Sunbeam Plastics Corp.

1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL MEMBERS OF LOCAL 102, INTERNATIONAL LADIES GARMENT WORKERS UNION, AFL-CIO, AND TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that: WE WILL NOT establish or maintain a picket line at the premises of Henry Rosenfeld, Inc., or Jerry Gilden Fashions, Inc., at 6303 Hudson Avenue, West New York, New Jersey, nor in any other manner induce or encourage any individual employed by Henry Rosenfeld, Inc., Jerry Gilden Fashions, Inc, Vassar Manufacturing Company, Jean Fashions, Inc., Nathan Hoffman, d/b/a Hoffman's Express, Railway Express Agency, Inc., or Imperial Trucking Com- pany, or any other person engaged in commerce or in an industry affecting commerce, to engage in a strike or a refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, materials, articles, or commodities, or to perform any services, nor will we threaten, coerce, or restrain Henry Rosenfeld, Inc., or Jerry Gilden Fashions, Inc., or any other person engaged in commerce or in an industry affecting commerce, where in either case, an object is to force or require Henry Rosenfeld, Inc., or Jerry Gilden Fashions, Inc., to cease doing business with Max Zall, d/b/a B & Z Trucking Company. LOCAL 102, INTERNATIONAL LADIES GAR- MENT WORKERS UNION, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 744 Broad Street, Newark 2, New Jersey, Telephone No. Market 4-6151, if they have any question concerning this notice or compliance with its provisions. Sunbeam Plastics Corporation and International Brotherhood of Operative Potters, AFL-CIO. Cases Nos. 25-CA-1590 and 25-CA-1615. October 10, 1963 DECISION AND ORDER On May 17,1963, Trial Examiner Thomas F. Maher issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. He also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dismissal of these allegations of the complaint. Thereafter, the Charging Union and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. Respondent filed no exceptions. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with these cases to a three-member panel [Members Leedom, Fanning, and Brown]. 144 NLRB No. 96. SUNBEAM PLASTICS CORPORATION 1011 The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed.' The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the modifications noted herein? 1. In agreement with the Trial Examiner, and in the absence of exceptions to his findings in this regard, we find that Respondent com- mitted violations of Section 8(a) (1) of the Act beginning almost im- mediately after it learned of the organizational activities of its em- ployees on behalf of the Internatonal Brotherhood of Operative Potters, AFL-CIO (herein called the Union). These violations are here summarized because of their bearing upon our additional findings as set forth below. The unlawful activity engaged in by Respondent's officials included the interrogation of employees concerning their "feel- ings" about the Union and those of others; the solicitation of their "loyalty" to the Company, and their assistance in obtaining like in- formation and commitments from coemployees; the conducting of a "survey" through supervisors who rated the employees as "For Union," "Against Union," and in intermediate categories; the promise and granting of raises to selected employees to dissuade them from union affiliation; and threats to employees of plant shutdown,and job loss in the event the Union won bargaining rights. In short, Respondent's unlawful activity clearly constituted interference, restraint, and co- ercion of its employees and amply indicated its union animus. 2. The Trial Examiner found that a layoff of 16 of Respondent's employees, occurring in January, late February, and, again on March 9, 1962, was not, as alleged in the complaint, a violation of Section 8(a) (3) of the Act. We agree. He based his conclusion, as do we, 1 The Charging Union excepted to the ruling of the Trial Examiner denying its motion, made at the hearing , to amend the complaint over the objections of the General Counsel The effect of the requested amendment would have been the addition of the names of nine strikers to the allegation that three strikers were unlawfully denied reinstatement to their jobs at the conclusion of an unfair labor practice strike The General Counsel has omitted these names from the allegation based upon his precomplaint investigation which led him to believe that the nine strikers had engaged in misconduct , precluding them from reinstatement. There is ample authority for the conclusion made by the Trial Examiner that the Act lodges in the General Counsel sole discretion for the issuance, scope, and content of the complaint. International Union of Electrical , Radio and Machine Workers, AFL-CIO (Neco Electrical Products Corp. ) v. N.L R B , 289 F. 2d 757, 761-762 (C A.D.C ) ; Piasecki Aircraft Corporation v. N L.R.B , 280 F. 2d 575, 587 (CA. 3), cert denied 364 U. S. 933; Dallas Concrete Company, 102 NLRB 1292, 1293, 1296-1297, enfd. 212 F. 2d 98 (C.A. 5) ; Sailors' Union of the Pacific, 4FL (Moore Dry Dock Company ), 92 NLRB 547, footnote 1. Accordingly, we find no merit in this exception of the Charging Party. 2 We note and correct the following inadvertent errors in the Intermediate Report which do not affect the Trial Examiner's findings and conclusions , or our concurrence therein. In the third paragraph of section IV, D, the dates "1961 " should read "1962"; in section IV, G, 2 , paragraph 7, "8(b)" should read "8(d)". 727-083-64-vol. 144. -65 1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon the finding that the layoffs followed, by only a brief period, the cancellation of orders by three of Respondent's largest accounts and the automation of a manually operated machine. Further, the layoffs were accomplished along strict seniority lines, leaving several known union adherents still employed. Finally, several of the laid-off em- ployees were rehired when increased business warranted. Although the timing of the layoffs, following almost immediately upon the heels of the 8 (a) (1) conduct described above, raises some suspicion, we find, that the General Counsel has not established by a preponderance of the evidence that union activity, rather than the economic reasons ad- vanced by the Respondent, was the true cause of the layoffs.' In agreement with the Trial Examiner, we find that a number of employees involved in the economic layoff were thereafter discrimina- torily refused recall for reasons relating to their union activities. 3. The Trial Examiner also dismissed that portion of the complaint which alleged that Respondent violated Section 8(a) (5) by failing to bargain in good faith. The General Counsel and the Charging Union excepted to this dismissal. We find merit in their exceptions. The Union received a majority of the votes cast at a Board-conducted election held on April 11, 1962. It was certified by the Board on April 25, 1962, as the bargaining representative of Respondent's em- ployees in an appropriate unit. A series of negotiating sessions was held between the parties beginning on May 7, 1962, following sub- mission by the Union of its basic contract proposals. Attorney Arthur Donovan was the sole representative of the Employer at this first and succeeding sessions, whilethe Union was represented initially by Inter- national Representative Hackett and Sunbeam employees Williams and Fritz. As found by the Trial Examiner, Donovan opened the first meeting with the statement that the Employer "could not see its way clear to granting any increase in wages, or any economic benefits that would, in any sense, be a wage increase," as position to which Respondent adhered in all succeeding sessions. The record indicates that this was an inaccurate presentation of Respondent's position, as Donovan's own credited testimony conceded that he had been given prenegotia- tion authority to "give a little bit of wages." Although the failure to grant concessions, even though authorized, would not ordinarily be considered indicative in any way of bad faith in bargaining, this aspect of Respondent's strategy takes on a broader significance in this case when viewed in the context of Donovan's other conduct. Thus, at some of the meetings between the parties, after explaining his position, Donovan asked Hackett, the Union's representative, "What are you going to do about it, are you going 3 Extruded Alloys, Inc. and Lloyd J. Scheid, 141 NLRB 802 ; Low-Temp Manufacturing Co., Inc., 129 NLRB 840. SUNBEAM PLASTICS CORPORATION 1013 to strike?" "Go ahead and strike, I don't care, I have them going all over the country." 4 Meanwhile, in the midst of negotiations and before any union expression of an intent to strike, Respondent hired a large number of employees it admittedly did not then need, for use as possible future strike replacements. There is nothing in the record to indicate that Respondent harbored any fears of unusual conse- quences in the event the Union struck, nor anything which would justify our viewing these measures by Respondent as merely "pre- cautionary." Moreover, to disparage further the Union's position at the bargaining table, several of these replacements, who were put on the payroll in the midst of negotiations and while others in the unit were still working, were hired at a rate of pay higher than that currently earned by Respondent's most experienced employee.' The parties never reached agreement on anything but the most preliminary items. 'Considering Respondent's foregoing bargaining attitude in the context of its total conduct, we are impelled to the conclusion that it was the logical extension of an unlawful course of conduct by which Respondent hoped to frustrate the possibility of arriving at any agreement with the Union. While we are mindful of the admonition of the Supreme Court that we do not sit in judgment upon the "sub- stantive terms of collective bargaining,"' we must at the same time find a refusal to bargain where it clearly appears from all the evidence that the Respondent's primary purpose was not to reach some kind of agreement with the Union, generous or otherwise, but rather to reach no agreement at all with the Union.7 Respondent's hiring of unneeded striker replacements at increased wages during negotiations, while at the same time its negotiator flatly rejected the possibility of economic concession and repetitiously suggested the alternative of a strike, can have, in our view, no other purpose.' When considered 4 Witnesses Hackett, Fritz , and Williams testified that these statements were made by Donovan at both the May 7 and 9 meetings in a form substantially as quoted Attorney Donovan does not deny having made a statement similar to this at either or both the meetings referred to. Accordingly, we find that Donovan made these references to a union strike at these meetings . We find also , by Donovan's own admission , that Hackett probably did not mention a possibility of a strike until May 22 at the earliest , and that his reference at this time was to a strike vote which had been taken by the membership and which authorized the union leadership to strike if it became necessary or advisable. 'The record shows that three applicants , not including supervisors , were hired before and after the beginning of the June 7 strike at rates of pay higher than the $1.70 per hour earned by Gibbs, Respondent 's most experienced and highly paid employee . Also, of the 22 applicants hired as operators between June 1 and July 7, 1962, 10 were paid more than the basic $1.35 starting rate for operators ; this, contrasted with the fact that of the 29 operators hired by Respondent during the 9 months prior to June 1, 1962, not one had received a starting rate higher than $1.35. 6N L R.B. v. American National Insurance Co, 343 U S 395, 401. 7 See Cox, "The Duty To Bargain in Good Faith," 71 Harv. L Rev. 1401, 1416-1417 (1958). 8 Cincinnati Cordage and Paper Company, 141 NLRB 72; Southwestern Porcelain Steel' Corporation, 134 NLRB 1733. 1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the light of Respondent's strong union animus and the interference with employees' rights, Respondent's actions at the bargaining table compel the conclusion that Respondent was not bargaining in good faith as required by Section 8(a) (5) of the Act. We so find.' ORDER The Board 'adopts as its Order the Recommended Order of the Trial Examiner with the following modifications : (1) The following paragraph shall be inserted as paragraph 1(c) of the Recommended Order : (c) Cease and desist from refusing to bargain collectively with International Brotherhood of Operative Potters, AFL-CIO, as the exclusive representative of all employees in the appropriate unit set out below. The appropriate unit is : All production and maintenance employees of the Em- ployer including the local truckdriver and floormen, but ex- cluding office clerical employees, foremen, professional em- ployees, guards, and supervisors as defined in the Act. (2) The following paragraph shall be inserted as paragraph 2(b) of the Recommended Order : (b) Upon request, bargain collectively with International Brotherhood of Operative Potters, AFL-CIO, as the exclusive representative of all employees in the appropriate unit set out herein, with respect to wages, rates of pay, hours of employment, and other terms and conditions of employment, and embody any understanding reached in a signed agreement. (3) Paragraph 1(c) of the Recommended Order shall be renumbered to read 1(d) and paragraphs 2(b) and 2(c) shall be renumbered 2(c) and 2 (d), respectively. (4) Add the following paragraph to the Appendix : WE WILLbargain, upon request, with the International Brother- hood of Operative Potters, AFL-CIO, as the exclusive representa- tive of our employees in the appropriate unit set out herein, with respect to wages, rates of pay, hours of employment, and other terms and conditions of employment, and embody any understand- ing reached in a signed agreement. The appropriate unit is: All production and maintenance employees of the Em- ployer, including the local truckdriver and floormen, but ex- 6 N L R.B. v. Reed c€ Prince Manu facturing Company, 205 F. 2d 131 , 134 (C A 1), cert. denied, 346 U.S. 887 See also American Aggregate Company, Inc , and Featheriite Corpo- ration, 125 NLRB 909 , enfd. 285 F. 2d 529 ( C A 5) ; Herman Sausage Co., Inc, 122 NLRB 168, enfd. 275 F. 2d 229 (C.A. 5). SUNBEAM PLASTICS CORPORATION 1015 eluding office clerical employees, foremen, professional em- ployees, guards, and supervisors as defined in the Act. MEMBER BROWN, dissenting in part: I agree with my colleagues that the Respondent interrogated, solic- ited, and threatened employees, and promised and granted them bene- fits, in violation of Section 8 (a) (1) of the Act. I also agree with them that the Respondent discharged employee Harrington and discrimi- nated in the recall of certain laid-off employees and in the reinstate- ment of strikers, in violation of Section 8 (a) (3) of the Act. Finally, I join in their finding that the Respondent refused to bargain with the Union in violation of Section 8(a) (5) of the Act. My disagreement herein is with the majority's finding that the layoff of the 15 com- plainants in February and March 1962 was justified by business con- siderations. Based upon the facts and circumstances hereinafter re- cited, I would find that the layoff of all 15 complainants is attributable to Respondent's opposition to the Union and was an integral part of its efforts to undermine the Union. As appears from the majority opinion, beginning almost immedi- ately after it learned of its employees' efforts bn behalf of the Union, Respondent engaged in systematic and persistent efforts to frustrate the Union's organizational campaign. About this time, it terminated Harrington because of her union activities. On February 24 and 25, three other complainants were laid off. Shortly thereafter, Respondent caused its supervisors to rate its employees as to whether they were "For Union," "Think they are for Union," "Doubtful," or "Against Union." This rating of employees was followed by the layoff of 12 others who are complainants-1 on March 1 and the rest on March 9, 1962. Following this layoff, Respondent Vice President Gach asked Supervisor Francis if he thought the remaining employees were loyal to the Company and stated that most of those laid off had been trouble- makers, specifically mentioning Crabtree, Dudley, Smith, and Smiley. He also expressed doubt that very many of them, ifany, would be called back, stating that the aforementioned four employees would not be called back because they were troublemakers and thought to be engaged in union activities.10 More immediately before the representation elec- tion scheduled for April 11, Respondent again evaluated its employees in terms of their union sympathies and busied itself in further unlaw- ful activity designed to influence the employees into voting against the Union in the electon. When, despite all these efforts, the Union won the election and was certified as bargaining representative of the em- ployees, the Respondent refused to bargain with it as required by the Act. Later, Respondent discriminated in the matter of the recall of 11 Inasmuch as Francis' testimony here is uncontradicted and conforms to the pattern of conduct found to have been engaged in by Gach, I find it worthy of belief. 