Jackson Manufacturing Co.

460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of said discrimination by payment to them of a sum of money equal to that which they would have earned as wages from the date of the discrimination against them to the date of the offer of reinstatement, less their net earnings during such period, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289. Having found that Respondent, on May 30, 1959, and at all times thereafter, has refused to bargain collectively with the Union as the representative of the employees in an appropriate unit, the Trial Examiner will recommend that Respondent, upon request, bargain collectively with that organization as the exclusive representative of all the employees in the unit heretofore found appropriate, and, if an agreement is reached, embody such understanding in a signed agreement. In the opinion of the Trial Examiner, the unfair labor practices committed by the Respondent in the instant case are such as to indicate an attitude of opposition to the purposes of the Act generally. In order, therefore, to make effective the interdependent guarantees of Section 7 of the Act, thereby minimizing industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, it will be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Local No. 189, American Federation of Technical Engineers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. All Respondent's full-time field survey personnel, excluding all other per- sonnel, constitute, and at all times material constituted, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. Local No. 189, American Federation of Technical Engineers, AFL-CIO, was, on May 30, 1959, at all times thereafter has been, and now is the exclusive repre- sentative of all the employees in the above-described unit for the purposes of collec- tive bargaining within the meaning of Section 9(a) of the Act. 4. By failing and refusing on May 30, 1959, and at all times thereafter, to bargain with the Union, as the exclusive representative of all the employees in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 5. By discriminating in regard to the hire and tenure of employment of Albert Ellis Hartley, Jr., and Madison Earl Carrithers, thereby discouraging membership in the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. ^6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Jackson Manufacturing Company and International Association of Machinists, AFL-CIO and Local Lodge 2009, International Association of Machinists, AFL-CIO Kershaw Manufacturing Company and International Associa- tion of Machinists, AFL-CIO and Local Lodge 2009, Inter- national Association of Machinists , AFL-CIO. Cases Nos. 15-CA-1097, 15-CA-1412, 15-CA-1098, and 15-CA-1413. Octo- ber 28, 1960 DECISION AND ORDER On February 23, 1960, Trial Examiner Thomas F. Maher issued his Intermediate Report in the above-entitled proceeding, finding that the 129 NLRB No 55. JACKSON MANUFACTURING COMPANY 461 Respondent has not engaged in certain unfair labor practices alleged in the consolidated complaints, as amended, and recommending that the complaints be dismissed, as set forth in the copy of the Intermedi- ate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the General Counsel's exceptions and brief, and the entire record in these cases, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner with the following modification. The Trial Examiner found that the settlement agreements herein should not be set aside because none of their terms, which dealt ex- clusively with the Respondent's obligation to refrain from violations of Section 8(a) (1) of the Act, were violated by the Respondent's sub- sequent conduct. As we agree with the Trial Examiner that the Re- spondent did not commit any independent unfair labor practices after the execution of the settlement agreements, we find, as did the Trial Examiner, that the settlement agreements were not breached and the complaints herein should be dismissed. Consequently, we find it un- necessary to pass upon the Trial Examiner's rationale that a settle- ment agreement cannot be considered breached unless the unfair labor practices occurring after its execution "specifically violate the terms of the agreement," or his further conclusion that the Regional Di- rector was estopped from attacking the settlement. We cannot agree with our dissenting colleague that "these are cases where it is necessary to look behind the settlements" because of the Respondent's undisclosed conduct "on the very eve of affixing their signatures to these settlements." The undisclosed conduct on which the dissent relies consisted of the Respondent's refusal on June 10 to reinstate the strikers, and its failure on that date to recognize the Union. This conduct, however, did not in itself constitute an inde- pendent unfair labor practice. Instead, inasmuch as all the strikers had been replaced prior to their application for reinstatement, such conduct could be characterized as an unfair labor practice only if the strike were found to be an unfair labor practice strike. Such a finding would, in turn, require consideration of events which occurred during the preceding August, September, and October; and these events are the very ones that were encompassed in the Union's initial charges which the Regional Director obviously considered when he concluded that the remedial provisions of the settlement agreements, sounding in 8 (a) (1) and not in 8 (a) (5), were sufficient to effectuate the policies of the Act. Thus, the operative facts which would determine whether the Respondent engaged in unfair labor practices at the time the 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD settlement agreements were signed were the very facts of which the Regional Director was necessarily aware, and which he necessarily had considered and evaluated. Whether the Regional Director was right or wrong in his evalu- ation of these facts is, in our opinion, immaterial in the present posture of these cases. What is material and controlling is that a duly exe- cuted settlement agreement must be honored, if the Board's settle- ment procedures have any meaning, unless the respondent's conduct demonstrates that the agreement has failed of its purpose. The Re- spondent's conduct here does not so demonstrate.) [The Board dismissed the complaints.] MEMBER JENKINS, dissenting : I disagree with, and accordingly dissent from, my colleagues' hold- ing that certain settlement agreements are dispositive of these cases because Respondent did not engage in postsettlement unfair labor practices. As "amicable and judicious means to expeditious disposal of dis- putes arising under the terms of the Act," 2 settlement agreements have been encouraged by the Board from the very beginning. How- ever, settlement agreements do not estop the Board from going be- hind them to consider a respondent's antesettlement behavior .3 And while, as a matter of policy, the Board will ordinarily respect the terms of a settlement agreement which it has approved, it does go behind a settlement where necessary to prevent an obvious frustra- tion of the Act's purposes and to effectuate the policies of the Act.4 These are cases where it is necessary to look behind the settlements. The settlement agreements, to which the Union would not subscribe, were signed by Respondent on June 11 and 12, 1958. The only obli- gation imposed by them upon Respondent was the posting of notices. to employees promising not to engage in 8 (a) (1) activity such as the Trial Examiner finds was engaged in by Respondent in August and September 1957, or in any manner interfere with, restrain, or coerce the employees in their rights guaranteed by Section 7 of the Act. Yet, on June 10, on the very eve of affixing its signature to the settlements, the Respondent refused to reinstate strikers who had made valid requests for reinstatement and were withholding the recog- nition requested by the Union as the bargaining representative of its employees. When such facts are considered together with the 8 (a) (1) 1 Whether the Board would be warranted in looking behind a settlement agreement on the basis of undisclosed presettlement conduct, which is itself an independent unfair labor practice, is not before us and we therefore express no opinion on that question 2 Poole Foundry and Machine Company v . N L R B , 192 F. 2d 740, 743 (C.A. 4), cert. denied 342 U.S. 954. 8 The Wallace Corporation v. N.L.R B., 323 U.S. 248; Wooster Brass Company, 80, NLRB 1633. A Ibid. JACKSON MANUFACTURING COMPANY 463 conduct upon which the settlements are based, it becomes manifest that the Respondent, in addition to violating Section 8(a) (1) of the Act, violated Section 8 (a) (3) and (5) of the Act as well. Thus, the record establishes to my satisfaction that Respondent's 8(a) (1) ac- tivity in August and September 1957 was a contributing cause of the strike which began early in October 1957. As unfair labor practice strikers, the employees were entitled to the reinstatement which the Respondent denied them on June 10, 1958, thereby violating Section 8(a) (3) of the Act. And inasmuch as the Union's majority status could not, in the circumstances, be impaired by Respondent's replace- ment of the strikers, the Respondent's withholding of recognition from the Union on the ground that it had lost its majority status was a violation of Section 8 (a) (5). Significantly, these blows dealt the Union and its adherents by Respondent just before seeking refuge in the settlements were not disclosed to the Regional Director when he settled for the mere posting of the notices described above. Conse- quently, the dismissal of the cases ordered by my colleagues means that the Respondent, actually guilty of violations of Section 8(a) (1), (3), and (5) of the Act, emerge without any obligations, having com- plied with the mere posting obligations of the settlement agreements, while employees who have been discriminatorily denied employment are left jobless and without remuneration for the loss of pay suffered as a result of the discrimination against them and the Union with which Respondent unlawfully refused to bargain is left without a bargaining order, to wither away at Respondent's plants. In these circumstances, including the approval of the Regional Director of the settlement agreements framed to remedy Section 8 (a) (1) violations alone without knowledge of the far more serious violations being per- petrated by Respondent,' I find that a dismissal of the cases because of the settlements can only frustrate, and in no way effectuate, the pur- poses of the Act. The error of my colleagues' position stems from their conception of what constitutes "the operative facts which would determine whether the Respondent engaged in unfair labor practices at the time the settlement agreements were signed." The "operative facts," as they see them, consist of Respondent's 8(a) (1) activity in 1957, which the remedial provisions of the settlement agreements are designed to remedy. But, as I have attempted to demonstrate, it was subsequent events which placed Respondent in violation of the Act as it was preparing to sign the settlements. For, only when Respondent re- fused to reinstate the strikers and bargain with the Union, all on the 5 See the following language in The Fairfield Engineering Company, 74 NLRB 827, 830, footnote 4 : ". . . There is no basis in this case for treating the consent election agreement as equivalent to a settlement agreement , which the Board should feel bound to honor, for there is no indication that the Board or its agents were in any way advised as to the existence of the unremedied unfair labor practices at the time the election was conducted." 