Kallenbach and Harvey Jonas, impeding their progress into employment office. 1-11-55 Blocking Victor Soda and Jerome Szweda, forcing them onto the grass between the sidewalk and the employment office building, impeding their progress. 1-14-55 In group of 7 pickets who blocked James Boettcher's progress into employment office. 1-14-55 Went to meet Marvin R. Claus at corner of School and High Streets, impeding his progress into employment office. 1-28-55 Blocked Robert Faas, impeding his progress into employment office. (1) Jacobi and Born testified substantially in accord with their affidavit. Jonas testified for the General Counsel that he was accompanied by Maynard Vandermause on the occasion, they were not blocked, bumped, or shouldered by anyone, and they were not impeded except that they walked around the pickets. Vandermause testified to similar effect. Jonas testified further that when he was questioned inside the employment office, he reported only what he testified to. (2) Respondent offered no testimony concerning the incident. Victor Soda testified that he and Szweda had to walk around the pickets on the grass in order to enter the employment office, but that their progress was not impeded and there was no bodily contact. He testified further that he reported on being interviewed inside the employment office that he had not been bumped or pushed around. (3) Respondent offered no testimony. Boettcher testified that he stopped mo- mentarily as he talked with the pickets and then went into the employment office where he reported on being questioned that he had had no trouble coming through the picket line. (4) Respondent offered no testimony. Claus testified that he was met on the corner of High and School Streets by two unidentified pickets, and that he walked around them, taking it for granted that they were not going to move. (5) Born testified to this incident substantially in accord with the affidavit. Faas testified in rebuttal that the pickets simply stood on the sidewalk without attempting to stop him, that he walked around them, and that he reported upon being interviewed inside the employment office that he had no trouble coming through the picket line. Meyer denied bumping, blocking, or shouldering anyone on any of the foregoing occasions or forcing anyone off the grass. As to the fourth incident, he denied ever having met anyone on the corner of High and School Streets. As is seen, the testi- mony of Meyer and of the applicants is unrefuted as to three of the incidents, and in the other two, Meyer's denials of personal misconduct were corroborated by the testimony of the applicant that no misconduct in fact occurred. The Jacobi-Born testimony is therefore not credited. The remaining incidents were as follows: (6) The affidavit as summarized on the strike incident list charged Meyer with intercepting and blocking Thomas Schroeder's and George Humphrey's progress into the employment office on December 21. Jacobi's testimony was that Meyer and Fischer had walked in front of two applicants, who had to walk around them, and Born's was that Meyer and Fischer "stood in front of" the men as they stepped on the sidewalk, and that the men walked around them Their testimony thus showed no blocking; neither did the photographs which Respondent had relied on or others which it offered in evidence. Meyer's denial that he blocked anyone on December 21 is credited. 1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (7) Jacobi and Born testified in substantial accord with their affidavit that on December 29 Meyer bumped and shouldered an unidentified applicant. Meyer denied any bumping or shouldering or pushing on the occasion. Meyer's testimony, which received substantial corroboration in the five incidents above, is again ac- cepted over the Jacobi-Born testimony which was rejected in those cases. It is therefore concluded and found on the entire evidence that Meyer did not in fact engage in misconduct during his participation in employment office picketing. Paul Riehl In discharging Riehl, Respondent relied solely on his participation in employment office picketing as shown by photographs, the movie film, and by eight Jacobi-Born affidavits. The general findings as to the movie film (section 5, supra), are applicable here. The photographs, which related to incidents on December 28 and January 5 and 11, did not show that Riehl was engaged in misconduct, although those which related to the 28th showed him among a large group of pickets in front of the employment office. Respondent attempts in its brief to buttress its reliance by relating the photographs to other affidavits in its files, but neither the strike incident list nor Conger's testimony showed that Respondent had based any reliance on the affidavits in Riehl's case. Furthermore, the affidavits did not mention Riehl or attribute any misconduct to him. Indeed, the affidavit which Respondent seeks to relate to the January 5 photograph referred to a time 5 minutes before the photo- graph was purportedly taken. Jacobi and Born did not testify in support of six of their affidavits, which related to incidents on January 11, 13, 14 (two incidents), 19, and 21. The affidavits were refuted by Riehl's testimony, which was corroborated by the testimony of the applicants involved in three of the incidents, as follows: 1-11 Soda incident. See Eddie Meyer, supra, item No. 2. 1-14 Boettcher incident. See Eddie Meyer, supra, item No. 3. 1-14 Claus incident. See Eddie Meyer, supra, item No. 4. Jacobi and Born testified in support of their affidavits as to the two remaining incidents as follows: On January 5, Riehl and two other pickets stood in front of an applicant as he stepped upon the sidewalk, but that they stepped aside when Police Chief Capelli came across the street; and on January 21 Riehl bumped or shouldered an applicant as he stepped on to the sidewalk in front of the old main gate Riehl denied that he blocked, bumped, or shouldered anyone on those dates or on any others, but testified that applicants might on occasion have brushed against him in passing or have gone around the pickets, stepping on the grass to do so. The following circumstances impel the acceptance of Riehl's testimony: (1) Jacobi and Born made no effort to support their sworn affidavits as to six incidents; (2) Respondent offered no corroboration as to the two incidents concerning which they did testify; and (3) Riehl's testimony received substantial corroboration from disinterested witnesses in three cases. It is therefore concluded and found that Riehl's participation in the employment office picketing was not of such a character as to forfeit as to him the protection of the Act, or to justify Respondent's selection of him for discharge. Respondent urges that in any case Riehl should be denied reinstatement because of his participation in a final incident of employment office picketing on February 2. Police Officer Berlin identified Riehl among a group of pickets who walked in front of an applicant, forcing him to walk against the employment office building to enter When a CIO sound truck drove up shortly afterwards, the pickets began rocking it vigorously.66 A violent argument arose when Berlin and Officer Boerner ordered the pickets to desist, as a result of which Berlin endeavored to take Roger Bliss (a non-8(a)(3)) into custody This led to further argument, during which Riehl said, "If you were any kind of men, you wouldn't be wearing those tin badges, but you would be on the line with me " Aside from the fact that Respondent's pleadings did not put this incident in issue, Riehl's participation in it did not constitute such misconduct as would warrant denial of reinstatement as to him. se Since the truck was CIO's, the evidence indicates that the pickets were engaging in horseplay KOHLER CO. 1217 Gustave Leibelt Respondent based Leibelt's discharge on his participation in the mass picketing (conceded by the stipulation ) and on his participation in employment office picketing as shown by two Jacobi affidavits (December 1 and 6 ) and by photographs (December 10 and 29). The photographs contained identifications of Leibelt , but did not show that he was engaged in any misconduct . In its brief Respondent attempts to buttress its reliance on them by correlating them with affidavits of Jacobi and Born , but neither its strike incident list nor Conger 's testimony based thereon showed that Respondent had relied on those affidavits in Leibelt's case. Furthermore, the affidavits made no reference to Leibelt nor to participation by him in the incidents. Jacobi testified as to the December 1 incident that Leibelt was in a group of about 20 pickets who surrounded an unidentified man, preventing his progress , and that the man finally walked around the pickets between the sidewalk and the building and was bumped several times by some of the pickets (unidentified). As to December 6, Jacobi testified that Leibelt was again in a similar group who placed themselves across the sidewalk in front of an unidentified man, preventing his advance. The man went over to the squad car across the street and later made another attempt to enter. The pickets again placed themselves in front of him on the sidewalk, blocking his progress , and shifted their positions from time to time with the man's movements . The man finally left without entering. Leibelt did not testify in rebuttal. Respondent's evidence thus showed that on two occasions Leibelt was present in groups of pickets who impeded and temporarily blocked the entrance of ap- plicants. In view of the presence of the police officers on December 6, it cannot be found that the pickets actually prevented the applicants from entering . Though the evidence presents a doubtful case, it is found that as nothing was attributed to Leibelt except presence in a group of pickets , his conduct was not sufficiently serious as to remove him from the protection of the Act. Fred Felsinger Respondent based Felsinger's discharge on the following matters: (1) His participation in mass picketing (conceded by the stipulation) and the fact that he was a picket captain at a time when incidents occurred at the main gate on May 10, 11 , and 28. There was no evidence, however, that Felsinger was a participant in any of the incidents in which nonstrikers were physically blocked or prevented from entering the plant. (2) A single photograph which purported to identify Felsinger among a grow of men, women, and children standing on a corner at the Cook residence on North 12th Street on August 17 The photograph does not show that any demonstration or picketing was taking place or that Felsinger was engaged in any misconduct. (3) An affidavit dated October 6 , 1954, by Fred Domke that Felsinger, his neighbor, once yelled at him as he came home from work and in the presence of Domke's little girl, "call that s.o .b. scab your daddy." Felsinger denied that he called Domke an "s.o b. scab" but admitted calling him a "scab," and a "slimy scab," and that he yelled at Domke when other persons were present , including Domke's little girl. Felsinger's unrefuted testimony does not show that his conduct was such as to remove him from the protection of the Act . Cf. Dottei's case, supra. (4) Affidavits concerning the alleged blocking of a Tallman Company truck on December 3. Testimony by Felsinger and Charles Lorenz for the General Counsel was to the effect that they and Ray Kiel engaged the driver in a peaceful conver- sation and handed him literature concerning the strike. They denied that any of them stood in front of the truck , blocking its entrance into the driveway They testified that when Bernard Maschke came out of the gate lodge and called to the driver, the driver drove into the plant. Maschke's testimony was that Kiel had stood in the path of the truck, and he denied that the pickets had anything in their hands or that they handed any pam- phlets to the driver. The mutually corroborative testimony of Felsinger and Lorenz is credited over Maschke's testimony . The evidence thus showed only that the pickets were engaged in protected concerted activity on the occasion. (5) Felsinger's participation in employment office picketing as shown by a single photograph (December 16 ) and by an affidavit of Desmond and others (December 20). The photograph did not show that Felsinger was engaged in misconduct, and though Jacobi identified Felsinger as present during the incident , he testified to- nothing which Felsinger did. 1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Desmond testified that on December 20, as three men approached the entrance walking between the pickets interspersed along the sidewalk, Felsinger shouldered two of the men. Felsinger made no denial. Respondent also urges that Felsinger should be denied reinstatement because of his participation in the bowling alley incident on February 6. The only evidence that he did so was Jacobi's testimony that he saw Felsinger somewhere in the crowd as he walked through it, but did not hear Felsinger say anything. Such evidence fails to establish that Felsinger engaged in misconduct. In sum, what the evidence shows as regards misconduct by Felsinger was his single and isolated act of shouldering two applicants on December 20. It is con- cluded and found that such conduct was not sufficiently serious as to warrant denial of the protection of the Act and did not justify Respondent's selection of him for discharge. Fred Felde, Jr. Although Respondent asserts reliance on information as to Felde's participation in mass picketing, the situation here is identical with that of Carl Rothe, supra. Respondent relied otherwise on Felde's participation in employment office picketing on various dates in December and January as shown by the movie film, photographs, and affidavits of Jacobi and Born. The general findings in section 5, supra, regarding the movie film, are applicable here. The photographs did not show that Felde was engaged in any misconduct; they showed only that he was standing in groups of pickets on the sidewalk in front of the employment office. Respondent offered testimony concerning some of the incidents, but it was con- fined, so far as Felde was concerned, to identifying him as present among the pickets. Thus Jacobi testified that Felde was present on December 8 when LeRoy Ward (a non-8 (a) (3)) bumped and shouldered an applicant, but there was no indication from his testimony that there was any blocking or other misconduct except by Ward. Jacobi also identified Felde as present on December 10 when a group of pickets briefly blocked an applicant's entrance, but admitted that he had seen Felde (and others whom he identified) doing, "Nothing specifically." Respondent also cited the testimony concerning the Vernon Grupe incident on January 3, when Gilbert Stuckmann was the leading protagonist. See the Stuckmann case, infra. Although the testimony did not refer to Felde's presence, photographs which were related to the incident showed that Felde was among the pickets. Similarly, Respondent cited testimony concerning the blocking and bumping of James Bucholtz and Donald Jandrey on January 3. Again the testimony did not refer to Felde's presence although photographs concerning the incident showed that Felde was present, and Felde in fact identified himself on one of them. Respondent offered no testimony concerning alleged incidents on January 13 and 26, in which, according to Jacobi-Born affidavits, Felde was in groups of pickets who impeded the entrance of applicants into the employment office. Felde, testifying in rebuttal, admitted that he was picketing on the various dates in question but denied that he blocked or bumped anyone or that he was in any group which did so. He admitted that it was the custom of the pickets to go out to meet job applicants; that sometimes as many as 15, 20, or 25 would do so; and that sometimes the applicants had to walk out in Industrial Road or on the grass between the sidewalk and the building in order to walk around or through the pickets. Felde's testimony is credited, and it is concluded and found on the entire evidence that Felde's conduct was not such as to remove him from the protection of the Act. Respondent further asserts that in any case Felde should be denied reinstatement because of his participation in the bowling alley incident on February 6. Jacobi identified Felde as among the group which shouted and yelled at and heckled the Kohler team, and that as he was leaving the alley to go to the locker room proper, Felde followed alongside, called him a "damn scab," and kicked him in the shins several times. Felde admitted that he heckled and razzed Jacobi throughout the evening and that he called Jacobi a "scab" and a "scab lover" but denied that he kicked Jacobi. His denials are credited in the absence of corroboration of Jacobi's testimony since the evidence otherwise showed that because of the crowd through which Jacobi made his way, it was questionable whether Jacobi could make an accurate identification of the person who kicked him. Felde's heckling of Jacobi was not such conduct as would warrant the denial of reinstatement as to him. KOHLER CO. Milton Tarkowski 1219 In discharging Tarkowski, Respondent relied on his participation in mass picketing (conceded by the stipulation), his participation in employment office picketing, and on three affidavits concerning miscellaneous activities about which Tarkowski gave unrefuted (and credited) testimony, which will be first summarized. Tarkowski did not deny his presence in crowds at the Kenneth Cook residence on August 16 and 18. As to the 17th, he testified that he and Duane Guth had gone to Cook's home in the morning "to see him off to work," and admitted that he accused Cook of turning "scab" and "traitor," but denied that he threatened Cook. Guth's testimony was corroborative. The evidence thus failed to show that Tarkow- ski had engaged in unprotected concerted activities at the Cook home. Concerning an affidavit of Carl Quicker, Tarkowski admitted that he had called Quicker a "scab," a "rotten scab," and possibly a "dirty scab" and a "slimy scab," but denied referring to him as a "scabby son-of-a-bitch" or referring to his children as "little bastards." He testified that on one occasion in the park, he yelled "scab" at Quicker, who shook his fist at Tarkowski and said, "I'll get you yet, you son-of-a- bitch." Warrants and counterwarrants were sworn out concerning that incident, but were later withdrawn. Tarkowski's conduct in name calling was not sufficiently serious as to remove him from the protection of the Act. Tarkowski denied that he had pushed or kicked anyone at the employment office on November 8 (refuting an affidavit of Willard L. Vorphal). As to employment office picketing, Respondent relied on the movie film, photo- graphs, and three Jacobi-Born affidavits. The general finding as to the movie film (section 5, supra), is applicable here. The photographs do not show that Tarkowski was engaging in misconduct. Though Respondent attempts in its brief to buttress its reliance by relating the photographs to other Jacobi-Born affidavits, neither its strike incident list nor Conger's testimony showed that Respondent had relied on the affidavits in Tarkowski's case. Furthermore, the affidavits made no reference to Tarkowski and neither did Jacobi and Born in testifying to one of the incidents. The affidavits which Respondent relied upon related to incidents on January 13, 28, and 31. Jacobi and Born testified that on the 13th, Tarkowski met and shoul- dered an applicant (James Berlin) as he stepped onto the sidewalk. Born testified that on the 28th, Tarkowski bumped and blocked an applicant (Robert Faas). Jacobi and Born testified that on the 31st, Tarkowski bumped and blocked a man (accompanied by a woman) who had to walk around Tarkowski in order to get up on the sidewalk. Tarkowski denied that he bumped, blocked, or shouldered anyone on the dates in question and his testimony was corroborated by the applicants involved in the first two incidents. Thus, Berlin testified that he could not remember that any picket had shouldered him or made bodily contact with him, though one of the pickets stood in front of him as he approached, and that he "walked along side of" the picket and went into the employment office. Faas testified that the picket simply stood on the sidewalk without attempting to stop him, that he walked around the picket, and that he reported upon being interviewed inside the employment office that he had had no trouble coming through the picket line. Tarkowski's testimony, thus having received substantial corroboration, is credited over that of Jacobi and Born. It is concluded and found that his conduct during employment office picketing was not such as to forfeit the protection of the Act. Though not brought within its pleadings, Respondent now urges that Tarkowski should be denied reinstatement because of his participation in alleged incidents on May 24 and December 8, 1954. The first item related only to the fact that non- striker, Jerome Bersch, identified Tarkowski as among a group of strikers who formed a picket line around Bersch and other nonstrikers on the west side of High Street. The second item related to a photograph and to Jacobi's testimony that Tarkowski was one of the most active participants with a group of pickets who blocked an applicant on December 8. Tarkowski admitted that on December 8, he walked along with an applicant, talked with him, and he stood face to face with him at the bottom step of the employment office, but he denied bumping the applicant. His testimony is credited. His conduct on neither of the occasions was sufficiently serious as to warrant denial of reinstatement. Paul A. Gall Aside from his participation in mass picketing (conceded by the stipulation), Respondent based its discharge of Gall on the following: 1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ( 1) A photograph by Jacobi which purported to identify Gall on the scene of an alleged incident of home picketing on August 13, and an affidavit by Henry Sessler in which Sessler identified Gall with other strikers in home picketing at his home and Harvey Schmidt's home on August 17. Although Desmond and Jacobi testified to the incident of August 13, neither identified Gall as among those present. Gall, testifying in rebuttal , was unable to identify himself on the photograph on which Respondent relied and denied that he was the person designated thereon. He also denied specifically that he attended a home demonstration on August 13 on North 21st Street. His testimony is credited. Sessler testified that he recognized Gall among some 300 persons who were present at the demonstration at his home and at the Schmidt home on August 17, but he did not attribute to Gall any act or statement. Gall denied that he attended a home demonstration at Sessler's or Schmidt's at any time in August . In the absence of any corroborating identification of Gall by other witnesses , Gall's denials are credited. (2) An affidavit of Joe Miller that on May 6, 1954, Gall so maneuvered his car on the highway as to impede, harass, and endanger Miller who was driving Kohler s coal truck and that Gall also cursed Miller and shook his fist at him. Miller did not testify. Gall's testimony in rebuttal admitted that he knowingly reduced his speed in front of the Kohler truck in order to slow it up . He denied that he shouted or yelled at Miller, but admitted that he might have shaken his fist at Miller. It is concluded and found that Gall's conduct in the latter incident was not suffi- ciently serious as to remove from him the protection of the Act or to justify Re- spondent's selection of him for discharge. Respondent pleaded further that Gall should be denied reinstatement because of his participation with James Bailey in the pursuit and assault upon Marvin Johanning, driver of Respondent 's coal truck, on December 28, 1955. The incident had its inception in front of a tavern at 8th Street and Indiana Avenue in Sheboygan when Johammng was stopped by a traffic light while enroute to the Reiss coalyard at the mouth of the Sheboygan River ( about a mile away). James Bailey had been tending bar inside the tavern and Gall had been patronizing it to the admitted tune of some 10 to 12 beers. Johanning testified that Gall came out of the tavern , approached the truck, attempted to open the right-hand door, which was locked , and cursed Johanning, calling him a "son-of-a-bitch," a "scab," etc. Failing in his attempt to open the right-hand door, Gall went around to the left and pulled open the left door , but the traffic light having turned green, Johanning pulled away and drove on to the coalyard. Gall and Bailey testified that Johanning had thumbed his nose after being called "scab," and in that respect their testimony is credited . Otherwise, Johanning's testimony is accepted as substantially correct since the entire circumstances discredit Gall's lame explanation of his pursuit at Johanning , i.e., that Johanning invited him to come down to the coalyard and that he went because , "I never run from a fight." Johanning's testimony as to the happenings at the coalyard is also accepted as substantially correct. He testified that shortly after reaching the hopper, Gall and Bailey arrived in a car and came to the truck, and that Gall jumped on the left running board