1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'Crabtree, Dudley, Smith, Smiley, and four others of the group under 'discussion, all as found by my colleagues.il I believe that these facts, considered in the light of the entire record, compel the conclusion I would reach on this aspect of the case. While my colleagues are suspicious of Respondent's defense that the layoffs were dictated by economic necessity, they have accepted it mainly be- cause the layoffs "were accomplished along strict seniority lines." 12 But, Respondent's utilization of seniority is alone not decisive in the circumstances of this case. Evaluation of this factor must, of course, also take into account the reason for, or purpose of, the layoffs. On this issue, the record shows, in addition to the evidence recited above, that, as found by the Trial Examiner, all the complainants in question, except Martin and Klump, were known to Respondent to have been members in, or active on behalf of, the Union.13 Further, it appears that, subsequent to the layoffs, remaining employees were required to work overtime performing work such as had been engaged in by laid- off employees, nonproduction employees were assigned to such work, and the children of Gach assisted in the plant during weekends. This record demonstrates to me that the layoff of all these 15 com- plainants was not required because of lack of work but was, instead, further action taken by Respondent to thwart the Union's organiza- tional drive and thus avoid, as it later did, an obligation to bargain with the Union. In laying off this group of more junior employees, virtually all of whom were union adherents to Respondent's knowledge, it served Respondent's purpose, at the same time giving the appearance of legitimacy to the layoff, to proceed along seniority lines to the ex- tent that it did. Consequently, I would find the layoffs to have violated Section 8(a) (3) of the Act, and I would issue an appropriate order remedying Respondent's discrimination against the complainants. 11 Inasmuch as I would find discrimination in the layoffs , I need not decide whether addi- tional complainants were discriminated against with respect to recall. 12 My colleagues' finding that "strict" seniority was followed in the layoffs is not al- together established by the record . For example , Rosenmeier, the only noncomplainant laid off, whose union membership was not proven , was hired on February 14, 1962, and laid off on March 9, whereas Youngblood , who was hired on December 1, 1961, and em- ployed in the same classification, was laid off on March 1 . Also, Rhodes , whose classifica- tion is not disclosed, was hired on January 6, 1962, later than almost all the others, and was laid off on February 24, before any other employee. 13 As for Martin, Respondent's suspicion of union interest by him is indicated by Re- spondent's inquiries of employees as to his union sentiments. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed on June 8 and August 2, 1962, by International Brotherhood of Operative Potters, AFL-CIO, hereinafter referred to as the Union or Charging Party, the Regional Director for the Twenty-fifth Region of the National Labor Relations Board , herein called the Board, issued complaints on behalf of the General Counsel of the Board against Sunbeam Plastics Corporation, Respondent herein, on July 31 and, with an order of consolidation, on October 17, 1962, and SUNBEAM PLASTICS CORPORATION 1017 an amendment thereto issuing on October 30, 1962, alleging violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act. In its duly filed answers to the aforesaid complaints, Respondent, while admitting certain of their allegations, denied the commission of any unfair labor practice. Prior to the issuance of the complaint in Case No. 25-CA-1615, Respondent filed with the Regional Director a motion to consolidate the instant case with Cases Nos. 25-CB-497 and 25-CB-497-2 a case related to the instant one wherein charges were filed by Respondent herein, and in which the Charging Party herein was named a respondent. Trial Examiner George J. Bott, to whom the motion was duly re- ferred, denied it by order of August 20, 1962. Pursuant to notice a hearing was held before Trial Examiner Thomas F. Maher in Evansville, Indiana, on January 15, 16, and 17, 1963. All parties were represented and afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs with me. Briefs were filed by all parties on March 4, 1963, the Charging Party's brief incorporating argument applicable to Case No. 25-CB-497, 497-2, as well as to the instant case.' Upon the conclusion of the General Counsel's case-in-chief counsel for the Charging Party noted the failure of the complaint in Case No. 25-CA-1615 to include in its paragraph 7, the names of certain employees of the Respondent men- tioned in the previously filed charge as having engaged in a strike and who, after having unconditionally offered to return to their jobs, were refused reinstatement. These employees were Mary Goebel Allen, Helen Arrick, Charles Brazelton, Dre- metria Fritz, Douglas Gibbs, Sandra Paul, Charles Welch, Gordon Wells, and James Williams, each of whom was excluded by the Regional Director from para- graph 7 of the complaint for the stated reason that they had been found, upon investigation of the Regional Director, to have engaged in misconduct during the course of the aforementioned strike. Relying upon Section 10(b) of the Act counsel for the Charging Party thereupon moved that I, in the exercise of the discretion granted me by that section, amend the complaint in Case No. 25-CA-1615 2 by adding the names of the aforementioned employees to paragraph 7, thereby insuring to them the benefits of such remedy as may result from a determination of this case. I denied the motion at that time, indicating to counsel as I did that no depriva- tion of due process could result from my action inasmuch as Section 10(d) permitted the reopening of the record in a case at any time prior to its filing in court, and that the Board, after due consideration of my findings in this proceeding and in the related case, International Brotherhood of Operative Potters, AFL-CIO, Cases Nos. 25-CB-497 and 25-CB-497-2, would have full opportunity to remedy such inequities as might ultimately reveal themselves.3 Upon a review of statutory authorities I am of the opinion and conclude that I am vested with no discretion in the matter and accordingly reaffirm my denial of Charging Party's motion. It is true, as claimed, that Section 10(b) does provide in part that a complaint "may be amended by the . . . agent . . . conducting the hearing," and that the Board's Rules and Regulations 4 affirm the provisions by stating, in Section 102.17, that this may be accomplished at the hearing, "Upon motion by the Trial Examiner designated to conduct the hearing." Indeed these provisions have been a part of the basic law since the enactment of the original Wagner Act (49 Stat. 449) and appeared in the Board's Rules and Regulations i With the acquiescence of all the parties, I noted upon the record my intention of taking official notice of the record in International Brotherhood of Operative Potters, AFL-CIO, Cases Nos 25-CB-497 and 25-CB-497-2, heard by me immediately following the hearing In the Instant matter. 2 The pertinent portion of Section 10(b) upon which counsel specifically relied states as follows: Any such complaint may be amended by the member, agent, or agency conducting the hearing or the Board in Its discretion at any time prior to the issuance of an order based thereon 'It is to be noted that in the Operative Potters case, the following employees partici- pated in the several incidents found to have occurred: Dremetria Fritz, Douglas Gibbs, Sandra Paul, Gordon Wells, and James Williams. Additionally, it was found that on an occasion involving the refusal of pickets to move from in front of a truck, Mary Goebel Allen, Charles Brazelton, and Sue Bottoms were in the group. Employee Bottoms' name appears In paragraph 7 of the complaint ; the names of the other two do not 4 Series 8, as amended. 1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD applicable to that statutes as Section 7. What counsel's argument fails to take into account, however, is that a purpose of the Taft-Hartley amendments to the Wagner Act "was to effect a separation of the prosecuting and adjudicating functions within the Board." 8 Thus by Section 3(d) of the amended Act, the General Counsel "shall have full authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under section 10, and in respect of the prosecution of such complaints before the Board." In this seeming contradiction between two explicit statutory provisions, then, several judgments must necessarily be noted. First, it is to be noted that the provision relied upon by counsel for the Charging Party, Section 10(b), continues in the amended Act as originally drafted in the Wagner Act. Secondly, Section 3 (d) of the amended Act was enacted, as previously noted, to effect a separation of powers within the Board.7 As it is a well-established rule of statutory construction that in instances of such apparent contradiction, the intent of Congress, the nature of the evil to be corrected by the proposed legislation, and the end to be achieved by it are the proper determinants of the precise meaning of the provision in question.8 Under such a test and in view of the expressed purposes of Section 3(d) of the amended Act, I have no hesitancy in rejecting any view that would interpret Section 10(b) as vesting in my discretion the right to permit amendment to a complaint over the objection of, or indeed without the acquiescence of the General Counsel or those who speak for him.9 Upon consideration of the entire record in this case, including the briefs of the parties, the exhibits and the transcript of the testimony in Cases Nos. 25-CB-497 and 25-CB-497-2, and my findings and conclusions in that case, and upon my observation of the demeanor of each of the witnesses testifying before me, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESS OF THE RESPONDENT Sunbeam Plastics Corporation is an Indiana corporation with its plant and principal place of business located in Evansville, Indiana, where it is engaged in the manufacture, sale, and distribution of plastic products. In the course and conduct of its business, the Company annually produces plastic products valued in excess of $100,000, of which products valued in excess of $50,000 were shipped from said plant directly to States of the United States other than the State of Indiana. It is conceded in the pleadings, and I accordingly find and conclude, that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. IT. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Operative Potters, AFL-CIO, and its Local 322, are conceded to be labor organizations within the meaning of the Act and I so con- clude and find. M. THE ISSUES 1. Evidence of interrogation, solicitation of surveillance, individual wage increases, and threats to close plant establishes a violation of Section 8(a) (1). 2. The economic justification of the employee layoff. 3. The discriminatory refusal to reinstate laid-off employees. 4. The legality of so-called "hard bargaining." 5. The discriminatory refusal to reinstate unfair labor practice strikers. 5 Series 3, effective November 26, 1943 8 Haleston Drug Stores, Inc. v N L R B , 187 F 2d 418, 421 (C A. 9), cert. denied 342 U.S 815. Cf N.L R B. v. D. B. Lewis, President, Lewis Food Company, et al., 249 F. 2d 832, 838 (C.A 9) 7 Haleston Drug Stores, Inc v N L R B., supra. Remarks of Senator Taft outlining the purpose of the proposed Section 3(d), 93 Cong. Rec 6859, June 12, 1947 8 Local Lodge No 1424, International Association of Machinists, AFL-CIO, etc. (Began Manufacturing Co ) v N.L R B., 362 U S. 411, 418, footnote 7. "[I]t is the entire Act and not merely one portion of it, which embodies 'the definitive statement of national policy.' " See also N.L R B. v Hearst Publications, Inc., 322 U.S. 111, 124, and cases cited 9 See also the Board's delegation of authority to the General Counsel in matters relating to case handling: "BOARD MEMORANDUM DESCRIBING THE AUTHORITY AND ASSIGNED RESPONSIBILITIES of THE GENERAL COUNSEL OF THE NATIONAL LABOR RELATIONS BOARD (EFFECTIVE APRIL 1, 1955). [20, Fed. Reg. 2175 1" SUNBEAM PLASTICS CORPORATION 1019 IV. THE UNFAIR LABOR PRACTICES A. Introduction Organization among Respondent's employees commenced on February 10, 1962, with the visit of employees Roscoe Crabtree and James Williams to Harold Hackett, International representative of the Union. Hackett gave them blank union authoriza- tion cards, whereupon they procured signatures of a considerable number of the employees in the bargaining unit. On the strength of these cards a representation petition was filed with the Board on February 27, 1962, in Case No. 25-RC-2176. Thereafter, on March 21, Respondent and the Union executed a stipulation agree- ment for a consent election setting the election date for April 11. In the election then held the Union obtained, a majority of the votes and on April 25 was certified by the Board as the employees' bargaining representative. During the period described above and thereafter there occurred three major episodes which relate directly to the allegations of the complaint. These were (a) the Respondent's systematic and persistent efforts to defeat the Union's campaign to represent its employees, (b) the period of bargaining between Respondent and the Union from the date of the Union's certification on April 25 to the calling of a strike on June 6, 1962, and (c) the strike which extended to July 6 and resulted in the refusal of the Respondent to recall those who took part in it. B. Interference, restraint, and coercion 1. Interrogation and solicitation of employee vigilance The antipathy of Respondent's officials to the Union and to its progress among the employees first manifested itself by their curiosity. Thus within a few days of the filing of the petition Vice President Peter Gach began his quest for information about the Union, the progress of its organizing campaign, and the degree of employee interest that had been generated; while at the same time he suggested to the employees the means whereby they might assist the Company in resisting the Union. In a con- versation in his office with employee Dremetria Fritz he referred to the coming elec- tion suggesting that the plant was to small to be unionized. He then inquired of Fritz where her husband worked and if he belonged to a union. He made the same inquiry of Fritz concerning employee Delores Johnson's husband. Gach then told Fritz how difficult it was for him to question the employees about their union activities and suggested that she speak to some of them, including Johnson, and "let him know what they said, how they felt." 10 Around the same time Gach inquired of employee Arrick, in a conversation with her in his office, if she knew anything about union cards being passed out at work. Then, after complimenting her on her loyalty to the Company, stated, as he had to Fritz, his opposition to the Union, telling her to let him know if she heard anything about it. Several weeks thereafter Gach had a second conversation with Arrick in his office. This time he inquired concerning the employment of a number of the employees' husbands, and whether or not they belonged to a union at their place of work He then asked her if she would talk to some of the other employees and see how they felt about the Union, specifically naming employees Allen, Dudley, and Bottoms And on still another occasion during this period Gach asked her if she were going to a union meeting. When she said that she was, Gach expressed his satisfaction with the idea and suggested that she "see who all goes and what they talk about." 