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eve of the settlements, did it violate Section 8(a) (3) and (5) at the critical time. These are surely "operative facts." Admittedly, they were not disclosed to the Regional Director when he accepted the settlements. As a consequence, the resulting unfair labor practices were not remedied by the settlement agreements. Under the majority opinion, they remained unremedied. Accordingly, I would not honor the settlements herein. I would find the violations of Section 8(a) (1), (3), and (5) described above. In addition, I would find a further violation in the termination slips of October 10, 1957, purporting to discharge the strikers as alleged in the complaints as amended. Finally, I would issue an order remedy- ing all the violations by Respondent. Thus could the Board accom- plish the Act's purposes in these cases with fairness to all concerned. MEMBERS FANNING and KIMBALL took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges and amended charges filed on numerous dates between September 20, 1957, and December 23, 1958, by International Association of Machinists, AFL- CIO, and Local Lodge 2009, International Association of Machinists, AFL-CIO, herein referred to collectively as the Union, the General Counsel of the National Labor Relations Board on July 28, 1959, issued complaints against Jackson Manu- facturing Company and Kershaw Manufacturing Company, herein referred to as Re- spondent Jackson and Respondent Kershaw, respectively, or collectively as Respond- ent,' alleging violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. In its duly filed answers and in two documents, each entitled "Further Answer," Respondent, while admitting certain allegations of the complaint, denied the commis- sion of any unfair labor practices and averred that because the Respondent and the Regional Director for the Fifteenth Region entered into settlement agreements with respect to certain matters charged, and the Respondent has effectively complied with the terms of said agreements, the complaints, insofar as they alleged matters thus disposed of, were erroneously issued. Over Respondent's objection, the complaint in Cases Nos. 15-CA-1098 and 15-CA-1413, issued against Respondent Kershaw, was amended at the hearing to include a further allegation of violation of Section 8(a) (3) which I deemed to be directly related to matters previously alleged? There- after, counsel for Respondent requested a continuance for the purpose of preparing himself to meet the foregoing amendment. The request was denied by me as being unwarranted by the nature of the matter alleged as a further violation and upon the understanding that the request would be reconsidered by me upon any later showing of undue hardship to counsel in the presentation of his case. No request for recon- sideration was thereafter made. Simultaneously with the filing of its answers to the complaints herein Respondent filed with the Regional Director for the Board's Fifteenth Region motions for bills of particulars. Said motions and the Regional Director's oppositions thereto were duly referred to Trial Examiner Arthur Leff who, upon concluding that the allegations in the complaints were set forth with sufficient specificity to apprise Respondent of the issues that the added particulars sought by the Respondent either concerned them- selves with evidentiary detail or went to matters clearly within the Respondent's knowledge, denied the motions in all respects. Respondent thereafter filed with the Regional Director its exceptions to the orders denying its motions and served upon the Charging Parties requests for interrogatories 1It appears from credited, uncontradicted testimony in the record that Jackson Manu- facturing Company merged with Kershaw Manufacturing Company on March 1, 1958. 2N.L.R.B. v. Pant Milling Company, 360 U.S. 301. JACKSON MANUFACTURING COMPANY 465 to be propounded to them. Upon failure of the Charging Parties to comply there- with Respondent filed with the Regional Director its motion to dismiss. By appro- priate order the Regional Director has referred to me for disposition Respondent's exceptions, requests for interrogatories, motions to dismiss, and the oppositions thereto. Upon consideration of all the foregoing, upon a review the evidence pre- sented in this case, and in concurrence with the reasons assigned by Trial Examiner Leff, I hereby deny Respondent's exceptions to the Trial Examiner's order, reject its requests for interrogatories, and deny its motions to dismiss the complaints. Pursuant to notice, a hearing was held before me at Montgomery, Alabama, on October 6, 7, and 8, 1959. All parties were represented at the hearing and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. Parties waived oral argument at the hearing and in lieu thereof filed briefs with me thereafter. Upon consideration of the entire record and the briefs of the parties, and upon my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Kershaw Manufacturing Company is an Alabama corporation with its principal office and plant at Montgomery, Alabama, where it is engaged in the manufacture of railroad equipment for customers located in the State of Alabama and other States of the United States. During the year ending December 31, 1957, Respondent Kershaw purchased from suppliers located outside the State of Alabama raw materials, goods, and supplies in excess of $50,000. It likewise shipped during the same period finished products valued in excess of $50,000 to customers located outside the State of Alabama. Jackson Manufacturing Company, which merged with Kershaw Manufacturing Company on March 1, 1958, was, at the relevant times prior thereto, an Alabama corporation with its plant and principal office located at Montgomery, Alabama, where it was engaged, as it now is, in the merged status, in the manufacture of rail- road equipment, fans, and lawnmowers for customers located in the State of Ala- bama and other States of the United States. During the year ending December 31, 1957, Respondent Jackson purchased from suppliers located outside the State of Alabama raw materials, goods, and supplies in excess of $50,000. It likewise shipped during the same period finished products valued in excess of $50,000 to customers located outside the State of Alabama. The Respondent concedes it is engaged in interstate commerce within the meaning of the Act and I so find. II. THE LABOR ORGANIZATIONS INVOLVED International Association of Machinists , AFL-CIO, and Local Lodge 2009 , Inter- national Association of Machinists , AFL-CIO, are labor organizations within the meaning of Section 2 (5) of the Act. III. THE ISSUES a. The nature of unfair labor practices capable of vitiating a settlement agreement. b. The propriety of the Regional Director's abrogation of a settlement agreement upon which compliance had been procured. c. The nature of termination slips sent to economic strikers and the effect of such action upon the legal chat acter of the strike. d. The right of strikers to reinstatement. e. The effect of striker replacement upon the majority status of a voluntarily recognized union. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction This case presents for independent consideration two virtually unrelated aspects: (a) the legal effect of certain procedures followed by the parties, including the Re- gional Director, and (b) the factual determinations which relate to the violations al- leged in the complaints. With respect to the first of these independent considerations two significant legal problems appear; namely, the legal effect of a termination slip mailed to economic strikers without further explanation at the time, or thereafter on the record, and the 5S64 39--61-vol 129-31 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD legal effect of an executed settlement agreement in which the Regional Director obligated himself to request the withdrawal of the charge and where the Regional Director acknowledged to the Respondent its compliance with the agreement and closed the case. While it is my studied conclusion that these legal aspects are dispositive of the case, nevertheless, I shall set forth the facts of the case as I find them, and with refer- ence to them dispose of the legal issues presented. In this manner, disagreement with my disposition of the case on legal or technical grounds will not impede a contrary disposition of the case by requiring that further findings of fact be made to treat of the case on the merits raised by the complaints. The pertinent facts follow: B. Facts Organization among Respondent's employees was accomplished by the end of July 1957, at which time W. D. Christy, special representative of the Union, on July 31, 1957, advised the Respondent that it represented a majority of the Kershaw and Jackson employees, respectively, and requested that Respondent recognize the Union's majority status and bargain with it. Thereafter, on August 7, Respondent, through its attorney, Fred S. Ball, acknowledged Christy's communication, proposed a card check of employee union authorization cards to verify the Union's claim, and indicated that upon an appropriate showing Respondent would recognize and bargain with the Union. The results of an impartial card check made thereafter showed that as of August 5, 1957, 48 of the 68 Kershaw production and maintenance employees and 16 of the 28 Jackson production and maintenance employees desired representation by the Union-a clear majority in each group. On the strength of the foregoing tally Attorney Ball notified Union Representative Christy on August 14, 1957, that the Respondent would recognize the Union as the majority representa- tive of its employees and agreed to enter contract negotiations at the Union's convenience. 