Radiator Specialty Co.

350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT by threat of reprisal or promise of benefit induce or encourage our employees to vote for or against , or by such means solicit our employees to induce other of our employees to vote for or against, the above-named Union or any other labor organization in any election conducted by the National Labor Relations Board. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization; to form, join, or assist any labor organization ; to bargain collectively through representatives of their own choosing ; to engage in concerted activities for the purpose of col- lective bargaining or other mutual aid or protection ; or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended. WE WILL NOT in any manner interfere with the right of our employees to make a free and untrammeled choice in any election ordered by the National Labor Relations Board. All our employees are free to become , remain , or to refrain from becoming or remaining, members of any labor organization, except to the extent that this right may be affected by an agreement conforming to the provisions of Section 8(a)(3) of the National Labor Relations Act, as amended. INDUSTRIAL STEEL PRODUCTS COMPANY, INC., Employer 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, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana, 70113, Telephone No. 529-2411, if they have any question concerning this notice or com- pliance with its provisions. Radiator Specialty Company and United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO. Cases Nos. 11-CA- 1891, 11-C.4-1950, and 11-CA-2086. June 08. 1963 DECISION AND ORDER On April 29, 1963, Trial Examiner Samuel M. Singer issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. Thereafter, Respondent filed exceptions to the Intermediate Report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown].' The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- ' Respondent' s request for oral argument before the Board is hereby denied, as the record and the exceptions adequately present the issues and positions of the parties 143 NLRB No. 42. RADIATOR SPECIALTY COMPANY 351 termediate Report, the exceptions, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed February 2, 1962, and upon amended charges filed May 11, 1962, and January 24, 1963, respectively, by the United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, herein called the Union, the General Counsel on January 25, 1963, issued an amended consolidated complaint alleging that Radiator Specialty Company, herein called Respondent or the Company, has violated Section 8(a)(1), (5), and (3) of the Act by engaging in certain acts of interference, restraint, and coercion; by refusing and failing to bargain collectively in good faith with the Union; and by failing and refusing to reinstate unfair labor practice strikers. Respondent in its answer denied the commission of the alleged unfair labor practices. Pursuant to notice, a hearing was held before Trial Examiner Samuel M. Singer in Charlotte, North Carolina, on February 4 through 8, 1963. The parties, except the Charging Party, were represented by counsel. Oral argument was waived and, although afforded an opportunity to submit briefs, none was filed either by the General Counsel or the Respondent.' Respondent's motion to dismiss the com- plaint, made at the close of the hearing, is now disposed of in accordance with the findings and conclusions made below. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a North Carolina corporation owning and operating a plant in Charlotte, North Carolina, where it is engaged in the manufacture of automobile products and rubber specialties. During the past 12 months, a representative period, Respondent manufactured finished products valued in excess of $50,000 and sold and shipped finished products valued in excess of $50,000 to points and places out- side the State of North Carolina from its Charlotte, North Carolina, plant. I find that Respondent was at all material times engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Sequence of events On June 22, 1961, the Union filed a petition for certification as the majority representative of Respondent's employees. After a hearing on the petition on July 21, an election was conducted by the Regional Director on September 7, 1961. The Union won the election by an approximately 2-to-1 vote and on September 15, 1961, it was certified as the statutory representative of Respondent's production and main- tenance employees.2 1 As we shall see below, the instant case presents substantial questions of fact and law. In the absence of briefs I looked to the pleadings, the statements of counsel at the hearing, and the nature of the evidence adduced by them, to determine the parties' positions on the Issues. 2 The appropriateness of the unit is not in issue. 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The original charge filed herein by the Union on February 2, 1962 (Case No. 11-CA-1891), alleged that Respondent had interfered with, restrained, and coerced its employees in the exercise of their organizational rights in violation of Section 8(a)(1) of the Act. In April 1962, Respondent and the Union entered into an agreement settling the charges and this agreement was approved by the Regional Director on April 30, 1962. The settlement agreement provided for the posting of a notice which was attached to the agreement. It further provided that "The Employer will comply with all the terms and provisions of said notice." These terms and provisions were that the Company will not interrogate its employees con- cerning their union membership and activities in violation of the Act; "solicit, pay or encourage employees to persuade other employees to withdraw their support from the Union and vote against the Union" in Board elections; threaten employees with discharge and other reprisals, including loss of benefits in order to discourage union or concerted activities; threaten employees "by creating an impression" that their union activities were under surveillance; and threaten employees by inform- ing them that the Company "will not let the Union in, nor bargain with the Union, nor . . sign a contract with the Union." Finally, the notice stated that the Com- pany will not "in any other like or related manner interfere with, restrain or coerce our employees in the exercise" of the rights guaranteed in Section 7 of the Act. In the meantime at the end of September 1961, the Union requested the Company to bargain with it and the parties thereafter held 37 meetings between October 4, 1961, and August 7, 1962. The amended complaint based on the amended charge in (11-CA-1950) alleges that the Company failed and refused to bargain in good faith during the negotiations; and that beginning with November 16, 1962, it refused to meet with the Union altogether, all in violation of Section 8(a) (5) of the Act. On May 15, 1962, during the period of the negotiations, the Union called a strike. On or about January 9, 1963, the Union indicated that the strikers were ready to return to work and the Union and the employees requested reinstatement. The amended complaint (based on the amended charge filed in Case No 11-CA- 2086) alleges that Respondent has failed and refused to reinstate 153 strikers to their former or substantially equivalent positions and it thereby violated Section 8(a)(3) of the Act. The amended complaint further alleges that since on or about May 1, 1962 (sub- sequent to the execution of the settlement of the Section 8(a) (1) violations charged in Case No 11-CA-1891, supra), Respondent has again engaged in acts of inter- ference, restraint, and coercion, including unlawful threats of reprisals. Accord- ingly, the Regional Director states in the complaint that he has vacated and set aside the settlement agreement which he had approved on April 30, 1962, and the amended complaint alleges as violations of Section 8(a)(1), Respondent's alleged acts of interference, restraint, and coercion both prior and following the settlement agreement. B. Alleged interference, restraint, and coercion Since, as we have seen, the amended complaint alleges coercive conduct after the settlement agreement as well as before it, the threshold question before me is the effect of the settlement agreement on the prior conduct. I cannot accept Respondent's contention made at the hearing that the settlement agreement "wiped out charges of violations that were embodied in it" as long as "the Company did what the settlement agreement called on it to do, namely, posted the notice that it stipulated." 3 The rule is well settled that independent or continuing violations of the Act constitute a breach of a settlement agreement and justify the Regional Director in setting aside that agreement and proceeding with a complaint which covers both presettlement and postsettlement violations. The Wallace Corpora- tion v. N L.R B., 323 US 248, 253-255; W. Ralston & Co., Inc. and Technical Tape Corporation, 131 NLRB 912, 917, enfd. 298 F. 2d 927 (C A. 2); International Brotherhood of Teamsters, Chaui ears, Warehousemen and Helpers of America, General Drivers and Helpers, Local No. 554, AFL-CIO (Clark Bros Transfer Co., et al.) v. N.L R B., 262 F. 2d 456, 460-461 (CAD C.). A Board proceeding is designed to protect the public interest and the Board may-if indeed it is not re- quired to-set aside a settlement agreement which has failed of its purpose. If, therefore, there was in this case substantial unlawful conduct following the settle- ment agreement, the Regional Director was wholly justified in vacating the agree- ment and in proceeding with a complaint which covers both presettlement and 3 Actually the settlement agreement, in addition to requiring posting of the notice, specifically required that "the Employer will comply with all the terms and provisions of said notice" RADIATOR SPECIALTY COMPANY 353 postsettlement conduct . Lincoln Bearing Company , 133 NLRB 1069 , 1073-1074, enfd. in this respect 311 F. 2d 48 (C.A. 6). I therefore first turn to a consideration of the postsettlement violations allegedly committed by Respondent. 