11 Employee Roy Thompson's experience with Gach followed the same pattern. In early March before the election and before Thompson was laid off, Gach told him they were getting a union in the plant and asked how he felt about it. And under similar circumstances and during the same period employee Harold Martin was summoned by Gach to his office and was asked if he had heard anything about union 10 The undenied testimony of Fritz whose conversation with Gach was thereafter dis- cussed with employee Arrick, according to Arrick's credited testimony While I do not credit Fritz generally and did not credit her at all in Case No. 25-CB-497, I do credit her in specific instances, notably those in which her testimony is corroboated by the testimony of credible witnesses. In so doing I recognize no obligation to eliminate all of the testimony of a witness whom I discredit. That the witness' testimony may not in substantial part be relied upon for one reason or another does not establish that a witness is completely unreliable, at all times, under all circumstances. N L.B B v Uni- versal Camera Corporation, 179 F. 2d 749, 754 (C.A 2). 11 The credited, undenied testimony of employee Arrick 1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities. Martin thereafter had several conversations with Gach who on each oc- casion inquired about the Union's activity in the plant, and about specific employees, including Roscose Crabtree, and whether they had anything to do with the Union. And finally Gach, after explaining management's handicap in combating the Union, asked Martin to talk with the employees and see if they wanted a union or not.12 As will be discussed in detail hereafter, a substantial layoff occurred during the same preelection period. Among those laid off was employee Carolyn Youngblood whom Respondent recalled for several days of work to permit her to obtain unemployment compensation. In the course of her conversation with President Carson concerning these arrangements he inquired of her how Mary Goebel Allen felt about the Union, at the same time suggesting that Youngblood mention to Allen the Company's interest in her.12 During the same period in which the events detailed above occurred, Vice President Gach called employee Alvah Smiley to the office, and after telling him he was being given a raise in pay, asked Smiley if he had heard anything about the Union. He then urged Smiley to remain loyal to the Company and to report to him any union talk that was going on.14 In addition to the foregoing instances of questioning of employees by Vice Presi- dent Gach and of requests by him that employees in turn question and otherwise re- port other employees to the Company there is the testimony of employees Williams, Gibbs, Wells, Meiers, and Crabtree that they too were questioned along the same lines during the same period. While I do not rely upon the testimony of any of these five witnesses generally, I do find, as in the case of employee Fritz (supra, footnote 10), that what they have described conforms to a pattern followed by Gach in his contacts with other employees. Accordingly I conclude and find that in such respects the testimony of the above-mentioned five may be accepted as further evidence of Gach's activities.15 2. Respondent's awareness of employee union sentiment Quite apart from the management's individual treatment described above, or- ganized efforts were adopted to determine the Union's penetration in the plant. Shortly after the first layoff supervisors were called to President Carson's office and given a rating sheet on which were listed the names of employees, with spaces opposite each name for the purpose of checking the following categories: "For Union," "Think they are for Union," "Doubtful," and "Against Union." All em- ployees were classified by each of the supervisors and the results collated by Gach and Carson 16 The results of this tabulation do not, however, appear in the record. General Counsel makes no issue of the use of this list and its discussion among the various supervisors. In fact he specifically views this activity not to be a 12 The credited, undenied testimony of employee Martin. 13 The credited testimony of employee Youngblood Employee Jerry Sampson credibly testified that Carson asked him on another occasion shortly before he quit in March 1962 whether he had seen a notice on the Company bulletin board stating, "We have two unions trying to get your dues and your votes. We hope they get neither." General Counsel does not urge nor do I find that such a state- ment constitutes a violation of the Act 14 The credited, undenied testimony of Smiley. 151 make no finding with respect to employee Charles Welch's credited testimony that on an occasion 3 months after the incidents detailed above Gach asked him if he would walk out if the Union were to call a strike This matter was neither alleged in the com- plaint nor otherwise litigated and I accordingly reject it Local 542, International Union of Operating Engineers, AFL-CIO (Elmhurst Contracting Co., Inc. (Division of Hagan Industries, Inc.) ), 141 NLRB 53 13 The testimony of employee (formerly Foreman) Jerry Gries, corroborated by Foreman Robert Francis. On the stand Foreman Francis testified as follows: Q Then when you told the Company, Mr. Carson and Mr Gach, that Mr. Crabtree was loyal were you lying then, is that right? A. That's right. While I am not disposed, because of this stated proclivity, to credit him generally, I do accept his testimony concerning the existence and use of the rating sheets. Respondent's admission that these sheets have been destroyed, and Carson's failure to testify with respect to them, together with repeated references to the same procedure by other wit- nesses, is ample support of Francis' testimony on this matter. SUNBEAM PLASTICS CORPORATION 1021 violation of the Act, inasmuch as it constitutes a series of transactions within the managerial hierarchy. However, I do accept evidence of this activity as proof that Respondent was actively identifying union adherents. Furthermore, a review of the testimony of credited witnesses discloses Respond- ent's knowledge of the union activities of the following employees: Roscoe Crabtree, Charlotte Freudenberg, Sandra Paul, Margaret Harrington, Alvah Smiley, Roy Thompson, James Williams, Helen Arrick, Sue Bottoms, and Mary Goebel Allen.17 In addition, Respondent Officials Gach and Kempf made frequent inquiries, both directly and through third parties, as to the union sentiments of employees Dremetria Fritz, Douglas Gibbs, Harold Martin, and Delores Johnson. And it is a matter of record that at all relevant times all of the above-named employees (excepting only Martin), and employees Shirley Dudley, Wilma Kniffen, Ronald McGillen, Marvin Mayes, Paul Rhodes, Mildred Smith, and Carolyn Sue Youngblood had signed union membership cards. This fact, coupled with President Carson's repeated avowal of awareness of matters throughout the plant, persuades me that the union member- ship and activities of all the employees named above were known to the Respondent and I so find and conclude.18 3. Threats and promises During the course of its questioning and checking of employees concerning their union sympathies Respondent also employed more direct persuasion to emphasize its opposition to the Union in the coming election. Most frequent was the statement to an employee that the plant would close up or that business would drop off if the Union won. Thus, in early April Mary Goebel Allen, in whose union membership Gach had previously shown interest (supra), was given a 5-cent raise. Accompany- ing his announcement of the raise was his remark that the Union was trying to get in and that the plant was too small for one. He then commented on Allen's recent marriage and homebuilding plans and told her he did not think she could afford to be out of a job and that she "would be if the plant was shut down if the Union came in." is In the conversations with employees Martin and Sampson the theme of closing the plant continued. Thus, in early March, Gach told Martin that the Company could not afford to pay union wages and as a result "it would liable to just fold up." Thereafter in a conversation with Foreman Francis, Martin was told that if the Union got in there was a likelihood that the Company would lose its customers, referring particularly to the Gillette account.20 Similarly around the same time Gach discussed the Union with employee Sampson telling him the Company appeared to be ahead in the contest and then saying, "If the Union does get in the Company would shut down." About 2 weeks before the election employee Douglas Gibbs was called to the office by Gach and after being assured of a "bright future" with the Company was given a 10-cent increase 21 And earlier, on February 1, Gach had had a similar conversation with employee Smiley in the process of giving him a 5-cent increase and assuring him of a future with the Company. Then, as previously noted (supra), he asked Smiley what he knew about the Union in the plant and suggested that the union talk be reported to management.22 17 The credited, undenied testimony of employees Gries, Martin, Bottoms, and Thompson ; and in the cases of Paul, Williams, and Allen, and the admissions of President Carson whom I do not credit generally. 11 On one occasion Carson testified, "In a small plant you hear things all day long from a million people and to pinpoint a date or a person is impossible " And again, dis- cussing his source of knowledge of the employees' strike vote, he stated, "There again it's a small plant and I couldn't say on the witness stand who told me or exactly what was said except that somebody heard there was to be a strike vote . .. . 10 The credited, undenied testimony of employee Allen. 20 The credited, undenied testimony of Martin, corroborating Foreman Francis' undenied testimony that Gach had told him of the possible loss of the Gillette contract if the Union came in 21 The undenied testimony of Gibbs whom I do not credit generally but whom I do rely upon here; this instance being part of a pattern established by the credible testimony of other witnesses. 22 The credited, undenled testimony of employee Smiley. 1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Summary and conclusions respecting interference , restraint, and coercion Detailed above are the stereotype examples of interference, restraint, and coercion. Thus it is evident that from the inception of the organizing campaign of its employees, Respondent expended considerable time and effort in questioning its employees concerning their union membership and activities as well as the membership and activities of their fellow workers. On innumerable occasions it solicited the support of these employees not only to persuade their fellows to the Respondent 's opposition 'viewpoint but to seek out for Respondent such information as they could obtain concerning union sentiment and activity about the plant and to report it back to management. Similarly, during the same period preliminary to the employee elec- tion, Respondent's officials repeatedly initiated conversations , the substance of which were that the advent of the Union would result in a drop in business , loss of cus- tomers, a shutdown of the business , and other dire consequences . And in an effort to bolster support for its opposition to the Union , Respondent gave wage increases to selected employees upon whom it relied , mistakenly it now appears, for aid and support in its own opposition campaign. Citation of authority is unnecessary to establish that such intrusions by manage- ment into the organizing affairs of its employees, either as a group or individually, constitutes the classic type of interference , restraint, and coercion contemplated by the proscriptions of Section 8(a)(1) of the Act. I accordingly find and conclude that Respondent has violated the Act in this respect. In addition to the foregoing, there was considerable testimony directed to that subparagraph of the complaint alleging an unlawful threat to discharge in reprisal for union membership and activity supposedly made by Foremen Barta and Kempf. As this allegation is supported only by the testimony of employees Gibbs, Francis, Fritz, and Wells, none of whom I credit generally, I would make no finding that such threats occurred. Moreover, upon the credible testimony of employees Arrick and Freudenberg, I find that Respondent never threatened, to their knowledge, that women employees would be laid off if the Union came in. C. The layoffs 1. The mechanics of the layoff In the context of the foregoing activity, during a period bounded by the filing of a representation petition and the holding of the Board election , Respondent laid off a number of employees for what it claims were reasons of economic necessity. President Carson claims, and the record supports him, that strict seniority was followed. The employees laid off and the dates of their layoff and last hiring follow: Employees Last hired Laid off Employees Last hired Laid off Roscoe Crabtree ______________ 11-10-61 3-9-62 Marvin Mayes _______________ 1-4-62 3-9-62 Shirley Dudley___________ 9-13-61 3-9-62 David Meiers__ ______________ 10-16-61 2-25-62 Charlotte Freudenberg ------- 9-15-61 3-942 Paul Rhodes_________________ 1-6-62 2-24-62 Margaret Harrington --------- 9-25-61 (') Alvah Smiley________________ 8-29-61 3-9-62 Delores Johnson ______________ 9-5-61 3-9-62 Mildred Smith ______________ 10-2-61 3-9-62 Jacqueline Klump____________ 9-15-61 3-9-62 Roy Thompson______________ 12-1-61 3-9-62 Wilma Kniffen_______________ 12-6-61 3-9-62 Carolyn Sue Youngblood ----- 12-1-61 3-1-62 Ronald McGillen _____________ 12-30-61 2-25-62 Harvey Rosenmeier __________ 2-14-62 3-9-62 Harold Martm _______________ 1-20-62 3-9-62 • Supposed to have quit (infra, section IV, E). With the exception of Rosenmeier ,23 Martin, and Klump, whose union interest or membership has not been proven, it has been found (supra) that all of the remaining employees listed above were known to Respondent to have been either members of and, in many cases , active in behalf of the Union. 23 This employee is not alleged as one of the employees discriminatorily laid off, nor is he shown in the record to have been a member of or active in behalf of the Union. SUNBEAM PLASTICS CORPORATION 1023 When the layoff noted above was put into effect the following employees continued at work: Employees: Last hired Helen Arrick_____ [sic] 2-29-59 Earl Ashby____________ 2-25-57 Frances Ashby_________ 5-24-55 Yvonne Sue Bottoms___ 10-16-57 Dremetria Fritz________ 9-23-57 Douglas Gibbs_________ 10-4-60 Mary Goebel Allen______ 1-8-60 Jerry Gries____________ 1-13-61 Gerald Hunter ---------- 8-28-61 Employees: Last hired Harold Pace____________ 2-5-62 Sandra Paul___________ 3-16-61 Winona Pennell_______ 10-10-56 Norman Retter__________ 1-8-49 Jerry Sampson---------- 8-3-60 Paul Schriber__________ 9-23-53 Gordon Wells__________ 3-37-61 James Williams, Jr_..._ 24 3-25-61 With respect to the employees on the latter list, i.e., those not laid off , it is to be noted that the following have already been found to have been active in or members of the Union and this fact known to Respondent (supra ): Arrick, Bottoms, Fritz, Gibbs, Allen, Paul, and Williams. Employee Wells' union membership and ac- tivities do not appear to have been established at the time of the layoff. 