1. Conduct of Respondent's officials and supervisors Upon receipt of the Union's initial request on Saturday, August 3, Respondent's president, Royce Kershaw, advised his attorney, Ball, of the situation, and thereafter on Monday, August 5, called a meeting of the supervisory staff of both the Jackson and Kershaw plants at which the union situation was the principal item for discus- sion. President Kershaw instructed the supervisors that they were to make no statements nor have any discussions about the Union with anyone in the plant and that when the Union was brought up it would be best for them to be quiet or leave.3 It is apparent from the credited testimony in the record that few, if any, who attended the meeting, including Kershaw, followed the precise advice given. Within a short time thereafter Kershaw, by his own admission, had discussions with two employees, Huggins and Colloway, with respect to the Union. The only evidence in the record of the conversations with Huggins was Kershaw's account of it in which he described meeting Huggins in the plant and remarking to him that "it looks like we have a union shop here"; and then, because of the plant noise, suggested retiring to a nearby office. The remainder of the conversation as described without con- tradiction by Kershaw, concerned itself with Kershaw's feeling of disappointment that the men had joined the Union, his willingness to let the men make their own choice, and, upon their doing so, his determination to treat his employees and plants "as a union shop." 4 Upon the conclusion of this conversation Kershaw suggested to Huggins that he have employee Colloway, a known leader of the union movement, come to the office so that he might allay any suspicions Colloway may have had upon seeing Huggins and Kershaw in conversation. According to Kershaw his conversation with Colloway was substantially similar to that with Huggins. In addition he told Colloway that with the Union in the picture grievance negotiations would be handled, not in the customary way "between the two of us," but by Kershaw's representative and the Union. Colloway's account of the conversation is as follows: 8 The credited testimony of President Kershaw, corroborated by Vice President Jeff Davis and those supervisors who attended the meeting 4 As this testimony of Kershaw is the only evidence in the record relating to paragraphs numbered 7(b), (c), and ( f) of the complaint in Cases Nos 15-CA-1098 and 15-CA-1413 (Kershaw Manufacturing Company), and as I do not consider the facts thus found to support the General Counsel's allegations of unlawful conduct in those respects, I shall recommend that the allegations in the enumerated paragraphs be, under any circumstance, dismissed. JACKSON MANUFACTURING COMPANY 467 So he wanted to know why we were organizing. I told him it was on account of the management out there at the shop. He wanted to know what about it. I told him that a man didn't have much of a chance out there, that if he done something that the supervisors didn't approve, it made no difference how good a man he was, he got fired. He said he didn't know that conditions existed like that out there among the people. He wanted to know if it was too late to stop the union. I told him I thought it was. So he went on and said that he would do more for the men without a union than he would with it. He asked me then again if I thought it was too late to stop it. I told him I thought so. And he asked me if I would go out and talk to the men about it. I told him I would. That wound up our conversation. To the extent that this version differs from Kershaw's testimony I am disposed to rely upon a synthesis of the two. Thus, except for Kershaw's specific denial that he "would do more for the men without a union than with a union" and that he asked Colloway "to talk to the men and try to get them to get out of the union," neither of which I credit,5 Kershaw's account agrees substantially with Colloway's, differing only as to emphasis.6 Suffice it to say, therefore, that Kershaw did engage Colloway in a conversation about the Union and for all intents and purposes ques- tioned him as to the complaints of the men, voiced his opposition to unionization, and suggested Colloway use his influence to encourage the employees to abandon the Union. About the same time Kershaw had a conversation with employee Matthew Easterling, union steward at the Jackson plant. According to Kershaw, whose testimony I credit, Easterling was visiting the nearby Kershaw plant on Jackson plant business and asked Kershaw if he could see him In the conversation which followed Easterling sought to discuss the Union but Kershaw refused, stating that he had delegated all union matters to Attorney Ball, and that he personally would not deal -vith the Union, leaving such matters to Ball. Kershaw concedes that in the course of the conversation he discussed working conditions with Easterling at some length and expressed his surprise and disappointment over the action of the men. Kershaw specifically denied Easterling's testimony that Kershaw had stated to him he would do anything for him (Easterling) if he would get rid of the Union, or for the men, if they would get rid of the Union. Kershaw likewise denied having asked Easterling how the Union could be stopped or having told him that he would not deal with the Union.? I credit Kershaw's account of this meeting and his denial of statements attributed to him by Easterling.8 Accordingly, in the absence of credible evidence, so much of the Jackson complaint (paragraphs numbered 7(a), (b), and (c)) as 5 While I am disposed to discredit Kershaw's denials, I do not consider my holding to this effect to detract from the reliance which I place upon his testimonv, generally. Upon my observation of him as a witness I view his testimony to be straightforward and accurate. With respect to the denials which I do not credit I might note, however, that they were in response to questions which, in my view, overstate Colloway's testimony and would suggest more positive direction by Kershaw than Colloway testified to. e Another example of differing emphasis upon the same underlying fact is the testimony of Colloway and of Kershaw with respect to the withholding of the regular stock bonus payment for the summer of 1957. Thus upon counsel's prompting, Calloway, a witness for the General Counsel, stated that Kershaw was waiting to give 'out the stock "to see whether [we] were organized " Whereas Kershaw testified they were ready to give out the stock but had heard of the union activity and on advice of counsel did not do so "because it might be considered something to working conditions later on . In .11 other words, cutting through the differing emphasis, the stock was withheld because of the Union-specifically to avoid legal complications-and under my view of the law, properly so. 7 Kershaw credibly explained this point by stating his determination to deal with the Union only through Attorney Ball. 8 I do not credit Easterling in this or other instances unless his testimony is corrobo- rated by credible witnesses or constitutes admissions against the interests of the General Counsel in whose behalf lie testified. My reason for discrediting Easterling is as follows : He was the union shop steward for Jackson employees and, as such , attended both negotiating conferences with Respond- ent's representatives (infra). Accordingly, when asked why the men voted to go on strike it would be presumed that he, of all the employees , would know that the failure to reach a contract was the basis of the strike, or at least a basis for it (infra ). When, therefore, he failed to assign this as one of the reasons for the strike when specifically asked, I must conclude that all of his testimony partakes of this same studied misrepresentation and I discredit it. 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD alleges to be a violation conduct attributed to President Kershaw by Easterling, I shall recommend, under any circumstance, be dismissed. During the same period Respondent's supervisors were busily engaged in question- ing employees and discussing the Union with them, contrary to the instructions they received at the August 5 meeting. Thus Millard Moore, foreman of Respondent Kershaw's assembly line and shakedown crew, spoke individually to employees Roy Nelson, Judson Coburn, and Harold Farmer and stated to them Mr. Kershaw's determination to move the plant to North Carolina before he would let a union come into the plant. And to employee Nelson, referring to the Company's stock purchase plan, Moore stated that the employees joining of the Union "was going to knock out our stock a share." 9 During the same period, immediately following the Respondent's recognition of the Union, Kershaw's plant superintendent, Owens, sought out employee Martin, asked him if he belonged to the Union, how many children he had, and said, "Well, I feel sorry for them. Are you expecting them to get Christmas?" He followed this by observing that, "If you belong to the union they might not." 10 About this same time Owens told a group of employees, including Jesse Faulk, Jr., and Coburn, that Kershaw would move his plant to North Carolina before he would have a union." Meanwhile Warren Skinner, foreman of Respondent Kershaw's research depart- ment, told employees C. J. Faulk, Tommy Head, and J. S. Manning that they would be well advised to get out of the Union as Mr. Kershaw would move the plant to North Carolina rather than have a union in it. Skinner also told them, in con- nection with the Union, that they were all going to get themselves "messed up." 12 At the Jackson plant Superintendent Elbert Hall sought out employee Lumus Berry and asked him if he had signed a union card. Upon receiving an affirmative reply Hall said, "Well you gonna get messed up." A week later Hall approached Berry and told him that if he heard any more union talk he was going to lay off "every one of you." 13 2. Alleged conduct not supported by the credited evidence It is also alleged in the Jackson complaint that Foreman Hall interrogated em- ployee Easterling and made certain statements of a threatening nature to him. Because a finding with respect to such allegations would rest solely upon the un- corroborated testimony of employee Easterling whom I refuse to credit (supra, footnote 8), I shall recommend that the foregoing allegations contained in para- graphs numbered 8(a), (b), and (c) of the Jackson complaint be, under any cir- cumstance, dismissed. Similarly, with respect to an allegation in the Kershaw complaint, F. R. Carroll, Kershaw's production manager in 1957,14 is stated by Leadman Elmer Frederick to have told him and several leadmen and supervisors in a supervisory meeting that President Kershaw would close the plant down before he would permit the Union to come in. Upon my observation of Frederick as a witness , I am disposed to dis- credit his testimony, credit Carroll's denial of the statement attributed to him, and 9 Facts relating to Moore's conduct are based upon the credited testimony of those em- ployees to whom he spoke. I do not credit his denials . Nor do I impute to President Kershaw, contrary to his own credited testimony , knowledge of these statements made by Moore . nor his approval of or acquiescence in the subject matter thereof. It is alleged in the Kershaw complaint ( paragraph numbered 8(c)) that Foreman Moore "stated to an employee that if the employee did not forsake the union he was going to be discharged " As I find no evidence whatever in the record to support such an allega- tion, I shall recommend , under any circumstance, that paragraph numbered 8(c) of the Kershaw complaint be dismissed. 10 The credited testimony of Martin. Owens' denial is not credited. Ti The credited testimony of Faulk, Jr., and Coburn . Owens' denial is not credited. Nor, as previously stated ( supra, footnote 9), is knowledge of this statement or acquies- cence in its subject matter to be imputed to President Kershaw. 19 The credited testimony of the employees to whom Skinner spoke. Skinner 's denials are not credited Nor do I impute knowledge of or acquiescence in such statements to President Kershaw. 19 The credited testimony of employee Berry. Hall's denials are not credited. 