1. The postsettlement conduct a. Henry Hall Employee Culbert testified that sometime during the first week of May 1962, after Respondent had posted the notice provided for in the settlement agreement, he and employees Coleman, Rountree, and Curtis Thompson were standing around the drinking fountain and were discussing the likelihood of a strike? Culbert asked Henry Hall, an admitted supervisor who was standing nearby, "what would happen if we went on strike." Hall replied that "if you go on strike, you will be fired, and they will get other workers to come in." Culbert testified that Hall went on to say that the Company would not sign a contract and that it would close the plant. Coleman, Rountree, and Thompson corroborated Culbert's testimony and Culbert's prehearing affidavit signed on May 24, 1962, which is in the record, is fully consistent with Culbert's recollection of the incident. Gertrude Ford, a member of the Union 's negotiating committee, testified that almost "constantly" after the negotiations started, including the period after the notice was posted, Foreman Hall would question her about the progress of the negotiations after returning from bargaining meetings . When Ford would say that little or nothing was accomplished, Hall would reply, "Well, see, what did I tell you? You're not going to get a union, you're not going to get a contract ." 5 Ford also tes- tified that in May 1962, before going on strike , Hall, who was her supervisor , said to her that she was doing good work but "it's too bad you had to mess up with the union ... You are going to be hurt.... In fact, a lot of good people are going to be hurt. If you go out on strike, you are going to be discharged." Foreman Hall flatly denied the remarks attributed to him by Coleman, Rountree, Thompson, and Ford, stating that he had never discussed with employees the sub- ject of contract or strike . On cross-examination, however, he admitted that he did discuss the strike with employees "to the extent that the Company would main- tain production, that we would have to maintain production." Be also admitted that when Ford would return from bargaining sessions he would "occasionally" ask her "how things had gone." Hall also admitted having had discussions with Cul- bert. Under all the circumstances, including my observations of the demeanor of the witnesses while testifying, I do not credit Hall's denials. It is hardly likely that Hall, who admittedly talked to the employees about union matters, did not also address himself to the subject of contracts and the employees' concern about their job security which, during the period in question (the first week in May), was uppermost in the minds of the employees. I credit the testimony of employees Culbert, Coleman, Rountree , and Thompson, whose testimony was mutually cor- roborative, and that of Ford who appeared to me to be a credible witness.6 b. Norbert J. Welch Employee Gates, who, like Ford, was a member of the Union 's negotiating com- mittee, testified that Foreman Welch had questioned him also about the progress of the negotiations. When, on one occasion around May 1, 1962, Gates told Welch that the Union would go on strike, Welch allegedly told him: "I hate to see you go on strike; you have your family and kids to look forward to; you have a great future in front of you." According to Gates, Welch, in answer to Gates' question as to "what would happen" in case of a strike, replied that Gates "would be dis- charged." Welch frankly admitted talking to Gates about the strike but he claimed 4 The possibility of a strike was at that time a matter seriously under consideration by the Union The Union in fact called a strike on May 15, 1962. 6 Employee Patton testified that she worked near Hall 's desk and that she overheard some of these conversations She stated that when Ford would remark that nothing much was accomplished , Hall would say, "You are just wasting your time because Mr Blumenthal (the company president ) is not going to sign a contract" 0 In making the finding regarding Hall 's threat to discharge employees if they went out on strike, I have not overlooked the fact that the Company on January 17, 1962, sent its employees a letter (infra) In which the Company , although seeking to discourage strike action , did not go so Bar as to threaten discharge In my view, this letter , written about 4 months before the events here in question , did not operate to neutralize hall's coercive remarks. 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he merely told him that "the plant was going to work" and "if we had to replace the employees we would." I credit Welch's version of the incident rather than Gates'. Gates was one of the champions of the Union's cause in the plant, who, as related in detail infra, artfully posed to the Company as an antiunion employee and thereafter collaborated with Respondent's plant manager (McKiernan ) and personnel manager (Waggoner) in devising a program for defeating the Union in the then pending election. The revelation that Gates was in fact a union leader came to the Company when Gates, after the election, made his appearance as a member of the employee negotiating committee which, according to the record, was in December 1962. I cannot believe that in the light of these circumstances any company supervisor would have expressed any concern about Gates' future with the Company. Moreover, Welch appeared to me to be a more credible witness than Gates , and I accept Welch's testimony rather than Gates'. Accordingly, I find that the foregoing alleged threat was not in fact uttered by Welch. c. George McKiernan Employee Barbara Ellerbe, another member of the Union 's negotiating commit- tee, testified that around the second week of May 1962 (when the Union in meetings with the Company had been discussing the possibility of a strike) she approached Plant Manager McKiernan at work and asked him what would happen to her job in case of a strike. According to Ellerbe, McKiernan said that he could not tell her what to do in case of a strike but that if she walked out she would be discharged. McKiernan allegedly also said, "You people should stop and think of what you are doing before you walk out." McKiernan admitted that he had discussed the question of the strike with Ellerbe when the latter asked him what would happen in the event of a strike. He testified, however, that all he said was: "Barbara, you sit in these negotiation meetings just like I do; you have heard what was said, and we did say that we would replace the people, if they walked out." Under all the circumstances I credit McKiernan 's version of the incident in this instance rather than Ellerbe's. McKiernan's explanation of the incident appears adequate and plausible. And it is hardly likely that McKiernan, who as the record shows, was no novice in dealing with unions and union matters , would openly com- municate an outright threat to a member of the Union 's negotiating committee. 1 am convinced that if McKiernan had been disposed to coerce Ellerbe , he would have done so in a more subtle and circumspect manner. d. Julius Waggoner Delphia Erwin testified that on May 15, 1962, the first day of the strike , Personnel Manager Waggoner (an admitted supervisor ) called her to return to work , promis- ing her protection if she did so. Erwin was on pregnancy leave at the time, but she promised to report. Erwin apparently changed her mind and, according to her testimony, the next day Waggoner called her again, requesting her to report if she valued her job with the Company, promising her permanent employment so, long as the Company existed if she reported for work, but warning her that she would "never have a job" if she did not. Erwin did not in fact report to work. Alberta Bennett testified to a somewhat similar call from Waggoner on the first day of the strike. Bennett testified that she reported for work on May 15, 1962, but that she did not actually work because of the pickets around the plant; and that later in the evening she received a call from Waggoner who told her "if I report to work tomorrow . . . that I could get my job back with an increase in my salary, but if I didn't, that I would be fired." Bennett refused to work. Waggoner flatly denied the conversation attributed to him by Bennett, but he made no specific reference to the conversation attributed to him by Erwin. I do not credit Waggoner's denials. Waggoner did not appear to me to be a wholly forthright witness. He was frequently argumentative and evasive on the witness stand and I could detect a tone of hostility in his responses that belied a forthright attitude. On the other hand, Erwin and Bennett testified with apparent candor and there is nothing in the record which would justify the repudiation of their testimony. Conclusions Respecting Respondent's Postsettlement Conduct In view of all of the