2. Respondent's economic justification It is Respondent's contention that during January, February, and March, 1962, business and business prospects were at such a low ebb that it was forced to curtail its work force . President Carson testified at considerable length with respect to the Company's financial and production situation , as well as to other matters con- sidered herein . As previously noted, I do not rely upon Carson 's testimony except in such instances as he is corroborated by the testimony of credible witnesses. I do, however, make a further exception and that is with respect to his detailed testimony concerning the operations of the business , which testimony I rely upon, supported as it is by files and records , including those introduced by General Counsel, whose validity are unquestioned in the record 25 Carson, in his account of the Company's operations and conditions, impressed me as being forthright and accurate in the details to which he was testifying. Nor am I persuaded to the contrary by the fact, relied upon heavily by the General Counsel, that numerous items of his testimony were at variance with items contained in an affidavit prepared by him and notarized by his attorney 7 months prior to the hearing. A reading of the many and complicated questions put to him on the witness stand explains understandably why his answers would on occasion differ from materials studiously prepared 7 months earlier . For this reason , therefore, and because of my im- pressions of Carson as he testified on these specific matters, I accept his testimony in all instances where it differs in any manner from the affidavit previously given. In any event, upon my review of the differences between the statements of Carson in his affidavits and allegedly different statements in his testimony , I find that they are neither substantial nor crucial. Respondent's description of conditions in early 1962 discloses a plant beset by pro- duction failures and by a resulting loss of business. Thus in December 1961 and January 1962 the Gillette Razor Blade Company returned , as defective, 1,500,000 plastic caps used on its product, "Right Guard." The Company first sought to separate the good caps from the bad, to avoid regrinding the material and molding more caps, and it used a temporary work force to do so. When this arrangement failed after 6 weeks to produce satisfactory results it was abandoned , the temporary help being laid off and the work being reground and remolded. Meanwhile Respondent was having difficulty making a small plastic paint cup for a manufacturer of toy paint sets, Palmer-Pann . Over 1 million of these items had just been rejected by the customer, who returned them together with a device designed to sort out the imperfect items and requiring two workers to operate it. Meanwhile, the mold for this Palmer-Pann job was causing trouble and production was seriously 24 The two lists of employees set forth above and the related information contained therein was obtained from a compilation of company records submitted into evidence by the General Counsel. 25 In his brief to me counsel for the General Counsel characterizes specific documents as "purported invoices" and "a purported letter from Revlon " In the absence of proof of their spurious character I reject the implication that the documents are such. 1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD curtailed. The last shipment of paint cups was sent out on January 29 26 and the customer, dissatisfied with the quality of the work, requested that the mold be returned to it. This was done finally on March 16, thus marking the end of that job, and a cancellation of the remaining order of 1,800,000 paint cups. About the same time Respondent was engaged in production of a large plastic cap for a Revlon promotional program. The last delivery was on February 27. Thereafter on March 2 Revlon notified the Company it would not renew its order at any time in the immediate future. Respondent had similar difficulties with another customer, Kits, Inc., for whom it manufactured a molded archery grip. Over the previous year Respondent had filled all of this customer's requirements, doing so on a sporadic basis. So long as the Respondent retained the customer's mold for the item it entertained prospects of repeat orders in 1962. It had received none in January or February. Kits, Inc., however, notified Respondent on February 23 that other sources of supply would henceforth be used by it and requested the return of its mold forthwith. In addition to the foregoing difficulties, Carson testified to a continuing problem with one of its molding machines that was supposed to be fully automatic, but which was almost continuously turning out faulty work and required one person on each shift to maintain proper functioning. This was straightened out eventually, thereby eliminating the need for the one operator per shift. Similarly, about the same time another machine, normally requiring an operator under each shift, was automated, thus eliminating the need for operators for it. The job losses referred to above were on what are known as custom jobs. In addition, Respondent during late 1961 and early 1962 was producing plastic caps for aerosol containers, e.g., spray paint and deodorant cans. These were made from Respondent's own molds and were stored in stock and sold on order. This was known as the proprietory inventory, and it had been built up during these months. During the same period, Respondent resolved to abandon the plastic tile production it had engaged in and to concentrate on caps for the aerosol cans, as described above. All of the foregoing, therefore, resulted in two conditions. One: fewer personnel were required because of the automation of the machines, the elimination of the corrective techniques necessary to salvage the defective production, and the aban- donment of plastic tile production. Second: the strain on company resources oc- casioned by poor production and loss of customers resulted in a depressed fiscal situation that could be alleviated only by curtailment of personnel. All the while sales continued, but out of inventory already produced, and not so much as previously to established customers. Under the circumstances related above, based upon Carson's testimony and docu- ments supplied by Respondent and General Counsel, it appears to me that things at the plant were in poor shape. Although I am neither an expert cost accountant nor production engineer, commonsense suggests that when customers withdraw their business and the machines constantly malfunction positive action is in order.27 3. Conclusions respecting the layoff General Counsel objects to Respondent's reaction to its difficulties, namely, re- ducing the working level of its staff. I do not presume to substitute my judgment in such matters for the judgment of men like Carson and Gach who are experienced in running a reasonably successful business. Accordingly, it is not within my province to determine, for example, whether their decision to eventually eliminate women operators (infra) was a sound one, or whether shifting foremen about to do rank-and-file work after the layoff and using Gach's teenage children were wise uses of manpower. I am called upon to determine if there was economic justifica- tion for the layoff of employees in late February and early March. I find and conclude upon the facts detailed above that there was. 'a Carson's affidavit gives this date as February 16 This difference of date is in- significant for purposes of describing financial conditions of the plant during the first 3 months of 1962. 27 In a letter to the employees prior to the election and in a speech delivered during the same period President Carson stated, among other things, that if a strike were to be called against the Company the customers for whom they were producing special jobs would recall their molds I judge this to be a legitimate observation on the normal re- sult of a strike in the plastics industry and certainly not to be a threat to curtail business if the Union comes into the plant, as insisted by General Counsel. SUNBEAM PLASTICS CORPORATION 1025 Having so found, I am now presented with the further determination of whether or not this economic justification was employed in a discriminatory manner. Carson testified that the layoff was by strict seniority. An inspection of the lists of lard-off and retained employees substantiates Carson's testimony. Thus it appears that on the list of laid-off employees the individual with the most seniority and presumably the last one on the list to have been laid off was Alvah Smiley, hired by Respondent on August 29, 1961. By comparison, the least senior employee on the list of em- ployees retained, and the one who would presumably have been laid off next was Gerald Hunter who was hired August 28, 1961, the day before Smiley. This factually establishes the application of strict seniority and I so find. I am conscious, of course, of the fact that every employee laid off except Rosen- meier, Martin, and Klump belonged to the Union and that this was known to Re- spondent. This significance loses its force, however, upon a study of the list of 17 who were retained. For in that group seven were known union adherents, and in- cluded among them were employee Williams, the instigator of the organizing move- ment and the local president, employee Fritz, eventually a member of the bargaining committee, and at least three union members who thereafter distinguished themselves on the picket line (see I. R. Case No. 25-CB-497). It is suggested, moreover, that this layoff occurred during a period in which a considerable amount of antiunion sentiment was manifested by Respondent's officials and supervisors (supra). It has not been established to my satisfaction, however, that the economic facts relating to the business, as found herein, have either a direct or indirect relationship to Respondent's demonstrated attitude toward the Union and its organization of the employees. Indeed, to establish such a relationship would be to conclude that Respondent deliberately created the conditions of poor produc- tion, loss of business, and faulty management for the primary purpose of defeating the Union. Commonsense suggests that this would be far too high a price for businessmen to pay to defeat a union, and I refuse to draw such a conclusion. The individual treatment of several employees initially laid off has also been advanced as basis for finding the layoff to be discriminatorily motivated. Thus, Jacqueline Klump and Wilma Kniffen were recalled to work within 2 weeks of their March 9 layoff and have worked steadily thereafter. Here again, however, aspects of union bias loses its force, for one employee belonged to the Union and eventually participated in the strike, and the other, Klump, did not belong to the Union and did work during the strike. Kniff en, the union adherent, was recalled, according to Carson, because they "considered her the best Gillette cup packer we had." Knif- fen, called by the General Counsel as a witness, credibly testified in corroboration of Carson that she was recalled to do packing on the Gillette job and only worked on the machines when there was no Gillette packing to do. Klump was likewise recalled for a special purpose, according to Carson: "Gillette has a statistical sam- pling method of quality control ... Jackie [Klump] had been trained in this statis- tical sampling method and because of our sensitivity to Gillette quality and they were the biggest customer we had . . . we then called her back as a specialist in final inspection because of her experience and knowledge of the statistical sampling system." In the absence of any evidence to rebut this reason supplied by Carson (Klump not having been called), I accept it and conclude that neither Klump's nor Kniffen's recalls were grounded upon reasons connected with their union or nonunion status. In the light of all of the foregoing, therefore, it cannot be said that the layoff, found by me to have been economically justified and equitably executed, was colored or effected in any manner by considerations of Respondent's antipathy to- ward the Union, and I so find and conclude. D. The failure to recall Quite apart from the layoff of the employees considered in detail above, it is further alleged that Respondent's failure thereafter to recall these people was likewise discriminatory. While I have found the layoffs to have been justified and executed in a nondiscriminatory manner, the same cannot be said of Respondent's subse- quent conduct in many instances. By May 9, judging from the hiring that began then, the economic crisis appears to have subsided. While I am fully conscious of the Union's intervening victory and its certification as the employees' bargaining representative and of the fact that bargaining had by this time gotten underway, I see no necessity to draw broad conclusions from these circumstances and apply them to the individual cases involved here. Indeed, there is ample evidence in the record on the subject without resorting to subjective inferences of rancor, and I shall direct my findings and conclusions accordingly, having in mind that by this time Respondent 1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was feeling the full impact of the Union's presence and was, as I have previously found, aware of the Union affiliation of individual employees (supra). Respondent President Carson testified that by the time the layoff was effected it had decided to eliminate women operators for a number of reasons that had practical advantages, namely, for example, the physical problems involving repair and control of machines by women operators, and the replacement of molds, all of which en- tailed calling upon a male employee to either assist or to do the job completely. I accept this decision as an economic one, supported as it is by the fact that women operators have not since been employed. It does not follow, however, that merely because the use of women operators was found to have been uneconomical that they were unsuited for other work in the plant. Indeed personnel records and the testimony of Carson establishes that they were suited for work elsewhere, there be- ing a number of women working at the classification of "Packer." And finally, plac- ing a cloud of doubt even upon Respondent's proposed policy of eliminating women operators, employee Freudenberg credibly quoted Vice President Gach to the effect that he would recall her when they got more orders. While I do not accept this as contradiction of the Respondent's stated policy of eliminating women operators, there being economic support for its stated decision, I do find and conclude that Gach by thus offering Freudenberg future employment conceded the availability of em- ployment for women in the plant. The manner, therefore, in which the recall of women employees was handled and replacements made belies Respondent's con- tention that discriminatory motivation did not enter into its recall policy in this respect. Before reviewing the individual recall cases, one salient consideration remains- the nature and extent of the replacements made during this critical period. A review of the list of employees hired since September 1, 1961 (General Counsel's Exhibit No. 19), and review of their applications for employment, reveals that beginning on May 9 and continuing until August 1, 1961, during which period employees were on strike for a month beginning on June 6, Respondent hired a total of 30 employees. These employees were replacements for those laid off in March and for those who thereafter went on strike in June. Contrary to Respondent's contention that this group constituted a more experienced one, a review of their employment applications reveals that 7 had prior experience in plastics, 16 had no such experience, and in most cases no experience at all, and that among the remain- ing 7 there is no experience information excepting only that Respondent's records show that a higher starting rate of pay was given to some (infra), thus suggesting experience in the field 28 From the foregoing it becomes obvious, therefore, that while certain of its em- ployees were in layoff status Respondent was hiring new employees without ex- perience. An individual consideration of Respondent's actions with respect to these laid-off employees, and to their replacements, follows: Roscoe Crabtree: Crabtree was the employee most active in the organization of the employees. Following his layoff he was never recalled. President Carson assigned two reasons for not recalling him after the layoff: The fact that he never sought recall, and the fact that 2 weeks prior to his layoff he had used improper language in registering a protest privately to Carson and Vice President Gach, stating in pertinent part, "I guess you bastards can run this place any goddam way you want." While I certainly do not condone the use of such language, in public or private, my observation of both Gach and Carson at the hearing, as well as my observation of other employee-witnesses present, suggests that sensibilities did not appear to be such that management would be outraged to the point of terminating Crabtree, as contended. Certainly had that been their intent it would have been more appro- priate to inflict the punishment at the time of the incident in question rather than on a later and more suspicious occasion. Nor does Carson's statement of the Company's recall policy which required filing an application comport with Respondent's handling of its recalls generally, or of Carolyn Sue Youngblood who credibly testified she was sent for and asked to come back to put in additional time so that she would become eligible for unemployment benefits I therefore reject Respondent's stated reasons for failing to recall Crabtree and find them to be pretexts for the real reason which I find to be Crabtree's known union activity (supra) 29 28This group does not include the following hired, as indicated, during the period- Stewart and Fuller, as foremen, Brazelton and Graham, as foremen trainees. 