14 Carroll is no longer in Kershaw 's employ, having resigned to accept employment with Texas Industries JACKSON MANUFACTURING COMPANY 469 recommend that paragraph numbered 11 of the Kershaw complaint be, under any circumstance, dismissed.15 3. The bargaining conferences Consistent with its letter of August 14 to the Union in which Respondent agreed to recognize the Union as the majority representative of its employees and to bargain with respect to their wages, hours, and working conditions, bargaining sessions were held on August 22 and September 16. At each of these conferences Respondent was represented by its attorney, Fred Ball. John R. Matthews, Jr., an associate of Attorney Ball, attended as an observer. Representing the employees was Union Representative Christy and employees Easterling, Colloway, and Huggins. At the August 22 meeting, which lasted 11/2 hours, Attorney Ball announced that President Kershaw would not participate in the bargaining and had designated Ball to ne- gotiate in his behalf.16 A contract was submitted by Christy for Ball's consideration and considerable discussion was had upon the various items which it covered, in- cluding premium and overtime pay, vacations, layoff policy, promotions, etc. After considerable discussion of the merits of the proposals Ball stated that the contract submitted was not one that Mr. Kershaw would agree to.11 Upon this note the ne- gotiations were adjourned to a later date. On September 16, further negotiations took place. At this session, which lasted an hour, the parties considered counterproposals submitted by Ball and reviewed the areas of disagreement that had developed at the first session. A clause-by-clause review of the proposed contract followed and when it was completed the parties agreed that they were deadlocked. As the session approached its close, Attorney Ball requested Union Representative Christy not thereafter to come onto Re- spondent's property.18 Christy thereupon stated that as Ball had complaints against him the Union had certain complaints of its own to make. Whereupon he enumer- ated them, and Ball made appropriate notes of them, copies of which appear in the record.19 The enumerated complaints that were discussed during the bargaining session were: (1) The handling of recent economic layoffs; (2) the posting of allegedly antiunion propaganda; (3) isolation of union committeemen; (4) moving of work to Statesville, North Carolina; (5) reducing personnel and workweek with- out consulting Union; (6) threatening to move plant; (7) threatening to terminate Jackson employees for union affiliations; (8) hiring new employees before recalling those on layoff status; and (9) terminating an employee for failure to come to work2e 4. The strike On September 26 the Union held a meeting for the express purpose of determining whether or not a strike should be called. Upon recommendation of Union Repre- 16 Frederick impressed me as a confused and evasive witness. Illustrative of this im- pression was his testimony respecting his termination when the employees went on strike i(infra). Frederick was on vacation when the strike occurred, yet for some unexplained reason received a termination slip, as did the strikers. In his attempt to explain why he never attempted to have the Company's records corrected to show that be was actually on vacation, the witness contradicted himself and evaded questions put to him by the Trial Examiner to such extent that, in my estimation, no reliance can be placed upon his testimony. 16 I do not credit Christy's testimony that Ball stated he did not have full authority to negotiate a contract. 17 In so finding upon the credible testimony of Attorneys Ball and Matthews and em- ployee Colloway, I reject as incredible such testimony of Union Representative Christy that would interpret Ball's statement as being Kershaw's refusal to sign any contract. 18 Ball confirmed this request by a letter dated September 17 10 In so finding upon the testimony of Attorneys Ball and Matthews, I reject Christy's testimony that the complaints were presented in written form at the beginning of the session. 20 With respect to the foregoing complaints which I find to have been presented to Attorney Ball, it should be noted that they are being referred to herein only as items presented, and without reference to their merit. It might be noted in this connection however that items numbered 1, 2, 3, 5 , 8, and 9 form no part of the allegations in this case. Items numbered 6 and 7 have been con- sidered and disposed of elsewhere in this report, and item numbered 4, relating to the moving of work to Statesville , North Carolina, has been found by me to be without sub- 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentative Christy the membership voted unanimously to go on strike. After rati- fication of this action by the International the membership again met on October 7 and again voted unanimously to strike , selecting the following day as the beginning date of the strike. Accordingly, on October 8 approximately 38 of the employees of both Jackson and Kershaw went out on strike, a picket line was established, and signs were carried by pickets stating: IAM-AFL-CIO Lodge No. 2009 on strike against Kershaw [and Jackson] Manufacturing Company because of unfair labor practice. The strike continued for 8 months until June 10, 1958. The purpose of the strike is disputed. The picket signs, of course, speak for them- selves. Union Representative Christy, whose testimony I credit only insofar as it is corroborated by the credited testimony of other witnesses, testified with great re- luctance that the failure to arrive at a contract was one of the reasons for the strike. He could not, however, define with any degree of certainty the other reasons for the strike except to vaguely refer to the complaints of the men. He conceded that the Union never notified Respondent of the reason for the strike. The striking employees were equally uncertain as to the purpose of the strike. Thus employee Colloway, the union president, stated that they voted to strike be- cause of "the way they were treating the employees." He also referred to unsatis- factory working conditions such as faulty welding equipment and inadequate venti- lation. Moreover, he suggested that at the strike vote meeting although employer threats to employees were discussed he personally had no knowledge of such threats other than one made to him.21 When asked the reason for the second strike vote, taken on October 8, Colloway stated, "Well they were still laying the men off, and as I said before, the way they were treating the employees." Despite the vagueness of reasons noted above Colloway did adequately express his understanding of the strike's economic purpose in his answer to the following question on cross- examination: Q. After that last meeting we had there in my office would you say that if we could have agreed on a contract . . . and a contract had been signed up, do you believe there would have ever been a strike? A. No, sir. Other striking employees were equally confused in their explanation of what they understood to be the reasons for the strike. Thus, employee Farmer stated only that the reason for the strike vote was "unfair labor practices," and when asked to explain what he meant, stated, "Well, seniority, and of course the wage scale and the official remarks and different things." Similarly, when asked what was the purpose of the strike for which they had voted, Manning, Huie, and Easterling, who had at- tended negotiating sessions, each stated "unfair labor practices." When asked to explain what they were, Manning answered, "Those I recall is it seems that if you done your work right, if they liked you alright they kept you, that if they didn't they let you go. . . . That's about all I believe I can recall." Employee Huie, on the other hand "wouldn't know" whether the contract had anything to do with the strike, but he did know that the "unfair labor practices" that did cause the strike were "just working some of them seven days a week, some of us three days a week, and all such as that." Employee Easterling, though present at the meeting, could best describe the "unfair labor practices" as "for one thing, for working the men, part of the men three days a week and part of them six days, I think some of them worked some on Sunday there; . . . and one of the main reasons was you could do eight hours decent day's work and you didn't know whether they were going to run you off or not." The foregoing explanations for their strike vote highlight a common misunder- standing among the men of what constitutes an unfair labor practice. The term "unfair labor practice," as generally used, is a statutory term, a "word of art," whose precise definition is not expected of those not conversant with the law. Accordingly, it is to be expected that we would have received from these employees such a variety of explanations of the so-called "unfair labor practices." But what the men were actually referring to were inequities, economic injuries, and personal affronts, real or fancied, that had befallen them. These do not constitute unlawful conduct by merely stance upon the credited testimony of President Kershaw who denied that Respondent had transferred the manufacture of its railway ballast regulator to the affiliated Turner Manufacturing Co., Statesville, North Carolina. n Colloway supplied no additional testimony with respect to any threat made to him. I deem his statement to refer to his conversation with Kershaw discussed above and not found to have involved a threat. JACKSON MANUFACTURING COMPANY 471 reciting them. They must bear some relation to the proscriptions of the Act. A re- view of the reasons assigned discloses no such relationship; nor does the conduct complained of as the reason for the strike vote relate in any tangible way to the con- duct which I have -found to have been committed by Kershaw and his supervisors (supra). Upon the credited testimony of Union President Colloway, however, that if there had been a signed contract there would have been no strike, and upon a reasonable view of the negotiations that preceded the strike, particularly the resulting deadlock, I am persuaded, and find, that it was the failure to reach an agreement at the Septem- ber 16 bargaining meeting that caused that strike and not any real or fancied unfair labor practices which the voting and striking employees were unable to describe with any particularity.22 5. The termination slips On October 10, 2 days following the commencement of the strike, termination slips and final checks were received in the mail by employees who went on strike and by at least one, Frederick, who was not actually on strike, but on vacation.23 The slip, a printed form, was typed and sent unsigned. It stated the name, address, social security number, and classification of the employee, his last day of work, and the number of hours worked. As the reason for termination it stated, "Quit the job and left with tools." No entry was made opposite the question, "Employee recom- mended for reemployment?" The only questions directed to Respondent's officials or supervisors at the hearing respecting the issuance of this form to the striking employees were to Vice President Davis and Production Manager Carroll. Davis testified that although the decision to send out a termination slip came under his jurisdiction he did not authorize that slips be sent to striking Jackson and Kershaw employees. Carroll simply testified, without further comment, that they were mailed under his supervision. As no other explanation, official or otherwise, for the sending of these slips is avail- able from either party it is incumbent upon me to judge from the circumstances herein the nature and purpose of the slips. Thus, in the absence of evidence or contention to the contrary, it is reasonable to assume that they were sent, as part of a routine termination operation with the final paycheck, to each striker or, indeed, to each absent employee, for example, the vacationing Frederick. That they were thus dis- patched, unsigned, without any entry in the appropriate space provided for recom- mendation as to reemployment, indicates their routine character, bearing no official connotation of discharge. In so concluding I need only rely on the testimony of Easterling, the Jackson shop steward, and Union Representative Christy, corrobo- rated as it is by the credited testimony of employee Colloway.24 Thus, both Christy and Colloway testified that some employees abandoned the strike and returned to work, and Easterling identified employees Noble, Luster, and Perry as among the returning strikers. . As there is nothing in the record to refute the fact that striking employees thus returned to work, I have no alternative but to conclude that the so-called termination slip sent routinely to all striking employees did not constitute an effective discharge instrument. Accordingly, in the absence of such evidence, it cannot be found that the termination slips served to prolong a strike already in existence when they were issued in what I find to be routine fashion. I find, therefore, that the strike, economic in its inception, continued to be so for its duration. 