and attempted to strike him through the window . Johanning de- fended himself by striking back with the jack handle; he attempted to pull the cord of the air horn, but Bailey and Gall pulled his arm away. Johanning also attempted to kick Gall off the running board. Gall broke the glass on the cab window with his fist, threw a chunk of coal at Johanning, and struck at Johanning with a blackjack. As the melee continued Gall entered the cab, but Johanning opened the right-hand door, slipped out, and ran toward the dock office some several hundred feet away. Gall chased him and threw the jack handle after him. Gall went on to the dock office and called the police. He testified that neither Gall nor Bailey said anything to him at the coal pile and that he said nothing to them. Gall and Bailey both testified that it was Bailey , not Gall, who entered the cab. In that respect only, their testimony is credited where it conflicts with Johanning's. The entire evidence thus established that Gall, fortified by some 10 to 12 beers and spoiling for a fight , pursued Johanning to the coalyard and there , with Bailey, engaged in a flagrant and prolonged attack upon Johanning Johanning's active and spirited defense of himself in no manner condones or obscures the fact that Gall and Bailey were the pursuers and the aggressors throughout. It is therefore concluded and found that Gall (and Bailey) were guilty of such flagrant acts of misconduct as to warrant a denial as to them of the remedy of reinstatement. KOHLER CO. 1221 James E. Bailey Respondent based its discharge of Bailey on (1) an affidavit by Gilbert Buffington (an employee in the employment office) that on April 27 Bailey shouldered James Rickmeier as the latter attempted to enter the medical department; (2) an affidavit that on June 25 Bailey made remarks on the picket line about paint jobs on non- strikers' homes and cars; and (3) a Jacobi-Born affidavit that on January 7 Bailey blocked an unidentified man and woman and shouldered the man at the employment office, together with the movie film which purported to show him blocking on that date 67 (1) Bailey testified that he saw Rickmeier approaching, that he probably called Rickmeier a "scab," and that their shoulders brushed as Rickmeier walked off the sidewalk on the inside of the picket line. Buffington testified that Bailey gave Rick- meier a shove and that although he saw Bailey make motions to Police Chief Capelle indicating that Rickmeier had pushed him first, Buffington had not seen Rickmeier push Bailey. Although Respondent put up Rickmeier concerning other attempts to enter the medical department, it did not question him about the Bailey incident, nor did it question Police Chief Capelle, who testified for it on numerous other matters. Under the circumstances Bailey's testimony is credited. (2) Bailey's testimony (which is unrefuted) showed that the paint job remarks stemmed from his appearance on the picket line wearing clothes which he had wom the day before in painting a friend's home and from kidding and spoofing remarks by fellow strikers in apparent reference to acts of "paint bombing" which had been occurring in the community. Such picket line joking did not constitute misconduct which would remove from Bailey the protection of the Act, particularly as there was neither evidence nor claim that Bailey had been a participant in the paint bombings. Furthermore, Bailey's conduct is to be compared with that of William Banonse, whom Respondent kept in its employ despite his confession and conviction of paint bombing. See section 6, supra. (3) The general finding on the movie film is applicable here. Jacobi and Born testified in substantial accord with their affidavit as to the January 7 incident. Re- spondent also offered the testimony of Clemens Schneider that as he and his wife were seeking entrance to the employment office they were "partially blocked" by the pickets and that he himself was shouldered by one of them. Schneider's testi- mony was received under an offer of proof, inasmuch as he was unable to identify any picket who participated in the incident. On further consideration, it appearing that the incident he described is identifiable with that which Jacobi and Born testified to, his testimony is now received in evidence. Bailey admitted having picketed on January 7, but denied blocking or shouldering anyone. His denials are not credited. The Schneider incident also apparently constituted the basis of the court finding against Bailey in the contempt action (also relied on by Respondent) that on January 7 he had "shouldered a person attempting to enter the employment office, and on the same date used vile and obscene language toward such person." No evidence was adduced here concerning Bailey's alleged use of vile language on the occasion, and none that he had struck a truckdriver named Heubner on the same date, as found by the court. The court's finding is not binding on the issues here. See section 5, supra. The entire evidence thus presents a borderline case, i.e., participation in a single act of misconduct of not too serious a nature As it stands alone, the Trial Ex- aminer concludes and finds that it was not such as to remove him from the pro- tection of the Act or to justify his discharge. However, Bailey's participation with Paul A. Gall in the pursuit and assault upon Marvin Johanning (summarized under Gall's case, supra), constituted such mis- conduct as warrants denial of reinstatement as to him. It is so found. William Methfessel Respondent relied upon (1) Methfessel's participation in mass picketing (con- ceded by the stipulation); (2) an affidavit (unrefuted) that on June 19 Methfessel said as a nonstriker drove his (red) car out the southeast gate that the car "would look good with a yellow stripe down the back"; (3) an affidavit (also unrefuted) 67 Evidence concerning Respondent's reliance on photographs of alleged picketing on June 29, 1954, at Scheffler Forwarder , Inc., at Chicago, and concerning his writing of "Scab" In the dust on the side of a truck which was leaving the plant on January 7, was stricken as without substance 577684-61-vol 128-78 1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Elwin Taubenheim recognized Methfessel among a crowd of some 75 to 100 persons in front of his home during a home demonstration on August 30; and (4) his participation in employment office picketing on numerous occasions in November, December, and January as shown by photographs, the movie film, and affidavits. Only the latter item was of substance as indicative of misconduct on Methfessel's part. Though the movie film and the photographs were subject to the usual in- firmities (see section 5, supra), some of the photographs, particularly one relating to December 14, showed Methfessel as an active participant in the blocking of two applicants and lent confirmation to Respondent's other evidence concerning Meth- fessel's misconduct. It is unnecessary to summarize all the testimony in detail. Though the General Counsel refuted Respondent's evidence by the testimony of the applicants involved in three of the incidents (William Hoegger, December 28; Paul and Edward TenPas, January 27; and Orlando Koenig, January 31), Methfessel's uncorroborated denials failed to overcome the cumulative testimony of Respondent's witnesses that Meth- fessel had on several occasions participated in group blocking of applicants and that on at least two occasions (December 7, Duane Giebel, and December 14, applicant unidentified) Methfessel himself shoved and pushed applicants. Furthermore, Alfred Jaeger, a General Counsel's witness, confirmed the fact that on January 17 his entrance was blocked until the police came across the street and ordered the pickets to open up. It is therefore concluded and found on the entire evidence that Methfessel's con- duct during the employment office picketing was such as to forfeit as to him the protection of the Act and to justify his discharge. Gordon Peryam Respondent based its discharge of Peryam on (1) his assault on Harold Curtiss when Curtiss was attempting to enter the plant on May 24 as a result of which Peryam was arrested and fined $10 and costs for disorderly conduct, and (2) a Jacobi-Born affidavit that on January 8, 1955, Peryam (in company with Ray Kiel) intercepted and blocked the progress of an approaching man and woman into the employment office. Though Respondent's strike incident list purported to identify the applicants in the latter incident as Elmer and Edna Schneider, Respondent offered no testimony concerning the latter incident. Peryam denied that he and Kiel blocked anyone on January 8, or at any other time in January, and his unrefuted denials are credited. Curtiss and Albert Braun (a Kohler Village policeman) testified to Peryam's assault on Curtiss. Curtiss, who was struck over the head from behind, did not see who had hit him, but Braun testified that he not only witnessed the assault but that he and Deputy Sheriff Federwisch apprehended Peryam on the spot and took him into custody. Peryam admitted the assault but claimed that Curtiss had kicked him in the groin. On cross-examination, however, he testified that he was behind Curtiss or "aside of him," thus substantially confirming Curtiss' testimony that he was hit from behind. Peryam also admitted that he filed no complaint against Curtiss. Under all the circumstances Peryam's testimony is not credited that Curtiss kicked him in the groin. Peryam's assault on Curtiss obviously constituted such misconduct as removed him from the protection of the Act, and justified Respondent's selection of him for discharge. Arbor L. Brewer In discharging Brewer, Respondent relied on his participation in the mass picket- ing (conceded by the stipulation), plus his participation in incidents when non- strikers were denied entrance, including an assault on Jerome Bersch on May 24 when Bersch was attempting to go through the picket line. Bersch testified that on the morning of May 24, he and other nonstrikers attempted to gain entrance at the powerhouse gate (at which Brewer was the picket captain) after failing to get through the picket line at the main entrance; that a large number of pickets moved out from the picket line into Industrial Road to meet and block them; that as he stood in the group, Brewer came out of the line, walked up to him, said, "Bersch, why don't you get out of here?", and struck Bersch with his fist as Bersch started to turn around. Brewer admitted going out with other pickets toward Bersch and some six or seven other persons who were approaching the picket line He testified that he said to Bersch, "For God sakes, why don't you leave us alone?"; that Bersch lunged for- KOHLER CO. 1223 ward and threw his shoulder onto Brewer's chest; and that, being off balance, he grabbed Bersch to keep from being knocked down. Bersch's testimony is credited over Brewer 's and it is found that the incident occurred substantially as Bersch testified .68 Brewer's active participation in prevent- ing the nonstrikers from going to work and his assault on Bersch was plainly such conduct as forfeited the protection of the Act and as justified his discharge. Respondent now also urges that Brewer should be denied reinstatement because of his alleged participation with a group of strikers who beset Bersch at his home on the morning of May 10. However , Respondent had not relied on Bersch's affi- davit concerning that incident in deciding to discharge Brewer. Furthermore, the entire evidence concerning Brewer's presence in his car , across and up the street from Bersch's home, did not establish that Brewer engaged in misconduct on the occasion. Carl Felsinger Though Respondent asserted reliance on other matters as well,69 the only substantial charge established by the evidence is that Felsinger had threatened to turn over a company car at a home demonstration on August 16. Born and Desmond, who were seated in the car, testified that Felsinger said to persons around him in the crowd, "Come on, let's roll this car over." They testified that Felsinger's threat had followed one to similar effect made by Andrew Lofy. (See his case, infra.) Felsinger admitted being present, but denied seeing a company car, or Born and Desmond, and denied making the threat . The mutually corroborative testimony of Born and Desmond is credited. It is concluded and found that Felsinger's conduct on this occasion was such as to forfeit the protection of the Act and to justify Respondent's selection of him for discharge. Elmer Zittel Respondent based Zittel's discharge on the following: (1) His participation in mass picketing (conceded by the stipulation), including an unrefuted affidavit by Gustave Stockelbusch that on May 24 Zittel said to him, "Do you want to crawl in like a worm," and on August 6 that Zittel shouted several times, "Hey you slimy sons-of-bitches" as Stockelbusch and others drove through the picket line. (2) Affidavits and reports covering Zittel's participation in numerous home demonstrations in August. Zittel made no denial of the conduct with which he was charged . The material on which Respondent relied, as well as other evidence in the record as to Zittel's activities , showed that Zittel took an active and a leading part throughout the home demonstrations , from the earliest to the latest, and that he engaged in constant harassment of his nonstriker neighbors , subjecting them to a stream of insults, vilification , filthy name calling, and threatening remarks. It is concluded and found that his conduct during the home demonstrations was such as to remove from him the protection of the Act and Respondent was justified in selecting him for discharge. Ronald J. Fischer Respondent based its discharge of Fischer on (1) reports that on April 27 and May I1 he actively participated in enforcement of the Union's pass system as to persons who desired admittance to the medical department, (2) a report of a name- calling incident involving David Kraus on August 15, and (3) his participation in employment office picketing on December 21 and 23, as shown by the movie film, photographs, and a Jacobi-Born affidavit. (1) The evidence showed that during April and May it was the "rule" of the Union to require persons who desired admittance to the main office, employment office (which also housed the medical department ), or plant to obtain a pass from the Union's strike headquarters at the soup kitchen about a mile away and to present it to the picket captain before being admitted through the picket line. (See, e.g., summary of Robert R. Dean's testimony, supra.) Fischer admitted that he had been informed of the rule by his picket captain, John Nisporic. He testified that during times when he was present, everyone who approached the picket line went to strike headquarters to get a pass, and that he recalled no 68 Conger gave corroborating testimony which was of slight weight, since he viewed the scene through binoculars from some 500 feet away. 69 I e , the rnere participation in mass picketing, conceded by the stipulation ; and alleged momentary blocking at the employment office on January 26, which Felsinger denied and which Respondent did not support. 1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one who went through the line without getting a pass. Fischer testified further that on three or four occasions in April and May he had driven Nisporic and other persons from the picket line to strike headquarters so that passes might be obtained. Although Fischer gave unrefuted testimony concerning the Alfred Bruggink incident on May 11, which showed no attempt on his part to enforce the pass system on that occasion, his other testimony as summarized above indicated plainly that a part of his strike duties involved his active participation in the operation and enforce- ment of the pass system. (2) Respondent offered no evidence concerning the Kraus incident, and Fischer's unrefuted testimony showed that it was a "childish affair," as he aptly characterized it, involving an exchange of name calling during a traffic jam. (3) The general findings on the movie film (section 5, supra) are applicable here. Respondent relied also on five photographs of a scene in front of the employ- ment office on December 23, on which Fischer was identified, but none of them showed Fischer to be engaged in any misconduct. In its brief, Respondent attempts to buttress that reliance by relating the photographs to a Jacobi-Born affidavit concerning an incident on that date. However, neither the strike incident list nor Conger's testimony showed that Respondent had relied on the affidavit in connection with Fischer's discharge. Furthermore, the affidavit did not attribute to Fischer any act or statement on the occasion. Jacobi and Born testified to two incidents on December 21. Jacobi's testimony as to Fischer's participation in the first incident showed only that Fischer and Cornelius Munnik were "just hollering" at two men who were approaching; and Born testified that Fischer and Munnik walked on the sidewalk parallel to the men as they walked in Industrial Road. This was a part of the Jonas-Vandermause incident as summarized under Eddie Meyer, supra, item No. 1. The entire evidence concerning it showed no misconduct on Fischer's part. As to the second incident, Jacobi and Born testified that as two men approached the employment office, Fischer and Meyer walked in front of them so that the men had to walk around them to enter the employment office. See item No. 6 under Eddie Meyer, supra. The Jacobi-Born testimony showed no actual blocking. Fischer denied that he blocked anyone on December 21 or that he stepped in front of anyone; his testimony is credited. Although the evidence in Fischer's case boiled down to his admitted active par- ticipation in enforcing the Union's rule as to passes, such conduct plainly fell out- side the protection of the Act and justified his discharge. Cornelius Munnik Respondent based Munnik's discharge on the following: (1) His participation in the mass picketing (conceded by the stipulation), in- cluding a report, which Munnik did not deny, that on May 3, Lawrence I. Doering, a salesman for a drug company, came to the employment office entrance and was turned away by Picket Captain Munnik and sent to strike headquarters for a pass. (2) Information that Munnik's car "was at Oostdyke's home after incident at main gate." That information plainly afforded no basis for a good-faith belief that Munnik engaged in misconduct. '(3) A telephone call from Edgar H. Thimmig reporting that Munnik, a neighbor, "had given him a `hard time' on July 27 in front of his home, name-calling, etc." Munnik admitted that he had yelled "scab" at Thimmig and defined the term for him as "a person that is lower than a rat." Munnik also admitted that he may also have called Thimmig "slimy scab," "stinky scab," "yellow-bellied scab," and "traitor." (4) Participation in employment office picketing on December 7 and 21 and Janu- ary 14, as shown by the movie film and by three Jacobi-Born affidavits. The general findings as to the movie film (section 5, supra), are applicable here. The evidence showed that the December 21 incident was the same as that to which Jonas and Vandermause testified for the General Counsel (see Eddie Meyer, supra, item No. 1), and that the January 14 incident was that to which James Boettcher testified (id., item No. 3). Their testimony corroborated Munnik's de- nials of misconduct and refuted the affidavits and the testimony which Jacobi and Born gave as to the former incident. Jacobi also testified that on December 7 Munnik shouldered an applicant, who went into the employment office without further incident. Munnik denied that he bumped or shouldered anyone on that date. Since Munnik's testimony received substantial corroboration otherwise, and since no corroboration was offered of Jacobi's identification (made from his distant station), Munnik's testimony is credited. KOHLER CO. 1225 Thus the evidence in Munnik's case boiled down to the name calling of Thimmig and to the report of his participation in the enforcement of the pass system. The -name calling was no more serious than that on which Respondent had disclaimed re- liance in William Methfessel's case, i.e., "scab" and "brown nose." Although the report of the pass incident was devoid of details and surrounding circumstances, -other evidence in the record disclosed the full significance of the pass system and the function of the picket captains in connection with its operation. See Ronald J. Fischer, supra. It is, therefore, concluded and found that Munnik's participation -in enforcing the pass system justified Respondent's selection of him for discharge. Richard Gruenke The Respondent relied on matters concerning which it offered no evidence (all of which were denied by Gruenke) and on other matters on which it submitted proof. It is unnecessary to summarize the matters on which Gruenke gave unrefuted testi- mony. Briefly, they related to and refuted affidavits and reports concerning an alleged threat to Donald R. Schilling on April 2, alleged threats to John DeBraal and his wife on June 10, an alleged threatening remark to James Rickmeier on August 24, alleged filthy name calling of Melvin Meves on October 15, and alleged name calling of Henry Sessler on the morning of August 19. There was also a report concerning a bus incident on August 26, but no misconduct was attributed to Gruenke on the occasion. Respondent also relied on the following matters: (1) A report that on May 10 Gruenke had said to Henry Sessler, "You son-of-a- bitch, we are going to run you out of town." Sessler testified that after an unsuc- cessful attempt to enter the plant on the morning of May 40, he walked to a bus stop on the west side of High Street; that Gruenke drove past in a car, stopped, and said to him, "Sessler, who the hell are you trying to kid, coming out here with a clothes bag, making believe you are going to work? . . . Some day we'll run you out of town " Gruenke's version was that Sessler had called to him to get a ride into Sheboygan, but that he refused, telling Sessler that he "should get the hell out of town." He denied making the other remarks attributed to him. Sessler's testimony is credited. (2) Information and affidavits concerning Gruenke's participation in home demonstrations on August 16, 17, and 18. Testimony concerning such participation related almost entirely to August 17. Hammer, Hiers, and George Wirtz testified to the August 17 demonstration. Hammer testified that Gruenke was among a large crowd present at the Harvey Schmidt home on that date; that Charley Wirtz (who was with Gruenke) said to Hammer and the other company employees in Hammer's car, "You are not going to take any God damn pictures here"; and that Gruenke added, "We'll wreck the camera No pictures are going to be taken here Go back to Kohler where you belong." At subsequent stages of the demonstration, Gruenke took some pictures of the scene and yelled at Hammer, "The Union furnishes me all the film and flash bulbs that I need." George Wirtz and Hiers testified in substantial accord. Henry Sessler, who lived near Schmidt, testified that after the demonstration at Schmidt's home, he heard Gruenke shout, "Up to Sessler's next," and that Gruenke pointed toward Sessler's home. Sessler testified that thereupon the crowd of about 300 people moved down to his home and began yelling at him such things as "Yellow-bellied scab" and "Son-of-a-bitch scab," and that he recognized Gruenke as among those who were shouting. Gruenke admitted being present at the Schmidt demonstration, but denied making the statements which Hammer, Hiers, and George Wirtz attributed to him. He admitted saying to Hammer, "Get the hell back to Kohler where you belong." He admitted further that he went to Sessler's house "to wait and see a scab come home," but testified that an elderly gentleman came out and asked them to leave, because a very sick lady was inside the house. He admitted saying, "Let's get the hell out of here . because there is someone sick there." He denied calling Sessler names on the occasion. As for the statement, "Up to Sessler's house next," he testified only that he did not think he had said it. Charles Wirtz corroborated Gruenke's denials that he had threatened to break the camera, but testifying further, stated he did not hear Gruenke make other statements which Gruenke admitted having made. Marie Baumann also testified substantially in accordance with Gruenke's version. The testimony of Respondent's witnesses is credited. Gruenke's participation in the Schmidt-Sessler demonstrations showed plainly that he was acting as a leader 1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the crowd's activities, first directing them to Sessler's house and then directing them away from it after he discovered the presence of a sick person. His conduct on that occasion, including his threat to wreck the Company's camera, and his conduct in threatening Sessler on May 10, plainly fell outside the scope of protected activity and justified Respondent's selection of him for discharge. Edward McDougal Respondent based McDougal's discharge on the following matters: (1) A photograph which purported to identify McDougal on a picket line at the entrance to the docks when clay was being unloaded on May 24, 1954. The photo- graph did not