foregoing, I find that Respondent has, since the execution of the settlement agreement on April 30, 1962, interfered with , restrained, and coerced its employees in violation of Section 8(a)(1) of the Act by the following RADIATOR SPECIALTY COMPANY 355 conduct of its supervisors which, in my view, tended to coerce the employees in the exercise of their rights guaranteed in Section 7 of the Act: (a) Supervisor Henry Hall's threatening remarks to employees Coleman, Roun- tree, and Thompson to the effect that they would be fired if they went on strike, that the Company would not sign a contract with the Union, and that it would close the plant. (b) Hall's statement to employee Ford that the Company would not sign a contract, that she and other employees are hurting themselves by "messing" with the Union, and that she would be discharged if she went out on strike. (c) Personnel Manager Waggoner's solicitation of employee Erwin on the first day of the strike to return to work if she valued her job, promising her benefits if she did and threatening her with reprisal if she did not .7 (d) Waggoner's similar solicitation of employee Bennett to return to work on the first day of the strike, promising her benefits if she returned and threatening her with reprisals if she did not. I find that Respondent did not violate Section 8(a)(1) by Foreman Welch's alleged threat to employee Gates and Plant Manager McKiernan's alleged threat to employee Ellerbe-which threats, as I found, were not in fact uttered. I find that the Respondent, by reason of the conduct of Supervisor Hall and Personnel Manager Waggoner described, above, did engage in substantial unlawful conduct which constituted a breach of the settlement agreement and justified the Regional Director in vacating the agreements I conclude, therefore, that the ques- tion of the legality of Respondent's presettlement conduct is properly before me. I now turn to a consideration of that conduct. 2. The presettlement conduct a. The Company's alleged formation of, and support to, a committee to solicit and encourage the defeat of the Union The General Counsel adduced considerable testimony and evidence purporting to show that around the second week of August 1961, Plant Manager McKiernan and Personnel Manager Waggoner induced employee James D. Gates to form a committee to solicit and encourage employees to defeat the Union in the forth- coming Board election scheduled for September 7, 1961; and that Respondent had contributed financial and other support to this committee. Gates testified that on or about August 14, Supervisor Ball, after some discussion of the union campaign, took him to see McKiernan and Waggoner; that McKiernan suggested that he form a committee to defeat the Union in the election; that McKiernan supplied him the names of several committeemen, although he in turn suggested changes in the com- position of the committee; that he and another committeeman whom he proposed, James M. Gaither, thereafter secretly met with McKiernan and Waggoner at the airport some distance from the plant, where McKiernan gave them instructions how to conduct the antiunion campaign; that the two company officials furnished them with cards and lists of employees to visit for this purpose; and that McKiernan from time-to-time gave him "gas money" for expenses. Gates further testified that during their rendezvous at the airport and elsewhere, McKiernan revealed to him and Gaither the Company's antiunion attitude and the extent to which it would go to keep the Union out of the plant. Thus, Gates testified that McKiernan told him that "the boss would never sign a contract" with the Union; that he (McKiernan) would quit his job as manager before he would allow a checkoff of dues; that there were "two ways to beat the Union . one is to beat them in the election, and beat them at the bargaining table, and make them strike, and the Company will go out and hire people by the truckloads to take their jobs"; and that according to McKiernan "three white guys" were behind the Union, one of whom already quit while the other two would be eliminated from the plant by the Company. Gaither, whom the General Counsel called as a witness, in general corroborated Gates' testi- mony. Apparently Gates and Gaither were quite successful in concealing their prounion sympathies from the Company because the Company called upon both to act as its observers in the Board election, and it was not until Gates showed up as a member of the Union's negotiating committee that Gates revealed his double role. 7 See NL .R.B. v. Montgomery Ward if Co., 133 F. 2d 676, 681 (,C.A 9) ; American Rubber Products Corporation v N L R B., 214 F 2d 47, 54 ('C A 7). 1In view of this finding I need not decide whether Respondent's additional violations which I find infra (including Respondent's refusal to bargain with the Union beyond the date of the settlement agreement ) also constituted a breach of the settlement agreement. 717-672-64-vol. 143-24 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McKiernan and Waggoner as witnesses for Respondent conceded that they had met with Gates and Gaither and that they had discussed with them ways and means of defeating the Union in the forthcoming election. McKiernan frankly acknowl- edged that he had furnished them a list of employees to serve on the antiunion committee and that he had discussed its composition; that he and Waggoner ar- ranged to give them cards containing the names and addresses of the employees to permit the committee to contact the employees; and that Waggoner also supplied them with a union booklet as testified by Gates. Both testified, however, that it was Gates who took the initiative in proposing the formation of the committee and that it was Gates who requested the names and addresses of the plant employees. Each denied that McKiernan had given any gas money to Gates or anyone else on the com- mittee. McKiernan and Waggoner also admitted discussing union matters at their airport meetings with Gates and Gaither, including the committee's alleged progress in contacting employees, McKiernan's past experience in a strike in which he was involved at another plant, and checkoffs and closed shops. They flatly denied, how- ever, any of the threats attributed to McKiernan by Gates and Gaither. I do not deem it necessary to resolve the conflicts in the testimony of the General Counsel's witnesses and Respondent's witnesses on this point. While there is no question in my mind that in ordinary situations the activities of McKiernan and Waggoner-even to the extent that they admitted participation-constitute inter- ference with organizational activities proscribed by Section 8(a)(1) of the Act, it is my view, for the reasons outlined below, that the activities here were induced by Gates and Gaither under false pretense-or, as Respondent's counsel aptly charac- terized it at the hearing, a program of "deception"-and therefore it would not effectuate the purposes of the Act to lend the Boards' processes to remedy the alleged employer conduct. Thus, Gates conceded that it was he who first broached the subject of the Union to Supervisor Ball Gates, a devout unionist, posing as a union opponent, came to Ball with a troubled look and, as Ball credibly testified, Gates said to him that he "had a lot of children, that the union had him worried, and he was worried about a strike, and worried about how he could take care of his children, if he had to go out on strike; and wanted to know if we could do anything about it." Gates then repeated his alleged fears when Ball led him to McKiernan, telling these com- pany officials, in Gates' own words, "I don't like this union mess, because I know of a time in Chicago during '56 or '57 they had a strike there, and I know how the people was out of jobs, and how they was going to the commissary for food." Gates then prevailed upon McKiernan to put on the antiunion committee James Gaither and Margaret Farley, two unionists who Gates pretended were antiunion. From time to time-on at least four occasions-Gates approached McKiernan for "gas money" which, as he acknowledged he did not in fact use for gas because, pro- union as he was, he had no intention to campaign against the Union 9 Instead, Gates divided the money among members of his phantom committee.10 When pressed on cross-examination to explain why he had resorted to his campaign of "deception," Gates protested that he was "afraid I would be fired" and that he was only "protecting" himself.ll Gaither, too, denied any intention "to frame the Company" and explained his alleged acceptance of the "gas money" by stating: "If the Company was issuing out money, handing out money, why not accept its" Farley testified that Gates had informed her that he (Gates) wanted her to remain on the committee "because they were of the impression that I was one of the organizers, and to protect my job, he chose for me to work with him." Without in any way condoning Respondent's activities-for at the very least they demonstrate the extent to which Respondent was willing to go to defeat the Union-I believe that the Board should not lend its processes to protect the activities of Gates and Gaither, enmeshed as they were in pretense and deception. Cf. 9 At one point Gates testified that he and Gaither did visit one employee but this em- ployee would not talk to them. He also stated that he met with some members of his committee on one occasion because he did not know whether McKiernan "would have somebody watching me to see actually if I was working for him or not . . I didn't know whether he had me trailed or what " 10 Gates gave Gaither $15 of the first $30 he allegedly received from McKiernan Feign- ing the need for more, he allegedly obtained $25 on another occasion, $20 more later, and an additional $10 In what appeared to be a mysterious envelope that McKiernan allegedly sent him through Foreman Welch. Gaither received altogether $30, Farley $13, and Blair, another member on the committee, $10. 