29 The employment application of Michael Hape, hired on July 5, 1962, bears the nota- tion "Experienced in material handling on automatic injection molding presses" This was Crabtree's classification at the time of his layoff SUNBEAM PLASTICS CORPORATION 1027 Shirley Dudley: Dudley was first hired in June 1958 , and rehired after a break in service in September 1961 . She was laid off on March 9, 1962, and not recalled until August 8, 1962. President Carson assigned as his primary reason for not recalling her earlier the Company policy of eliminating women operators (supra). In addi- tion, he claimed, her record was spotty insofar as lateness and absenteeism was concerned and the Company had received a number of calls from her creditors. I reject Respondent's contentions. Certainly, as an experienced woman operator, Dudley could have filled one of the packing positions opened on June 5, 1962 (supra). Furthermore, the complaints concerning her credit were received by the Company during her earlier employment. If this situation proved to be no bar to her rehire in September 1961 it is difficult to understand why it becomes more significant when her union membership becomes known (supra). Moreover, I can place little re- liance upon Carson's claim that Dudley had a poor attendance record, for in the very period during which she was presumably late and absent Respondent 's records indicate that she received a 10-cent raise thereby becoming the highest paid woman machine operator . Upon the foregoing, therefore, I reject the Respondent's assigned reasons for Dudley's failure to be recalled until August 8, 1962, and find that it was because of her known union membership (supra). Charlotte Freudenberg: Freudenberg was hired on September 15, 1961, and laid off on March 9, 1962. She was a machine operator . Freudenberg credibly testified that in the course of a conversation with Vice President Gach in which she sought to get her job back Gach indicated that he was aware of her union leanings and also stated, "We are going to find out who is for us and who is against us." He then assured her he would recall her when they received more orders . Although new employees were thereafter hired in May (supra ), Freudenberg was not recalled until August 13 . In view of the foregoing I reject Respondent's claim that she was not recalled because of the policy of not rehiring women operators .30 On the contrary, I find and conclude that Charlotte Freudenberg's recall was delayed to August 13, 1962, for reasons of her known union activity (supra). Delores Johnson: Johnson was hired on September 5, 1961 , and laid off on March 9, 1962 , and eventually recalled on August 20. At the time she was laid off, she was a packer . Carson testified that she was not recalled earlier because of the policy of not recalling women operators . As Johnson was a packer and not a machine operator and as her union membership was found to be known by Respond- ent (supra ), I have no hesitancy in concluding and finding that Respondent failed to recall her earlier not for the reason assigned but because of her union affiliation Jacqueline Klump: Klump , as has previously been noted, was recalled for a special assignment (supra ), within 3 weeks of her layoff. Accordingly, I find no evidence of discrimination against her. Wilma Kni en• As in Kiump's case, Kniffen was also recalled for a special assign- ment (supra ), within 3 weeks of her layoff and I therefore find no evidence of dis- crimination against her insofar as her recall from layoff is concerned . Hereafter, Kniffen's employment status will be considered with respect to the strike of Re- spondent's employees (infra). Ronald McGillen: When McGillen was hired on December 30, 1961, it was understood that his employment was temporary and that he would be going into the Army. He was laid of on February 25, 1962, and left for the service on March 31. As it does not appear that replacements had been hired by the time McGillen became ineligible for recall by virtue of his service enlistment, I find and conclude that he could not have been recalled and hence was not discriminated against Nor is it relevant that some few weeks may have elapsed between his return from the service in the fall of 1962 and his recall to work at that time . It would be entirely too speculative , in my judgment, to relate this possible delay to a discriminatory motive 6 months after the fact Harold Martin: Martin was hired on January 30, 1962 , and was laid off on March 9. He was not sent a recall letter until August 8. President Carson testified without contradiction that Respondent understood that Martin had obtained per- manent employment with Crescent Plastics shortly after his layoff; a fact which Carson stated he verified with that company. As a result , Respondent made no effort to recall Martin earlier than it did . I am disposed to accept Carson's ex- planation . Martin was called as a witness by the General Counsel and testified with respect to conversations I have previously considered . His interrogation as a wit- ness was limited to these items and no inquiry was made as to either his present employment status or as to his whereabouts during the period in question. In 20T place no credence whatever upon the suggestion that Freudenberg personally con- ducted herrelf in a manner affecting her employment status. 727-083-64-vol. 144-66 1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the absence of such significantly relevant information I have no alternative but to accept Carson's unrebutted account. I therefore find that Martin was not dis- criminated against for the reason that he had become unavailable for recall by virtue of other employment 31 Marvin Mayes: Mayes was hired on January 4, 1962, and was laid off on March 9. He was recalled by Vice President Gach in a telephone call made to his place of business on August 1.32 Carson testified that Respondent had sought to recall Mayes at some earlier date but he could not be reached by telephone, it being disconnected. It appears to me that had Respondent seriously sought to recall Mayes on this earlier occasion it would have used the same technique it used in offering him employment on August 1. I conclude and find, therefore, that in the absence of a reasonable explanation Respondent has not been shown to have used reasonable diligence in the matter of recalling Mayes and the reason for its action in this respect was Mayes' known union membership (supra). David Meier: Meier was hired on October 16, 1961, laid off on February 25, 1962, and was sent a first offer of reinstatement on August 9, 1962. After two unsuc- cessful attempts to reach Meier (August 9 and 15), Respondent notified him on September 29 that his job had been filled. President Carson claimed, however, that Meier was not laid off in the first place, but had, in fact, been discharged for theft and forgery and for falsification in not reporting these items on his employment application; accusations that appear on the record in this case to have substance 33 He was told, Respondent claimed, that he would not be recalled. Respondent's letters to Meier of August 9 and 15 and Septem- ber 27 offering him reemployment directly contradict Carson's testimony respect- ing Respondent's disposition not to rehire. Meier himself, on the other hand, testi- fied that when he was laid off, or shortly thereafter, Vice President Gach told him "one of the reasons that he had picked me [for layoff] was that he thought I had lied on my application to the Company." With respect to the several reasons suggested for Meier's layoff, it is to be noted that I have already found (supra) that the layoff, generally, was for economic and not for discriminatory reasons. If, then, Meier was laid off, additionally, for cause, this fact adds no implication of discriminatory motive at that time. Furthermore, whether he was discharged or laid off at that time and whether the layoff was for cause or for the economic reasons, it most certainly appears that any cause which may be motivated Respondent, at least in part, at the time of the layoff was dis- sipated by its several letters in August inviting Meier back to work. I deem this invitation, dated August 9, 1962, to constitute Respondent's condoning of Meier's conduct as of this date. A reading of Meier's testimony discloses an admission on his part that he received Respondent's offer of a job on August 9, the date upon which he was, as I have found, excused for his previous misconduct. But there is no evidence that Meier thereafter sought employment. Having obviously refused it at that time, I do not find that he has been in any manner discriminated against. I conclude and find, therefore, that after August 9, 1962, Respondent was under no obligation to pro- vide Meier with employment, in the absence of proof that Meier was willing or available. Paul Rhodes: Rhodes was hired on January 6, 1962, and laid off on February 24. Respondent claims he was not thereafter recalled until the routine recall letter was Indiana. Rhodes' case parallels that of Martin whose employment has been found to have been known by Respondent by virtue of Martin's failure to deny or to testify to the contrary (supra). Rhodes had no positive recollection of having told anyone of his employment in Jasper but concedes the possibility that he might have done so. Obviously Rhodes' new employment was no secret. As I have already found upon President Carson's acknowledgment that many things become common 31 In his brief General Counsel considers Respondent's obligation to pursue the matter by communicating a recall to Martin I am not aware of any requirement that an em- ployer must contact a former employee who is known to have withdrawn himself from the labor market to ascertain whether he is satisfied with his new position 321t was stipulated that Mayes told Gach at the time that he was working and would call him back after discussing with his wife the matter of returning to Respondent's plant. Mayes appears to have delayed calling Gach, and when he did so Gach could not be reached Meanwhile Respondent wrote Mayes stating its understanding that he had refused reemployment. 3313y his own admission Meier was convicted of forgery in 1957 He also admitted failing to note this fact on his employment application in answer to a question thereon relating to past misconduct. SUNBEAM PLASTICS CORPORATION 1029 knowledge in a small plant and that Rhodes' and other employees' union membership was thereby known to the Company, by the same token I must necessarily conclude that Rhodes' new employment was equally as well known. I accordingly conclude and find that by being thus withdrawn from the labor market Rhodes was not avail- able for recall and Respondent's failure to recall him under the circumstances was not discrumnation. Alvah Smiley: Smiley was hired on August 29, 1961, and laid off on March 9, 1962. He was not recalled until August 13, 1962. President Carson testified that Smiley had not been recalled earlier because, having moved to another address after his layoff, he could not be located. It is obvious, however, that when Respondent did want to communicate with Smiley it was able to do so. Thus, on August 13 it addressed a letter of recall to Smiley at his old address and the letter was promptly forwarded to him at his new one. Had Respondent followed the same procedure earlier I have no doubt that a notice of recall would have been as seasonably for- warded to Smiley. On the facts before me, I am persuaded that Respondent failed to do so, and because it preferred not to recall him, knowing as it did Smiley's preference for the Union (supra). Accordingly, I conclude and find that Respond- ent thereby discriminated against him. Mildred Smith: Smith was hired originally in May 1960, rehired on October 2, 1961, after a break in service, and was laid off on March 9, 1962. She was a machine operator at the time of her layoff; and it was because of her classification and Respondent's decision not to rehire women operators that, according to Carson, she was told she would not be recalled. As it appears from Respondent's own records that employees were thereafter rehired without experience, I conclude and find that its failure to recall Smith until August 9 was not for the reason stated but because of her known union membership (supra). Roy Thompson: Thompson, custodian and janitor, was hired on December 1, 1961, and laid off on March 9, 1962. It is Respondent's contention that because of the economic situation that persisted following the layoff, Thompson's position was never filled. No evidence was adduced to rebut this contention but General Counsel in his brief suggests that the Trial Examiner "can find that the work is still there to be done, and that he has in effect been replaced." To so conclude would require me to find that if and when there is work to be done there must necessarily be someone to do it. This suggestion appears to be but a corollary of Parkinson's Law and for want of better authority, I reject it. That Thompson's job was never filled is conceded. It is likewise conceded that Respondent offered him another, albeit a more arduous, job of painting which he refused. Respondent has thereby satisfied any obligation it might have had to recall him. I therefore conclude and find that Thompson was not discriminated against. E. The case of Margaret Harrington Harrington was employed on September 26, 1961, as a packer and after 3 or 4 weeks was assigned as a machine operator, a classification in which she continued thereafter. Harrington credibly testified that one night in the latter part of Janu- ary 1962, she came to work to find one of the machines broken down; and as some- one had to be sent home she volunteered. The following night, a Friday, was her regular night off and consequently she did not report for work. She was scheduled to work on the following night, Saturday, but during the day she received a telephone call from the Company telling her not to come in until she was further notified. On the following Monday, after ascertaining from Wilma Kniffen, who had a similar job but on a different shift, that she was still working, Harrington went to see Vice President Gach and asked him why she had been laid off. When Gach told her it was because of her Friday absence, she explained to him the details of her voluntary absence on the day before, Thursday, and the fact that Friday was her regular day off. Gach then investigated the situation and was told that Harrington had been marked absent because they needed her that night and she had