show that McDougal was engaging in unprotected concerted activities at the time. See Francis "Jim" Olin, supra. (2) An affidavit that on June 30 McDougal was one of a group of strikers who crashed a wedding anniversary party at a tavern and who harassed the guests. Re- spondent offered no testimony concerning this item. There was nothing in the affidavit or in McDougal's testimony concerning the incident which established that McDougal engaged in any misconduct. (3) An affidavit by Jacobi, Born, and others that McDougal was among a group present at a home demonstration on August 19. Born and Desmond in testifying to this item fixed at 500 the number of persons who were present on the occasion, and though they testified as to shouting, hollering, and other statements made on the occasion, in some instances by specified individuals, neither of them attributed any act or statement to McDougal. Thus, all that the evidence indicated was that McDougal was present among some 500 persons at a single home demonstration. It does not show that he engaged in misconduct or in any unprotected concerted activities on the occasion. (4) An affidavit that on May 31, 1954, McDougal and Edward Kalupa made threats directed at a nonstriker's wife concerning his employment at the plant. McDougal and Kalupa admitted having talked with Mrs. Melvin Laack (whose husband was a nonstriker and a brother of McDougal's brother-in-law), attempting to persuade her that her husband should not cross the picket line, but they denied that they threatened her or her husband or children in any manner. Mrs. Laack testified that McDougal told her that she should not let her husband cross the picket line because he was not only putting himself in danger but was putting her and their two boys at home in danger. Though there was considerable variance between her testimony and that of McDougal and Kalupa on other details of the conversation, her version is credited. Thus, Kalupa had testified in part that Mrs.' Kuhn (outside whose home the conversation had occurred) was present and had joined in the talk. Mrs. Laack denied that Mrs. Kuhn was present and McDougal's testimony corroborated her on the point. (5) An affidavit that on June 28, 1954, McDougal had harassed and threatened a nonstriker at a picnic at Howard's Grove. McDougal admitted going to the picnic, admitted calling a person whose name he did not know a "scab," but denied threatening the person or threatening to pour beer in his face. Gilbert Arnhoelter, called by Respondent, testified that while he was working at the bratwurst and hamburger stand, McDougal approached, made nasty remarks, and called him a "scab"; that McDougal returned and said, "I will get you for this" and "I will clobber you one"; and that McDougal returned again and, re- ferring to some beer which Arnhoelter was drinking, said, "I have a good notion to pour that in your face." Arnhoelter's testimony is credited, and it is found that McDougal conducted himself as Arnhoelter testified. It is concluded and found on the entire evidence that although the first three items furnished nothing of substance on which to base a discharge, McDougal's threats as made to Mrs. Laack (cf. Ekco Products Company (Sta-Brite Division), 117 NLRB 137), and to Arnhoelter were sufficiently serious to remove him from the protection of the Act, and to justify Respondent's selection of him for discharge. Ethan Berg In discharging Berg, Respondent relied on the following: (1) Berg's participation in the mass picketing, and information that Berg was a picket captain at the southeast gate (gate 1) during April and May, and that on April 16 he inspected two empty Schefer trailers which were exiting through that gate. Berb's participation in the mass picketing was conceded . Respondent offered no testimony concerning the truck incident, but Berg's testimony substantially con- KOHLER CO. 1227 firmed the information on which Respondent relied. Thus Berg admitted that he was the picket captain, that the picket line was across the driveway to the plant as the truck approached, that the truck stopped some 25 to 30 feet from the picket line, and that the driver inquired whether the pickets wanted to look the truck over. Berg did so, saw the truck was empty, and gestured to the pickets, who "opened up the lines and let him go through." (2) A photograph, which according to Respondent's interpretation showed that Berg was with a group of pickets on May 24, 1954, "which was illegally picketing the entrance to the clay docks in Sheboygan, Wisconsin." The photograph does not show Berg to be engaged in any illegal picketing or any other misconduct. See Francis "Jim" Olin, supra. (3) Two photographs which purported to show Berg's participation in home picketing on August 17 and 18. The photographs, which contained purported identifications of Berg, may be accepted as establishing the fact of Berg's presence on the two occasions, but they do not show that he was engaged in any misconduct, and Respondent points to no other evidence that he was. (4) An affidavit by Clarence Herman that Berg harassed him at Johnny's Inn on October 8, 1954, and that Berg struck him and kicked him. Though Respondent offered no testimony concerning this incident, Berg admitted striking Herman under the following circumstances: Upon entering .the inn and seeing Herman, Berg remarked to Rudolph Gunderson, who accompanied him, that Herman was a "scab." Herman's wife came up and told Berg to "Leave him alone," and ripped Berg's shirt. Berg nevertheless went over to Herman and reminded him of his promise not to cross the picket lines. Herman called him a "damn liar" and stepped back and raised his hand (in an attitude which the Trial Examiner observed at the hearing to be one of defense). Berg thereupon struck Herman on the jaw because (he testified) he saw Herman was going to hit him. Herman did not fall down. Berg denied that the kicked Herman or that he followed him outside. It is clear from Berg's testimony that he was intentionally molesting Herman and that he followed through with a deliberate assault despite the efforts of Herman's wife to intervene. Berg's claim of self-defense was an obvious sham, since he was the aggressor throughout and since Herman's motion was itself in self-defense. Respondent pleaded in addition that Berg should be denied reinstatement because of his harassing and threatening of Gilbert Charles on March 30, 1955. Roger Wuestenhagen testified that he and Robert Hanson were helping Gilbert Charles, his brother-in-law (all Kohler employees), to move into Charles' new home, which was next door to Berg's; that Berg shouted, yelled, and cursed at them, calling them such things as "yellow-bellied scab," "God damn scabs," "dirty scabs," and "rotten scabs." Berg also said that "We will get all of you guys," and that Charles would not live there very long. At one point Hanson took off his jacket and invited Berg to come down off his steps and fight, but Berg refused. Berg admitted calling them "scabs," "job thieves," and "strikebreakers," but denied that he threatened them. He also denied that he said that Charles would not live there very long, but admitted saying that he hoped Charles did not live there very long, because the climate was not good for "scabs" in that very strong union neighborhood. Wuestenhagen's testimony is credited, and it is found that Berg made the state- ments and threats which Wuestenhagen testified to. It is concluded and found on the entire evidence that Berg's participation in the truck stopping and inspection on April 16, and his assault on Clarence Herman on August 18 was misconduct sufficiently serious to warrant his selection by Re- spondent for discharge. It is also found that his conduct in abusing and threatening Charles, Wuestenhagen, and Hanson on March 30 was sufficiently serious as to warrant the denial of reinstatement. John Nisporic Respondent based Nisporic's discharge on the following: (1) His participation in mass picketing, including an affidavit by David Kraus that on April 9 Picket Captain Nisporic refused to permit him to enter the medical department through the picket line without a pass. The stipulation conceded par- ticipation in mass picketing. Nisporic made no denial of Kraus' affidavit as to the April 9 incident. Moreover, the record contained other evidence which showed that on other occasions Nisporic had, as picket captain, enforced the Union's rule concerning the pass system during the mass picketing period. See Ronald J. Fischer, supra. 1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) Affidavits that Nisporic was recognized among the persons present at three home demonstrations on August 13 and 17. Respondent offered testimony which supported those identifications but which suggested nothing other than Nisporic's presence in the crowd. (3) An affidavit by Bernard Maschke, Respondent's gate guard, that on No- vember 2 Nisporic and three other pickets ran toward a truck which was turning into the main entrance, that one of the pickets stood on the right-hand running board and the other three pickets stood on the right-hand side talking with the driver; that the driver remained some 5 minutes and later drove away. The affidavit showed no misconduct on Nisporic's part. (4) An affidavit by Charles A. Pagnucco, an employee of the employment office, that on November 10, as he was walking on School Street near the intersection of High Street, Nisporic said to him, "I got my billy club with me," and that Roger Fredricks said, "There is a good guy to use it on; he could stand a couple of good bumps on the head," which statements Pagnucco understood to be threats. Nisporic admitted that the incident occurred, but testified that the billy was a toy club about 8 or 10 inches long, and that he was also carrying at the time a couple of tin stars and a set of toy handcuffs, all of which were used by the pickets in horse- play. Respondent offered no testimony to refute Nisporic's, which is accepted. It shows that Nisporic did not, in fact, engage in misconduct on the occasion. (5) Numerous affidavits and photographs and the movie film relating to Nisporic's participation in numerous incidents of employment office picketing on November 10, and throughout December and January, including occasions when Nisponc himself bumped, shouldered, and blocked approaching applicants, and other occasions when he was in groups when pickets did so. Respondent offered evidence as to many of the incidents, which need not be summarized in detail. Nisporic admitted that he picketed on alternate days and that it was the custom of himself and other pickets to stand in front of applicants, who would sometimes walk around them to enter the employment office. He also admitted that sometimes the police would come over from their station across High Street and occasionally would inform the pickets that the persons had a right to enter. Nisporic denied that he ever bumped, blocked, shouldered, pushed, or kicked anyone on the picket line. His denials are not credited. The evidence as a whole showed that Nisporic, who was picket captain on his shift, was one of the most active participants (aside from dischargees whom the General Counsel omitted or withdrew from his complaint) in the blocking of entrance to the employment office. It is concluded and found on the entire evidence that Nisporic's conduct in enforc- ing the Union's pass system and in blocking, bumping, and shouldering applicants during the employment office picketing was such as to remove him from the protection of the Act and to justify his discharge. Furthermore, the evidence supports Respondent's contention that Nisporic should be denied reinstatement because of his participation in the bowling alley incident on February 6, 1956. There was credited testimony that Nisporic shouted names at members of the Kohler team throughout the evening, and that he directed vile language at Robert DePagter and hit DePagter in the ribs. Nisporic's denials are not credited. John Martin In discharging Martin, Respondent relied on (1) his participation in the mass picketing (conceded by the stipulation), including personal participation in incidents involving the denial of ingress to employees; and (2) his participation in employ- ment office picketing as shown by affidavits, photographs, and the movie film. (1) Martin denied a report that on the first day of the strike he denied entrance to Arno Mueller, saying, "No one in today." His unrefuted testimony is accepted. Similarly without weight was Respondent's reliance on Martin's participation in a union broadcast on April 5, since it showed no personal participation by him in incidents involving the blocking of employees. Respondent's evidence established, however, that Martin had participated personally in enforcing the Union's pass system and in denying entrance through the picket lines on other occasions. Indeed, Martin admitted that it was a part of his duties as picket captain to examine the passes which were presented. The General Counsel argues that Martin was not responsible for the pass system and was "merely trying to be helpful" in suggesting that passes be obtained. However, the entire evidence showed that Martin as picket captain was actively engaged in enforcing the pass system and that in doing so he himself physically blocked and denied entrance to employees. (2) The general findings as to the movie film are applicable here. Respondent offered no testimony as to any actual blocking, bumping, etc., by Martin, and the still photographs showed none. Martin denied that he bumped or blocked anyone KOHLER CO. 1229 and his testimony (which was corroborated in part by the participating applicants in one of the incidents) is credited. The evidence showed, however, that Martin was picket captain on his shift and that he was present on various occasions when other pickets (including some non-8 (a)(3)'s) engaged in serious acts of misconduct. Martin admitted that it was a part of his duties to instruct the pickets as to their conduct generally in picketing, but denied that he had disciplinary powers over them. If Martin's employment office picketing had stood alone here, it might well have furnished inadequate support for discharge (cf. the findings in the contempt action, section 5, supra), but that is not so when it is considered together with his unlawful activities during the mass picketing in enforcing the Union's pass system. It is there- fore concluded and found on the entire evidence that Martin was guilty of conduct which forfeited as to him the protection of the Act and which justified Respondent's selection of him for discharge. Clarence Hess In discharging Hess, Respondent relied on his participation in employment office picketing as shown by numerous affidavits and photographs and the movie film. Respondent offered Jacobi's testimony that on December 6 Hess participated in blocking an approaching applicant on two separate attempts to enter; that on January 22 he bumped with his shoulder each of two approaching applicants; and that Earl Smith, another participant, kicked one of the men. Respondent also offered the testimony of Jacobi and Born as to Hess' presence on at least three occasions (December 7 and 10 and January 17) in groups who surrounded, blocked, pushed, and shouldered applicants. Most of the remaining matter on which Respondent relied (i.e, photographs, the movie film) was not of sufficient probative weight to add substantially to the fore- going direct evidence as to Hess' participation in objectionable conduct. The general finding as to the movie film is applicable here. Though Hess was identified among the groups shown on numerous photographs, he was seldom mentioned in the testi- mony as an active participiant in the incidents, and the photographs did not show him to be engaged in misconduct. Aside then from the direct evidence of Hess' presence and participation in the five incidents mentioned above, what the remaining evidence showed is that he was present on the picket line on a number of occasions when other incidents were occurring. Indeed, this could hardly have been otherwise, in view of Hess' admission that he picketed 4 or 5 days a week during December and January. Though Hess denied that he ever blocked, bumped, shouldered, shoved, or came into physical contact with jobseekers or even that he stepped in front of any who was walking around other pickets, his denials are not credited. He admitted he was present in groups who partially surrounded applicants in an attempt to dissuade them from going in, and that he moved around quite a bit and endeavored to get close enough to get his word in. The evidence as a whole established that Hess' conduct was of such a character as to forfeit the protection of the Act and to justify Respondent's selection of him for discharge. Roman Slesrick In discharging Slesrick, Respondent relied solely on his participation in employ- ment office picketing as shown by photographs, the movie film, and some eight affidavits by Jacobi and Born. The general findings as to the movie film are applicable here. Photographs which related to two separate incidents on December 29 did not show that Slesrick was engaged in misconduct on either occasion. Although Respondent attempts in its brief to buttress the photographs by relating them to other Jacobi-Born affidavits, neither the strike incident list nor Conger's testimony based thereon showed any reliance on the affidavits in Slesrick's case. Furthermore, Respondent concedes that Slesrick was not mentioned in the affidavits and was not represented as committing any overt act. The record contains testimony relating to Slesrick's participation in five of the eight incidents covered by the affidavits Jacobi and Born did not testify to an alleged incident of blocking on January 25 and did not identify Slesrick as a par- ticipant in an incident on January 18. Their testimony concerning an incident on January 24 was either stricken or received under an offer of proof, Jacobi having failed to identify any of the participants and Born having identified Slesrick solely as one who walked to meet two approaching applicants. Slesrick's denials that he blocked, bumped, pushed, or shoved anyone on those dates are credited Jacobi's and Born's testimony as to the other five incidents was generally to the effect that Slesrick was an active participant in groups who blocked, bumped, pushed, and shoved approaching applicants. Their testimony received substantial corrobora- 1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion in each case from the applicants involved,70 who testified to the treatment they received from the group during the incidents . See, for example, a summary of Vernon Grupe's testimony, under Gilbert Stuckmann, infra, item No. 2. Jacobi and Born identified Slesrick as an active participant in that incident. In addition, Donald Schultz, Melvin VanderWeele, and Vernon Schmitz gave corroborating testimony concerning incidents on January 4 and 17, when they were blocked, tripped, kicked, bumped, etc.71 Slesrick admitted participation with groups who surrounded job applicants and admitted that sometimes the applicants would push their way through , making physical contact with the pickets, but he denied that he blocked, bumped, pushed, or shoved anyone on any of the dates in question. His denials are not credited; the Trial Examiner accepts the testimony of Respondent's witnesses except to the extent that it conflicts with Hecker's testimony as to the January 3 incident. It is concluded and found that Slesrick's conduct as an active participant in the incidents which Respondent's witnesses testified to was such as to forfeit as to him the protection of the Act and to justify his discharge. George Klauser In discharging Klauser, Respondent relied on ( 1) his participation in mass picket- ing, including particularly an incident on April 11, (2) affidavits as to his participa- tion in home demonstrations on August 16, 17, and 18, and (3) his participation in employment office picketing on numerous occasions in December and January as shown by affidavits, photographs, and the movie film. (1) Klauser's participation in mass picketing was conceded by the stipulation. Klauser also made no refutation of the affidavit of Arthur Haefke that Klauser was one of three pickets who physically prevented him from entering the main gate around midnight on April 11, by knocking him to the ground, grabbing him around the neck, and holding him by the arms until the squad car pulled up. Haefke averred that he later identified Klauser to Chief Capelle as "the man who was in front of me," and Klauser was arrested. (2) Hammer testified that on August 17, he recognized Klauser (who was a resi- dent of Kohler Village) as he drove past the Harvey Schmidt residence four or five times during a home demonstration, but that he did not see Klauser stop. Born testified that he recognized Klauser as present in the crowd at the Schoenborn resi- dence on August 18, and that Klauser was I of some 20 strikers who, on a motion from Konec, formed a double picket line and started walking. Born's testimony concerning the actual forming of a picket line has been rejected. See footnote 60, supra. Klauser made no denial of the information or the testimony concerning home picketing. (3) It is unnecessary to summarize in detail Klauser's participation in employ- ment office picketing, since Klauser's testimony afforded substantial corroboration of Respondent's evidence. Klauser was identified on numerous occasions in groups of pickets who surrounded, blocked, and impeded the progress of approaching appli- cants, during which incidents various pickets shoved, pushed, bumped, or shouldered the applicants . On some of such occasions the pickets engaged in name calling and in using vile and obscene language. On December 28 Klauser was charged with bumping an approaching applicant, on January 4 with bumping and shouldering an applicant, and on January 19 with bumping and tripping an applicant who stumbled but did not fall. Klauser admitted that there were occasions when he and other pickets met and surrounded applicants, placed themselves between applicants and the entrance to the office building, that the applicants would either have to walk around or push their way through the pickets, and sometimes brushed by him. He admitted also that on 40 Although Wallace Hecker, called by the General Counsel, testified that he stopped voluntarily to talk with the pickets , and was not bumped, shoved , or shouldered, he admitted that as he walked past them he might have pushed them or they might have pushed him. 71 The Schmitz and VanderWeele testimony was taken as an offer of proof on sur- rebuttal Since it appears, however, that Slesrick denied on rebuttal any participation in blocking, pushing, or shoving anyone on the dates in question, the surrebuttal testi- mony appears to be properly admissible. As the witnesses were fully cross-examined, the prior ruling is reversed and the testimony is received Although the VanderWeele offer also related in part to the Carl Rothe case, supra, the situation there was different In that Rothe had not testified in rebuttal. KOHLER CO. 1231 one occasion he stuck out his leg in front of an applicant, and that he also elbowed an applicant who had pushed against him in trying to get by. The credited testimony of Respondent's witnesses established that Klauser's con- duct was such as to forfeit the Act's protection and to justify Respondent's selection of him for discharge. Respondent also contends that Klauser should in any event be denied reinstate- ment because of his presence during the bowling alley incident on February 6, 1956. However, all that the testimony showed concerning Klauser was that he was recog- nized as standing in the crowd. There was no other evidence of his participation in the objectionable conduct. Ray Stauber Respondent relied on some 33 items on its strike incident list relating to Stauber's participation in employment office picketing from November 29 through January 27. Eight of the entries related to the movie film, 10 to photographs, and 15 to joint affidavits by Jacobi and Born. Because of Stauber's rather candid admissions, it is unnecessary to summarize in detail the mass of material on which Respondent relied or the evidence concerning his actual participation. The movies and the photographs were, of course, subject to the usual infirmities, the movies because no identification of Stauber was made, and the photographs because they did not show him to be doing anything. The affidavits and the testimony, however, were sufficient to make out a strong case for Stauber's active participation in a number of incidents when applicants were sur- rounded, blocked, bumped, shouldered, etc. Such evidence was substantially con- firmed by Stauber's own testimony. Thus Stauber admitted that he had picketed some 3 or 4 days a week in December and January, that he was in groups who moved out to meet and surround job appli- cants, on some of which occasions the village police came over and ordered the pickets to open up to let the applicants enter. Though Stauber denied that he had blocked anyone, he admitted that he had impeded them by "standing shoulder to shoulder with the pickets, and, well, impeding the man's progress to the office door." Though Stauber contended that there was room for the applicant to walk around the group, he admitted that to do so the applicant sometimes had to walk on the grass and sometimes in Industrial Road. Stauber also admitted that on one occasion he had bumped an applicant and his testimony showed that he had done so deliberately: Well, I was standing on the sidewalk and this job applicant come up and I moved over and bumped hun. Though the General Counsel offered testimony by some of the job applicants who were involved in some of the incidents, which minimized or dissipated the force of some of Respondent's case as to Stauber, what remained was amply suffi- cient, in view of Stauber's own confirmation, to justify Respondent's selection of him for discharge. Elmer Kraemer Although Respondent's brief asserts reliance by it on information concerning Kraemer's participation in mass picketing, the situation here is the same as in the case of Carl Rothe, supra. Respondent also relied on Kraemer's participation in employment office picketing as shown by numerous affidavits, photographs, and the movie film. Although the movie film (see section 5, supra) and the photographs added little of probative weight to Respondent's case against Kraemer, the record contains otherwise adequate evidence to support and to justify his discharge, particularly in view of Kraemer's failure to testify in rebuttal. Respondent's evidence need not be summarized in detail. Although the General Counsel called some of the applicants who were involved in some of the incidents, there remained unrefuted affidavits and testimony by Jacobi and Born as to Kraemer's participation on a number of occasions in group blocking and his personal participation in shouldering and bumping of applicants. Furthermore, the testimony of the applicants did not always negate Respondent's evidence concerning Kraemer's participation. For example, the General Counsel called Arthur Doctor to refute Jacobi's and Born's testimony that on January 7 Kraemer and John Bowser, shoul- dered two men and that one of them was bumped and shouldered again by Bowser and Osterman as they continued to walk around the pickets. Although Doctor denied that he himself was bumped, pushed, or shouldered, he testified that Orville Quinlan (who accompanied him) was walking behind him and that he did not see whether Quinlan was bumped, pushed, or shoved. 