11 Gates conceded, however, that he knew of no one during or after the union campaign that was fired for union activities. RADIATOR SPECIALTY COMPANY 357 Vaughn Bown, et al., 93 NLRB 1147, 1153-115412 To do so would operate to subvert the integrity of Board proceedings. It might also well encourage employees to entrap employers into violations and, indeed, encourage economic espionage- activities not conducive to industrial peace. Moreover, a finding that the Com- pany's activities constituted violations will not affect the scope of the order to be recommended herein for the violations found. b. Company President I. D. Blumenthal's speeches Several General Counsel witnesses testified that I. D. Blumenthal, the president of the Company, addressed groups of employees on various occasions prior to the election in September 1961, in the course of which he made certain coercive state- ments. Thus, employee Culbert testified that Blumenthal, in addition to relating to the assembled employees how he "had raised this company from a baby," and stating that no union could tell him how to run his company, and requesting the em- ployees to vote against the Union, Blumenthal also warned that "even if we wanted an election, that we still wouldn't get a contract." Culbert stated that in a second speech, Blumenthal referred to newspaper clippings and told the employees that "unions were not any good for the employees ... and for us to vote no, and to keep the Union out of the plant." Employee Patton likewise referred to a speech in which Blumenthal talked about raising the plant like a child but, Patton added, Blumenthal further stated that if they voted in the Union they "are voting in trouble." Employee Hicklin recalled that Blumenthal, in addition to telling the employees not to vote for the Union, stated that he "wasn't going to have no union in the plant." Employee Bennett recalled that when Blumenthal talked about rais- ing the plant "from a baby," he added that "no union would come in there and tell him how to run his plant." Plant Manager McKiernan, who testified that he was present when Blumenthal addressed the employees, confirmed that Blumenthal spoke about bringing the plant up "from a baby," that Blumenthal told the employees that he would not "have anybody tell him how he should manage the plant," and that Blumenthal read off newspaper articles on strikes. He and also Personnel Manager Waggoner, who was also present, denied, however, that Blumenthal had made any threatening remarks and, more specifically, that Blumenthal had said anything with respect to bargaining or contracts. I credit the testimony of McKiernan and Waggoner in this instance rather than that of the employee witnesses who had attributed direct or implied threats to Blumenthal. I note that employee Gertrude Ford, an avowed union leader and chairman of the Union's employee negotiating committee (infra), specifically dis- claimed hearing any reference to any contract signing in either one of the two Blumenthal speeches which she had heard; she testified, as McKiernan and Waggoner did, that Blumenthal merely made general references to his raising the plant "from a baby" and his unwillingness to take dictation from unions. Employee Rountree, another General Counsel witness, testified to the same effect and he also mentioned Blumenthal's reference to newspaper clippings dealing with strikes at another plant, and his appeals to vote against the Union. Indeed, employee Gates who, as we have seen supra, was one of the Union's leading spirits at the plant, made no refer- ence whatever to any coercive remarks in his recitation of the two speeches he heard. And while employee Culbert quoted Blumenthal as saying that he would not sign any contract, he admitted that he had made no reference to any such remarks by Blumenthal in his sworn prehearing affidavit. I find that the preponderance of credible and probative evidence does not support a finding that I. D. Blumenthal had uttered any unlawful coercive remarks in any of his speeches to the employees. I find that whatever coercive remarks were at- tributed to him by the General Counsel's employee witnesses stemmed from the employees' erroneous recollection or misinterpretation of the statements made by Blumenthal. I further find that the statements actually made by Blumenthal-that he would not permit any union to tell him how to run his plant which he raised "like a baby," his appeals to the employees to turn down the Union, his reference to strikes in other plants and difficulties that might ensue from the establishment of the Union at his plant-though evidencing strong union animus-were protected by the free speech proviso of Section 8(c) of the Act. "The Board "is not required by the statute to move on every charge ; It is merely en- abled to do so. It may decline to be imposed upon or to submit its process to abuse " N L R.B v. Indiana i€ Michigan Electric Company, 318 U S. 9, 18-19. See also N.L R.B v Donnelly Garment Company, 330 U.S. 219, 235. Cf. N L R.B. v. Fulton Bag d Cotton Malls, 180 F. 2d 68, 70-71 (C.A. 10). 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD c. Henry Hall Employee Gates testified that after the election Foreman Hall accosted him and told him that he heard that Gates had signed up more union members than anybody else; that when Hall saw Gertrude Ford approach them, Hall referred to Ford as that "big union representative"; and that Hall then said, "You must remember that you are in the South; the union will ... never work in this plant, and the boss will never sign a contract, and if you go out on strike, the Company will go out and hire people by the truckloads." Employees Hicklin and Gertrude Ford, who testi- fied as to the same encounter, corroborated Gates' testimony. Ford also testified that shortly after New Year's when, she, Mattie Patton, and Mary Thompson were working together, Hall refused to permit them to take off a half day on Saturday. Hall said to Thompson, "Your Mr. Minch, the union representative, kept you all from getting a raise." According to Ford, Hall also said that Culbert "was due for top salary but since he was for the Union he won't get it now," and that "a lot of good people are going to be hurt by this union." Patton testified to the same effect. Mary Thompson was not called as a witness. Patton also testified that in the latter part of January, Hall asked her if she was going out on strike. She replied that she was not "crazy" but she then asked what would happen if she did. Hall replied that he would not advise her to go out because "you might get back in, and you might not; it might take 3 months, 5 months, a year or you might not ever get back." Foreman Hall either denied the statements attributed to him or stated that he could not recall them, or made no specific reference to them Under all the cir- cumstances, I credit the testimony of the employee witnesses whose testimony in this respect was straightforward and convincing. I have already found that Hall did not strike me as a credible and trustworthy witness. While I have had some reservations about the reliability of Gates as a witness, his testimony in this instance is fully corroborated by Hicklin and Ford. Moreover, the statements attributed to Hall strike me as inherently probable, particularly in view of the fact that they conform to the pattern of Hall's conduct. d. George D. Shipman Employee Culbert testified that Shipman, his foreman and an admitted supervisor, said to him after one of Company President Blumenthal's speeches to the employees (supra), "You can't do anything with the Great White Father; 13 he really knows his stuff, and it's not going to do the Union any good to try to get in there, because they aren't going to get in, and that he wasn't going to sign no contract, even if the Union were going to get in." Alan Love, one of the employees whom Culbert identified as being present, corroborated Culbert in substantial part. Culbert also testified that on one occasion, when Shipman reprimanded him for dropping some rubber on the floor, Shipman told him that the employees better watch out, that when the Company moved over to the new building it would only transfer the people it wanted to, and that it would not transfer any union people. Culbert also testified that when, after the election, he reported to other em- ployees 14 that Blumenthal refused to sign and permit others to sign the tally sheet, Shipman, who was nearby, remarked, "I knew he wasn't going to sign it; I knew that all the time; he ain't going to sign no contract, either." John Thomas testified that Shipman, who was his supervisor, came to him one day in December when the rest of the men had gone to a negotiating meeting, patted him on the back, and said, "You are the only one of the fellows that have any sense, by staying on the job, because Mr. Blumenthal will never give them a contract; that I know." Shipman in his testimony flatly denied all of the foregoing statements attributed to him, claiming that he did not talk to employees about