6. The end of the strike and applications for reinstatement The strike lasted for 8 months until, on June 7, Union Representative Christy notified Respondent by letter that the Union was removing its picket lines and that the striking employees would unconditionally return to work "at the usual starting time of the regular shift on June 10, 1958." In the same notification Christy re- quested recognition of the Union's bargaining committee and requested that contract 0 I do not consider it of significance to this determination that a charge was filed against Respondent on September 20, 1957, several days prior to the strike vote. Such charges, of themselves, are not evidence of an unfair labor practice strike as it must be shown affirma- tively that the conduct alleged actually caused the strike before the strike can be so characterized = The credited testimony of employees Colloway, Martin, Head, Barrett, Faulk, and Faulk, Jr. Frederick is credited only as to this one item. u So much of the testimony of Easterling and Christy as is not corroborated I credit here because I deem the statements made to be, in fact, admissions against their own best interests, the success of the strike. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD negotiations be arranged. On the same date a minimum of 25 individuals mailed to Respondent unconditional offers to return to work 25 As contemplated by Christy's letter a considerable complement of strikers appeared at the Kershaw gate on the morning of June 10 seeking their jobs. Several other strikers did not seek to return until June 27.26 Upon congregating at the gate a delegation was selected to speak for the group, while some of the individuals spoke in their own behalf. The oral requests were directed to Production Manager Carroll who informed them that there were no openings available, their jobs having been filled by permanent replacements.27 Those who applied thereafter on June 27 were also refused reinstatement for the stated reason that their jobs had been filled by permanent replacements. Two weeks after his first request for reinstatement C. J. Faulk returned to the plant for a job as welder, at the direction of the State employment office. Reporting to Superintendent Owens he filled out an application and was given a welding test. The testimony concerning Faulk's qualifications is in dispute. Owens, who ordered the test, stated that the job to be filled was welder, first class, and that Faulk, an automo- tive assemblyman,28 was qualified only to do spot or tack welding incident to his as- sembly job-the qualification of a third class welder. In his testimony he disputes Faulk's claims that a substantial amount of his duties involve spot welding. The welding, according to Owens, was merely an incident to his principal duty. Although I have credited C. J. Faulk generally heretofore and have discredited the testimony of Superintendent Owens, I am not disposed to accept Faulk's version of the welding job request. In the first place Faulk was never classified as a welder, but as an assemblyman. On the stipulated payroll certain employees were designated as welder, thus indicating a specific classification not encompassed within the duties of assemblyman, and presumably more exclusively devoted to welding. In view of the distinction as to jobs, and upon Faulk's own admission that he was sent out to the plant for a job as welder, it is reasonable to assume that Owens was correct when he testified that the job was, in fact, for a welder, and that Faulk, by nature of his past experience, and upon the results of the welding test, was not qualified. Further- more, as the subject matter of job qualifications was one within the peculiar knowl- edge of Owens, as plant superintendent, I am disposed, apart from any credibility resolution of his testimony in other respects, to accept his testimony as an accurate account of the welding standards required by Respondent for the classification of welder. I find, therefore, that when C. J. Faulk's application for the job of welder was rejected by Respondent it was because he was not qualified for the job. 7. The refusal to bargain As previously stated (supra), Union Representative Christy coupled with his request to Respondent for the strikers' reinstatement a request for recognition of the Requests were known to have been mailed by R L Knight, Jesse Faulk, Jr, It. Beasley, J. L Esco, J S Manning, Roy G. Nelson, H M. Huie, S. L. Howell, J B. Johnson, C. C. Moore, Elmer Frederick, Harvey Lesley, James W Thomas, L. W. Martin, C. J Faulk, Judson M. Coburn, Homer W. Jennings, W E Glenn, T. E. Head, Milton D Owens, R. E Bass, T. W. Burley, W. H. Colloway, Matthew Easterling, and L C Berry. 28 The following striking employees offered on June 10 to unconditionally return to work : R E. Bass Elmer Frederick J. S Manning It. E. Beasley W. E Glenn L. W. Martin T W. Burley T. E Head C. C. Moore W. H. Colloway S. L Howell Roy G. Nelson Judson M. Coburn H. M. Huie Milton D Owens J. L Esco Homer W Jennings James W. Thomas Harold R. Farmer J. B. Johnson Matthew Easterling C. J Faulk It. L Knight L. C Berry Jesse Faulk, Jr. Harvey Lesley The following offered on June 27 to unconditionally return to work : John Parker W. L. McKinnis John G. Stanford W. A. Barrett James Bowles =The testimony of Carroll , corroborated by Colloway and Faulk. Employee Berry similarly testified that he and Easterling were refused reinstatement at Jackson by Supervisor Hall for the reason that their jobs had been filled. 28Faulk testified he was an automotive electrician . Respondent's stipulated payroll records carry him as an assemblyman , as testified to by Owens. I shall rely upon the stipulated fact. JACKSON MANUFACTURING COMPANY 473 bargaining committee and for continued collective bargaining. In a letter of June 20, 1958, in response to the recognition and bargaining requests, Respondent, through its attorney, Fred Ball, rejected the requests stating that as 10 months had elapsed since the initial recognition and inasmuch as the work force was substantially different due to replacements during the course of the economic strike, Respondent doubted that the Union represented a majority of the present employees for the purpose of collective bargaining. Accordingly Respondent refused to bargain with the Union unless it could establish its right to represent the present employees.29 No collective bargaining between the parties has taken place since that time. C. Procedural sequence The incidents which occurred prior to June 10, 1959, and form the basis for the foregoing findings were, except for the incident of the termination slip, first disclosed in a series of charges filed by the Union beginning on September 20, 1957. Between that date and the end of the strike on June 10, 1958, an initial charge was filed on September 20, 1957, and two amended charges were filed on October 10, 1957, and February 17, 1958, against Respondents Kershaw and Jackson in Cases Nos . 15-CA- 1098 and 15-CA-1097, respectively ; alleging violations of Section 8(a)(1), (3), and (5). Following the end of the strike and after the execution of a settlement agreement between Respondent and the Regional Director,30 a charge was filed on October 27, 1958, and an amended charge was filed December 23, 1958, against Respondents Kershaw and Jackson in Cases Nos. 15 -CA-1413 and 15-CA-1412, respectively, alleging further violations of Section 8(a)(3) and (5). 1. The settlement agreement and Respondent's compliance therewith It appears from uncontradicted statements in the pleadings that following his investigation of the charges and amended charges in Cases Nos. 15-CA-1097 and 1098 the Regional Director proposed a settlement of the issues by agreement between the parties which Respondent accepted and the Union rejected. Whereupon settle- ment agreements were executed on June 11, 1958, and the Union was notified by the Regional Director that he would refuse to issue a complaint. The Union failed to seek the General Counsel's review of the Regional Director's action as provided by Section 102.19 of the Board's Rules and Regulations, Series 7. The agreements, in printed form, provided for posting of notices by the Respondent and compliance with other stated requirements. The Regional Director, for his part, refused to issue a complaint on the charges. Provision was also made in the agree- ments for withdrawal of the charges in the case. Thus, the Charging Party agreed to request the withdrawal of the charge, "to become effective when the Regional Director is satisfied that the provisions of this agreement have been carried out." As the Union refused to participate in these agreements such a clause requires further clarification. I would conclude, therefore, that the Regional Director had obligated himself to withdraw the charges or to consider them inoperative upon Respondent's compliance with the terms of the agreements.31 Attached to each agree- ment was the notice which Respondent was obligated to post for a period of 60 days32 A reading of the notice indicates that a remedy was sought only for the instances of interference, restraint, and coercion alleged in the charges. All other allegations appear to have been eliminated. The circumstances surrounding the execution of the settlement agreements should be briefly noted. Respondent's counsel stated on the record that Miss Louise Felton, field examiner attached to the Board's Fifteenth Region, executed the agreements on behalf of the Regional Director on June 11 and 12, 1958, 2 days following the termination of the strike and with knowledge that it was over. On June 13, the agree- ments were approved by the Regional Director. Seven days thereafter, on June 20, 2' A copy of Respondent's letter of refusal was sent to the Board's Regional Director for the Fifteenth Region, and was thereafter duly acknowledged (infra) 81 This agreement, to be considered in detail hereafter, was not executed in anticipation of the termination of the strike but was totally independent of the strike action. Nor was it, as we shall see, approved by the Union then engaged in the strike. 