1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is concluded and found on the entire evidence that Kraemer's misconduct during employment office picketing was such as to forfeit the protection of the Act and to justify Respondent's selection of him for discharge. Henry Osterman Respondent based Osterman's discharge on his participation in mass picketing (conceded by the stipulation) and his participation in employment office picketing as shown by several affidavits, numerous photographs, and ,the movie film. The general finding as to the movie film is applicable here. The photographs, including those offered in evidence, identified Osterman in groups of pickets on December 13, 14, 21, and 29 and January 6 and 7. In a number of instances, Osterman is in or near the center of large groups of pickets who are immediately in front of the entrance to the employment office, sometimes when the police are present and sometimes when jobseekers appear. Although Respondent seeks to correlate the photographs to various affidavits relied on in other cases, it concedes that the affidavits do not refer to or identify Osterman. Although there was little in the photographs to indicate overt action on Osterman's part, that factor was supplied by other evidence of his January activities as follows: (1) Desmond's testimony that on January 4 Osterman made a motion with his fist as if to strike an applicant (Henry Leonard), and called him "God damn son- of-a-bitch." Osterman admitted he swung his arm around "for the heck of it," but denied that he tried to hit the jobseeker. He also admitted that he called the person a "scab" but denied cursing him. Desmond's testimony is credited. (2) Testimony by Jacobi and Born that on January 7 Osterman was an active participant in a flagrant and violent incident involving the repeated blocking of applicants, even after the intervention of the police. They testified also that Oster- man made a flying leap at one of the men and struck him with his hip and shoulder, and that he hit one of them with his hand as the man entered the door. Osterman denied the charge. He admitted, however, that he preceded the appli- cants up the steps to the office and that he opened the door for them after remarking that if they wanted a job so badly they should go in. He also admitted putting his hand on the shoulder of one of the applicants but denied pushing him hard, claiming instead that one of them had stumbled over the door ledge as he entered. Osterman's testimony is not credited. (3) Testimony by Jacobi and Born that on January 7 Osterman and Bowser had bumped and shouldered one of two men as they attempted to walk around the pickets. Arthur Doctor, called by the General Counsel in rebuttal (see Elmer Kraemer, supra), denied that he was bumped, pushed, or shouldered, but he testified that Orville Quinlan was walking behind him and that he did not see whether Quinlan was pushed, bumped, or shouldered. Osterman's denial that he bumped or shouldered one of the men is not credited. (4) Testimony by Jacobi and Born that Osterman was one of four pickets around whom an unidentified man had to walk on January 11 and that as he did so he was shouldered and bumped by Bowser. Osterman, who denied that he blocked any- one, admitted that he had on occasions impeded progress to the office door by standing shoulder to shoulder with other pickets, though he contended there was room for the applicants to walk around the group, sometimes on the sidewalk and some- times by walking off on the grass. (5) Testimony by Jacobi and Born that Osterman was in a group of pickets on January 27 who met two men on the sidewalk south of the old main gate and that the men left the sidewalk and walked in Industrial Road. Witnesses called by the General Counsel in rebuttal substantially confirmed that testimony. It is concluded and found on the entire evidence that Osterman's conduct during the employment office picketing, particularly on January 4 and 7, was such as to remove from him the protection of the Act and to justify his discharge. Ralph Sabish Respondent based the discharge of Sabish on the following: (1) His participation in the mass picketing, which was conceded by the stipulation. (2) A photograph which contained a purported identification of Sabish at a home demonstration on August 18. Even assuming the accuracy of the identification, the photograph does not show Sabish as engaged in any misconduct. Though Re- spondent attempts in its brief to assert reliance also on a Born affidavit, Sabish was not mentioned in the affidavit. In testifying to the incident, however, Born not only identified Sabish as present in the crowd, but testified that he was one of those who, KOHLER CO. 1233 on a signal from Konec, formed a picket line. The latter testimony has been rejected. See footnote 60, supra. Sabish made no denial of his presence. (3) A report by Pagnucco that on September 15 Sabish and several other pickets stepped in front of two applicants and that Sabish and LeRoy Ward attempted to per- suade them not to apply. When the men stated that they had to have work, someone of the pickets told them, "We will get your automobile license and you will be sorry-we will catch up to you." The remark was not attributed to Sabish, who denied making it. (4) A number of affidavits and photographs and the movie film concerning Sabish's participation in employment office picketing on November 29 and on various dates in December and January, including incidents when he, himself , blocked, bumped, pushed, and shoved applicants, and when he was among groups of pickets who did so. Aside from evidence concerning Sabish's presence in groups of pickets who sur- rounded , blocked, pushed, shoved, and bumped applicants , Respondent offered testimony that on at least five occasions Sabish himself blocked, pushed, bumped, jostled, or shouldered applicants. Sabish's denials that he had such contacts are not credited. He admitted that on some occasions applicants may have walked through and around groups of pickets and may have brushed against him. The entire evidence showed that Sabish was one of the most active participants in the employment office picketing. It is concluded and found that Sabish's conduct during that picketing was such as to remove from him the protection of the Act and as to justify his discharge. Respondent's brief also seeks to rely on additional alleged acts of misconduct which occurred prior to the discharge, but which were not covered by its pleadings. The evidence concerning them is not considered; they all related to additional in- cidents of employment office picketing. Respondent pleaded, however, that Sabish should be denied reinstatement because of his participation in the bowling alley incidents on February 6 and 7, 1956 . Jacobi testified that on February 6 Sabish kicked him and attempted to knee him in the groin as Jacobi made his way through the crowd to the dressing room after bowling. Herman Miesfeld testified that on February 7 Sabish yelled at him over a period of 2 hours every time he got up to bowl, calling him such names as "rotten scab" and "slimy scab." Kenneth Clark testified that on February 7 Sabish yelled and hollered at him, calling him "scabby Clark." Sabish denied kicking Jacobi , but admitted calling him names. He also admitted calling Miesfeld "scabby Miesfeld." The testimony of Respondent 's witnesses is credited. Sabish's conduct, particularly his assault on Jacobi, was plainly such as to forefeit as to him the protection of the Act and to warrant the denial of reinstatement. Seraphino Marchiando Respondent relied on the following matters: (1) Marchiando's participation in mass picketing (conceded by the stipulation), including particularly his participation in the two following incidents: Police Chief Capelle testified that on the morning of April 26 a UAW-CIO sound truck was stopped on Industrial Road so that it blocked the main entrance to the plant, and that while he and other officers endeavored to push the truck forward away from the entrance , a number of pickets , among whom he recognized Marchiando, started pushing it backwards. Jerome Bersch identified Marchiando as being "in front of the picket line" at the main entrance on May 24 when he and other nonstrikers were pushed back by a group of strikers as they attempted to gain entrance to the plant. (2) Affidavits and testimony given at the WERB hearing concerning Marchiando's participation on the night of April 7 with a group of pickets who chased and caught Dale Oostdyk and Herman Miesfeld as they were atempting to enter the plant from the rear and who took them down to strike headquarters at Peterson's tavern. Oostdyk's testimony (at the present hearing) did not involve Marchiando in the incident either directly or indirectly, and both Miesfeld's affidavit and his testimony at the WERB hearing (received as a General Counsel's exhibit) absolved Marchiando of any wrongdoing . Indeed , his testimony showed that Marchiando had helped him get up from a snow fence onto which he had fallen in the dark and had helped him walk to the Union's soup kitchen so that his injured leg could be given attention. The complete transcript, which showed that Conger had cross-examined Miesfeld fully, afforded no basis for a good-faith belief that Marchiando had engaged in misconduct (3) The Millard Bell affidavit concerning Marchiando's participation with Leon B. Losey and Ed Kalupa in the tavern incident on May 9. That affidavit, which is summarized under Leon B . Losey, supra, item No. 3, showed no misconduct on Marchiando's part. 1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (4) An affidavit by Leroy Mehlos and testimony by Jerome Bersch at the WERB. hearing that Marchiando was a participant in the car picketing of their homes in Sheboygan Falls. Mehlos averred as follows: That sometime in the early days of the strike . . . his home and the home of Jerome Bersch were picketed by ten cars which blocked the street on a morning when they attempted to come to work; that as deponent, who was the home of Jerome Bersch, walked across the street to his own home, Bernard Majerus yelled, "I'll knock your God Damn head in if you come across the street"; that in the group picketing his home deponent recognized Seraphino Marchiando, Mattie Marchiando, LaVerne Karls, Bernard Majerus, and Allan Graskamp, and he also recognized Don Rand's car. Bersch testified (in the present hearing) that on the evening of May 9, he was called on the telephone by John Mertzig, a striker, who told him that, ". . As far as going down to work tomorrow morning, it is going to be kind of useless. Told me I should stay away from there. Told me for all I knew I wouldn't get out of the house the next morning." 72 True to the predictions, Bersch saw some 10 cars driving back and forth in front of his house the next morning when he got up to go to work. Among the persons in the cars which drove by or stopped directly in front of his house Bersch recognized Marchiando. The car picketing lasted about 45 minutes and ended abruptly upon the arrival of the chief of police, whom Bersch had called. It is concluded and found on the basis of the entire evidence that Marchiando's personal participation in the blocking of Jerome Bersch, in preventing the removal by the police of the sound truck from the entrance to the main gate, and in the car picketing of the Bersch and Mehlos homes, constituted conduct which forfeited the protection of the Act and which justified Respondent's selection of him for discharge. Christ Arnold Aside from participation in mass picketing (conceded by the stipulation), Re- spondent based Arnold's discharge on (1) his participation in a home demonstration on August 17, as shown on a single photograph, and (2) his participation in em- ployment office picketing on December 15, 16, and 20, as shown by the movie film, by photographs, and by affidavits. (1) Assuming that the photograph contained an adequate identification of Arnold, it does not show that he was engaged in misconduct. (2) The general finding as to the movie film (section 5, supra) is applicable here. The photographs related to an incident on December 16, concerning which Jacobi testified that as two men approached the entrance to the employment office, at a time when there were six to eight pickets present, Arnold stepped ahead of them and bumped each man with his elbow; that the man stumbled, but did not fall, and then entered the office. One of the photographs plainly showed Arnold in the act of stepping into the path of the second man as the first one mounted the steps. The affidavits related to two incidents on December 20, concerning which Re- spondent offered testimony as follows: Desmond testified that on the morning of December 20, while he was in the em- ployment office, he saw Arnold bump with his shoulder one of three men who were approaching the entrance. Harold Brandt testified that as he approached the employment office he was met by some 15 or 20 pickets who called him "scab" and "scum" and "yellow-belied pig"; that they blocked his approach and caused him to step onto the grass next to the building to get around them; and that as he did so Arnold stepped out and hit him in the side. The General Counsel did not call Arnold in rebuttal. Testifying as the Union's witness, he denied bumping anyone on the 16th. Arnold also denied knowing Brandt, denied that he ever hit anyone with his fist, and that he bumped or shouldered anyone on December 20. He admitted that on one ocasion (apparently either on the 16th or the 20th), while he was dancing to keep warm in the chilly weather, he lost his balance and lurched to the side and "one scab came to the middle of the line and I might have had contact with him; I do not know." 72 Bersch testified further, under an offer of proof, that he received other calls during the night around 3 • 05, 4, and 4: 30 a in. from unidentified persons who predicted he would have difficulties in leaving the house the next morning. Calls by such unknown persons cannot, of course, be attributed to the Union. Tampa Crown Distributors, Inc., supplemental decision, 18 NLRB 1420. KOHLER CO. 1235 The Jacobi-Desmond-Brandt testimony is credited, and it is found that on the three occasions in question Arnold bumped and struck approaching applicants. Such conduct on his part justified Respondent's selection of him for discharge. Although Respondent also now urges that Arnold should in any case be denied reinstatement because of his presence during the bowling incident on February 6, 1956, the testimony showed only that Arnold was identified in the crowd; it did not establish that he engaged in any misconduct on the occasion. Alvin G. Burkard Though Respondent's brief asserts reliance by it on information concerning Burkard's participation in mass picketing, the situation here is the same as in the case of Carl Rothe, supra. Respondent's brief also cites testimony by Henry Sessler, who identified Burkard among a group of strikers who on May 10, 11, and 12 blocked a group of nonstrikers and who pushed and kicked Burkard. Neither the strike incident list nor Conger's testimony showed that Respondent had relied on such an incident in discharging Burkard. In any case, Burkard's denial is credited that he picketed on the days in question at the gates which Sessler identified. Respondent relied outherwise on (1) an affidavit that he made threatening and abusive remarks to Plant Manager Biever on August 20, and (2) affidavits as to Burkard's particpation in home picketing on August 13, 17, 18, and 19. (1) Born testified that on August 20 as he, Biever, and Jacobi drove through the southeast gate (gate 1), Burkard rushed up to the car, put his fist against the window, and said, "I'll ram that camera down your God Damn throat"; that later when they returned to the same gate Biever asked Burkard, "Did you make a fist?"; and that Burkard replied, "Yes, you too, you bastard." Burkard, who was called as a union witness, did not deny the incident. (2) There was no identification of Burkard as being present at a home demon- stration on August 13, and the only reference to him in the affidavit which Respond- ent relied upon was a purported identification of a car parked in the neighborhood as being one registered in Burkard's name. Both by affidavits and testimony Burkard was identified among the participants in home picketing on the 17th, 18th, and 19th. On the 17th and 19th he was identified at the home of Henry Sessler, and on the latter date he yelled at Sessler, "Scab, you yellow-bellied scab." Born testified that he recognized Burkard as walking with other strikers in a picket line in front of the Schoenborn residence on August 18. Born's testimony as to an actual picket line has not been credited. See footnote 60, supra. However, his identification of Burkard is accepted since Burkard did not testify in denial of any of the incidents of home picketing. Respondent also contends that in any case Bukard should be denied reinstate- ment because of his participation in the clay boat picketing on July 5, 1955, and in the bowling alley incidents on February 6 and 7, 1956. Jacobi, Born, and Des- mond testified that Burkard was in the picket line at the clay boat docks and Desmond testified that Burkard held up his fists and shouted at Desmond, "You stinking bastard, I would like to punch you in the nose. Why don't you come over here?" Burkard did not testify concerning his participation in the clay boat picketing. Burkard was present at both of the bowling alley incidents. Desmond testified that on February 7, Burkard, who was standing next to him, referred to the fact that Desmond had testified against him "in the NLRB hearing" and stated, "If the lights go out around here, there will be a dead lawyer." Burkard, who was ques- tioned in rebuttal only about February 6, did not deny the threat to Desmond. As to the 6th, though he denied the specific statements and threats attributed to him by Jacobi and Messner, admitted that he called them names and yelled at them for some 40 to 45 minutes. The Jacobi-Messner testimony is credited. It is concluded and found that Burkard's conduct during the August 20 incident was such as fell outside the protection of the Act and as justified his discharge. It is also found that his conduct at the bowling alleys, particularly his threat to Desmond, was of such a character as to warrant denial of reinstatement. Further- more, his conduct during the clay boat incident was of a piece with his abusive remarks to Biever and Jacobi at the picket line on August 20. Gilbert Stuckmann Respondent based Stuckmann's discharge on his participation in numerous inci- dents of bumping, blocking, pushing, shoving, and shouldering of job applicants during employment office picketing in December and January, as shown by photo- 1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD graphs, the movie film, and by affidavits of Jacobi, Born, and others. Respondent offered testimony as to a number of such incidents which occurred on December 6 and January 3, 10 (four incidents), and 17. (1) Jacobi testified that on December 6 a large group of pickets, including Stuck- mann, walked from the employment office toward a man who was approaching the entrance and that as the man walked between the sidewalk and the building and started up the steps Stuckmann struck and shouldered him. (2) Vernon Grupe testified that on January 3, as he approached the employ- ment office from across High Street, he recognized Stuckmann (whom he knew) and heard Stuckmann shout to some 25 or 30 pickets, "Come on, we can't let this guy go through." When Grupe was in front of the office, Stuckmann physically blocked his progress, and other pickets came from both sides and "ganged up" all around Grupe. Grupe tried to get around them, but was prevented by the pickets, who shouted at him such names as "scabby" and "rat." A policeman crossed the street and attempted to persuade the pickets to let Grupe through, but they at first refused. A second policeman then made a way for Grupe through the pickets, who elbowed, shouldered, and bumped him. Jacobi and Born corroborated Grupe's testimony as to the incident. (3) Jacobi and Born testified that Stuckmann participated on January 10 in four different incidents of blocking of persons who were endeavoring to enter the em- ployment office and that in three of the incidents Stuckmann bumped or shouldered the persons involved. (4) Jacobi and Born testified to an incident on January 17 which involved the blocking of the entrance of a person approaching the employment office, and Born testified that Stuckmann shouldered the person. Although Alfred Jaeger (the person involved in the incident) testified in rebuttal that he was not bumped or shouldered on the occasion, his testimony confirmed the fact of blocking. Although adrmtting that he picketed regularly in December and January, Stuck- mann, who was called by the Union, denied generally that he engaged in any kicking, shouldering, pushing, blocking, bumping, etc., but he admitted that sometime it was necessary for job applicants to push their way through the line and that he sometimes called them such names as "job thieves." As to the Grupe incident, Stuckmann admitted that he met and talked with Grupe, but denied blocking, shouldering, hitting, or tripping Grupe or preventing his entrance. Stuckmann also denied having said, "We can't let this guy go through," or threatening him in any other way, but he admitted that he did "kind of bawl [Grupe] out." He also admitted that he put his hand on Grupe's shoulder and that Krepksky (an officer), said, "Quit talking, and let them go." The testimony of Respondent's witnesses is credited as to Stuckmann's partici- pation in the foregoing incidents. However, Stuckmann's denials are credited as to other incidents which Respondent relied upon but as to which it offered no testimony. It is concluded and found on the entire evidence that Stuckmann's misconduct was such as to remove from him the protection of the Act, and that it justified Respondent's selection of him for discharge. This conclusion renders it unnecessary to consider Respondent's contention in its brief that Stuckmann should in any case be denied reinstatement because of other alleged misconduct during employment office picketing on December 13 and January 3. Furthermore, Respondent relied only on still photographs on which Stuckmann was identified; it referred to no testimony which attributed to Stuck- mann any misconduct on the occasions in question. The photographs do not establish that he was engaged in misconduct. Earl J. Smith Respondent based Smith's discharge on his participation in numerous incidents of bumping, blocking, shoving, and kicking of job applicants during employment office picket in December and January, as shown by photographs, the movie film, and affidavits by Jacobi, Born, and others. Respondent offered testimony as to some of such incidents which, although denied by Smith, established that