union matters. I do not credit his denials. Shipman, like Hall, impressed me as an individual who had no compunctions about injecting himself into the affairs of the employees. Viewed in the light of the entire record herein, it appears highly probable that the conversa- tions described by Culbert and Thomas did take place, and I so find. 15 Practically all of the Company's plant employees were Negroes ; Shipman was also a Negro 11 Culbert was one of the Union's election observers. RADIATOR SPECIALTY COMPANY 359 e. Julius Waggoner John Thomas testified that when he returned to work for the Company the second week of September 1961, Personnel Manager Waggoner asked him how he felt about the Union. When he replied that he knew nothing about it, and that he never belonged to one before, Waggoner gave him an employment application and he was hired Waggoner admitted that the subject of the Union was mentioned when he interviewed Thomas, but he denied that he had indicated that Thomas would be hired if he was against the Union, adding that he (Waggoner) "never questioned employees as to what their feelings were about the Union" as this was something "personal" with the men. I credit Thomas' version of the incident. I have already found that Waggoner did not generally impress me as a wholly reliable witness. On the other hand Thomas impressed me as sincere and forthright. f. Andrew Varab Employee Thomas also testified that one day in December 1961, after he and employee David Grier were arguing about a tool, Foreman Varab (an admitted supervisor) said that he would not tolerate arguing, that the men had become "smart" since the Union came in; and that "there would be no contract, in this plant, and the Union won't stand in this plant; so if you fellows want to stay on the job, you had better get on the ball." Grier generally confirmed Thomas' testimony. Varab in his testimony admitted that he remembered the incident but only after his memory had been refreshed by the employees' testimony. He denied, however, that he had made any reference to union matters. I credit Thomas' positive testimony on the incident rather than the testimony of Varab who, as he admitted, had only "a vague memory" of the incident. Conclusions Respecting Respondent's Presettlement Conduct In view of all of the foregoing, I find that Respondent interfered with, restrained, and coerced its employees, in violation of Section 8(a)(1) of the Act, by the follow- ing conduct of its supervisors: (a) Supervisor Henry Hall's threatening remarks to employee Gates, in the pres- ence of employees Hicklin and Ford, that the Company will never sign a contract with the Union.15 (b) Hall's statement to employee Mary Thompson, in the presence of employees Ford and Patton, that the Union's representative "kept you all from getting a raise" and that employee Culbert would not get a wage increase because of his union sympathies, and his further statement that "a lot of good people are going to be hurt by this union." (c) Hall's statement to Patton that in the event of a strike she might never return to work. (d) Foreman Shipman's threatening remarks to employee Culbert that the Com- pany was not going to sign a contract; and that when the Company transferred employees to the new building it would not take along union people. (e) Shipman's statement to employee Thomas that the Company will never give the Union a contract. (f) Personnel Manager Waggoner's questioning of employee Thomas at the time of his employment interview concerning his union membership. (g) Foreman Varab's statement to Thomas to the effect that the Union would not be established in the plant and that there would be no union contract. I find that Respondent did not violate Section 8(a)(1) of the Act by the speeches delivered to the employees by Company President I. D. Blumenthal. As to Re- spondent's alleged formation of and support to a committee to solicit antiunion votes and encourage the defeat of the Union, I find that, in the peculiar circum- stances of this case, it would not effectuate the purposes of the Act to remedy Respondent's alleged conduct.1e 16I do not find unlawful Hall's further statement that in case of a strike the Company will "hire people by the truckloads" as this statement is equally consistent with a state- ment that the 'Company in such event will hire permanent replacements, an action which it had a clear right to do 1e The amended consolidated complaint alleges certain conduct by company supervisors, both before and after the execution of the settlement agreement-other than those herein- before described-as constituting violations of Section 8(a) (1). I find that the General Counsel failed to adduce any credible and probative evidence to support these additional allegations. 360 DECISIONS OF NATIONAL LABOR RELATIONS BOALD C. The alleged failure to bargain in good faith 17 1. Background As noted at the outset of this Intermediate Report, the Union was, on Septem- ber 15, 1961, certified as the statutory bargaining representative of Respondent's em- ployees in an appropriate unit. On September 29 and October 2, 1961, Harold W. Minch, a union representative, contacted Herman Blumenthal, Respondent's vice president and general manager, and requested bargaining. The parties held, al- together, 37 meetings between October 4, 1961, and August 7, 1962. Proposed contracts were exchanged, the Union presenting its original draft on October 27, 1961, and revisions therein in April 1962; and Respondent presenting its drafts on November 17 1961, and January 17, 1962, respectively. Representing the Union at the initial conferences were Minch and a six-man employee committee. Re- spondent was represented by Blumenthal, Plant Manager George McKiernan, and Personnel Manager Waggoner. The composition of the Union's committee changed from time-to-time, and for sometime in the negotiations the employee committee was enlarged to 38. Respondent's representatives were the same throughout, with Herman Blumenthal acting as chief spokesman 18 A Federal conciliator first par- ticipated in the negotiations on February 5, 1962, and he thereafter attended all bargaining sessions on and after May 1, 1962. 2. The bargaining conferences a. The initial bargaining conferences The first bargaining conference was held in the Company's conference room on October 4, 1961. It was "just a general get-to-gether" at which the negotiators introduced each other.19 A few grievances were aired and the meeting was ad- journed in little over an hour. The Company proposed to meet again 10 days later but Union Representative Minch wanted an earlier meeting and no fixed date was set. By a letter dated October 19, Minch suggested that they meet again on October 24 but, hearing nothing further from Respondent, Minch failed to show up at the suggested meeting. After some correspondence and telephone commu- nications, the next meeting was set for October 27. At the October 27 meeting the Union consented to the Company's granting of merit wage increases to certain employees in the bargaining unit. The parties dis- cussed clause by clause the draft of a collective-bargaining contract submitted by the Union. The proposed draft included a preamble identifying the parties to the contract, and other clauses on the purpose of the agreement, union recognition, union security or checkoff, management prerogatives, hours of work, overtime, grievance procedure, holidays, seniority, leaves of absence, vacation, bulletin boards, safety and good housekeeping, general rules, and termination. The wage clause apparently was incomplete as the Union had not as yet secured any data on exist- ing classifications and pay rates. The preamble clause which was to become one of the controversial subjects in the ensuing negotiations named a local of the Union (not yet designated or created) as the party to the agreement rather than the Inter- national which itself was designated in the Board's certification?° The Company indicated that it could not meet again until November 6, while the Union suggested an earlier date, offering to meet evenings and weekends if necessary to suit the Company's convenience. The parties later agreed to meet on November 6, giving the Company in the meantime an opportunity to study the Union's proposals At the November 6 meeting the parties again discussed the Union's proposals and the Company submitted the wage and classification data previously requested by 17 The findings in this section are in large part based on documentary evidence and un- disputed testimony. To the exent that the findings are predicated on disputed matters, the findings reflect what I have concluded, after careful consideration, to be the credible and the preponderant evidence and testimony. 