81 Any conclusion to the contrary would have the effect of maintaining a charge in force in perpetuity whenever there was no charging party signatory to a settlement agreement who would request the withdrawal of his charge 31 Copies of settlement agreements and notices are attached to this report as Appendix A. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as noted above, Attorney Ball notified the Union of Respondent's refusal to bargain and specifically indicated as his reason the replacement of union adherents during the strike. Ball sent a copy of this letter to the Board's Regional Office, requesting advice. On July 14, the Regional Office replied to Ball, acknowledged the contents of his letter to the Union, and stated his reluctance to give an advisory opinion. Upon the sequence of facts noted above I conclude and find that each settlement agreement was executed and approved by the Regional Director with knowledge that the strike had terminated, and that it was maintained by the parties on and after July 14 with knowledge by the Regional Office that Respondent, subsequent to the execution of the agreement, had refused to recognize and bargain with the Charging Party for the stated reason that it had lost its majority by the economic replacement of its constituents. Respondent posted the notices (Appendix A), as required, for the prescribed 60-day period. Thereafter on October 14, 1958, the Regional Director sent identical letters to Kershaw Manufacturing Company and Jackson Manufacturing Company, which read as follows: GENTLEMEN: The Employer having satisfactorily complied with the affirma- tive requirements of the Settlement Agreement in above-entitled case, and the Employer being in compliance with the negative provisions of the Settlement Agreement, the file in this matter is closed. It will be considered as a closed case conditioned upon continued observance of the terms of the Settlement Agreement. Very truly yours, Joimi F. LE Bus, Regional Director. 2. The issuance of the complaint and its subsequent amendment Approximately 2 weeks after the Regional Director closed the original cases against Respondent (Cases Nos. 15-CA-1097 and 1098), further charges were filed, on October 27, 1958, by the Union against Kershaw and Jackson in Cases Nos. 15-CA-1414 and 15-CA-1412, alleging violations of Section 8(a)(3) and (5) by Respondent's failure since July 10, 1958, the end of the strike, to reinstate the replaced strikers and to recognize and bargain with the Union,33 the incidents which Respondent called to the Regional Director's attention on June 20, 1958. On July 28, 1959, the General Counsel issued his complaint upon these charges and included therein certain matters alleged only in the earlier charges (Cases Nos. 15-CA-1097 and 1098) that appear to have been reactivated in spite of the Regional Director's letter of October 14 closing them. The complaint, as it pertains to conduct occurring before June 10, 1958, the end of the strike, alleged only incidents purporting to be interference, restraint, and coercion of employees. The complaint did not allege for this same earlier period violations of either Section 8(a)(3) or (5) as charged in the initial charges.34 After the complaints had been admitted into evidence among the formal pleadings counsel for the General Counsel moved to amend the Kershaw complaint (Cases Nos. 15-CA-1098 and 15-CA-1413) so as to add to the pre-June 10, 1958, allega- tions of interference, restraint, and coercion a new allegation (new paragraph numbered 18) to the effect that Respondent Kershaw discriminatorily terminated its employees engaged in a strike, thus converting the strike to an unfair labor practice 83L. Id. Fagen, the Union's Grand Lodge representative, testified that these charges were mailed to the Board's Regional Office on July 12, 1958. The charges filed with the Board and admitted into evidence as General Counsel's Exhibits Nos. 1-G and 1-Q in- dicate that they were filed on October 27, 1958, and each bears the National Labor Rela- tions Board receiving stamp of October 27, 1958, 10 : 05 a m. Because the provisions of Section 10 of the Act make the filing date of a charge the critical date I do not find it necessary to consider Fagen's testimony as it is immaterial that the charges may have been mailed in June and mislaid either in transit or in the Board's office until October 27. In any event it might be suggested that within the 4i/2 months which elapsed the Union might well have inquired why no investigation had been made of it or of its members as to the discrimination and refusal to bargain complained of in the belatedly docketed charges, " These Section 8 (a) (3) and (5) charges were not referred to In the settlement agree- ment which may be assumed to have disposed of all charges for the pre-June 10, 1958, period. JACKSON MANUFACTURING COMPANY 475 strike if it were not already such . Over objection of counsel the motion to amend was granted.35 C. Analysis and conclusions 1. The settlement agreement "It is well established that where, after the execution of a settlement agreement, unfair labor practices occur which violate that agreement, the Board will go behind the agreement and litigate the presettlement as well as the postsettlement viola- tions. .. " 36 Explicit in this settled rule is the requirement that the agreement itself must be violated by subsequent unfair labor practices before it would be abrogated. Consequently, with particular reference to the agreement here, it must be demonstrated that at some period following its execution on June 10, 1958, the Regional Director, charged with the obligation of policing such agreements, has uncovered subsequent unfair labor practices which specifically violate the terms of the agreement. By the terms of the agreement Respondent notified 37 its employees that it would not interrogate them; inform them that it was not going to have a union or deal with a union; solicit their help to stop the Union; promise or offer them benefits to induce them to refrain from union activities; inform them that benefits will be withheld because of their union activities; negotiate with them directly in deroga- tion of the Union's majority status; threaten to close the plant, to move work elsewhere, or to discharge anyone because of the Union; or in any manner interfere with, restrain, or coerce them in the exercise of their statutory rights. To have violated the agreement Respondent must have failed in one of the fore- going proscribed respects. And such failure must be translated into the terms of a charge of unfair labor practices. A review of the charges in this case, irrespec- tive of merit, alleging misconduct occurring after June 11, 1958, the execution date of the agreement, discloses no allegation at all relevant to the proscriptions listed on the settlement notice.38 Instead, the charges in Case No. 15-CA-1412 filed over 4 months after the execution date allege as a refusal to bargain a situation of which the Regional Director had been apprised by Respondent on June 20, 1958, and a failure to reinstate strikers concerning which Respondent advised the Regional Director on the same date, in explanation of his legal position that he was not obligated to bargain. Indeed, Respondent specifically requested the Regional Director's advice in the matter and was refused by letter of July 14. It defies logic to say, therefore, that conduct unrelated to past conduct, and particularly within the knowledge of the Regional Director, could be viewed by him 4 months later, upon the issuance of the complaint, as conduct which violated the settlement agree- ment he was charged with policing.39 To this point in our analysis of the agreement I have deferred consideration of the Regional Director's letter of October 14, 1958, by which he conceded Respond- ent's full compliance with the agreement and closed the case. Wholly independent of my conclusion stated above that the terms of the agreement were not violated by subsequent unfair labor practices, simple justice would seem to dictate that parties to a bargain should be required to live with it. 85 New paragraph numbered 18 of the complaint in Cases Nos. 15-CA-1098 and 15-CA-1413, is as follows : On or about October 9, 1957, Respondent terminated the employment of various of its employees who had ceased work concertedly and went out on strike as de- scribed in paragraph 17 above, by mailing said employees 'termination notices. The paragraph numbers of the complaint have been corrected by me, in conformance with the amendment, to reflect this addition to the complaint. s Courier Post Publishing Company, d/b/a Radio Station KHMO, 102 NLRB 26, 28. 87 See notice, Appendix A 89 See Eveready Garage, Inc., 126 NLRB 13. 8D In addition to the alleged misconduct sought to be remedied by the settlement agree- ment, one further incident was alleged to have occurred during the same period covered by the agreement. I refer to an amendment to the complaint made at the hearing, with- out previous reference thereto in any charge , that Respondent discriminatorily terminated the employment of its striking employees. As there is no showing that facts respecting this allegation were not available earlier, I am not disposed to consider allegations so belatedly made (2 years after the alleged incident ) as vitiating a settlement agreement made in good faith by all parties. In any event, as will be set forth in detail hereafter (infra ), I find that the termination slips issued to employees did not, in fact, constitute a discharge. 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By the terms of the agreement the Regional Director was implicitly required to dismiss the charge. Furthermore, upon his refusal to issue a complaint, as he did refuse here, the Board's Rules and Regulations require that the Regional Director dismiss the charges.40 He did not. But apart from the Regional Director's failure to do so as agreed, and as required, the charge would appear to be nonetheless dismissed. "The General Counsel's refusal to issue a complaint upon the basis of a charge filed, constitutes, in effect, a dismissal of the charge." 