Smith had engaged in misconduct sufficiently serious in character as to deprive him of the protection of the Act. Because of the ultimate finding the evidence need be summarized only briefly. Donald Schultz testified that on January 4 he and 2 other applicants were met by some 20-odd pickets who completely blocked the sidewalk, who called the applicants vile names, and who tripped, pushed, elbowed, shouldered, and spit on them as they endeavored to walk through and around the pickets. Schultz iden- KOHLER CO. 1237 tified Smith as one who called him names and who pushed and shouldered him, and testified that he was able to gain entrance only after the police ordered the pickets to let the men through. Jacobi and Born testified that on January 10 Smith was one of a group of pickets who blocked the entrance of two men by standing shoulder to shoulder, and that the men gained entrance only after Police Chief Capelle arrived. Jacobi also testified that on January 22 Smith and Clarence Hess bumped two applicants and that Smith kicked one of the men. Although not relied upon as a ground for discharge, Respondent offered evidence as to Smith's participation in an incident on December 20, contending that Smith should in any case be denied reinstatement because of his misconduct. Testimony by Jacobi, Born, Carl Berlin (a police officer), and Phillip Saunders showed the following: that Smith was in groups of pickets who surrounded Saunders and two other applicants and who called names, cursed, and kicked and spit on the three. Saunders identified Smith (from photographs) as one who bumped and hit him, and testified that Smith was one who was active in cursing and in spitting on and kicking him. He also testified that Smith threatened that if he went in he would end up in the graveyard. Smith, called as a union witness, admitted that he was frequently on the picket line in December and January, but denied all the specific acts attributed to him by Respondent's witnesses as outlined above. However, his description of the manner in which the pickets met, intercepted, and positioned themselves with reference to jobseekers confirmed Respondent's evidence that Smith had participated in blocking. His testimony otherwise is not credited Smith admitted the threat to Saunders concerning the graveyard but endeavored to relate it to the danger of silicosis. He conceded, however, that he had made no reference to silicosis on the occasion. It is concluded and found on the entire evidence that Smith's misconduct justified Respondent's selection of him for discharge, and that in any event his further mis- conduct on December 20 was sufficiently serious as to warrant the denial of rein- statement as to him. Roland Buhk In discharging Buhk, Respondent relied on his participation in mass picketing, conceded by the stipulations, and in a number of miscellaneous incidents, involving usually a tavern background. The most serious of those concerned an incident on June 24 at Laack's Bar. Although testimony by Robert Wuestenhagen was taken originally under an offer of proof, the Union put the incident in issue by Buhk's testimony in rebuttal. Respondent's reoffer of Wuestenhagen's testimony is ac- cordingly granted. Wuestenhagen testified that while he and his wife were at the bar, Buhk (who admitted that Wuestenhagen had been pointed out to him as a nonstriker) asked Mrs. Wuestenhagen for a dance, and when she refused, he questioned Wuesten- hagen about where he worked. Having become suspicious, Wuestenhagen and his wife left the bar (after Mrs. Wuestenhagen called the police for protection), but Buhk followed and struck Wuestenhagen on the back of the head as he went down the steps. As the Wuestenhagens walked toward their car, Buhk swung at Wuesten- hagen again but missed him. In the meantime, the police arrived and escorted the Wuestenhagens home. Buhk admitted having asked Mrs. Wuestenhagen (a complete stranger), for a dance, but denied the remainder of the incident within the tavern. However, he admitted having followed Wuestenhagen to his car and testified that Wuestenhagen pushed him away when he tried to talk to Wuestenhagen and that he pushed Wuestenhagen back. Wuestenhagen's testimony, being thus substantially confirmed as to Buhk's in- tentional annoying and molesting of him and his wife, is credited. Respondent offered no testimony concerning Buhk's alleged harassing and threaten- ing of nonstrikers at Butch's Tavern on June 18, concerning an alleged tire slashing on September 28, of which Buhk was suspected, or concerning the car trailing of Albert Schwark from Sparrow's Tavern on November 13 Buhk's unrefuted testi- mony is accordingly credited. It showed no misconduct on his part Though the evidence as to the Schwark incident showed that Buhk was a passenger in -i car driven by Bernard Majerus, it did not establish that he was responsible for the trailing of Schwark It showed further that Schwark was the aggressor in the violent scene in which the trailing culminated, and that Buhk engaged in no misconduct. 577G 84-G1-vol 128--79 1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is concluded and found, however, that Buhk's assaults on Wuestenhagen con- stituted unprotected concerted activity which justified Respondent's selection of him for dischaige. Andrew Lofy In addition to Lofy's participation in mass picketing (conceded by the stipulation), Respondent based Lofy's discharge on his participation in home picketing, on his participation in a single incident of employment picketing, and on a miscellany of affidavits and reports concerning alleged car following, name calling, threatening remarks, harassment of nonstrikers, and suspicion of damaging cars. As Lofy gave unrefuted testimony in denial of most of the miscellaneous items, the evidence need not be summarized as to them. He did not deny that he had called William Belekevich "scabby" on June 18, or that he had followed Roger Ileling's car on June 11 and shouted, "You bunch of scabs." Cf. Alex Dottei, supra. His testimony concerning a statement, "Oh yes, we can," as a nonstriker stopped and got out of his car belligerently on October 1, did not establish misconduct The incident of employment office picketing can also be eliminated as it related to the Robert and Guylene Campbell incident concerning which the Campbells gave testimony which corroborated that of Lofy and Norbert Renzelman and which absolved the pickets of misconduct. See Norbert Renze'man, supra. As to home picketing, the only evidence of serious misconduct related to a demonstration on August 16 in the 1900 block of North 21st Street where some 500 persons were assembled. Born and Desmond testified that as they and other com- pany representatives were seated in a company car, Lofy said to them, "Why don't you stay in Kohler where you belong. If you come to town here, we will turn your car over." That statement was followed by Carl Felsinger's statement to people around him, "Come on, let's turn the car over." See Carl Felsinger, supra. Though Lofy denied the threat, he admitted having stated that "they should stay at Kohler where they belonged." The mutually corroborative testimony of Born and Desmond is credited. It is concluded and found that Lofy's conduct forfeited the protection of the Act and justified Respondent's selection of him for discharge. Though Respondent also relied on Lofy's alleged participation in the Erie Bowling Alley incident on Febreuary 26, 1955, the record showed that Conger's testimony so far as it re'ated to Lofy was stricken when he was unable to testify to any state- ment which Lofy had made. Lyell F. Clark In discharging Clark, Respondent relied on his participation in employment office picketing ( including incidents as early as October 27 and November 11) as shown by the movie film, photographs, and numerous affidavits. Although the movie film and the photographs are subject to the usual infirmities (see section 5, supra), Respondent offered testimony by Jacobi, Born, Desmond, and others as to Clark's active participation in several incidents involving group blocking, as we] as Clark' s own acts of bumping, jostling, pushing; shoving, shoul- dering, and tripping of applicants. Ernest Fischer, for example, identified Clark in the hearing room as the picket who had tripped him on October 27. Although Clark ( a union witness ) denied engaging in the specific acts of mis- conduct which were charged to him, the cumulative testimony of Respondent's witnesses is credited. It is accordingly concluded and found that Clark's conduct during employment office picketing was such as to forfeit the protection of the Act and to justify his discharge. Rudolph Gunderson In discharging Gunderson, Respondent relied on his participation in an alleged incident of bus picketing, in three incidents involving harassment of nonstrikers at taverns and dance halls, and on his participation in home picketing. Respondent offered testimony only concerning the latter. Gunderson gave unrefuted testimony denying that he was on a Sheboygan Falls bus on August 26 at the time of an alleged incident, and denying misconduct at a dance hall on September 18. He made no denial of an affidavit by Clarence Herman that on October 8 he kept repeating to Herman at a tavern, "Are you a scab, are you a scab, are you a scab?" Cf. Alex Dottei, supra. This was the occasion on which Ethan Berg had made an assault on Herman, but the affidavit attributed no participation in the assault to Gunderson. Gunderson also made no denial of the affidavit of William G. Shaefer that on December 15 he had participated in harassment of Shaefer and his wife at Kaker's Tavern and had bumped and pushed Shaefer and finally had kicked him from the KOHLER CO. 1239 rear and pushed him to the ground as the Shaefers left the tavern. The Shaefers later went to Kolste's Tavern where Gunderson shortly appeared and continued his harassment. As to home picketing Sessler testified for Respondent that Gunderson was among the crowd of some 300 persons around his home on August 17 and that Gunderson yelled, "We know you, you yellow-bel ied scab, come on out " Gunderson admitted that he was present at the demonstration 10 or 15 minutes and that he yelled "scab" at Sessler. He also admitted being at two or three other demonstrations, including the Schmidt demonstration. Although Respondent also cites Gunderson's participation in the Leikip incident on the morning of August 18, Lester Damrow's unrefuted testimony established that no misconduct occurred on that occasion See Lester Damrow, supra Though the stipulation concerning mass picketing had not included Gunderson's name, Respondent's brief refers to Gunderson's admission that he had picketed during the mass picketing period. However, Respondent's evidence showed that it had based no reliance on that fact in deciding to discharge Gunderson. Gunderson's participation in the home picketing appeared to be not substantially more serious in that which Alex Dottei had engaged in. However, it is concluded and found that Gunderson's harassment of the Shaefers and his repeated assaults on Shaefer constituted such conduct as removed from him the protection of the Act and as justified Respondent's discharge Aside from the foregoing, Respondent urges that Gunderson should be denied reinstatement because of his participation in the clay boat incident on July 5, 1955. Desmond gave testimony (which Gunderson did not deny) that Gunderson was in a group of strikers (and others) who surrounded a squad car in which he and Plant Manager Biever were seated, that Gunderson reached into the window of the car toward Biever and said, "You God Damn son-of-a-bitch, come here so I can get at you. I'll take care of you," and that Gunderson endeavored to open the car window further, but that Biever reached over and took his hand away from the handle and rolled the window up. It is concluded and found that Gunder- son's conduct on this occasion was sufficiently serious as to forfeit the protection of the Act and to warrant the denial of reinstatement. Though Respondent's brief cites Gunderson's participation in the Erie Bowling Alley incident on February 26, 1955, Respondent's evidence did not show that it had relied on that matter in reaching a decision to discharge Gunderson. Frank Makarevicze In discharging Makarevicze, Respondent relied entirely on his participation in numerous incidents of employment office picketing as shown by the movie film, many photographs, and some 17 affidavits. Although the movie film and the photographs were subject to the usual infirmities, Respondent offered testimony as to Makarevicze's participation in a number of instances of blocking, bumping, shouldering, tripping, and kicking of applicants. The Union, who called Makarevicze in rebuttal, made no attempt in its brief to cover all of the incidents so charged against Makarevicze, but relied mainly on Makarevicze's denials that he had engaged in the acts of misconduct to which Re- spondent's witnesses had testified However, Makarevicze's uncorroborated denials were insufficient to overcome the cumulative testimony of Respondent's witnesses, which is credited. It is therefore concluded and found that Makarevicze's conduct during employ- ment office picketing was such as to remove him from the protection of the Act and to justify his discharge. John C. Bowser In discharging Bowser, Respondent relied upon his participation in employment office picketing as shown by the movie film, numerous photographs, and some dozen affidavits by Jacobi. Born, and others. The general findings as to the movie film are applicable here. Although most of the photographs are subject to the usual infirmities, they showed Bowser's presence, as well as his participation on some occasions, in what is apparently group blocking, thus lending confirmation to testimony of Respondent's witnesses that Bowser engaged in such conduct. Indeed, Bowser readily identified himself on a number of the photographs. It is unnecessary to summarize in detail all the testimony which concerned Bowser, Respondent's witnesses, Desmond, Jacobi, and Born, testified to a number of occasions on which Bowser had actively participated in group blocking, pushing, and shoving of applicants, as well as to four occasions on which Bowser had 1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD personally bumped or kicked an applicant. However, Jacobi-Born testimony to an incident involving Bowser's alleged participation in bumping and blocking on January 3 was refuted by the testimony of Wallace Hecker, the person involved. Bowser (a union witness) admitted that on December 20 he had kicked an appli- cant on the leg because he became irritated when the man wanted to go through the picket line without stopping, and he admitted further that there may have been a couple of other cases where he had bodily contact when he stood in the way of approaching applicants. His testimony, coupled with his identification on the photographs, lent substantial confirmation to the testimony of Respondent's wit- nesses, which is credited. It is accordingly concluded and found that Bowser's conduct during employment office picketing was such as to forfeit the protection of the Act and to justify his discharge. Summarizing Findings To briefly summarize all findings herein relating to the discharge of the strikers and to Respondent's defense of strike misconduct, it is hereby concluded and found on the entire evidence that, by discharging the following employes because of their concerted activities in support of the strike, Respondent engaged in discrimination which discouraged membership in the Union: Alex Dottei, Harvey H. Klabachek, Lloyd Frerichs, Victor Hicks, Tony J. Kissel, Francis "Jim" Olin, Robert Winkel, Emil W. Wanta, Art Russell, Sr., Robert R. Dean, Gretchen C. Seybold, Ella Frazier, Fred Liebelt, Lester Damrow, Carl Rothe, Anthony Champeau, Joseph Lorier, Richard F. Verle, Harold E. Lindemann, Leon B. Losey, Raymond Klaba- chek, Norbert Renzelman, Ervin Eckhardt, Walter Barchacky, Joseph Westphal, Frederick Byrum, Eugene M. Hildebrand, Eddie Meyer, Paul Riehl, Gustave Leibelt, Fred Felsinger, Fred Felde, Jr., Milton G. Tarkowski, Paul A. Gall, and James E. Bailey. It is further found that Paul A. Gall and James E. Bailey have, since their dis- charge, engaged in misconduct which was sufficiently serious as to warrant the denial of reinstatement as to them. It is further concluded and found that Respondent discharged the following em- ployees because they engaged in, or directed and controlled, strike misconduct which was sufficiently serious as to forfeit the protection of Section 8 (a) (3) : Allen J. Graskamp, Arthur E. Bauer, Egbert H. Kohlhagen, Edward C. Kalupa, Leo J. Breirather, Elmer A. Oskey, Gordon Majerus, Elmer H. Gross, Kenneth C. Nitsche, Bernard Majerus, Curtis Nack, Leo Prepster, John Konec, William Methfessel, Gordon Peryam, Arbor L. Brewer, Carl Felsinger, Elmer Zittel, Ronald J. Fischer, Cornelius Munnik, Richard J. Gruenke, Edward McDougal, Ethan Berg, John Nisporic, John M. Martin, Clarence Hess, Roman Slesrick, George Klauser, Ray Stauber, Elmer J. Kraemer, Henry Osterman, Ralph Sabish, Seraphino M. Marchi- ando, Christ Arnold, Alvin G. Burkard, Gilbert A. Stuckmann, Earl J. Smith, Roland Buhk, Andrew Lofy, Lyell F. Clark, Rudolph Gunderson, Frank Makar- evicze, and John C. Bowser. 1. The cause of the strike and of its prolongation As has been previously found, the evidence plainly showed that the strike was caused by the failure of the parties to reach a contract. It has also been found that prior to the strike, such failure was not due to any failure by Respondent to bargain in good faith. Though a refusal to bargain was found through Respondent's failure to furnish certain information to the Union on or about March 6, 1954 (section C, 2, b, supra), the requested information concerned a grievance; it was unrelated to the bargaining negotiations and played no part in the failure to reach a contract. It is therefore concluded and found that the strike was for economic reasons in its inception. The problem remains of determining whether the economic strike was subse- quently prolonged by any of Respondent's unfair labor practices and became thereby converted into an unfair labor practice strike. Of course, the mere occurrence of unfair labor practices during an economic strike does not automatically convert it into an unfair labor practice strike; a conversion can be found only if there is proof of a causal relationship between the employer's unfair labor practices and the con- tinuation of the strike. 19 NLRB Annual Report 86 (1954), and cases there cited See also Anchor Rome Mills, Inc, 86 NLRB 1120, 1122; Harcourt and Company, Inc., 98 NLRB 892, 909; and N L.R.B. v. Scott & Scott, 245 F. 2d 926 (C.A. 9). Certainly, there was no conversion prior to June 1, as no unfair labor practices of any kind were found to have been committed between April 5 and that date. KOHLER CO. 1241 It has been found, however, that on or about June 1, Respondent failed to bargain in good faith by its unilateral grant of a wage increase (section E, 1, supra). That action, which was "manifestly inconsistent with the principle of collective bargaining" (Crompton-Highland Mills, supra, at page 225), resulted in disparagement of the Union as the bargaining representative of Respondent's employees and prejudiced the rest of the negotiations. Id., and see N.L.R.B. v. J. H. Rutter-Rex Manufacturing Company, 245 F. 2d 594 (C.A. 5). Respondent's unfair labor practice thus in- creased and exacerbated the differences between the parties, which during the June negotiations were close to solution. The failure to reach agreement, which the evidence plainly shows caused the strike to be prolonged, is chargeable to that unfair labor practice. Other unfair labor practices which contributed to the prolonging of the strike in June and after July 1 were Respondent's discharge of the striking employees in the shell department on July 1, its failure to bargain with the Union in June concerning that discharge and concerning the transfer of the nonstrikers to other departments (section E, 2, supra),73 and its failure to bargain in good faith during the August negotiations. Respondent's further refusal to bargain, which is found herein to have occurred and to have continued at all times after September 1, similaily caused the pro- longing of the strike at all times after that date. Other unfair labor practices, which directly contributed to the prolonging of the strike, were Respondent' s refusal in February 1955 to bargain concerning the reemployment of strikers whom it con- sidered guilty of strike misconduct and its discriminatory discharge of 35 of them, as herein found. An additional contributing cause was Respondent's unilateral granting of the second wage increase on August 5, 1955, which has been found independently to have constituted a refusal to bargain in good faith. IV. THE REMEDY It having been found that Respondent has engaged in certain unfair labor prac- tices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action which the Trial Examiner finds necessary to remedy and remove the effects of the unfair labor practices and to effectuate the policies of the Act. Though the recommended remedies are all conventional ones, a word of explanation is necessary as to some of them. Neither reinstatement nor backpay is recommended as to discharged striker Rob- ert R. Dean, who died during the course of the hearing and to whom the record showed no abandonment of the strike or application for reinstatement. Neither is reinstatement nor backpay recommended as to James E. Bailey and Paul A. Gall, who were found guilty of serious acts of misconduct after their discharge and as to whom the record similarly showed no application for reinstatement. Because Respondent's offer of reemployment of November 22, 1954, to discharged strikers in the shell department was itself discriminatory. Respondent should, of course, be required to offer them reinstatement 74 on the same basis as accorded the nonstrikers, i e., permanent jobs with retroactive seniority. However, none of such employees are entitled to displace permanent striking employees who are herein found to be entitled to reinstatement. Backpay should run to the shell department employees from November 22, 1954, including any cases where backpay may be due to those who returned to work under Respondent's former offer. The provision for backpay as to all other strikers who are found herein to have been discriminatorily discharged (except Dean, Bailey, and Gall) shall run only from a date 5 days after their application for reinstatement on the termination of or their abandonment of the strike. See Ford Radio and Mica Corporation, 115 NLRB 1046, 1048-1049; Happ Brothers Company, Inc., 90 NLRB 1513, 1518. Also, in view of the finding herein that on June 1, 1954, the strike was converted into an 78 Though a refusal to bargain has been found on June 14 resulting from Respondent's failure to furnish the Union with certain wage information ( section C , 2, a, supra), the issue to which the information related had been postponed for negotiation and is therefore not found to have prejudiced the June negotiations Similarly, though a violation of Section 8(a) (1) was found to have been committed in June (section F, supra ), the evidence failed to establish any causal connection with the prolongation of the strike. The February incidents , testified to by Majerus , played no part in causing the strike, nor does the complaint so charge 74 Except James Rogers , LaVern H. Kuhlow, Lucille M. Strutz, and Margaret A. Bal- naitis, who were reinstated with permanent employment on July 26 , 1954, and Susie Trester, who was similarly reinstated on October 19, 1954. 1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unfair labor practice strike and was thereafter prolonged as such by Respondent's unfair labor practices , it will be recommended that Respondent shall, upon applica- tion, offer reinstatement to each striking employee (except those as to whom dismissal is recommended herein ) who had not been replaced prior to June 1, 1954 (see City Packing Company , et al., 98 NLRB 1261, 1262 ), backpay to run as above. The establishment of a preferential hiring list will also be recommended as to those for whom no employment is immediately available. The remedies which are being recommended as to the evicted employees comport with those in W. T. Carter and Brother, et al., 90 NLRB 2020, 2026-2027 , and cases there cited. Of course, Respondent's obligation to furnish living quarters or leased premises to said tenants will terminate whenever they cease to be employees of Respondent . Cf. L. J. Williams d/b/a L. J. Williams Lumber Company, et al., 96 NLRB 635. For reasons which are stated in Consolidated Industries , Inc., 108 NLRB 60, 61, and cases there cited , I shall recommend a broad cease-and-desist order. See also Kohler Co., 108 NLRB 207 , 228, enfd. 220 F. 2d 3 (C A. 7). 