18 Blumenthal attended all of the 37 bargaining sessions, and McKlernan and Waggoner all but 1 each Blumenthal testified that the instant negotiations were his "first experi- ence" while McKiernan stated that he had participated in negotiations with the Union while employed at other plants 19 The employee committee initially designated to sit with Union Representative Minch was: Getrude Ford, Barbara Ellerbe, Ellen Watts, Charles E. Culburt, Ralph Barber, and John Love. 21 The Union first chartered a local (Local No 668) with jurisdiction in the area of the Company's operations on April 13, 1962 RADIATOR SPECIALTY COMPANY 361 the Union. There ensued another discussion of the next meeting date and it was ultimately agreed to meet November 17. b. The November 17 conference; the Company's counterproposals, including its grievance (without arbitration) and union liability proposals At the November 17 meeting the Company submitted its first written counter- proposals. Like the Union's draft, the Company's draft contained provisions on terms and conditions of employment. The preamble clause named the International, rather than a local of the International, as the party to the contract. The proposed draft contained two major clauses which, in subsequent negotiations, became major bones of contention. One of the clauses-the "grievance-procedure" clause (article VII)-set forth four steps for the resolution of grievances: (1) informal discussions between the Union's and Company's departmental or shift representatives; (2) formal handling by the Union's departmental representative and the departmental foreman; (3) dis- cussions between the Union's plant grievance committee and a company repre- sentative; and (4) submission of the grievance to representatives selected separately by the Union and Company "for final discussion and settlement." At the hearing company counsel explained that the last step represented "a further and final effort to settle" the grievance through the representatives of the parties and if this step failed, "the company's decision on the matter would stand." The Union's draft proposals (article VIII) provided for similar steps for the resolution of the grievance through the fourth step, but a fifth proposed step called for the submission of the grievance to an impartial arbitrator whose decision, it was stipulated, would be "final and binding upon both parties." 21 The second controversial clause contained in the Company's draft was the "No Strikes, No Lockouts" clause (article XVI) which provided as follows: During the term of this Agreement the Company shall not engage in any lockout of employees, but this provision shall not be construed as limiting or impairing the right of the Company to cease or to reduce its operations on account of business necessities. If the Company either directly or indirectly violates any provision of this paragraph, the Union shall have such rights and recourse as the law may provide, including liability for any and all injury or damage which may result from such violations. It is understood that the liability here provided for shall extend to the full resources of the Company. During the term of this Agreement there shall be no strike, walkout, slow down, work stoppage, nor picketing, nor any other concerted action of any nature which has its purpose or effect the interruption of or interference with the Company's production. If the Union, either directly or indirectly, author- izes, promotes, supports, or condones any violation of any provision of this paragraph, the Company shall have such rights and recourse as the law may provide and the Union shall be subject to such liability as the law may provide, including liability for any and all injury or damage which may result from such violations. It is understood that the liability here provided for shall ex- tend to the full resources of the Union and shall not be confined to the resources of any local which may have been or may be chartered by the Union. Respondent's draft proposal did not vary significantly from the Union's draft on such matters as recognition of the Union, purpose of the agreement, management prerogatives, hours of work, safety and housekeeping, and termination of agreement. There were, however, substantial differences on other matters proposed in the Union's original draft, apart from the nature of the preamble clause, the omission of binding arbitration from the grievance clause, and the inclusion of the "No Strikes, No Lock- outs" clause Thus the Company's draft did not contain a union-security or check- off provision. It provided for time and one-half after 40 hours in any workweek but no premium pay for work on Saturdays and Sundays. It contained no equaliza- tion-of-hours clause. No wage increases were proposed. Different holidays and eligibility requirements for holiday benefits were provided. Seniority was not de- termined on a plantwide basis as proposed by the Union. Leaves of absence were to be granted for "illness or for other just cause" without spelling out in detail, as the Union draft did, the circumstances constituting just cause. There were substan- n The Union's draft (article VIII, section 2(e)) further provided- The Impartial Arbitrator shall have no authority to modify or change the terms of this agreement, nor shall he have the right to add or substract from this agreement He shall, however, have the authority to interpret and apply the terms of this agree- ment to the extent necessary for the determination of grievances presented to him. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tial variances in the amounts and methods of computation of vacation benefits. The Company's bulletin board clause was less specific than the Union's. The "gen- eral rules" clause failed to list many requirements contained in the Union's clause such as maintenance by the Company of sanitary conditions, safe and good working facilities, allowance periods for lunch and cleanups, and retention of the existing group life and hospital and surgical insurance benefits. Finally, the Company's draft omitted the wage reopening clause contained in the Union's draft. During the November 17 meeting the parties first came to grips with the issues. Union Representative Minch stated that the Company's draft was unacceptable but the Union would give it further consideration. He complained that the Com- pany "had offered nothing" on the major issues and he strenuously objected to the "liability" provisions contained in the "No Strikes, No Lockouts" clause, and the omission of arbitration from the grievance procedure clause. Company Vice Presi- dent Blumenthal took the position that "the Company could not submit to an outsider making decisions involving their plant," asserting that it "had to have the final say in anything that required decision in the operation of their plant." The November 17 meeting lasted approximately 2 hours, part of which (about 20 minutes) was devoted to a discussion of the next meeting which, Blumenthal stated, could not be held until November 30 because he had to attend a sales meeting and a meeting at a laboratory in Chicago. The Union objected to the delay and again offered to meet weekends. By a letter dated November 20, Blumenthal advised that he would meet with the Union on November 30 and, if needed, on December 1. By a letter dated November 22, Minch agreed to this arrangement, protesting, how- ever, the "lapse of time between meetings" and pointing out that the employee com- mittee is losing its patience due to the long lapses between meetings and the "sub- standard" contract offered by the Company. c. The November 30 and December 1 and 7 conferences The next two meetings were held as scheduled on November 30 and December 1, the former lasting 2 hours and the latter much less. The parties discussed both the Company's and the Umon's drafts and at one of the meetings also the grievance of an employee. The next meeting, held on December 7, was in Blumenthal's words "quite a meet- ing " Prior to the meeting Minch in the customary manner approached Personnel Manager Waggoner and asked for the release of the members of the employee negotiating committee in order to enable them to attend the scheduled bargaining session. This time Minch handed Waggoner a letter notifying the Company that the Union had added 32 additional employees to the employee committee and he demanded their immediate release to attend the negotiations.22 Blumenthal, who was summoned by Waggoner, protested that some of the new committeemen could not be spared from work, that he was entitled to "a little notice," and, in any event, that it was impossible to accommodate all of the committeemen in the small con- ference room in which the parties theretofore met. Blumenthal finally agreed to release the newly appointed committeemen although this resulted in a shutdown of practically the whole pressroom and mixing department. The meeting was there- after held in a room procured by the Union in the McCrory YMCA, attended by the full committee and several other employees who left without permission 23 Once settled down, the December 7 meeting lasted 5 hours, the parties discussing the company and union draft agreements, paragraph by paragraph, until 9 p m. 22 James Gates and James Gaither were two of the men added to the employee committee. 