not reported. She did not know, however, if the record had since been corrected. Gach thereafter told her that because she was the only woman on the third shift she could not work it. Harrington then offered to work on any other shift. She was not reassigned nor has she ever been recalled. I cannot accept President Carson's explanation of the termination of and failure to recall Harrington, which was to the effect that she would have been the only woman on the third shift and that in any event her work was "spotty." Nothing in the comparison of wage increases given employees during that period suggests that Harrington was any better or any worse than her fellow workers. But more sig- nificantly, the excuse that she was terminated because she would be the only woman 1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the third shift simply does not hold up. In the first place she stated her willing- ness to work on any shift. And lest it be thought or contended no such transfer was available to her, Respondent's records disclose the contrary. Thus the records dis- close that Harrington, a machine operator, was laid off on February 9, and that Harvey Rosenmeier, age 19, with previous summer experience as a bottle washer, was hired on February 14, 1962, and, according to Carson, was assigned the classifi- cation of press operator during the first month of his employment. Upon considera- tion of the inconsistency thus revealed, it is apparent that Margaret Harrington's layoff and Respondent's failure thereafter to recall her was not for the reasons given her, or given me at the hearing, but because, as Gach told employee Bottoms, "she is the one that started the Union business out here." Harrington's union activity was known to Respondent, it will be recalled, she having signed an authoriza- tion card for the Teamsters Union, and having been recognized by Gach as active in behalf of that union.34 I accordingly find and conclude that Harrington was discriminated against in violation of Section 8 (a) (3) of the Act. F. The case of Carolyn Sue Youngblood Youngblood was first hired in March 1960, quit her job in November 1961, and was thereafter rehired early in February 1962, to the same classification she had previously held-machine operator. On March 1, she was laid off as part of the economic retrenchment program discussed earlier. As the date of her last hire was on or about February 1, 1962, I would conclude and find that her layoff, like that of the rest of the group (supra) was economically dictated, executed according to strict seniority, and not for discriminatory reasons. General Counsel attaches discriminatory significance, however, to what followed with respect to Youngblood. She credibly testified that in late March or early April 1962, she received a telephone call from Vice President Gach informing her that during her most recent period of employment she had not worked a sufficient number of days to entitle her to unemployment compensation. He suggested, therefore, that she return and work a sufficient number of days to entitle her to benefits. This she did and after 6 days she was again laid off, having accumulated the necessary working days in the meantime. General Counsel suggests that because during this same 6-day working period Gach questioned Youngblood in a manner which I have already found to constitute interference (supra), this serves, in effect, as a guarantee to her of con- tinued employment. As Youngblood credibly testified she was called back for a limited period, I fail to see how asking her to speak to another employee about the Union, as I found to have occurred, could have the effect of converting a limited recall into a permanent one, and I so find. Youngblood was recalled in August 1962, but being in the advanced stages of pregnancy was unable to return. Respondent, although knowing of Youngblood's condition, wrote her advising of its understanding that she had refused employment. I am persuaded that Youngblood's recall was deferred to August 1962, not because of consideration of health, but, as in the case of the others recalled at this delayed time, because of her known membership in the Union. Similarly, and for the same reasons, I would find that the letter advising her that she had been deemed to have refused employment was not intended as a routine personnel action but again because of her known union membership. Accordingly, I would find Carolyn Sue Youngblood was discriminatorily deprived of employment at some date following the first hiring of replacements for reasons of her union membership.35 G. The refusal to bargain 1. The sequence of bargaining Following the certification of the Union after its selection by the employees in the April 1962 election as their exclusive bargaining representative, meetings were held with representatives of the Respondent and the Union between May 7 and June 13, 1962. The parties met on five different occasions. Attorney Arthur Donovan represented the Respondent and the Union was represented by Interna- tional Representative Hackett, Local President James Williams, and Dremetria Fritz, chairman of the bargaining committee. 34 The credited testimony of Bottoms and Gries It is to be noted that for some of this period Youngblood was incapacitated. Her child was born in late October 1962. This factor and Respondent's policy with respect to maternity leave will, therefore, determine the extent of discrimination against her. SUNBEAM PLASTICS CORPORATION 1031 Negotiations were initiated by the Union's request for a meeting, and its submission to Respondent of a list of basic items it desired to be included in the contract. These were the following: (1) a substantial wage increase for all employees; (2) a health and welfare plan; (3) shift differential; (4) break schedules; (5) equal pay for equal work performed by women employees; (6) discussion of job classifications; (7) safety and first aid; (8) vacation plan expansion; (9) janitorial service; (10) pay for leadmen; (11) plant ventilation; (12) job alternation; and (13) assignment of shifts by seniority. A meeting was scheduled for May 7, and several days previously Hackett gave to Donovan the Union's contract proposal which incorporated the items noted above. At the outset of the meeting Donovan indicated to the union representative that the Company "could not see its way clear to granting any increase in wages or any economic benefits that would, in a sense, be a wage increase." Throughout the meeting, and consistent with the Company's stated position as to wages, both parties reviewed the Union's proposal indicating on an item-by-item basis those which Donovan would accept and those he would not or would accept upon modification. Thus the recognition clause was revised to include the International, liability under the proposed contract was fixed, the bargaining units certified by the Board was redefined for clarity,36 the use of supervisory help was defined, the proposal for an agency shop was rejected, a workday was defined, and the Company insisted that 6 days be considered a normal workweek. The Company rejected proposals providing for time and a half over 40 hours per week, prior union agreement for changes in working schedules, specific holiday and Saturday extra pay, and an arrangement to avoid layoff of employees to compensate or equalize for overtime work. The call- in pay proposal made by the Union was reduced from 4 hours of pay to 2. Final consideration of a grievance procedure was deferred; a proposal for dividing work during slack periods was rejected; and the proposal for layoff by seniority was acceptable was the provision that provided ability and skill must also be equal. A probationary period of 6 months following hiring was accepted; other proposals allied to the establishment of seniority were rejected. Provision for sick pay was rejected, whereas arrangements for granting of leaves of absence under stated con- ditions was approved, and the proposal permitting the union representative to enter the plant was restricted to his visiting the company offices. The proposed manage- ment prerogative clause was not deemed sufficiently broad. Provision for use of bulletin board space was found acceptable, whereas checkoff of union dues was rejected by the Company; although it is to be noted that this latter item was subse- quently agreed to by the Company.37 Following the meeting Donovan sent to Hackett a letter setting forth in detail his understanding of what transpired at the meeting and the Company's position on the subjects covered. This does not vary in substantial detail from testimony on the subject. The next meeting was held on May 9, with the same individuals present. It lasted but a few minutes. Hackett opened the meeting by inquiring if the Company had agreed to a wage increase; to which, according to Hackett, Donovan replied, No, there is no use kidding each other, this Company is still not going to increase their costs or change any of their ways as it has been before the Union got in." 38 There appears to have been general agreement that nothing further could be done at that point, so everyone prepared to leave the meeting. As he went out the door, Donovan was heard to offer Hackett a provision for checkoff of dues. It should be noted, however, that in his earlier letter to Hackett confirming action taken at the previous May 7 meeting, Donovan had already offered the checkoff and had agreed to prepare appropriate contract language. As Hackett and Donovan left the meeting room a brief but heated exchange oc- curred. Whereas the versions differ, a reading of each is sufficient to describe the event. Thus Donovan quotes Hackett as "talking strike" and then stated, "I really ae The pleadings establish and I find and conclude as follows All production and maintenance employees of the Employer, including the local truckdriver and floormen but excluding office clerical employees, guards and super- visors as defined in the Act constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 7 The foregoing account of the May 7 bargaining session is a composite of the testi- mony of Hackett and Donovan, and in more substantial part, a review of Donovan's marginal notes made on the Union's proposal during the meeting IsThis statement was confined by Fritz and Williams. Donavan's version was sub- stantially the same-"I indicated that we hadn't decided at that time to grant a wage Increase" 1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD think I said something to him there about that I didn't want a strike, it was a small company but that if he was trying to scare me with strike talk, there were strikes all over the country or I had lots of strikes going on and we weren't going to negotiate with threats of a strike hanging over my head, that didn't bother me, but let's get down to business and negotiate a contract and not have this strike vote he was telling me about." Hackett, on the other hand, quotes Donovan as saying, "Well, I have already stated my statement, so what are you going to do, are you going to strike?" Whereupon Hackett replied, "No, I would like to keep away from a strike because a strike don't help anyone." Fritz and Williams testified to Hackett's version adding, as Donovan's own testimony had also indicated, that Donovan said, "Go ahead and strike, I don't care, I have them going all over the country." Regard- less of which version is accepted out of this welter of minor contradictions, the main theme is evident-strike action was viewed by all the parties as a distinct possibility at this time-May 9. On the following day Donovan received an inquiry into the state of negotiations from United States Mediator Edward Windes, whose entry into the case is otherwise unexplained in the record. Following the May 9 meeting, Donovan again sent Hackett a confirming letter which in substance accused Hackett of terminating the meeting and suggested the calling of another one. Hackett took vigorous exception to this accusation, and a further exchange of correspondence ensued. All that appears in the record are Donovan's letters, but these are sufficient to indicate that each side was accusing the other of promoting strike action. Meanwhile, as previously noted, the Federal Mediation and Conciliation Service came into the case. Donovan persisted in his request for an early meeting to continue negotiations which meeting was set for May 22. Prior to the meeting he submitted the Company's contract proposals to Hackett. These proposals, set forth in some detail, covered the following items: management rights, union stewards, seniority, no-strike, no-lockout, bulletin boards, and collection of dues. At the meeting held with Federal Mediator Windes on May 22, with the same individual representatives being present, Hackett repeated his demands for a substantial wage increase, and health, insurance, and pension plans, all of which Donovan concededly refused to grant. Considerable discussion was had, however, on the contract proposals submitted by Respondent including seniority, leaves of absence, a management prerogative clause, safety and first aid, ventilation, shift assignment based upon seniority and a comprehensive three-page outline of a suggested grievance procedure. In a letter to Hackett, dated May 23, Donovan, consistent with past practice, set forth his understanding of what transpired at the meeting. Included in the letter was a reference to a discussion at the meet- ing of a strike vote taken among employees after the May 7 meeting, whereby it had been agreed among them to strike on June 1 .39 Thereafter, on May 25, Donovan sent Hackett another confirming letter, this time supplying him with a previously promised clause covering working foremen, together with a statement of an accept- able vacation program which, upon comparison with the vacation plan demand previously made by Hackett in the Union's May 3 proposal, appears to be a conces- sion in full agreement with the union demand on the subject. The fourth negotiation meeting was held on May 29, again with Federal Mediator Windes. According to Hackett, "they rerun just what we had went over before," with no monetary matters agreed upon. Donovan's letter to Hackett confirming what transpired at the meeting substantiates Hackett's report, indicating further con- sideration had been given such subjects as the grievance procedure, seniority, a no-strike provision, use of bulletin boards, collection of dues, a management preroga- tive clause, and an acceptable safety program. It appears from the testimony of Donovan that during the course of discussion of wages and benefits that Hackett prefaced 'his remarks by words to the effect that "He might be asking for the sky, the moon, and the stars." Donovan, in his letter, used this expression to counter the Union's monetary demands and to accentuate the Union's suggestion that it would have to "take action"-presumably a strike. Donovan thus took vigorous exception to the Union's demands and to its suggestion of strike action, but at no time does it appear from his account of the meeting, or from his commentaries on what tran- s There is no independent confirmation of this vote being taken at the time men- tioned Arrick and Williams testified to a strike vote having been taken, without stating the date, and Hackett, whom I do not credit generally, testified that a vote was taken on June 3 President Carson testified to a general awareness of a strike vote having been taken, and its result. SUNBEAM PLASTICS CORPORATION 1033 spired there, that he expressed any monetary position on behalf of the Company, excepting only an agreement arrived at at the first meeting to provide 2 hours call-in pay for maintenance employees. Thereafter, on Sunday, June 3, Hackett communicated with Donovan at his home to inquire what, if any, monetary concessions the Company would make at that time. Donovan's recollection was that he replied that "We feel pretty strongly that the Company would not grant your wage increase demands," and suggested that another bargaining session be held later in the week. Two days later the employees went on strike following Hackett's report to them of the most recent status of the contract negotiations. The stated purpose of this June 6 strike, as credibly described by Arrick, was the Company's failure to reach an agreement with the Union, the earlier layoff of employees, and the Company's failure to recall them before hiring new people. While the strike proceeded apace bargaining continued, the next meeting being held at the county courthouse on June 9. In addition to the usual representatives, Vice President Gach was present in behalf of Company, as was United States Con- ciliator Windes. The meeting was presided over by State Commissioner of Labor Hobart Butler and also included among its participants, Esham Grim, the sheriff of Vanderburgh County 40 At this meeting, according to Hackett, a number of language changes were sug- gested in the portions of the contract already agreed upon: the Company agreed upon a provision giving equal pay to women employees for equal work, requiring that equal abilities and experience be established as well. Donovan testified to dis- cussing at this meeting the strike situation and its attendant violence. Whereupon Hackett inquired if the striking employees would be returned to their jobs when the strike was called off. When Donovan told Hackett that the Company would not take back those who had engaged in violence, Donovan recalled that Hackett con- ditioned any future contract upon the reinstatement of everyone. Donovan's testi- mony indicates that he again remonstrated with Hackett over the injection of "srike talk," and finally a strike itself, into negotiations which he felt could eventually be brought to a successful conclusion. But when Hackett countered by protesting that no action had been taken on wage demands, Donovan admits having deferred con- sideration of this topic, stating: Well, frankly, you don't want me to put my strategy on the line, but we would like to get those things out of the way. Wages are usually the last thing that come up. Get these others out of the way. On this note the meeting ended. No meetings between the parties have since been held, although correspondence has been exchanged suggesting the arranging of meetings and the continuation of negotiations. 