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 Union is a labor organization within the meaning of Section 2(5) of the Act. 2. All production and maintenance employees of Respondent's Kohler, Wis- consin, plant, including shop office stenographers, American Club employees, all employees described in the October 23, 1950, supplement "B" of the contract executed on August 31, 1950, between Respondent and the Kohler Workers Association and all employees described in supplement "F" of the contract, including employees doing experimental work in the development department, but excluding general office and clerical employees, draftsmen, technicians, clerks in the medical depart- ment. Employees in the employment department, doctors, dentists, nurses, en- gineers, employees in the chemical and physical laboratory, confidential employees, watchmen, guards, and supervisors as defined in the Act, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) and (b) of the Act 3. At all times on and after June 11, 1952, the Union has been the exclusive bargaining representative of Respondent's employees in the aforesaid unit 4 Respondent tailed and refused to bargain with the Union by: its failure to furnish, on or about March 6, 1954, certain incentive earnings requested by the Union of employees in the brass diecasting department; by its failure to furnish on or about June 14, 1954, the incentive earnings of employees in the enamelware division, and on or about August 13, 1954, the remainder of the incentive earnings requested by the Union; by its unilateral granting of wage increases on or about June 1, 1954, and August 5, 1955, respectively; by discharging striking temporary employees in the shell department on July 1, 1954, and by transferring the non- strikers to other departments without negotiation or consultation with the Union; and by its refusal to negotiate on or about February 21 and March 1, 1955, con- cerning the identity of employees whom Respondent considered ineligible for rein- statement upon termination of the strike and by discharging some 35 of said strikers for alleged misconduct. 5 Respondent failed and refused to bargain in good faith at all times after June 1, 1954, except during the periods between June 29 and August 5, 1954, and between August 18 and September 1, 1954, respectively, when its obligation to bargain was suspended. 6 By discharging, on or about July 1, 1954, the temporary employees whose names are listed in Appendix A [attached to Decision and Orderl, and by failing to offer them reinstatement on the same basis as nonstrikers similarly situated, Re- pondent engaged in discrimination within the meaning of Section 8(a)(3), and thereby engaged in unfair labor practices in violation of Section 8(a)(3) and (1). 7. By discharging the employees whose names are listed in Appendix F, Respond- ent engaged in discrimination in violation of Section 8(a)(3) and (1) of the Act. 8. By serving eviction notices on the striking employees whose names are listed in Appendix B-1, and by its physical eviction of Peter Gasser and Frank Novak, Respondent engaged in interference, restraint, and coercion in violation of Section 8(a)(1) of the Act 9. By serving such eviction notice on Carl Faas and by requiring him to surrender occupancy, Respondent also engaged in discrimination in violation of Section 8(a) (3) of the Act. 10. By threats and promises concerning the handling of grievances by a union steward (Majerus), and by its solicitation and promises of benefit to induce the KOHLER CO. 1243 return to work of a striker (Forstner), Respondent engaged in interference, re- straint, and coercion in violation of Section 8(a)(1) of the Act. 11. The aforesaid unfair labor practices having occurred in connection with the operations of Respondent's business as set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and substantially affect commerce within the meaning of Section 2(6) and (7) of the Act. 12. Respondent did not engage in unfair labor practices by discharging the em- ployees whose names are listed in Appendix G. [Recommendations omitted from publication.] APPENDIX B 1. Striking Employees Served With Eviction Notices, December 1954 Henry Arnoldi Peter Gasser Walter Siech Carl Faas Frank Novak Gordon Daniel Ervin Siech John Siech Lee Blandin Ove Gjersten 2. Striking Employees Evicted Ervin Siech Peter Gasser Gordon Daniel John Siech Frank Novak Lee Blandin Walter Siech Ove Gjersten APPENDIX C Striking Employees Discharged March 1, 1955 Christ Arnold Richard J. Gruenke Eddie Meyer James E. Bailey Rudolph Gunderson Cornelius Munnik Walter Barchacky Clarence Hess Curtiss R. Nack Arthur Bauer Victor Hicks John Nisporic Ethan Berg Eugene M. Hildebrand Kenneth C. Nitsche John C Bowser Edward C. Kalupa Francis "Jim" Olin Leo J. Breirather Tony J. Kissel Elmer A Oskey Arbor L. Brewer Harvey H. Klabachek Henry Osterman Roland Buhk Raymond Klabachek Gordon Preyam Alvin G. Burkard George Klauser Leo J. Prepster Frederick Byrum Elbert H Kohlhagen Norbert Renzelman Anthony Champeau John Konec Paul Riehl Lyell F. Clark Elmer J Kraemer Carl Rothe Lester Damrow Gustave Leibelt Art Russell, Sr. Robert R. Dean Fred Liebelt Ralph Sabish Alex Dottei Harold E Lindemann Gretchen C. Seybold Ervin Eckhardt Andrew Lofy Roman Siesrick Fred Felde, Jr. Joseph Loner Earl J. Smith Carl Felsinger Leon B. Losey Ray Stauber Fred Felsinger Edward McDougal Gilbert A Stuckmann Ronald J. Fischer Bernard Majerus Milton G Tarkowski Ella Frazier Gordon Majerus Richard F. Verle Lloyd Frerichs Frank Makarevicze Emil W Wanta Paul A. Gall Seraphino M Marchiando Joseph Westphal Allan J Graskamp John M Martin Robert Winkel Elmer H. Gross William Methfessel Elmer Zittel APPENDIX D Mr. HERBERT V. KOHLER, President Kohler Company Kohler, Wisconsin DEAR SIR: AUGUST 10, 1954. This is to advise you that the International Union, UAW-CIO Local 833, hereby modifies its monetary and contractual demands on the company in an effort to arrive at a speedy and honorable settlement of the matters in dispute between the union and the company. 1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1-General Wage Increases: a. General wage increase of 100 an hour for all hourly rated workers retroactive to March 1st, 1954. b. An additional 50 per hour wage adjustment for all skilled workers in the maintenance and tool and die departments retroactive to March 1st, 1954. c. Establishment of procedures to resolve any existing wage inequities inside the plant and to reduce the number of existing wage classifications. The company is to furnish the union with necessary wage and other data required to make an intelligent study of wage inequity problems. 2-Non-contributory Pension Plan guaranteeing minimum standards equal to UAW-CIO pension benefits. 3-Improvements in Hospital -Medical Insurance to provide: a. Increases in daily benefit for room and board from $6.00 to $8.00 per day. b. Increase the maximum days of hospitalization from 31 to 120 days. c. A change of definition of dependents to include children from birth instead of 14 days after birth. d. Provide maternity benefits of $8.00 per day for 10 days and surgical benefits of $60.00 or a total reimbursement of $140.00. The increased cost for these benefits which amount to approximately %loths of 10 per hour to be paid for by the company. 4-The continuation of present Arbitration provisions in the contract with a clarification that the discharge or discipline of workers shall be subject to arbitration. The union is agreeable to provide an additional grievance step prior to Arbi- tration which will be attended by the Regional Director of the UAW-CIO or his designated representative. 5-An amendment to the seniority provisions to provide for lay-offs according to seniority only. 6-Maintenance of Membership contract provisions with self-renewing check- off of union dues. 7-A 4% lunch time allowance for Enamel Shop and Pottery Dry Finishers engaged in continuous three shift operations. The union is willing to negotiate on these matters still in dispute until satis- factory agreements are reached. Sincerely yours, APPENDIX E EMIL MAZEY, Secretary-Treasurer, UAW-CIO. HARVEY KITZMAN, Director, Region 10, UAW-CIO. ALLAN GRASKAMP, President, UAW-CIO Local 833. AUGUST 13, 1954. UAW-CIO, Local #833, 527-A North Eighth Street, Sheboygan, Wisconsin. Attention: Mr. Allan J. Graskamp, President GENTLEMEN: This is in reply to your letter of August 10, 1954, containing what you term a modification of your demands. These are virtually the same demands which you made orally before negotiations were discontinued on June 29th and vary in terminology rather than in substance from your demands prior to the strike. They offer no basis for an assumption that agreement can be reached. The company's position on these demands is as follows: 1. The company has offered a 30 per hour wage increase. This makes a total of 18¢ per hour granted in the last two years. In addition, the company has granted fringe benefits estimated by the union at 60 per hour. In view of the fact that earnings of Kohler Co. employees have always exceeded the average for the industry, the state and the locality, the com- pany's wage offer is not only fair but generous. The company's wage offer remains at 30 per hour, effective April 5, 1954. KOHLER CO. 1245 2. The wages of employees in maintenance work and tool and die work are generally in line with wages paid in other departments and we are not in accord with any additional blanket increase for these employees. 3. In the contract last year the company agreed to a procedure intended to reduce the number of existing wage classifications and eliminate any in- equities. This procedure did not function due to the union' s insistence on another general wage increase thinly disguised as an inequity adjustment and on the union's insistence that the company compile data not available and not necessary for bargaining. Early in the negotiations, prior to the strike, the company expressed its it willingness to establish procedures for bargaining to reduce the number of wage classifications and eliminate any intra-plant inequities that may exist. Company representatives have advised you that this is still the company's position. 4. Your objection to the present pension plan seems to stem mainly from the fact that it was in existence before your union became the bargaining agent and that the union therefore can not claim credit for forcing it upon the company. The company has offered to supplement the present pension plan to yield retirement benefits at age 65 equivalent to the maximum benefit under the union's plan for the total years of credited service in any case where the present plan would yield less. It does not agree that the plan be made non- contributory. 5. The company has offered to increase the daily benefits under the hospitali- zation insurance plan from $6.00 to $8.00 per day; to increase the maximum days from 31 to 120 days; to change the definition of dependent to include children from birth instead of 14 days after birth; and to increase maternity benefits from the present flat payment of $100 to a maximum benefit of $140. The company has also offered to continue to pay the full cost of hospitali- zation and surgical insurance for employees, including the increased benefits mentioned above. The company will continue to contribute 14¢ per month toward the cost of hospitalization insurance for the employee's dependents. 66. The company has agreed to arbitration of the interpretation and application of the contract which is all the power a judge would have if the contract were before a court of law. The company does not agree that vital management decisions shall be subject to the review of an arbitrator. Many employees of the company presently working have been threatened with retaliation when the strikers return to work. If any such attempts are made, the company will take prompt and ade- quate disciplinary action. It does not agree that its freedom in this respect shall be restricted by arbitration of discharges. 7. The company does not agree that seniority shall be made the sole factor to be considered in the event of a lay-off or for any other purpose. In order to be fair to all employees and to maintain an efficient operation, merit and efficiency of performance must continue to be given consideration as well as seniority. 8. As you have been advised repeatedly, the company does not agree to any form of compulsory union membership. It will not require employees to join a union as a condition of employment nor will it require them to continue membership in a union which they do not believe is properly representing them The company does not agree to maintenance of membership. It has offered the same check-off provision to which it agreed in the last contract, the only change being to prevent deliberate misinterpretation by the union. 9. Sufficient time is now available for lunching in the Enamel Shop, as shown by the fact that the men do eat their lunch. The demand for a 4% lunch time allowance is a thinly disguised demand for a 4% increase in Enamel Shop rates in addition to the increase other employees receive. An additional wage increase in the Enamel Shop is not warranted. As you were advised prior to the strike, we intend to eliminate the third shift in the Pottery Dry Finishing Department. The demands made in your letter offer little prospect for a settlement of the strike by agreement. 1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company representatives will attend the meeting now scheduled by the Federal Conciliators for Friday, August 13, 1954. If the situation appears to be still deadlocked and an impasse reached, further negotiations will be useless until such time as you are willing to take a more realistic view of the situation. Very truly yours, APPENDIX F KOHLER CO., Herbert V. Kohler, President. Strikers Discriminatorily Discharged Alex Dottei Fred Liebelt Joseph Westphal Harvey H Klabachek Lester Damrow Frederick Byrum Lloyd Frerichs Carl Rothe Eugene M. Hildebrand Victor Hicks Anthony Champeau Eddie Meyer Tony J. Kissel Joseph Lorier Paul Riehl Francis "Jim" Olin Richard F Verle Gustave Leibelt Robert Winkel Harold E Lindemann Fred Felsinger Emil W. Wanta Leon B. Losey Fred Felde Jr. Art Russell, Sr. Raymond Klabachek , Milton G. Tarkowski Robert R Dean Norbert Renzelman Paul A Gall Gretchen C Seybold Ervin Eckhardt James E. Bailey Ella Frazier Walter Barchacky APPENDIX G Discharged Strikers As To Whom Dismissal Is Recommended Allan J. Graskamp Gordon Peryam Ray Stauber Arthur E. Bauer Arbor L. Brewer Elmer J. Kraemer Egbert H. Kohlhagen Carl Felsinger Henry Osterman Edward C Kalupa Elmer Zittel Ralph Sabish Leo J. Breirather Ronald J. Fischer Seraphino M. Marchiando Elmer A Oskey Cornelius Munnik Christ Arnold Gordon Majerus Richard J Gruenke Alvin G. Burkard Elmer H Gross Edward McDougal Gilbert A. Stuckmann Kenneth C Nitsche Ethan Berg Earl J Smith Bernard Majerus John Nisporic Roland Buhk Curtis Nack John M. Martin Andrew Lofy Leo J Prepster Clarence Hess Lyell F. Clark John Konec Roman Slesrick Rudolph Gunderson William Methfessel George Klauser Frank Makarevicze John C. Bowser SUPPLEMENTAL INTERMEDIATE REPORT Following the issuance of the Intermediate Report on October 9, 1957, the Union and the Respondent filed with the Board their respective motions on August 1 and 13, 1958, to reopen the record and to receive certain evidence, specified in said motions, which was brought to light during the course of the hearings in February and March 1958, before the Senate Select Committee on Improper Activities in the Labor or Management Field. The General Counsel filed no similar motion, joined in neither motion, filed no opposition, and took no position before the Board. On November 19, 1958, the Board granted the motions (except for one portion of Respondent's motion) and ordered that the record be reopened and that a further hearing be held before this Trial Examiner "for the purpose of receiving only that additional evidence now sought to be introduced by the Charging Union and the Respondent in their respective motions which is relevant and material to the issues in the present proceeding, and which was unavailable to them during the hearing before the Trial Examiner, or that relevant and material testimony given by witnesses before the Senate Committee which may be inconsistent with their testimony given in the hearing before the Trial Examiner." Pursuant to said order, a supplemental hearing was held at Sheboygan, Wis- consin, on December 16, 1958, and January 6-9, 1959, inclusive. The December 16 hearing was in the nature of a pretrial conference at which the Trial Examiner KOHLER CO. 1247 explored with the parties the nature and form of the evidence which they proposed to offer, received stipulations were obtainable, and heard arguments as to ma- teria!ity, relevancy, etc., and as to the scope of the hearing. Fiom certain motions at the hearing and from arguments finally advanced in the briefs, it is now plain that the parties have departed widely from the contentions they urged upon the Board on the basis of which their respective motions were granted and, using the remand as an entry, have endeavored to bring in new and different issues, in the Union's case, and in Respondent's case, to reargue completely the refusal-to-bargain issue. The General Counsel, without the benefit of an entry in his own behalf, claims an assist from the Union's entry; and the Union, in turn, ignoring a disavowal at the healing, does an about-face in its brief, claiming an assist from the General Counsel's motion to amend made near the end of the hearing. These facts make it imperative to review carefully the limitations pre- scribed by the Board in the light of the issues to which the motions related' A. The issues of the hearing; the General Counsel's i ole The Board's order, in careful language, fixed precise and narrow limits to the scope of the hearing, providing that the additional evidence to be received was to be confined to the following- Only that sought to be introduced by the Charging Union and the Respondent in their respective motions, which is material and relevant to the issues in the present proceeding, and which was unavailable to them during the former hearing, or testi- mony of witnesses before the Senate Committee which may be inconsistent with their prior testimony given before the Trial Examiner. Questions concerning the General Counsel's role arose under the first two of those limitations. Since the Geneial Counsel filed no motion and sought no relief, the Board's order was drawn, understandably, to encompass only that evidence which was specified by the movants. Furthermore, by limiting the evidence to "the issues in the present proceeding," the Board presumably intended to specify those which existed at the prior hearing, as fully summarized in the Intermediate Report, for had the Board felt that rulings of the Trial Examiner had improperly circum- scribed those issues, its order would have included proper directives for broadening the scope of the hearing in the light of the exceptions of the parties. Since the Union's evidence was directed entirely to a course of alleged surveillance and espionage, the question arose as to what issue in the proceeding was involved. Though much of the evidence was of a type which typically supports an allegation of surveillance under Section 8 (a)( I) of the Act, there was no such allegation and no issue of surveillance in the former pleadings. See section of Intermediate Report entitled, "The Pleadings," and footnotes 4 and 5. Furthermore, the Union's mo- tions not only related the proffered evidence specifically to the refusal-to-bargain issue, but its counsel stated the same theory of relevancy at the pretrial conference 2 and expressly disclaimed any intention of expanding the hearing to bring in new issues or of seeking to prove a new unfair labor practice, i.e., surveillance as a violation of Section 8 (a) (1). As the General Counsel did not then move to amend the complaint or move for reconsideration of the former ruling rejecting his motion to amend, there was no issue, as the Union's evidence came in, of surveillance as 8(a) (1), the Union having disclaimed any intention of supporting such an allegation. Furthermore, as no exceptions were taken to the Trial Examiner's former rulings concerning, or his failure to find, surveillance as such, the issue was not in the proceeding when the Board granted the motions to reopen.3 'Comparison of Respondent's motion with its present position is reserved for discus- sion under section C , infra. 2 Union counsel did, however, later adopt the suggestion of the General Counsel that the proffered evidence supported the "pretext" theory of Respondent's discharge of 90 strikers (which was, of course, within the issues of the proceeding). See section of Inter- mediate Report entitled "the Rubin Biothers defense; the General Counsel's rebuttal theories " 8See Rules and Regulations, Series 7, Sec. 102.46(a) and (b), and see NL.RB. v. International Association of Machinists, Lodge 942, AFL-CIO (Alloy Manufacturing Company), 263 F 2d 796 (CA 9), and cases there cited, where the court affiimed an 8(b)(1)(A) finding on the sole ground that the respondent, having taken no exception to the Trial Examiner's finding in that regard, was barred by Section 10(e) from raising the question before the court at the enforcement stage. The General Counsel acknowledges his failure to except to the Intermediate Report in the present respect by now attempting in his brief to the Trial Examiner (irregularly, 1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Despite the foregoing , as the Union neared the end of its evidence , the General Counsel moved the Trial Examiner to reverse his ruling of April 2, 1956 (see section of Intermediate Report entitled "The Pleadings"), and moved further to amend the complaint to allege, as a violation of Section 8(a)(1), a course of surveillance of union or concerted activities since April 5, 1954. The motions were denied. Other than the foregoing , the General Counsel's participation consisted mainly of supplementary examination of witnesses on both sides . Certain exhibits which he offered (not offered by the Union) were rejected as irrelevant and as outside the scope of the hearing Indeed the General Counsel argued in part that the exhibits were evidence of a violation of Section 12. By its brief the Union now, ignoring its previous disclaimer, seeks a finding of surveillance as a violation of Section 8(a) (1). Both it and the General Counsel also move for reconsideration of the General Counsel 's proposed amendment and renew their offers of certain rejected evidence . Their motions are hereby denied , as well as similar motions by Respondent as to rulings which rejected certain evidence offered by it. Though the Trial Examiner thus adheres to his rulings at the supplemental hearing, this case has dragged much too long to warrant the risk of additional substantial delay from a further remand in the event the Trial Examiner has misconceived the scope of the hearing which the Board contemplated . For that reason, and since the General Counsel represented that the record contains all evidence on which he based his motion to amend the complaint, the Trial Examiner 's findings will indicate what aspects of Respondent 's conduct, as summarized under the following section, would support an allegation of surveillance as a violation of Section 8(a) (1) if within the scope of the remand order. B The Union's evidence The Union's motion requested the Board to explore "the extensive anti-union espionage carried on [by Respondent] continuously from April 1954 to November 9 _ 7 by private detectives hired and directed by Lyman Conger, respondent's counsel and chief `negotiator'," contending: Specifically, this new evidence of detective espionage starting in April 1954, not only substantiates the Trial Examiner's findings that responds nt failed to bargain in good faith subsequent to June 1, 1954; it also lends added weight to Local 833's view that the Trial Examiner should have found the failure to bargain prior to June. Despite the period specified in its motion, the Union procured the issuance of subpenas duces tecuin which covered both a period long before the strike and a period subsequent to November 1957. On motions to quash the subpenas, the Trial Examiner limited them to a period beginning February 2, 1954, and ending De- cember 1, 1957. As the Union's motion related the evidence to the refusal-to- bargain issue, the Trial Examiner felt that a date coincident with the beginning of negotiations would neither broaden the subpenas unduly nor prejudice the Union's attempt to develop evidence concerning the period which it specified in its motion. The evidence which was produced under those subpenas was, by and large, no more and no less than had been developed in the record of the Senate Committee, of which the Union had a copy. Though union counsel strove diligently for 1 day to develop oral testimony from detectives which would add significantly to the contents of their written reports to the Company, nothing important was forthcoming; and on the second day, the Union announced that it would abandon the oral exami- nation of the detectives save for limited purposes. As ultimately developed, the evidence concerned two main employments: one in April-May 1954 of the Schindler Agency of New York which referred the matter to the Interstate Agency of Chicago, and the other beginning in July 1954 of the Madson Detective Agency of Green Bay, Wisconsin, which operated also under other names, and which referred some aspects of its assignments to agencies in other