13 Minch both in the letter he handed Waggoner and at the hearing explained that the committee was enlarged in order to afford a larger cross-section of the employees to see the attitude of the Company, the lack of progress in the negotiations, and the 'Company's dilatory tactics At the same time he stated that it was felt that the participation of the large committee would facilitate better understanding of the issues, facilitate progress in consummating an agreement, and even help avoid a strike On cross-examination, Minch denied that his purpose for enlarging the committee was, as a newspaper reporter quoted him as saying, to "harass" the Company in order to force concessions. He admitted, how- ever, that he knew that the presence of the 38 employees at the eight bargaining sessions in which they participated was "bound to" inhibit plant production and that in at least one bargaining session the committeemen were all "jumping up and Jabbering, giving speeches, putting on acts." I credit Herman Blumenthal's testimony to the effect that Minch had admitted to him that the purpose of the "big committee" was to force and wrest concessions from the Company and that Minch's action was, in effect, a harassing technique RADIATOR SPECIALTY COMPANY 363 In a letter dated December 12, 1961, Blumenthal replying to matters previously raised by the Union, including the long time lag between meetings, stated: "We will do our best to meet with you as nearly in accordance with your requests as possible. It must be borne in mind that we have the constant pressures and demands of our business to attend to. These constitute more than a full-time job for all of us here in management of our company. Nevertheless, we will set aside everything we can in order to push ahead toward the completing of an agreement between us " In the same letter Blumenthal complained about the December 7 episode and re- quested a reduction in the size of the employee committee and advance notice of its composition. d. The December 14 and 19 and January 10 conferences; the positions of the parties on the issues The next three meetings on December 14 and 19 and January 10, were held in a conference room in the Company's new building then under construction, and was attended by the Union's large committee. Agreement was reached on some minor issues such as leaves of absence as to which the Company submitted a coun- terproposal. No agreement was reached on the major issues, namely, wages, over- time, union security or checkoff, seniority, the preamble clause, liability, grievance procedure, and arbitration. Although disclaiming inability to pay, the Company would not offer any wage increases. As to overtime, Blumenthal stated that he "liked the Wage and Hour law, and they would not deviate" from their practice "which was in compliance" with that law. As to checkoff, the Company's position was that "they felt that it was an imposition for them to check off," that it was costly, and, moreover, that they didn't even want to know who the union members were." The Union offered to make concessions on other issues provided the Com- pany was willing to change its position on what it considered to be the most objec- tionable clauses, namely, liability, arbitration, and seniority. The Union had pro- posed seniority computation on a plantwide basis but the Company wanted depart- mental seniority. As to arbitration, the Company took the position that "it could not submit to decisions affecting their plant" to a "third party or outsider " As to the preamble clause, the Company insisted that the International be named a party and not the local, as suggested by the Union; Minch indicated, however, that "this would not be a major issue." As to liability, the Company wanted the International to be responsible for unauthorized strikes and stoppages. The Union, however, took the position that the liability clause, subjecting the International to damages for what it was "indirectly" as well as directly responsible, would make it liable "for even nonmembers in the plant, or anything that might occur that could be indirectly blamed on the Union " Minch stated that the Union would accept "reasonable lia- bility," but insisted that "no self-respecting organization could possibly accept a liability clause such as was being proposed by the Company." Before the close of the December 19 session, the parties again argued about the scheduling of the next meeting. The Company advanced "a variety of reasons . . . particularly the Christmas shutdown of the plant" for not meeting until Janu- ary 10 The Union finally acceded to the Company's wishes. e. The bargaining conferences between January 16 and April 27 There were altogether 15 meetings between January 16 and April 27, 1962 24 The January 16 meeting, held in the county courthouse, was cut short by the Com- pany's representatives when the presence of a newspaperman was discovered. On January 17 the Company submitted a revised draft The Company's new draft differed from its original one in that, unlike the latter, it contained an equalization- of-hours clause patterned in some respects after the Union's clause. The same holidays were retained but with more liberal eligibility provisions for holiday pay The leaves-of-absence clause spelled out in detail the circumstances constituting just cause for authorized leave in most respects like the Union's draft did. The original vacation benefit provisions were liberalized and also came somewhat more closely to the Union's demands. The new bulletin board clause was in practical effect the same as the Union's. Finally the "general rules" clause added some, although not all, of the rules contained in the Union's clause. However, the Companv's revised draft retained in substantially the same or similar form the clauses in its original draft on such major items as union liability, grievance procedure without arbitration, " January 16 and 24 , February 6 and 14 March 6, 13 14. 20, 23 and 29 , and April 3, 5. 11, 13, and 27 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seniority, wages and overtime pay, and, like the original draft, it made no reference to union seniority or checkoff. On January 22, the Company complied with the Union's prior request for a seniority list. The January 24 meeting was rather an acrimonious one, the parties devoting a good part of the meeting to the question whether the Company was re- sponsible for a newspaper article describing the majority of the Company's em- ployees as unskilled It was at this meeting that Union Representative Minch, aroused by Company Vice President Blumenthal's statement that "we had been getting along fine prior to the time that the union had interjected" itself at the plant, heatedly told Blumenthal, who is of the Jewish faith, "you know, Hitler was right. Only he didn't go far enough." It was also at this meeting when Minch, again losing his temper, said to Blumenthal that "if you say you are here in good faith, you are a liar." Conciliator Rosenberry of the U.S. Department of Labor entered the negotiations on February 5, the conciliator meeting with the parties separately. At the concilia- tor's request the 38-man employee committee was reduced to its original size-6 men. As hereinafter noted, the conciliator again entered the picture on May 1. The next meeting, scheduled for February 14, was called off when Blumenthal notified the Union that he was tied up in a court litigation on a nonlabor matter which lasted 2 full weeks. Negotiations were not resumed until March 6, when International Representative Frank Femia, who was shortly to replace Minch, ap- peared on the scene. Attempting to impress Femia, Blumenthal placed the blame for the deadlock in the negotiations upon Minch, and as evidence of his good in- tentions Blumenthal agreed to two bargaining sessions that day, one lasting 21/4 hours in the morning and another 2 hours in the afternoon. Responding with a similar conciliatory gesture, Femia agreed to thereafter confine the size of the em- ployee committee to its original size,25 and to meet at the Company's new plant. In the ensuing meetings the parties met and exchanged positions on the issues Two meetings were held in succession on March 13 and 14 26 but when Femia pressed for another meeting the next day, Blumenthal responded that he had other important matters to attend to. The next two meetings were held on March 20 and 23 and a further meeting scheduled for March 27, was, at the Union's request, postponed to March 29.27 At the April 3 meeting Femia informed the Company that the Union "just couldn't put up with it much longer" as the Company "had not made any concessions" and there ensued a long discussion on the possibility of a strike 28 The parties did devote a good deal of time to a discussion of hospitalization benefits which Femia introduced when he entered the negotiations 29 The next two meet- ings held on April 5 and 11 lasted 21/2 hours each. At the April 13 meeting which followed, the parties spent a good deal of time on the subject of wages. On or about April 10, Femia wrote to I. D. Blumenthal, the Company's president, protesting the time lags between meetings which, he said, had been set by the Company at the rate of one meeting per week, although he had requested daily meetings. Femia stated that some meetings lasted as little as 2 hours and that the Company's chief spokesman has stated that "too much time has already been consumed and that there were other more important matters that he must devote his time to." Femia enclosed newly proposed changes in some of the Union's proposals and he requested I. D. Blumenthal to sit in the negotiations.30 On April 12, I. D. Blumenthal replied, stating that it was not necessary for him to attend the negotiations as the Company's representatives were fully authorized to 25 While only the smaller committee met with the conciliator at his office on February 6, the large committee again reappeared at the meeting held in the courthouse on March 6. 26 Blumenthal explained that Femia "came down from Akron to that meeting and asked that we meet those two days in a row, and we agreed to since he had come such a distance " 27 Respondent's Exhibit No 15, which is a letter dated March 26, 1962, confirming the postponement, erroneously identifies the postponement from April 27 to 29. Both Blumen- thal and Femia testified that a meeting was in fact held on April 27 28 Minch testified that the Union had considered strike action as far back as January and a report thereon appeared in a newspaper that month but the matter was not at that time raised in bargaining sessions 29 The Company, pursuant to the Union's request, supplied the Union with data on the cost of the hospitalization plan proposed by the Union. 