2. Conclusions with respect to refusal to bargain It is readily apparent from a review of the foregoing that at the five negotiating sessions in which the Company and Union participated a considerable amount of discussion took place, a considerable number of topics pertinent to a collective- bargaining agreement were explored, and in many cases adopted, and considerable numbers of proposals and counterproposals were exchanged between the parties. 40 This official's presence was occasioned by his active maintenance of order on the picket line then in progress at Respondent's plant, where he and his deputies were on hand two or three times each day throughout the strike At the beginning of the meeting in question- Respondent's counsel, Donovan, objected to the sheriff's presence and he voluntarily with- drew. In this respect I reject Donovan's stated reason for his objection to Sheriff Grim's presence, the fact that he was armed. On the contrary, when he testified before me in Case No. 25-CB-497, the sheriff denied that he was armed. I accept his denial. It is true that I was unable to rely upon some of the sheriff's other testimony in that earlier case, relating as it did to incidents to which he was either mistaken in his recollection or not present when they occurred. Nevertheless, he impressed me as an official who consistently performed his duties in a forthright and conscientious manner. Indeed this judgment was borne out by the composite evidence in the previous case describing the manner in which the sheriff and his deputies maintained orderly control over the picket line. I have no hesitancy, therefore, in crediting him in this case whereas I did not rely upon his testimony under other circumstances. 1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This condition lends support to the suggestion that the mandates of the Act with respect to collective bargaining has been fulfilled .41 For in this respect it is to be noted, without attempting to reiterate what has previously been described , that many terms and conditions of employment were seriously considered, with concessions being made on many items , and adamance being registered in other areas. Noteworthy in the area of complete adamance was Attorney Donovan's con- tinued refusal at all stages of the negotiations to react favorably to any demand for increased wages or for so-called fringe benefits, excepting only a 2-hour call-in pay provision for maintenance employees . And it is precisely because of this adamance that General Counsel insists that Respondent's negotiating conduct constitutes a refusal to bargain in violation of the Act. Counsel suggests a number of circum- stances which they insist add up to bad-faith bargaining : The Respondent's opposi- tion to the Union, the instances of interference , restraint, and coercion which I have already found to be violations of the Act, and the discriminatory failure to re- instate the laid-off employees . There is, however, a distinct difference between using findings of this sort to give meaning and understanding to otherwise un- explainable, contrived , and suspicious conduct, and using it, on the other hand, to discolor what is understandable and basically proper . Unless, therefore , it is to be contended that bargaining conduct may derive a bad-faith character even as certain unlawful interference derives its unlawful character from other types of illegality,42 the bad faith must be established by demonstrating that the bargaining was unexplainable, contrived, or suspicious . For reasons which follow I am per- suaded that it was neither. To begin with, no relation has been established between Respondent 's conceded feeling toward the Union and bad faith at the bargaining table. Indeed to suggest that it has indulges in a per se conclusion that puts the stamp of approval only upon negotiations conducted on a high plane of harmony, i.e., absence of opposition to the Union . However devoutly this is to be desired , it has no basis in law. Nor does it follow that the discrimination and instances of interference I have found, per se, established bad faith at the bargaining table. Here, it must be remembered , Respondent has been found to have interfered with , restrained, and coerced its employees as they were in the process of selecting their representative, and to have discriminatorily refused reinstatements to them shortly thereafter. I am, however, aware of no vile of law or logic by which the essence of such conduct at such a time seeps into other conduct, here bargaining, at some later time 43 To conclude that it does, without more, makes of Respondent's first malfeasance a suspension , henceforth, of the law of cause and effect. The character of the bargaining here, therefore, must first be assessed to determine whether it contains any other of the attributes of contrivance or suspicion that would justify relating it, unfavorably , to Respondent's other actions. A review of what transpired between May 7 and June 13, as described above, persuades me that at all times the parties bargained in appropriate fashion, threading their way through pages of proposals and counterproposals . Each side presented its own proposals ; each side dissected the other's proposals . Progress was evident after all but one session , the May 9 session . And even at that one, brief as it was, the Union's request for a checkoff was granted . All that seems to have been lacking was a concession on Respondent's part in the matter of wages It was on wage matters that Attorney Donovan 's motivation is doubly challenged by counsel because he admittedly could have granted a wage increase and did not 44 What General Counsel and counsel for Charging Party are saying is that in this department of bargaining there are really two varities of bad faith; one, the kind in which a concession is refused , the other, the kind in which a concession is refused 41 Section 8(d) of the Act provides in pertinent part as follows: For the purposes of this section , to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours. and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder , and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession. 42 For example , in instances of discilmination in violation of Section 8(a)(3) em- ployees are derivativelv interfered with in violation of Section 8(a) (1). See N L R B v. Remington Ranii , Inc, 94 F 2d 862, 869 (CA 2) 4s Marathon-Clark Cooperative Dairy Association v N L R B , 315 F 2d 269 (C A 7) 44 Donovan testified he had President Carson's authority "to give a little bit of wages " SUNBEAM PLASTICS CORPORATION 1035 when it admittedly could have been made. My short answer to each of these propositions is that they are in conflict with Section 8(b) of the Act and I so find. Nor is it of consequence that Donovan, as the Company's exclusive representative, had or did not have authority to make a wage bargain other than the one he made, anymore than it would have been of consequence that the Union's representative had or did not have like authority. Indeed if Donovan did lack such flexibility it might well be construed as a restriction upon his authority and as evidence of another form of refusal to bargain.45 Suffice it to say, that in my reading of the record there is nothing to suggest that bargaining was not full and complete on all proposals, ex- cepting only wages and monetary benefits, upon which Respondent was determined not to, and legally free not to make a concession 46 In its legal analysis of the bargaining herein counsel for the Charging Party refers me to authorities which he deems dispositive of the issue. I cannot agree. American Aggregate Company, Inc. and Featherlite Corporation, 125 NLRB 909, affd. 285 F. 2d 529 (C.A. 5), was a so-called hard bargaining case in which the Board sustained a finding of bad faith. Significant to the finding there were two instances of unilateral action on the part of the employer. Thus, while consistently refusing to grant a wage increase, claiming that business considerations and competi- tion made it inadvisable, the employer announced a general wage increase (125 NLRB 909, 919), and indeed at the very outset of bargaining, after the first week, discontinued the customary Christmas bonus (at 921). Both of these instances of unilateral action were quite properly found to be evidence of bad faith, even as they would independently constitute a form of unlawful refusal to bargain.47 As there are no such flaws in the instant bargaining I deem the cited case of no relevance. In Fitzgerald Mills Corporation, 133 NLRB 877, the Board, finding an unlawful refusal to bargain, posited its conclusion upon a number of circumstances not present in the instant situation. Thus it found employer recourse to dilatory tactics by delaying the furnishing of requested information (at 878), and adamant refusal to enter a contract except on its own terms, including terms less favorable than those previously enjoyed by the employees (at 879), a limited bargaining authority on the part of the employer's representative (at 881), and a series of unilateral actions, including changes in wage rates, during the course of bargaining itself. As the case is thus clearly distinguishable from the instant one, it has no relevance at this point. Charging Party's counsel suggests that by its hiring practice followed immediately before and during the strike Respondent here took the sort of unilateral action identified with bad-faith bargaining. Thus, it is claimed, Respondent began a pro- gram of further hiring, beginning on June 1, for the purpose of preparing for a walk- out; a transaction quite distinct from the hiring of replacements in May 1962 in a manner which I have already found to be a discriminatory refusal to reinstate laid-off employees (supra). Respondent's actions and its purpose bear scrutiny. In the first place a strike was imminent. Everyone at the previous bargaining sessions had something to say on the subject and it was being constantly discussed among the employees. Under such circumstances and upon consideration of the smallness of Respondent's opera- tions and President Carson's admission that such items of interest invariably have a wide circulation (supra), I have no hesitancy in finding and concluding that the Respondent was as aware of the strike's imminence as it had been of its employee's union membership (supra). As it was thus faced with a real threat to the con- tinued operation of its plant Respondent had every right to take adequate steps to continue production for the duration of the strike which followed.48 Some questions are raised, however, as to the extent to which Respondent did and would go in hiring replacements for such a purpose. Thus, it is complained that it hired too many at too great a wage cost. I fail to see how bad faith can be attributed to an employer's attempt to protect his business operation by taking every possible precaution-which precaution in this case appears only to have been the hiring of more people than counsel, by hindsight, deems to have been necessary. Certainly the standards of good or bad 96,Cf. International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW), API -CIO. and its Amalgamated Local No 453 (Maremont Automotive Products, Inc ), 134 NLRB 1337 40 See Sec 8 (d) ; Marathon-Clark Cooperative Dairy 4ssociation v N L R B , 315 F. 2d 269 (C k 7) 47 N L R B v Benne Katz, etc, d/b/a Williamsburg Steel Products Co , 369 U S 736; N L R B v Neles-Bement-Pond Company. 199 F 2d 713 (CA 2). 48 N L R B v. Mackay Radio & Telegraph Co , 304 U S 333. 1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD faith do not require that an employer's emergency operations be geared to such subjective refinements. Nor is it significant to a determination of good or bad faith that during the crisis of a strike the employer be held to such restrictive terms in the granting of wages to replacements that he thereby continues his business opera- tions at his peril. I do not so read the Supreme Court's decision in the Mackay case 49 Nor do I consider the Supreme Court's recent decision in Erie Resistor Corp., et al.,50 to in any way impinge upon an employer's rights, described in Mackay, to make such reasonable wage adjustments. Certainly, a higher wage rate paid to replacements does not constitute an "impairment of (strikers') tenure because they chose to go on strike" as the Board found that superseniority did (132 NLRB 621, 626); nor do the effects of hiring a replacement at a higher wage have an indefinite future effect, as does superseniority (idem at 627). In any event, as I shall demon- strate, there were no inequities effected in the,hiring of replacements. At this juncture it would be appropriate to note what Respondent's hiring action actually consisted of. Thus, between June 1 and July 7, 1962, it hired the following in the classifications and at the rates stated: Name Classifica- tion Rate Name Classifica- Lion Rate Charles Fuller______________ Foreman__ $2 00 N Krouse ------------------ Operator $1 35 Joe Gary Fulcher----------- Operator-- 1 75 William Seiler, Jr___________ _____do____ 1.35 Huddle Mardirosian_______ _____do____ 1 35 Terry Whitfield____________ _____do____ 1.35 William Workins_________ _____do____ 1 65 James Boatman____________ ----- do---- 1 50 Isadore Wright_____________ _____do____ 1 50 Richard Young ------------- ----- do---- 1 35 Milton Knopfineier________ _____do____ 1 35 D. Majors__________________ _____do____ 1 75 James Johnson_____________ _____do____ 1 35 E Schaefer ----------------- ----- do---- 1 50 Charles Welch______________ ----- do---- 1 50 Lester Steinmetz___________ _____do____ 1 35 Jay Clark__________________ _____do____ 1 35 Richard Worthington------ ----- do---- 1 35 L. Dimmett---------------- ----- do---- 1 35 D Courtney --------------- ----- do---- 1 75 T. Helms___________________ ----- do---- 1 35 Tom Bryan________________ Packer____ 1 15 E Jewell ___________________ _____do____ 1 50 Steve O'Neil --------------- ----- do---- 511.15 From a record comparison of the foregoing with the starting rates of employees previously hired it is to be noted that packers were hired during the strike at the same rate, $1.15, as packers were hired in 1961. Operators hired during and immediately prior to the strike were, with the exceptions to be noted, hired at the same rate, $1.35, as operators hired in 1961. Employees Fulcher, Workins, Isadore Wright, Welch, Jewell, Boatman, Majors, Schaefer, and Courtney were hired at varying rates over the wage rate given to others hired during the same period, and indeed in some instances at rates higher than those paid to regular employees with experience in the plant as operators. A review of the applications of these recently hired indi- viduals indicates, however, that each of them had experience as plastics machine operators for periods from 6 months in the case of Wright to 41/2 years in case of Majors. No employment history was available for Fulcher, Workins, or Wright, but in the absence of any evidence or contention to the contrary, I would deem their experience comparable to the others in the group of higher paid operators. Based upon the findings which I have made respecting the starting rates of replace- ments, two conclusions follow: (1) Respondent's hiring practices did not, in fact, deviate during the critical strike period, and (2) Respondent's determination at the bargaining table not to concede on matters affecting wages was in no way com- promised thereafter by the manner in which it hired strike replacements. For it continued to pay the established rates to new hires, excepting only those who had what appears to have been more or at least the same experience as Respondent's regular operators. Thus, it appears that men like Majors, Jewell, Courtney, and Welch were paid substantially more than most of the regular women operators, and as much as some of the experienced men operators, E. D. Hunter, Gries, Williams, and Sampson. A comparison of the experience history of all of these employees discloses a distinct correlation between total experience, either with or outside the 49 Supra. 