cities Only the Madson investigations and reports were of significance. The evidence surrounding the Schindler-Interstate reports showed that the em- ployment concerned an investigation of the alleged assaults on and abduction of Dale Oostdyk and Herman Miesfeld on the night of April 7,4 and that it covered a of course) to cure the omission by "now except[ing] to the failure of the Trial Examiner to find surveillance in his Intermediate Report " 6 One account of that incident appears at section of Intermediate Report entitled "Seraphino Marchiando." KOHLER CO. 1249 period from April 25 through May 17, 1954. Though the investigation was fruitless as concerned its purpose, i.e., the identification of the participants in the incident, the detectives sometimes added reports on other facets of strike activities which had come to their notice, possibly to distract attention from their failure to accomplish anything otherwise. In its entirety the evidence afforded no support for the Union's contention that the Company was guilty of a refusal to bargain during the mass picketing period. Its only significance lay in the fact that it represented Respond- ent's first resort to the employment of private detectives and its motive for doing so. As to Madson, the evidence established that Conger first contacted that agency on July 12, 1954, that the first specific assignment was received a few days later, and that the first report was made on July 28, 1954. The mere recitation of those facts leaves without foundation, of course, any claim that the Madson reports will support a refusal-to-bargain finding prior to June 1, 1954. The evidence will, however, be reviewed briefly in the light of the further claim that the evidence substantiates the Trial Examiner's finding that Respondent failed to bargain in good faith subsequent to June 1. Union counsel argued at the pretrial hearing that the detective reports might show both matters of legitimate inquiry of proper concern to the Company and matters of illegitimate inquiry. The evidence sustained that prediction. Among matters of legitimate inquiry were, of course, the Oostdyk-Miesfeld in- vestigation and so much of the Madson investigations as concerned (1) the attempts to identify and to apprehend persons suspected of engaging in or directing acts of vandalism or of violence; (2) the alleged subversive background of union officers whom Respondent felt were required to file non-Communist affidavits under Section 9(h) of the Act; and (3) certain facets of its defense and trial preparations. It is unnecessary to review at length the numerous excerpts which deal with the foregoing types of legitimate inquiry, and this despite the fact that in some respects the detectives (and Respondent) frequently considered and sometimes resorted to shocking, if not unlawful, methods of obtaining information. Other reports made by the detectives and freely accepted (and paid for) by Respondent concerned other matters which were plainly outside the scope of lawful inquiry. These included: (1) Reports concerning the beliefs, sentiments, and attitudes among the strikers themselves on the issues involved in the strike, as to whether the strike was broken or lost, and on the liklihood that the Union was ready to settle for less than currently indicated Though some of those reports emanated from common bar and tavern talk, the detectives took pains to confirm the information within union headquarters at the Grand Hotel and the strike kitchen (at Peterson's Tavern), one such source being a secret informant whom the detectives had succeeded in placing in those vantage points. Thus, a report dated May 3, 1955, pointed out that certain information obtained during barroom talks corresponded with previous information that the Union was "now concerned primarily with" settling the contract and maintaining the UAW at Kohler, and that: Information previously received by overhearing a conversation at the Grand Hotel, indicated that the CIO-UAW at Kohler was presently very much con- cerned whether or not they could maintain any union at the Kohler Company if conditions continue to get worse regarding the strikers. It should therefore be noted that the Kohler Company management might have their strike settled by the UAW accepting existing terms with the UAW actually considering a possible strike in the future when the entire resources of the mergered AF of L and CIO Union men could be used. This was followed on May 16 by a report from the secret informant at the strike kitchen that conversations there showed that "the strikers believed that the strike was now lost and that the main issue now confronting the striking union was a method of settling this strike and at the same time maintaining the UAW-CIO union in the Kohler Company." The informant added a postscript on her success and her prospects, stating that the strikers were becoming less "leery" of her and that she felt certain she might have information of value in the near future Again on June 29, the informant, then operating within the Grand Hotel, furnished information to the fact that "there was considerable conversation between members of the striking Local 833-UAW concerning whether or not they had lost the strike," and that "approximately fifty percent agreed the strike was lost, wherein the other fifty percent agreed that they should continue on as they were at the present time." (2) Investigations into the private life of Burkart (the Union's chief negotiator), including mail checks and telephone covers and the instigation of a criminal prosecu- tion; together with investigations of Robert Brown (Burkart's temporary replacement) 1250 DECISIONS OF NATION AL LABOR RELATIONS BOARD and of Frank Wallich and Robert Treuer, publicity agents of the International Union. In Wallich's case the investigation extended to the fact that his wife was active in the Democratic campaign of 1954, to her appointment, "as a reward," as administra- tive assistant to Congressman Reuss of Milwaukee, and to a rumored leave of absence to be granted by the Union to Wallich so that he might accompany his wife to Washington. (3) Telephone checks on long-distance calls being made from union headquarters and a check on the coming and going of union officials. (4) Reports of interviews with one Ralph Knox, of Detroit, concerning strike- breaking plans, one of which dated January 4, 1955, was summarized in part as follows: Mr Knox stated that he had served in nearly every capacity available to union members from organizer, steward, and into the policy making body of unions and that he was certain he could break the Kohler strike wide open and have the striking members of the Kohler Company anxious to go back to work within a very short time He stated that he could create so much dissension in the ranks that the individual striking members would be happy to accept almost anything in the way of a contract and that if the Kohler Company desired, he would even be able to illicit [sic] the assistance of an AF of L organizer who would come into the Kohler Company and possibly accept a great deal less than that offered by contracts being pressed by Emil Mazey and Robert Burkart. Later reports showed that Respondent was sufficiently interested that Conger himself went to Detroit for a further conference with Knox, though there was no evidence of actual employment. (5) Though the espionage of union headquarters at the Grand Hotel was defended on the ground that Respondent's information was that those who were responsible for, or who were directing, acts of vandalism and violence were operating out of the hotel, the reports showed that the detctives suggested the possibility of "bugging" the union room during the course of the NLRB hearing, in February 1955, and that there was to be "further discussion" of the matter with Conger. And though there was no evidence that the plan was adopted, the mere suggestion of it exposed Respondent's claim that it was interested only in checking on violence and vandalism Indeed, the implications of the suggestion were astounding in view of the fact that the General Counsel's trial staff was also quartered in the Grand Hotel and in view of Madison's testimony that he had in mind installing a "wall microphone" which might have picked up conversations anywhere in the building. (6) Submission of a formal, detailed plan in February 1955 which, through advanced in the name of "plant security," called in part for a system of secret plant informants who were to report on "any labor movement infiltration or problem" and which also provided for a comprehensive investigation of all new employees. The covering letter showed that the proposal had been previously discussed between Conger and Madson and his associate and stated that the proposal covered "genei ally the plan the three of us had in mind" Though Conger represented that the plan was not put into operation, Respondent's brief states only that not all of it was carried out Respondent's conduct as summarized under items numbered 1, 2, 4, and 6, supra, plainly substantiates (as the Union contends) the earlier finding that Respondent failed to bargain in good faith subsequent to June 1.5 Thus it showed that Respond- ent's interest at the time was not that of reaching a contract with the Union but was to avoid agreement and to avoid a settlement of the strike while it considered methods of breaking the strike, supplanting the Union (see item numbered 4), and preventing its future "infiltration" of the plant (see item numbered 6). That evidence, of course, served only to confirm and to buttress the findings made in the Intermediate Report that Respondent was failing to bargain in good faith. It is of particular significance in relation to the September negotiations in which Judge Murphy par- ticipated, as it exposed Respondent's continuing attitude that once it felt that it had won the strike, it bargained so as to avoid, not to reach, an agreement. See section of Intermediate Report entitled "Concluding Findings," and see the references to Judge Murphy's testimony before the Senate Committee, infra, where he made cogent appraisal of Respondent's attitude throughout the September negotiations. Respondent attempted in part to defend its resort to espionage by offering numer- ous excerpts from the Union's daily strike bulletins which referred to information from alleged "secret agents" within the plant and which frequently contained 5 Item numbered 5 showed that the detectives were considering resort to spying on trial conferences and preparations by the Union at least KOHLER CO. 1251 facetious and amusing comments on incidents allegedly reported.6 The items were obviously aimed at maintaining the morale and spirits of the strikers, and no proof was offered that either the agents or the incidents were real. Publication of the matter in the strike bulletins did not make them so, nor would proof of reality have availed Respondent as a defense to its failure to bargain in good faith. All the items were rejected. Before turning to the Union's evidence which is more relevant to the "pretext" theory of the discharge of the strikers, the Trial Examiner will state briefly what aspects of Respondent's conduct would independently support a Section 8(a)(1) finding if "within the issues of the present proceeding" as defined in the remand order. The evidence summarized under items numbered 1, 2, and 3, supra, reflect conduct which has typically been found to be proscribed by Section 8(a)( I). No findings under that section can be based on items numbered 4, 5, and 6 because of the absence of evidence that the plans under consideration were actually carried out. For support of their "pretext" theory of discharge, both Union and General Counsel point mainly to the fact that in August 1954, Respondent furnished Madson with identification cards containing photographs of 79 strikers, including all members of the strike committee. The evidence established that the photographs were requested by Madson and furnished by the Company for the purpose of assisting in the investigation of violence and vandalism, particularly to aid the detectives in the identification of persons who might be found at or near the scene of an incident. Though the Union argues that Respondent, having decided to discharge the strikers whose photographs were furnished to Madson, caused Madson to find something on them in order to discharge them, analysis of the results refutes that contention, both as to the strike committee and as to the other alleged candidates for discharge. Of the 79 strikers whose ID cards were involved, 43 were among the 78 dischargees who were named in the complaint and 35 were of strikers whose cards were not furnished. Of 12 strikers whose discharges the General Counsel whose not to litigate, cards were furnished in 6 cases but not in the other 6 Thus a total of some 41 (out of 90) discharges were made in cases where no cards were furnished. The proportions run about the same if other factors are considered. For example, of the 43 for whom cards were furnished and who were included in the complaint, Respondent's defenses were upheld in the case of 26, and of the remaining 35 in the complaint, 17 were found to have been properly discharged for misconduct. These comparisons (particularly when considered in the light of the former find- ings in section of Intermediate Report entitled "the Ruben Brothers defense; the General Counsel's rebuttal theories") leave without factual basis claims by the Union and the General Counsel that Respondent's furnishing of the photographs was a deliberate step to lay a foundation for a later "pretext" discharge They also render inapposite cases cited by the Union in which the Board found a disproportion of union to nonunion employees selected for layoff to support a finding of discrim- inatory motivation. The Union makes a further argument which is devoted exclusively to an attempt to salvage the strike committee. Arguing that the Trial Examiner has amp!e grounds to find that Section 8(a)(3) of the Act was violated insofar as the discharge of the strike committee was concerned, the Union contends that Respondent's conduct of surveillance brings the case within the purview of N.L.R B. v. Thayer Company and H. N Thayer Company, 213 F. 2d 748 (C.A. 1). The Thayer case was fully considered in the Intermediate Report in the section entitled "The mass picketing; condonation; the strike committee," and neither the present evidence nor the Union's contentions call for any change in the conclusions there stated, particularly since, as previously found, the strike did not become an unfair labor practice strike until June 1 In sum, the most that the detective reports do as concerns the pretext theory is to suggest that in two or three of the individual cases (e g., Fred Liebelt and Robert Winkel) Respondent was motivated by pretext or malice in selecting them for discharge, but that is only confirmatory of the former evidence on the basis of which the Trial Examiner found them to have been discriminatorily discharged For the above reasons, and for those previously stated in the Intermediate Report, the Trial Examiner adheres to his rejection of the "pretext" theory. E The alleged agents were given such designations as U-2, Q-T, Y-U, 2-U, Q, K-47, and X-47. One of such reports was as follows GRAPEVINE . . . Mr. H. V. Kohler's chauffeur is out buying long John' s, size 48. . . . We wonder if he's allowed to call them "union" suits? 1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Respondent's evidence Respondent's motion specified six particulars concerning which it sought to intro- duce further testimony. The first item, relating to the date of a 3-cent wage increase, was denied by the Board, and the sixth item relating to the Union's alleged instigation and direction of the clay boat incident of July 5, 1955, was withdrawn at the hear- ing.v The remaining four items were as follows: (1) Alleged inconsistency on one point between Judge Arnold F. Murphy's testi- mony before the Senate Committee and that which he gave before the Trial Examiner. (2) The strike was to the Union's knowledge a minority strike, and its officers acknowledged that it deliberately resorted to mass picketing and other coercive methods to keep the majority of the employees out of the plant. By misrepresenting the outcome of the strike ballot, the Union perpetrated a fraud on the General Counsel and the Board. (3) The International was responsible for the conduct of certain individuals sent from Detroit, who were in turn responsible for much of the violence and illegal conduct, thus establishing that the coercive conduct of the Union was deliberately planned (4) The Union ratified and condoned the violence and vandalism which occurred during the strike and the bargaining by providing legal defense and paying the fines of those who were charged with engaging in such conduct, thus establishing that the Union was at all times bargaining in bad faith and exerting illegal coercion on Respondent and its employees by rewarding and encouraging violence. The evidence which Respondent offered under those items will be summarized in order (1) Upon objection of the General Counsel that Judge Murphy's testimony before the Senate Committee was a unit and should be considered as such, Respond- ent offered all of that testimony instead of certain excerpts which it had selected. When compared with the testimony given before the Trial Examiner at the original hearing, Judge Murphy's testimony before the committee was not only consistent with his former testimony (given nearly 3 years earlier), but it explicitly confirmed the Trial Examiner's conclusions based thereon as to Respondent's failure to bargain in good faith during the September 1954 negotiations. Thus, Judge Murphy made it plain to the committee that the Union was willing at the time to accept any "face-saving gain," that the Union was prepared to yield on all the contract issues if the Company would "sweeten" its wage offer slightly, and that he repeatedly assured the Company that he was authorized to inform the Company that it could assume that all other issues could be settled even on the basis of a 5-cent wage offer. Judge Murphy also repeated before the committee Conger's statements about thef utility of further meetings, about expecting to obtain 20 years of labor peace from the strike (as it did from the 1934 strike), and about teaching the Union a lesson. More importantly, Judge Murphy's further testimony supplied the explanation for the Company's position at the time, which the Trial Examiner had inferred from former evidence concerning the September negotiations (see section of Intermediate Report entitled "Concluding Findings." Thus, though testifying that neither Conger nor anyone else for the Company ever said they said they thought they had the Union beaten, he testified that the attitude of the Company's representatives was "Definitely .the attitude of winners," that: [T]hrough all of the negotiations, whether they were held when parties on both sides of the controversy were present and before the Federal Conciliators, or with my meetings, the two meetings with the Kohler officials, it was perfectly obvious that the attitude of the Kohler Company was that the strike had been won, and hat they had the union beaten, and that there was no point in their receding from any position that they had taken. [Emphasis supplied.] Questioned further whether in his opinion Respondent was truly engaged in bar- gaining, Judge Murphy answered: Well, if bargaining means being physically present at a meeting , and willing to, discuss and willing to listen, there was bargaining. But if it means anything more than that, I doubt that it truly could be called bargaining, while I was present. 7 Though the reason for the withdrawal was not stated , the evidence which Respondent had specified under that item was plainly available and known to it during the former bearing, as shown by its motion to dismiss , filed on July 20, 1955, at the beginning of its ease. KOHLER CO. 1253 After committee counsel concluded his own examination, Senators Curtis, Mundt, and Goldwater examined Judge Murphy further, mainly on the point that aside from the contract issues a live issue existed during the September negotiations concerning the Company's anticipatory refusal to reinstate some 50 strikers because of alleged misconduct. There was no inconsistency between Judge Murphy's testimony there and that given previously before the Trial Examiner. It was plain from all his testimony that all the contract issues could have been settled by a small increase in the wage offer, and Judge Murphy expressly rejected Senator Mundt's suggestion that the Company was refusing to negotiate on wages pending a determination of the return of the strikers: SENATOR MUNDT: So that the company refused to negotiate on the basis of wages until it could determine what was going to be done with the strikers? JUDGE MURPHY: I don't think that is true. I don't think one is tied up with the other like that.8 (2) Under this item Respondent offered the results of the strike vote, plus ex- cerpts from testimony of union officers and officials before the Senate Committee. It was stipulated that the Union's minutes for the meeting of March 14, 1954, showed that 1,105 of those present at the meeting voted in favor of the strike, that 148 voted against it, and that there was 1 blank ballot. The only evidence as to the number in attendance at the meeting was an estimate by Burkart that there were about 2,000 people present, which, he testified, was about the same number in attendance at previous meetings. At that time Respondent's employees numbered some 3,300 Though the foregoing facts are undisputed, the conclusions drawn by the parties are not. The Union calculated that 88.2 percent of the votes cast were in favor of the strike. This compared closely with the 91.8 percent who had voted in favor of the strike before the reaching of agreement on the August 1953, supplement to the contract. See Intermediate Report, footnote 11. The Company, however, measuring the votes against the total number of employees, asserts that less than one-third voted for the strike and that the Union was therefore bargaining in bad faith be- cause, while knowingly conducting a minority strike, it utilized mass picketing and other coercive methods to keep the majority of the employees out of the plant. It is obvious, however, that the overwhelming majority of the employees who cast ballots voted for the strike, and even if the "pro" ballots were measured against the total in attendance at the meeting, there was a 55-percent majority. Respondent has no standing, of course, to dictate an election in which all employees or all union members would have been forced to cast ballots. Cf., e.g., N.L.R.B. v. Wooster Division of Borg-Warner Corporation 356 U.S. 342, 349-350. The diffi- culty-indeed, the impossibility-of forcing a free electorate to exercise its suffrage rights is well known, though more success is achieved under authoritarian regimes. The percentage of participation here compared favorably with that in recent presi- dential elections. Thus, approximately 60 percent of all affected employees attended the well-publicized meeting for the holding of the strike vote, and 62.5 percent of those present actually voted. Over 88 percent of those who voted cast ballots in favor of striking. Furthermore, evidence submitted by all parties, including much submitted by Respondent itself, showed actual picket line participation by more than a majority of Respondent's employees.9 There is accordingly no factual basis in the record for Respondent's present claim that the Union was conducting a minority strike. Respondent also offered a number of excerpts of testimony before the committee by Kitzman, Mazey, Burkart, Rand, and Graskamp which contained explicit ac- knowledgement that the purpose of the mass picketing was to keep nonstriking em- ployees out of the plant. Inasmuch as the Intermediate Report contained a specific finding that such was the Union's purpose (see section of Intermediate Report 8 Judge Murphy's statement was correct , of course, because Respondent was free, out- side the contract negotiations , to discharge those strikers who had engaged in misconduct sufficiently serious to warrant denial of reinstatement. National Carbon Division, et at., 100 NLRB 689 , 695; cf. Mid-West Metallic Products, Inc, 121 NLRB 1317; American G-iisonite Company, 121 NLRB 1514. 9 Indeed, as late as February 3, 1956, Respondent's general counsel wrote to a plumbing concern in Los Angeles, California, in part as follows : Kohler has not refused to recognize Local 833 . It recognized it as soon as it was certified by the NLRB as bargaining agent, and has continued to do so ever since. See also Conger's testimony, given on August 18, 1955, summarized infra. 577684-61-vol . 