41 If we assume, however contrary to my understanding of the law as it applies here, that the charge was not either in fact or effect dismissed, the Regional Director is precluded by his own agreement from issuing a complaint in the closed case. Thus, it was agreed on June 11, 1958, between Respondent and the Regional Director that "Contingent upon compliance with the Terms and provisions hereof, no further action shall be taken in the above case." On October 14, 1958, the Regional Director, fully advised by Respondent of its failure to reinstate employees and to bargain with the Union, stated that "Respondent having complied with the affirma- tive requirements of the Settlement Agreement . . . and . being in compliance with the negative provisions . the file in this matter is closed." While it is well settled that the doctrines of equitable estoppal and res adjudicata are not applicable to administrative proceedings,42 there is nothing in either doctrine or elsewhere in the law that would excuse a governmental agency from the basic requirements of contract law. Accordingly, I would find that by his own concessions the Regional Director is precluded from abrogating an agreement he considers to be complied with. In summary, I would recommend that so much of the complaint herein as rests upon charges filed prior to June 11, 1958, be dismissed for lack of an operative charge in existence at the time of the issuance of the complaint. My recommenda- tion rests upon two independent grounds. First, according to applicable Board law, a settlement agreement can only be abrogated and a charge reinstated when it can be shown that subsequent unfair labor practices have occurred "which violated that agreement." 43 No unfair labor practices meeting that specific requirement were either charged or proven. Secondly, because the Regional Director was obli- gated by the terms of his own agreement to take no further action upon Respond- ent's compliance with the agreement, and because the Regional Director affirmed full compliance in all respects, he was precluded by the terms of his own commit- ment from taking further action under a charge which he should actually have dismissed pursuant to Board Rules and the terms of the settlement agreement. 2. The alleged termination of strikers Briefly stated, termination slips were mailed on October 9, 1957, to each of the employees then on strike, and to at least one employee absent for other reasons (supra). It is the General Counsel's contention that Respondent thus discharged the strikers for their concerted action, thereby discriminating against them for reasons proscribed by the Act. This contention attributes to the slips and their issuance much more significance than they deserve, and I therefore reject it. The issuance of the termination slips was completely unexplained. Produc- tion Manager Carroll authorized their issuance with the final paychecks. Vice President Davis, who generally authorized such slips, had nothing to do with them and was not shown to have known anything about them. Indeed nothing appears in the record to explain the slips except the fact that they were received. As to the nature of the slip itself, it was typed and unsigned and was blank as to one item that could certainly suggest its possible discriminatory purpose, namely, the question, "Employee recommended for reemployment?" Upon these facts I w National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 7, Sections 102 19, 101 5, and 101 6 u Wausau Building and Construction Trades Council, at al. (Heiser Ready Mix Com- pany). 123 NLRB 1484 In its decision the Board limits the requirement to dismiss to instances where no con- ditions have been imposed upon the party charged I submit that the conditions imposed upon Respondent in the instant case were satisfied by the Regional Director's letter so stating (see Appendix A). 42 Arizona Grocery Co v. AT S F. Ry, 284 U.S. 370; The Wallace Corporation v. N.L.R.B , 323 U S. 248, 253. 41 Courier Post Publishing Co., supra. JACKSON MANUFACTURING COMPANY 477 conclude that termination slips issued to the striking employees have no significance to their employment status, as strikers, but were issued merely as a routine operation.44 The effectiveness of these slips would certainly be a strong indication of their underlying purpose. That their effect was negative, however, is shown by the fact that although all strikers received the slips as a matter of routine, numerous strikers, including employees Noble, Luster, and Perry, abandoned the strike and returned to their jobs. Certainly, the employment of these individuals was not effectively terminated by the so-called termination slips which they received 45 Upon the strength of the foregoing, I find and conclude that the General Counsel did not sustain the burden of proving on the record that there was an actual dis- charge.46 Speculation is not enough. Accordingly, I shall recommend that para- graph numbered 18 of the amended Kershaw complaint be dismissed. 3. The nature of the strike A review of the credited testimony of employees at the hearing shows no aware- ness on their part that they were voting to strike because of any conduct which could be viewed as an unfair labor practice. Indeed there is a marked lack of under- standing on the part of many of the strikers as to exactly why they were on strike. But from this lack of understanding, from a review of the progress of bargaining negotiations to a point of deadlock, and upon Union President Colloway's testimony that had there been a contract the strike would not have occurred, 'I conclude and find that the strike which commenced at Respondent's plants on October 8, 1959, was an economic strike and was not caused by any unfair labor practices that Respond- ent may be found, contrary to my recommendation, to have committed.47 Furthermore, as a consequence of my recommendation to dismiss the allegation of the amended complaint dealing with the issuance of termination slips to striking employees, I conclude and find that in no manner did the issuance of such slips have the effect of prolonging the economic strike then in progress. Accordingly, I find that the strike which was economic at its inception continued as an economic strike until its termination on June 9, 1958. 4. The alleged discriminatory refusal to reinstate the strikers Upon the abandonment of their strike on June 9, the strikers requested rein- statement and reported for work on June 10. At that time they were informed that their jobs had been permanently filled. It is settled law that economic strikers are entitled to their jobs upon unconditional request only to the extent such jobs have not been filled by permanent replacements.48 It is clear from the record, both from the contentions of Respondent and the testimony of those seeking reinstatement, that the jobs of the strikers had been filled by permanent replacements. Under such circumstances I conclude and find that failure of the strikers to obtain their jobs upon the conclusion of the strike was a consequence of their replacement as eco- nomic strikers and was in no manner attributable to a discriminatory motive on the part of Respondent. Accordingly, I shall recommend that the complaint be dis- missed insofar as it alleged Respondent's discriminatory failure and refusal to re- instate the employees who engaged in the strike at Respondent's plants. 5. The alleged refusal to bargain on and after June 10, 1958 General Counsel's contention that Respondent unlawfully refused to bargain with the Union on and after June 10, 1958, rests upon the assumption that the Union's majority status established by consent of the parties following a card check in August 1957, continued unaffected throughout the duration of the strike and regard- less of the fact that the strikers had been permanently replaced. This contention AS Of Crookston Times Printinq Compamv, 125 NLRB 304, and cases cited therein u Kerrigan Iron Works, Inc., 108 NLRB 933, 934, enfd sub nom Shopmen's Local Union No 73.5, etc. v. N.L R.B , 219 F 2d 874 (C A 6). cert denied 350 U S. 835 4 N L R.B v. Forrest Ingram, et al., d/b/a Golden Rod Broilers. 273 F. 2d 670 (C A 5) 47 N L R B. v. Wooster Division of Borg-Warner Corporation, 236 F. 2d 898, 906-907 (C.A. 6), reversed and remanded in respects not relevant to the issue 356 U S. 342, where the court of appeals found a strike to be an economic one because the dispute over the economic issues was a cause of the strike 48 N L.R B. v Mackay Radio & Telegraph Co., 304 U S 333, 345 ; N.L.R.B. v. Wooster Division of Borg-Warner Corporation, supra. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would prevail, and General Counsel so concedes in his brief to me,49 only if the strikers retained their employee status throughout the entire period, being entitled to immediate reinstatement upon application at the close of the strike. As I have concluded that under the circumstances of this case the strike was an economic one and not an unfair labor practice strike as urged by General Counsel, it is evident that no replaced striker retained his employee status.50 Consequently, at the time of its demands for resumption of bargaining, on June 9, 1958, it is doubtful that the Union represented anything near a majority of the employees, unless it could be shown (as it was not) that the replacements hired during the strike had chosen the Union to represent it-a most improbable situation.51 Only, therefore, if the recognition voluntarily accorded the Union by Respondent in August 1957 may be deemed to have continued to and beyond June 9, 1958, could it be said that the Union still retained its majority status. It must be recalled, in the first instance, that the Union's majority status was established, not by certification so as to call into play the Board's "one year certifi- cation" rule,52 but by voluntary recognition. As stated by the Court of Appeals for the Fifth Circuit in N.L.R.B. v. Henry Mayer d/b/a Cherokee Hosiery Mills, 196 F. 2d 286, at 290, an employer has no obligation to bargain with a union, voluntarily and informally recognized, when it no longer represents a majority of the employees.53 Accordingly, it need not be presumed that the majority status of the Union herein prevailed for the entire period of a year ending August 5, 1958. On the contrary, it may reasonably be concluded that the Union's majority status evaporated when its members and adherents lost their employee status, on June 9, 1958, at the latest. In the absence of proof of such majority status on the part of the Union, I con- clude and find that the Respondent's refusal to recognize and bargain with the Union as the majority representative of Respondent's employees did not consti- tute a refusal to bargain in violation of the Act. Accordingly, I shall recommend that so much of the complaints herein as alleged violations of Section 8(a)(5) on and after June 9, 1958, be dismissed. 6. Recommended disposition of the complaints As has been demonstrated by the foregoing analysis and conclusions (supra) the General Counsel's case against Respondent fails basically for two reasons: (1) The conduct occurring prior to June 9, 1958, and alleged in the complaints are not properly before me, the charges having been disposed of by the Respondent's com- pliance with the settlement agreement and the Regional Director's acknowledg- ment thereof; and (2) by amendment to the Kershaw complaint at the hearing General Counsel sought to show that the issuance of termination slips, which I have found to have been a routine operation, constituted discriminatory discharges of the strikers, although there is credible evidence that some strikers did return to work thereafter. For reasons that are self-evident, this allegation must also fail. All that remains of the complaint, in my judgment, therefore, are allegations of unlawful refusal to reinstate strikers and a subsequent refusal to bargain. As the subject matter of each of these allegations depends for its legal character upon the nature of the strike and upon the disposition of the allegations of the complaint which I have already indicated I would dismiss, I have no alternative in The dispo- sition of these remaining allegations but to recommend that they likewise be dismissed. [Recommendations omitted from publication.] 