50 373 US 221, enfg. 132 NLRB 621 51 There is no record information as to the length of employment of these individuals 'hired during the strike and whether they stayed for any extended length of time, through -or after the strike. SUNBEAM PLASTICS CORPORATION 1037 Company, and the employees' current wage rates. I have no basis for concluding, moreover, that other and subtler considerations would have changed this relation- ship. On the contrary I have no alternative but to conclude that on its face the wage structure of the employees hired between June 1 and July 7, 1962, was in proper order. As I have found and concluded that wage inequities did not arise as a result of replacement hiring it becomes unnecessary, to consider Southwestern Porcelain Steel Corporation, 134 NLRB 1733, and St. Clair Lime Company, 133 NLRB 1301, cases referred to me as supports for the proposition that pay inequalities of replacements hired during the strike is evidence of a continuing bad-faith bargaining situation. In passing it is to be noted, however, that in the more recent of these cited cases, South- western Porcelain, the Board approved a finding of the Trial Examiner that he "would not impugn [the Employer's] good faith by the change it made in its pro- curement of skilled classifications after the strike began," restricting his bad faith finding to the increase of wage rates given to nonskilled replacements (133 NLRB at 1743). Significantly, and as already discussed, the rates of neither the unskilled packers, nor of the skilled classification, the operators, were changed to accommo- date the strike burdens in the instant case. The Charging Party also urges with extreme vigor the deleterious effects of "strike talk" throughout the bargaining sessions, casting Attorney Donovan in the role of "strike provocateur," bent upon breaking up bargaining, destroying the Union, and thereby manifesting other facets of bad faith. To so describe Attorney Donovan is to present the Union in a light that does not befit it. There is nothing in the record of this case, nor of Case No. 25-CB-497, involving this Union and its Inter- national Representative, that would remotely hint at the sort of irresponsibility that is thus attributed to the Union's strategy. The record is ample to support the finding and conclusion which I make that Hackett, for the Union, was generous with his references, if not his threats, of impending strike. Accordingly, if we are to ascribe to the Union the degree of responsibility to which it is properly entitled it would be doing it and its leadership a distinct disservice to insist that its eventual strike action was the result, not of reasoned union strategy, but of third party goading. On the contrary, the findings I have made heretofore, and indeed the whole record, describes hard-hitting nego- tiations, with strike action discussed by all parties Under such circumstances, I am not disposed to single out Donovan's strike references for special consideration without giving the same attention to International Representative Hackett's equally forceful approach to the same subject matter. In summary, therefore, and upon consideration of all of the foregoing findings, I would find and conclude that there is no credible evidence in the record nor reason- able inference that could be drawn therefrom to suggest a conclusion that Respond- ent's continued bargaining was other than in the good faith required of it by Section 8(d) of the Act and the mandate of the Supreme Court 52 Accordingly, I would recommend that so much of the complaint herein as alleges a violation of Section 8(a) (5) be dismissed. H. The strike and subsequent discrimination 1. Sequence of events Upon the conclusion of the strike International Representative Hackett, by letters of July 6 and 11, 1962, unconditionally requested the return to work of the striking employees, naming all 12 of them. Thereafter on July 26 the following employees reported to Respondent's office and unconditionally requested reinstatement: Helen Arrick Winona Ruth Pennell Yvonne Sue Bottoms Sandra Sue Paul Dremetria Fritz Gordon R Wells Douglas Gibbs Charles Welch Mary Goebel Allen James L. Williams, Jr. Each was notified as following: You were guilty of participating in misconduct on the picket line during the strike. It is for this reason that you were terminated from your job at this factory, and replaced. ea Al L R B. v. American National Insurance Co., 343 U S. 395; N L R.B. v. Insurance Agents' International Union, AFL-CIO (Prudential Ins. Co. ), 361 U.S. 477. 1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD No evidence was adduced by Respondent at the hearing, however, to support its contention of strike misconduct by either Bottoms, Kniffen , or Pennell.53 2. Conclusions respecting the failure to reinstate strikers Employee Helen Arrick credibly testified that the purpose of the strike, among others, was that Respondent "didn't recall the ones that were laid off." As I have already found this failure to recall to constitute discrimination in violation of the Act (supra ), it follows that a strike in protest thereof is properly to be classified as an unfair labor practice strike.54 Nor is it of consequence that other causes, economic in nature , also contributed to the calling of the strike, so long as it has been established that the unfair labor practices "had partly caused the strike." 55 Such be- ing the case employees who thereafter engage in such a strike are, upon its conclu- sion and their unconditional request , entitled to reinstatement to their former posi- tions irrespective of any intervening replacements 56 As employees Yvonne Sue Bottoms, Wilma Kmffen , and Winona Ruth Pennell have each been shown to have unconditionally requested reinstatement and to have thereafter been refused it, I find and conclude that Respondent thereby discriminated against them in violation of Section 8(a)(3) of the Act, thereby interfering with , restraining and coercing them in violation of Section 8 (a) (1) of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The operations of Respondent described in section I, above, occurring in connec- tion with the unfair labor practices described in section IV, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY Since I have found that Respondent , by numerous acts and statements , has inter- fered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act, and that Respondent discriminatorily refused or delayed the reinstatement of certain of its laid-off employees for reasons of their union membership or activity in violation of Section 8(a)(3) of the Act, and since I have further found that this latter conduct of the Respondent was the cause , in part, of the strike of its em- ployees on June 6, 1962, thereby denominating the work stoppage an unfair labor practice strike, and since Respondent on July 26, 1962, and thereafter refused to reinstate certain of the strikers upon their unconditioned request therefor made on July 6, 1962, as required by law ,57 thereby discriminating against them in violation of Section 8(a) (3) of the Act, I shall recommend that Respondent cease and desist from the foregoing conduct and from infringing in any manner upon the rights of the employees guaranteed by Section 7 of the Act.58 With respect to so much of this Remedy as applies to those discriminated against by Respondent, clarification is in order. Thus it is to be noted that laid-off employees and certain of the striking employees have already been recalled to work 59 As the date of the recall of each of these bears significance to the backpay to which they are entitled, I shall affirmatively order that all be reinstated, the precise date upon which such reinstatement would have become effective and the precise position to which they are to be reinstated in view of Respondent 's economic decision not to employ women machine operators (supra), to be determined in compliance negotia- tions or proceedings . Similarly. I shall order all employees thus discriminated against to be made whole from the date upon which employment would normally "As it was alleged in the complaint that only these three were discriminatorily de- prived of reinstatement , the circumstances attending the Respondent 's refusal to reinstate the remaining nine strikers were not litigated at the hearing and I make no findings nor conclusions with respect to them. 64 Mastro Plastics Corp , and French -American Reeds Mfg . Co , Inc v N L R B., 350 US 270, 278 51 N L R B. v . Samuel J. Kobretz, d/b/a Star Beef Company, 193 F. 2d 8, 16-17 ( C A. 1) ; General Drivers and Helpers , Local 662 , International Brotherhood of Teamsters. Chauf- feurs, Warehousemen and Helpers of America (Rice Lake Creamery Co ) v N L R B , 302 F 2d 908 (CAD C ). 66 Mastro Plastics Corp. , and French-American Reeds Mfg Co., Inc v N L.R B , supra 57 N L R B v Mackay Radio cf Telegraph Co , 304 U S 333, 346. 56 N L R B v Lamar Cream cry Company, 246 F 2d 8 ( C.A 5). 59 Wilma Kniffen was reinstated after layoff but thereafter went on strike and was re- fused reinstatement as a striker SUNBEAM PLASTICS CORPORATION 1039 have been available to them, absent discrimination, and without compensation for the period during which they or any of them voluntarily absented themselves from work to participate in the strike, which computation, in detail, may be left to deter- mination in compliance negotiations or proceedings. In recommending that the employees be made whole the backpay should be computed in the customary man- ner,60 with interest to be added at the rate of 6 percent per annum 61 RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record, it is recommended that the Respondent, Sunbeam Plastics Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Brotherhood of Operative Potters, AFL-CIO, by discriminating against its employees in regard to their hire or tenure of employment, or any term or condition of employment. (b) Interrogating its employees concerning their own and their fellow employees' union membership, interest, and activities, soliciting the assistance of its employees in the surveillance and interrogation of fellow employees, threatening its employees with a curtailment of work or a closing of its plant in the event of a union election victory, and granting of increased wages or benefits as a reward to employees for their opposition to the Union. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed them by Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer immediate and full reinstatement to their former or substantially equivalent positions and make whole in accordance with and in the manner set forth in the section entitled "The Remedy," each of the following: Yvonne Sue Bottoms Roscoe Crabtree Shirley Dudley Charlotte Freudenberg Margaret Harrington Winona Ruth Pennell Delores Johnson Wilma Kniffen Marvin Mayes Alvah Smiley Mildred Smith Carolyn Sue Youngblood (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary for the deter- mination of the amount of backpay due and the right of reinstatement under this Recommended Order. (c) Post at its Evansville , Indiana, plant, copies of the attached notice marked "Appendix." 62 Copies of said notice, to be furnished by the Regional Director for the Twenty-fifth Region, shall, after being duly signed by Respondent's authorized representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. It is further recommended that so much of the consolidated complaint in this proceeding as alleges that the Respondent, by laying off its employees in February and March 1962, violated Section 8(a)(3) of the Act, by refusing, or delaying to reinstate certain of its laid-off employees to their former positions, namely, Jacqueline Klump, Wilma Kniffen, Ronald McGillen, David Meier, Harold Martin, Paul Rhodes, and Roy Thompson, violated Section 8(a)(3) of the Act, and by the manner in which it bargained with the Union as the representative of its employees, refused to bargain in violation of Section 8(a) (5) of the Act, be dismissed. 61 F IV Woolworth Company, 90 NLRB 289 81 Isis Plumbing & Heating Co., 138 NLRB 716 s2 In the event that this Recommended Order be adopted by the Boaxd, the words "A Decision and Order" shall be substituted for the words "A Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order." 1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in International Brotherhood of Oper- ative Potters, AFL-CIO, by discriminating against our employees in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT unlawfully question our employees concerning their own or their fellow employees' union membership, interest, or activity. WE WILL NOT solicit the assistance of our employees in the surveillance or questioning of their fellow employees. WE WILL NOT threaten our employees that work will be curtailed or the plant will be closed if the Union represents them. WE WILL NOT grant our employees or any of them increased wages or benefits to insure their opposition to the Union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization , to form labor or- ganizations, to join or assist the above-named Union or any other labor organi- zation, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities. WE WILL offer reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, and we will make whole for any loss of pay suffered as a result of our discrimination against the following: Yvonne Sue Bottoms Wilma Kniffen Roscoe Crabtree Marvin Mayes Shirley Dudley Winona Ruth Pennell Charlotte Freudenberg Alvah Smiley Margaret Harrington Mildred Smith Delores Johnson Carolyn Sue Youngblood All our employees have the right to form, join , or assist any labor organization, or not to do so. SUNBEAM PLASTICS CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify any of the above -named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 614 ISTA Center, 150 West Market Street, Indianapolis 4, Indiana, Telephone No. Melrose 3-8921, if they have any question concerning this notice or compliance with its provisions. Film Inspection Service, Inc. and Local B-57, International Alli- ance of Theatrical Stage Employees and Motion Picture Ma- chine Operators of the United States and Canada. Case No. 15-CA-2200. October 11, 1963 DECISION AND ORDER On June 4, 1963, Trial Examiner Horace A. Ruckel issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- 144 NLRB No. 99.