128-80 1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD entitled "The mass picketing; condonation; the strike committee"), the evidence was rejected as cumulative and as immaterial and irrelevant to the issues of the supplemental hearing. (3) Respondent offered under this item the following testimony before the Senate Committee relating to the minutes of Local 212, UAW (also called the Briggs local), of Detroit, Michigan. Mr. BELLINO: These are the minutes of the Local 212 dated April 14, 1954: "That Board was then informed of the situation that presently exists in the Kohler plant in Wisconsin. The people in this plant have been on strike for about the last week and a half, and are maintaining good, solid picket lines. Brothers Emile Mazey, Jess Ferraza, and Jim Fiore, who are actively partici- pating in the strike were sent to jail for violations of a city ordinance, which states that a person may not project his views over a distance of 100 feet. "They were released on bail and their case will come up shortly and un- doubtedly will be carried to the Supreme Court on the basis of violation of freedom of speech. Although the members of our own union who are partici- pating in this strike are very militant and aggressive people, they lack a certain amount of seasoned leadership. "Realizing this, and wishing to be of some assistance the officers of Local 212 sent four of our own Local 212 members to Wisconsin to help out in the strike. The Company has tried a back-to-work movement twice, and both times it has failed." Mr. KENNEDY: That is Ken Morris, the president. Mr. BELLINO: "Recommended that the executive board concur in the action that the officers took in sending four members from our local union to assist in the Kohler strike and at the same stated that Brother Emile Mazey, Secretary- Treasurer, said it would be okay if the expenses of these people were paid from the Local 212 strike fund " SENATOR CuRTIS: And that is the record that you found that would relate to all of these men mentioned that come from 212? Mr. BELLINO: Yes, sir. As to the International's connection with the foregoing, Mazey acknowledged before the committee that he had discussed the status of the Kohler strike with the president of the Briggs local and that: I suggested to him that he send some members of the local union to help maintain the morale of the Kohler workers, and to indicate that they were not fighting their battle alone, and that they had some assistance from people elsewhere. Mazey did not recall whether he discussed with the local the matter of who would pay the expense, and testified that as the local in fact paid it, the subject may not have come up. William Vinson admitted before the committee that he was one of those who was sent to Sheboygan by Local 212, that he was paid both expense money and an allowance for lost wages, but he denied that he received any payments from the International Vinson identified John Gunaca, Boyce Land, and James Conner as the three others who were sent with him by his local. Although Vinson testified that he belonged to "the flying squadron," he denied ever having done anything as a member of it, and he explained its function as follows: Well, first of all, when we have local elections and stuff like that, there is always a bunch of people picked from both sides, and we have opposition in our unions too, you know, and there are people picked from each side, and they put two guys at a door, and the election would be run from that. There would be one on each side and both of us help one another, and we don't let any unauthorized people in or out of the local, when we are holding a vote. Mazey explained to the committee that his understanding of a flying squadron was that, "They don't take part in too many strike activities any longer. The purpose of a flying squadron is to have group of active unionists who are available for strike duty in the event a strike takes place," and that such strike duty might concern the matter of picketing, of maintaining a soup kitchen, etc., but he testified he was uncertain whether such a squadron was organized in Sheboygan. There was no evidence in the former record of alleged misconduct by Land or Conners, nor any which disclosed the nature of their participation in strike activities. There was evidence that Vinson was convicted of having feloniously assaulted a KOHLER CO. 1255 nonstriker (Van Ouwerkerk) in late June 1954, and that he was sentenced to a 1- to 2-year term. Vinson testified before the committee that while he was serving that term his wife received $50 a week from Local 212 and another $50 a week from the International. Gunaca was also under indictment for a similar offense committed on July 4, 1954 (see Intermediate Report, footnote 36). Gunaca acknowledged before the Senate Committee that he had been sent to Sheboygan by Local 212, which paid his salary and expenses. What the foregoing evidence showed is that, acting on Mazey's suggestion, Local 212 sent four men to Sheboygan. Save for the single assaults committed by Vinson and Gunaca, there was no evidence of illegal conduct by any of the four men, none that they were responsible for or were leading a course of violence and illegal con- duct, and none that the Union had planned or was waging through them a campaign of coercive conduct. There was no evidence that Local 833 was itself in any manner responsible for the acts of the four men. Furthermore, to the extent that the Vinson- Gunaca assaults figured in Respondent's breakoff of negotiations, the previous find- ings upheld its action. See section of Intermediate Report entitled "Concluding Findings." (4) Under this item Respondent offered in part the following excerpt from Mazey's testimony before the Senate Committee: I made the statement the other day that if any bails were paid, if any fines were paid, if any attorney's fees were paid of anybody who was arrested in relation to the strike, that the International Union UAW paid it, and I repeat that statement today. Other excerpts referred to specific cases, with Mazey again affirming that Union Counsel Rabinovitz defended "everyone who was arrested for strike activity in Sheboygan," and that the International paid his fees and such fines and costs as were imposed. Mazey also admitted the payments to Vinson's wife by Local 212 and the International as Vinson testified to them under item numbered (3), supra. Contentions and Concluding Findings Despite the limited aspects of the additional evidence which Respondent offered and its limited relevancy to the issues in the case, Respondent's lengthy brief is devoted to rearguing the entire case on the refusal-to-bargain issue. Such a broad approach is warranted neither by the new evidence itself nor by the basis on which Respondent urged its reception before the Board. Accordingly, as under section A, supra, it is important to start with a careful review of the contentions which Re- spondent asserted in procuring the remand. As to item numbered (1), supra, Respondent's change of position is notable mainly for its total attack on Judge Murphy's testimony. In its motion, for example, Respondent, though inferring an inconsistency in Judge Murphy's testimony on one point, refrained from directly charging the judge with inconsistency, but urged that the Trial Examiner had misinterpreted his testimony. Now, however, Respondent characterizes Judge Murphy's testimony at different points as "hopelessly confused and contradictory" and as "absolutely inconsistent." Those characterizations are plainly the exaggerations of an advocate. They are refuted completely by Judge Murphy's entire testimony as summarized under item numbered (1), supra, which serve only to confirm and to substantiate the prior findings as to the September negotiations Respondent stresses the fact that Judge Murphy acknowledged before the com- mittee that Mazey disagreed with Murphy's summary of the issues in dispute and insisted that every striker be returned to work without discrimination. But Judge Murphy's testimony before the Trial Examiner was to similar effect, and the Inter- mediate Repoit included a specific finding that Mazey had taken that position. IR p. 1174 That fact did not then and does not now absolve Respondent from a finding that it was not bargaining in good faith As previously found, Mazey had no part in the Union's earlier conferences 10 in which Judge Murphy had been authorized to advance a settlement proposal under which all the contract issues "would be washed out" for a small wage increase. See section of Intermediate Report entitled "Negotiations, June-September." But Respondent had rejected that proposal prior to Mazey's entry into the September negotiations and had so bar- gained throughout those negotiations as to avoid, not to reach, agreement on the contract issues in dispute. 10 Indeed, Mazey participated in only the last two ( September ) meetings. 1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The reason for Respondent's concern with Judge Murphy's testimony is both obvious and understandable: His testimony in its entirety showed not only that Respondent was not bargaining in good faith, but it exposed the reason why Re- spondent was not bargaining. Respondent's attempts to exploit minor or seeming inconsistencies are unavailing for, read as a whole, Judge Murphy's testimony simply strengthens the previous findings, which also received further substantiation from Respondent's course of surveillance and espionage as found under section B, supra. As to items numbered (2), (3), and (4), Respondent's arguments in its motion to the Board ran as follows A union which openly and flagrantly demonstrates its contempt for the Act by coercive violations of it is not entitled to a remedy under the Act when its violations prove ineffective. It does not serve the purpose of the Act to reward such open and flagrant contempt for the law by using the processes of that law to accomplish the very purpose which the violations were designed to accomplish. The complaint should be dismissed for abuse of process by the Union, which openly and flagrantly violated the Act while simultaneously seeking to use its processes to accomplish its purpose should its violations of the Act fail In such a context of bad-faith bar- gaining and open illegal conduct it is impossible to appraise Respondent's attitude. It would be speculation to say that Respondent's actions and positions were motivated by a desire to resist collective bargaining per se rather than to resist the coercive pressures placed upon it by the charging party's frequent and continuous illegal conduct. Much of the factual support for the foregoing contentions evaporated under the findings, made above, on the evidence which Respondent offered in support of its motion. And though in its brief, Respondent expands its contentions by lengthy and detailed reargument of many facets of the refusal-to-bargain issue, all that require consideration under the evidence are the above arguments, advanced in the motion to the Board, which epitomize Respondent's ultimate position, i e., that the Union's own conduct was such as to foreclose herein a finding that Respondent was itself guilty of a refusal to bargain in good faith. The springboard of Respondent's argument that the Union's conduct was such as to relieve it completely of its obligation to bargain is N L.R.B v. Indiana & Michigan Electric Company, 318 U.S. 9, 18-19, where the Court held that although dubious character, evil or unlawful motives, or bad faith of the informer cannot deprive the Board of its jurisdiction to conduct the inquiry, the Board might properly withhold or dismiss its own complaint if it should appear that the charge is so related to a course of violence and destruction, carried on for the purpose of coercing an employer to help herd its employees into the union, as to constitute an abuse of the Board's process, and that the Board might properly consider such conduct as material to its own decision to entertain and proceed upon the charge The Court also made the following observations (pp. 27-28) which are of particular sig- nificance in the present case: Charges that violence has been threatened or encouraged are frequent and' easy in negotiations that proceed in an air of belligerency. Both sides regard' labor relations as tough business, and not only vital interests but passions and sensitivities as to prestige are involved. Neither side is lightly to be held answerable for acts where responsibility cannot be fixed. . . The Board is not required to sidetrack proceedings involving an employer's violation of the labor law while it explores irrelevant derelictions or parties or witnesses or acts of unknown or irresponsible persons.ii The Board has had many occasions to consider defenses by respondents charged with unfair labor practices that the charging party's own misconduct or unfair labor practices barred its resort to Board processes or barred the remedying of the unfair labor practices with which the respondents_ were charged. The Board has usually rejected such defenses, with evenhanded application of its rule, both where employers were the respondents and where unions were the respondents.12 n A substantial part of Respondent's case is based on the theory that the Union was accountable for some hundreds of acts 'of vandalism and violence committed by unknown persons, though no responsibility was traced to the Union. The bona fides of that claim is to be measured in part against Respondent's retention of William Banonse as an employee in the face of knowledge of his conviction of two acts of vandalism. See section. of Intermediate Report entitled "The General Counsel's Case for Condonation." 'a Compare, e g., the following lines of (a) employer-respondent cases with ( b) union. respondent cases: (a) National Mineral Company, 39 NLRB 344 , 365-366; Consumers Lumber & Veneer Company, et al, 63 NLRB 17, footnote 16 at p. 25; N L.R B. v. Carlisle Lumber Co, KOHLER CO. 1257 One of the best statements of the Board's position is contained in one of its latest decisions, which involved, incidentally , a most flagrant example of violent conduct on the part of a charging party. Thus, in the Banta Towing case, supra, although the Trial Examiner made no finding on the point, the Board gave thorough con- sideration to the question whether, by virtue of their misconduct , the charging parties were estopped from filing the charge and from availing themselves of the benefits of the Act. The Board held that its "essential concern" in such a case "is the protection of employees' rights as established under the Act," and that the "clean hands " doctrine is inapplicable to an employer filing a charge in an unfair labor practice proceeding . It also quoted from its earlier holding in Cory Corpora- tion, supra, as follows: Apart from the merits , the Respondents urge that the complaint should be dismissed on the ground that . . . the Company 's unfair labor practices pro- voked the strike and therefore , under the equitable doctrine of "clean hands" the Company may not avail itself of the benefits of the Act . . Like the Trial Examiner , we find these contentions without substance . . With respect to the "clean hands" defense, we find . . that the Company's alleged unfair labor practices, if established, do not lessen the need for vindicating and protecting employee rights under the Act , which the Respondents have infringed-much less justify the Respondent 's violations of these rights. ,Answering the assertion of the dissent that the processing of the charge constituted an abuse of the Board's process because of the alleged illegal conduct of the charging parties, the Board made the telling point that the unltimate conclusion of that assertion would require dismissal of charges in every instance where respondent employers and respondent unions charged each other with violations of the Act-to ,the complete exclusion of any employee rights. In Ohio Consolidated Telephone, supra, another recent case, the Board reversed the Trial Examiner's finding that the charging party 's own antiunion conduct dis- qualified it from filing charges against the respondents . The Board pointed out that the Act provided the respondents with ready redress , i.e., the filing of an appropriate charge, and held that the respondent's own unlawful conduct was not excused merely because the charging party may also have engaged in misconduct.13 The holding on the employer -respondent side accord with the foregoing. See, for example, Consumers Lumber & Veneer Co., supra, 63 NLRB at p. 25, where in finding the company guilty of violations of Section 8(a)(1), (2 ), and (5), the Board held: We find untenable Consumers' contention that the Union has breached its collec- tive bargaining contract by (1) coercing employees into membership and (2) conducting a strike, and hence, does not appear with "clean hands." The doctrine of "clean hands" has been previously rejected on the grounds that it is not the Union but the Board which is proceeding against the employer (see NLRB. v. Carlisle Lumber Company, 94 F. 2d 138 (C A. 9), enfg 2 NLRB 248), and that, although the Union may have misconducted itself, it has a locus poenitentiae, and that if it offers in good faith to bargain , the employers may not refuse because of its past misconduct ( see N.L.R.B. v. Remington Rand, Inc., 94 F. 2d 862 (C.C A. 2), enfg. as mod. 2 NLRB 626). The Board (at p. 40 ) specifically rejected the contention that the union had forfeited its right to require the company to bargain by its above conduct, holding 94 F. 2d 138, 146 (C A. 9) ; N L R.B. v. Remington Rand, Inc., 94 F. 2d 862, 872-873 (CA. 2) ; Gaynor News Company, Inc., 93 NLRB 299, 300, footnote 2. (b) International Longshoremen's and Warehousemen's Union (Sunset Line and Twine Company), 79 NLRB 1487, 1492; Local #1150, United Electrical, etc, et at (Cory Corporation), 84 NLRB 972, 979; United Furniture Workers of America, Local S09 010, et at. (Smith Cabinet Manufacturing Company, Inc.), 81 NLRB 886, 887-888; National Organization Masters, Mates and Pilots etc, at at (Banta Towing Co , Inc.), 116 NLRB 1787, 1796, enf denied on other grounds 253 F 2d 66 (CA. 7) , Communications Work- ers of America, AFL-CIO (Ohio Consolidated Telephone Company), 120 NLRB 684. For an example of a case in which an abuse of process was found, see Vaughn Bowen, et al, 93 NLRB 1147, where the Board found that the charges were filed not to secure a remedy for violations of the Act, but as part of a scheme to get Board assistance in forcing the respondents to employ union members 13 In the present case Respondent, abstaining from resort to this Board, sought and obtained relief from WERB for much of the conduct complained of herein, which would plainly have supported 8(b) (1) (A) charges if filed. 1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that such misconduct did not relieve Consumers of its statutory duty to bargain with the chosen representative of its employees. What the complete record shows here is that on each occasion when in Respond- ent's view the Union was engaging in or was responsible for a course of unlawful conduct, it broke off or refused to participate in the negotiations. The Trial Ex- aminer sustained its action in each case, finding that there was no refusal to bargain on Respondent's part during the mass picketing period and none because of the June 29 or August 18 (home-picketing) ^breakoffs. See section of Intermediate Report entitled "Concluding Findings." There was no showing and no claim by Respondent at any time during the actual course of the negotiations that the Union's conduct was such as to prejudice Re- spondent's position in the negotiations. Indeed, Respondent's position seemed then consistently to accord with its obligations as spelled out in the cases cited in line (a) in footnote 12, supra, and to accord even more specifically with the Board's holding in Phelps-Dodge Copper Products Corporation, 101 NLRB 360, 368, where the Board found that an employer's normal obligation to bargain was suspended during the pendency of a slowdown because it "negated the existence of honest and sincere dealing in the union's contemporaneous request to negotiate." The Board held that: Under unusual circumstances, a union may by contemporaneous action in connection with bargaining, afford an employer grounds for refusing to bargain so long as that conduct continues. This is so because it cannot be determined whether or not an employer is wanting in good faith where measurement of this critical standard is precluded by absence of fair dealing on the part of the employees' bargaining representative. [Citing Times Publishing Company, 72 NLRB 676.] We believe that the union exhibited just such a lack of fair dealing here, by calling a slowdown in an effort to compel the Respondent to accede to bargaining demands. [Emphasis supplied.] Later, in Valley City Furniture Company, 110 NLRB 1589, 1592, the Board re- ferred to the "well settled rule" of the Phelps-Dodge case that an employer's duty to bargain is suspended while a union is engaged in unprotected activity, and found that the employer was under no obligation to negotiate while the union was engaged in certain threats. Significantly, suspension, not total remission, of the obligation to bargain was the limit imposed, despite recognition of an argument similar to respondent's here. Thus, the Board concluded: Were we to hold otherwise, we would be encouraging the use by unions of threats of unlawful and unprotected action to force concessions from an employer. Such a result would be contrary to the policy objectives of the Act. [Emphasis supplied.] See also California Cotton Cooperative Association, Ltd., etc., 110 NLRB 1494, 1498 Earlier, in Dorsey Trailers, Inc., 80 NLRB 478, 485-486, the Board held similarly that wrongful strike action did not permanently extinguish the employer's statutory obligation to bargain, but that it was merely suspended, and the obligation to bargain may again become operative upon correction of the wrongful action. Not only did Respondent's conduct during the actual negotiations accord with the foregoing holdings, but Conger testified to an attitude and position therein which was likewise in full accord. Thus, when testifying on August 18, 1955 (some 6 weeks after the clay boat incident), concerning the breakoff of negotiations in August 1954 (because of home-picketing), Conger stated that the Federal conciliators in- quired whether the Company would be willing to meet in the future if the Union discontinued its illegal strike activities or if the Company was "calling the thing off forever." Conger testified that he answered: No, we had been willing to meet with the union at all times when there seemed to be any hope that a settlement might be arrived at and when we were not being subjected to illegal coercion. That was a statement of our general position we had always taken TRIAL EXAMINER: Is that still your position? The WITNESS' That is still our position, and if the union is not engaging in illegal coercion sufficient to be a real factor and there is some ground or hope even to suppose that there might be a possibility of settlement, we will meet. Conger's present claim, as counsel, of a total remission of Respondent's obligation to bargain, is thus refuted by the conduct of Conger, the negotiator, and by the testimony of Conger, the witness. LOCAL 792, INT'L ASSN . OF BRIDGE, STRUCTURAL, ETC. 1259 It is therefore concluded and found on the basis of the evidence and the law that the Union's misconduct afforded Respondent grounds for refusing to bargain only during the periods previously found, i.e., between June 29 and August 4 and between August 13 and September 1, 1954 ( see section of Intermediate Report entitled "Developments since September 1954"). Ultimate Conclusions and Recommendations The ultimate conclusion to be drawn from the supplemental hearing is that it added little to what was previously litigated. Five hundred more pages have added nothing appreciably to what the former record of 20,000 pages contained. At best the new matter simply supports and confirms the former findings, both in the respects where unfair labor practices were found and where they were not found. Indeed, the results would indicate that the parties may have been interested primarily in publicizing further some of the more colorful aspects of the Senate hearing (cf. IR footnote 14). Five years of strike history still shows no abatement of this struggle between labor's irresistible force" and "management's immovable object." See section of Intermediate Report entitled "Introduction and background ; summary of main events and issue ." Though a settlement of the conflict would plainly be in the public interest, it has long been apparent that the strike cannot be settled beween the parties, either with or without the benefit of further mediation . In any case, the Board's functions do not include such matters. The disposition of the present proceeding is, however, a step which will lead ultimately to a resolution of the strike. There is nothing else now foreseeable which will do so. It is therefore plain that, in the public interest, this litigation should be brought to an end as soon as possible. The Trial Examiner therefore renews the recommendations in his Intermediate Report. Local 792, International Association of Bridge , Structural and Ornamental Iron Workers, AFL-CIO and Kermit G. Kimrey and Gridwall Company and Glide Windows, Inc. Case No. d1-CB-1378. August 26, 1960 DECISION AND ORDER On April 6, 1960, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel ' [Chairman Leedom and Members Rodgers and Fanning]. 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 Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- 128 NLRB No. 126.