49 General Counsel's brief, p. 12. 60 N L R B v. Mackay Radio d Telegraph Co., supra. 51 This does not present a situation comparable, as the General Counsel erroneously contends, to the one presented in Sierra Furniture Company, 123 NLRB 1198, Wherein it was claimed that loss of maiority was evidenced by the return to work of strikers who had previously signed union cards-a claim of abandonment, so to speak. Here there is no claim that individuals forsook the Union, thus reducing its majority. Rather, the majority was destroyed by their replacement by others who were never shown to have joined the Union. Sierra Furniture, therefore, has no application here. 6a Cf. Ray Brooks v N.L R B , 348 U S. 96. 69 Cited with approval in Ray Brooks v. N L R B., 348 U.S. 96, 101, footnote 9, wherein the Court stated that : "Both before and after the Taft-Hartley Act, the Board and the courts did not apply the [1-year certification) rule to a collective bargaining relation- ship established other than as the result of a certification election." Citing N.L.R.B. v. Henry Mayer, d/b/a Cherokee Hosiery Mills, supra. JACKSON MANUFACTURING COMPANY 479 APPENDIX A UNITED STATES OF AMERICA NATIONAL LABOR RELATIONS BOARD In the Matter Of JACKSON MANUFACTURING COMPANY and INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, Case No.: 15-CA-1097. SETTLEMENT AGREEMENT The undersigned employer (herein called the Employer) and the undersigned charging party (herein called the Charging Party), in settlement of the above matter, and subject to the approval of the Regional Director for the National Labor Rela- tions Board (herein called the Regional Director) HEREBY AGREE AS FOLLOWS: POSTING OF NOTICE-Upon approval of this agreement, the Employer will post immediately in conspicuous places in and about its plant, and maintain for a period of at least sixty (60) consecutive days from the date of posting, copies of the Notice to All Employees attached hereto and made a part hereof. COMPLIANCE WITH NOTICE-The Employer will comply with all the terms and provisions of said Notice. WITHDRAWAL-The Charging Party hereby requests the withdrawal of the charge in this matter, such withdrawal to become effective when the Regional Direc- tor is satisfied that the provisions of this Agreement have been carried out. REFUSAL TO ISSUE COMPLAINT-In the event the Charging Party fails or refuses to become a party to this Agreement, then, if the Regional Director in his. discretion believes it will effectuate the policies of the National Labor Relations Act, he shall decline to issue a Complaint herein and this Agreement shall be between the Employer and the undersigned Regional Director. A review of such action may be obtained pursuant to Section 102.19 of the Rules and Regulations of the Board if a request for same is filed within ten (10) days thereof. This agreement is contingent upon the General Counsel sustaining the Regional Director's action in the event of a review. PERFORMANCE-Performance by the Employer with the terms and provisions of this Agreement shall commence immediately after the Agreement is approved by the Regional Director, or, in the event the Charging Party does not enter into this Agreement, performance shall commence immediately upon receipt by the Employer of advice that no review has been requested or that the General Counsel has sustained the Regional Director. NOTIFICATION OF COMPLIANCE-The undersigned parties to this Agreement will each notify the Regional Director in writing what steps the Employer has taken to comply herewith. Such notification shall be made within five (5) days, and again after sixty (60) days, from the date of the approval of this Agreement, or, in the event the Charging Party does not enter into this Agreement, after the receipt of advice that no review has been requested or that the General Counsel has sustained the Regional Director. Contingent upon compliance with the terms and provisions hereof, no further action shall be taken in the above case. JACKSON MANUFACTURING COMPANY, (Employer) By (S) FRED BALL, Atty. (Name and Title) Date executed 6-11-58 (S) JOHN F. LEBUS, Regional Director, National Labor Relations Board INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, (Charging Party) (Name and Title) Recommended (S) M. LOUISE FELTON, Field Examiner, National Labor Relations Board. Date approved 6-13-58 NOTICE TO ALL EMPLOYEES Pursuant to an agreement approved by the Regional Director for the Fifteenth Region of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, to hereby notify our employees that: WE WILL NOT interrogate our employees regarding their union membership, activities, or sympathies. WE WILL NOT inform our employees that we are not going to have a union or that we are not going to deal with a union. WE WILL NOT solicit our employees to help stop the Union. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT promise or offer benefits to our employees in order to induce them to refrain from engaging in lawful union activities. WE WILL NOT inform our employees that we will withhold benefits previously enjoyed by them because of their lawful union activities. WE WILL NOT negotiate or attempt to negotiate directly with employees in derogation of the status of International Association of Machinists, AFL-CIO, as the exclusive bargaining representative of the employees. WE WILL NOT threaten to close the plant because of the Union nor to move the work to another plant outside the State of Alabama because of the Union or because of the lawful union activities of the employees. WE WILL NOT threaten to discharge any employee because of his union mem- bership, activities, or sympathies. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Association of Machinists, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8(a)(3) of the Act. All our employees are free to become or remain members of this Union, or any other labor organization. JACKSON MANUFACTURING COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted 'for 60 drays from the date hereof, and must not be altered, defaced, or covered by any other material. UNITED STATES OF AMERICA NATIONAL LABOR RELATIONS BOARD In the Matter of KERSHAW MANUFACTURING COMPANY and INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, Case No.: 15-CA-1098. SETTLEMENT AGREEMENT The undersigned employer (herein called the Employer) and the undersigned charging party (herein called the Charging Party), in settlement of the above matter, and subject to the approval of the Regional Director for the National Labor Re- lations Board (herein called the Regional Director) HEREBY AGREE AS FOLLOWS: POSTING OF NOTICE-Upon approval of this agreement, the Employer will post immediately in conspicuous places in and about its plant, and maintain for a period of at least sixty (60) consecutive days from the date of posting, copies of the Notice to All Employees attached hereto and made a part hereof. COMPLIANCE WITH NOTICE-The Employer will comply with all the terms and provisions of said Notice. WITHDRAWAL-The Charging Party hereby requests the withdrawal of the charge in this matter, such withdrawal to become effective when .the Regional Di- rector is satisfied that the provisions of this Agreement have been carried out. REFUSAL TO ISSUE COMPLAINT-In the event the Charging Party fails or refuses to become a party to this Agreement, then, if the Regional Director in his discretion believes it will effectuate the policies of the National Labor Relations Act, he shall decline to issue a Complaint herein and this Agreement shall be between the Employer and the undersigned Regional Director. A review of such action may be obtained pursuant to Section 102.19 of the Rules and Regulations of the Board if a request tor same is filed within ten (10) days thereof. This agreement is con- tingent upon the General Counsel sustaining the Regional Director's action in the event of a review. JACKSON MANUFACTURING COMPANY 481 PERFORMANCE-Performance by the Employer with the terms and provisions of this Agreement shall commence immediately after the Agreement is approved by the Regional Director, or, in the event the Charging Party does not enter into this Agreement, performance shall commence immediately upon receipt by the Em- ployer of advice that no review has been requested or that the General Counsel has sustained the Regional Director. NOTIFICATION OF COMPLIANCE-The undersigned parties to this Agree- ment will each notify the Regional Director in writing what steps the Employer has taken to comply herewith. Such notification shall be made within five (5) days, and again after sixty (60) days, from the date of the approval of this Agreement, or, in the event the Charging Party does not enter into this Agreement, after the receipt of advice that no review has been requested or that the General Counsel has sus- tained the Regional Director. Contingent upon compliance with the terms and pro- visions hereof, no further action shall be taken in the above case. KERSHAW MANUFACTURING COMPANY, INTERNATIONAL ASSOCIATION OF (Employer) MACHINISTS, AFL-CIO, By (S) FRED BELL, Atty. (Charging Party) (Name and Title) (Name and Title) Date executed 6-12-58 Recommended (S) M. LouISE FELTON, (S) JOHN F. LEBus, Field Examiner, Regional Director, National Labor Relations Board. National Labor Relations Board . Date approved 6-13-58 NOTICE TO ALL EMPLOYEES Pursuant to an agreement approved by the Regional Director of the Fifteenth Region of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, to hereby notify our employees that: WE WILL NOT interrogate our employees regarding their union membership, activities, or sympathies. WE WILL NOT inform our employees that we are not going to have a union or that we are not going to deal with a union. WE WILL NOT solicit our employees to help stop the Union. WE WILL NOT promise or offer benefits to our employees in order to induce them to refrain from engaging in lawful union activities. WE WILL NOT inform our employees that we will withhold benefits previously enjoyed by them because of their lawful union activities. WE WILL NOT negotiate or attempt to negotiate directly with employees in derogation of the status of International Association of Machinists , AFL-CIO,, as the exclusive bargaining representative of the employees. WE WILL NOT threaten to close the plant because of the Union nor to move the work to another plant outside the State of Alabama because of the Union or because of the lawful union activitites of the employees. WE WILL NOT threaten to discharge any employee because of his union mem- bership, activities, or sympathies. WE WILL NOT in any manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Association of Machinists , AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , and to refrain from any or all of such activities, except to the extent that such right may be affected by art agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. All our employees are free to become or remain members of this Union , or any other labor organization. KERSHAW MANUFACTURING COMPANY, 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. 586439-61-vol. 129-32