30 One of these proposals dealt with liability The Union undertook to "actively dis- courage and endeavor to prevent or terminate" any work stoppages or slowdowns arising out of disputes subject to the grievance procedure Any employees "violating the provi- sions of this article [were to be] subject to disciplinary action " The Union was to be absolved from monetary liability for any breach of the article RADIATOR SPECIALTY COMPANY 365 negotiate; and that as for the frequency of the meetings, the Union should bear in mind that "the Company representatives have many other duties which it is neces- sary for them to attend to" but that he has asked them to "give as much time as they can to these negotiations, consistent with their attending to the other business of the Company." Herman Blumenthal's letter of April 12 to the Union on the same subject states, in similar tenor, "We must remind you that bargaining upon contracts such as this may be all that you have to attend to, but we are pushed constantly with all other burdens of our work and duties in an effort to keep this business going successfully." The next meeting, originally scheduled for April 17, was rescheduled for April 27, due to a death in Blumenthal's family. f. The May 1-14 meetings; the position of the parties prior to the May 15 strike Conciliator Rosenberry again entered the negotiations on May 1, 1962.31 With the imminence of the strike apparent, the parties steppd up the pace of the negotia- tions. They met twice on May 1 and again on May 2 and 3, at times separately and at other times jointly with the conciliator. On May 5, Herman Blumenthal sent a telegram to the Union calling attention to a newspaper article reporting that the employees expected to strike within the next few days "unless a meeting can be arranged." Blumenthal offered to "cancel other pressing engagements" and meet with the Union on May 7, although he expressed misgivings that "another meeting offers any prospect for agreement with respect to the issues on which we are apart." The parties then met on May 7, but the meeting was cut short after 11/2 hours when International Representative Femia asked to be excused in order to attend another meeting. The final and 29th meeting before the strike was on May 14, in which Union Representatives Elliott and Krammer joined Femia on the Union's negotiat- ing team. The strike commenced at 5.30 a.m., May 15. Prior to the strike the Union had, at several meetings, offered to plan with the Company an "orderly shutdown" but the Company rejected the offer, stating that it "would attempt to operate the plant." In the meeting preceding the strike-and, indeed, from the very outset of the negotiations-the parties made little or no headway in the resolution of the major issues. The parties at the time of the strike were still divided on wages, hospitaliza- tion, overtime, seniority, liability, grievance procedure, and arbitration. As to wages, the Union proposed a 25-cent per hour increase across the board but the Company took the position that it could not grant it. The Company still adhered to its posi- tion when the Union offered to compromise by accepting a 5-cent increase on the signing of the contract, and additional 5-cent increases every 4 months thereafter- or a total of 20 cents spread over the contract year. The Company also rejected the Union's proposal, made along with the wage request, that the Company assume one- half of the hospitalization cost. Overtime remained a stumbling block. The Union continued to press for plantwide seniority and the Company for departmental senior- ity. Objecting to any promotions on seniority basis, the Company took the posi- tion that it would place its employees "where we damned please" and that "nobody is going to tell us where we can place them." The Union still insisted on naming a local in the preamble clause and the Company insisted upon the inclusion of the International. Explaining its position , the Union pointed out that unless the Local were named the Company might insist on taking up grievances only with International representatives who would have to take trips for the purpose from Akron, Ohio. The Union continued to claim that the Company's liability proposal would subject it to liability for the misconduct of nonmembers in the bargaining unit, even of "spies" possibly "planted" by the Company. Finally, the Company insisted that it must have the "final word" on the resolution of grievance disputes, without the intervention of any arbitrator. Explaining the Company's position on this point, Blumenthal stated at the hearing- Grievances are up to the Company, and if outside arbitration is called in, it takes away the powers of the Company. The Company felt that it wanted to manage the company and with outside arbitration it could not do so . .. . [T]he Company wanted to have the final say in grievances. The Company adamantly continued to oppose arbitration even when the Union offered to reduce the scope of arbitrable matters, i.e., limiting it to discharge cases or, in the alternative, to everything but discharges. Nor would the Company consent "The conciliator thereafter participated in all the meetings between the parties both before and after the strike which, as noted below, commenced on May 15. 366 DECISION S OF NATIONAL LABOR RELATIONS BOARD to any arbitration when the Union offered to permit Blumenthal himself "to pick his own arbitrator, to choose anyone even a relative." At the same time, the Com- pany insisted on the retention of the no-strike provision in the contract, explaining "many times," in Blumenthal's words, that "our whole purpose of signing the contract was to get uninterrupted production, and that's why we felt the no-strike clause was necessary." The Union would not agree to sign a no-strike clause without binding arbitration. Agreement had been reached by the time of the strike on the following minor matters as to which there never were in fact any significant differences between the parties: the purpose clause, recognition, management prerogatives, hours of work, safety and housekeeping, and the termination clause. Agreement was also reached on the following matters after the Union agreed to accept the Company's proposals thereon as they appeared in its revised draft of January 17, 1962; equalization of hours, holidays, leaves of absence, vacations, bulletin boards, union membership, general rules 32 As previously noted, the Company's proposals on most of these matters represent compromises between its original position and that of the Union. As to the union membership clause, the Union's acceptance of this clause meant that it gave up its union-security or checkoff proposal. g. The final conferences between May 17 and August 7 Eight additional meetings were held by the parties between May 17 and August 7, 1962,33 with the conciliator present at all of these meetings. The last conference attended by Femia was on July 9, after which Smithhart (who had attended the negotiations since May 23) took over for the Union. Explaining the long lapse between the June 1 and June 20 meeting, Blumenthal testified that he was busy, spending the "greater part of two days" with the Board's investigator who arrived at the plant to secure information about one of the pending cases herein. Blumen- that testified that he later had to put off a meeting scheduled for July 12 until July 24, because the Board's investigator again visited the plant. On July 26, Blumenthal requested the conciliator to continue a meeting originally scheduled for July 31, because an "important matter" had come up and he was not sure that he would "be in town much that week," and the meeting-the last one-was then held on August 7. The final meetings between the parties were devoted to discussions of the major issues which still separated them but the parties failed to make any progress. At the June 1 meeting the Company stated that it could not give any wage increase until it knew the status of its inventory and financial position which it expected to know by June 30, but at the last meeting on August 7 the Company stated that "they still did not know what their financial standing would be " At one meeting Blumenthal indicated that the Company "might be able to scrape up a penny or two" after he took inventory. At the Tune 20 meeting the Union told the Company that "this strike had been going on long enough, and we were willing to make any type of concessions that (were) honorable." The Union explained that the liability clause upon which the Company insisted was particularly objectionable because "we had agreed with the Company that we would sign a no-strike clause, without arbitration, and when you have a no-strike clause with no finality with the grievance procedure, conditions could get so bad in the plant that no one could control these people." The Com- pany insisted, as before, that it could not accept any type of arbitration as it objected to a "third party" or "an outsider telling them what to do." At one meeting the Union, anxious to settle the issues, made several alternative offers. First, the Union asked whether, if the Union conceded on the preamble, would the Company "settle the other four remaining items," i.e.. arbitration, hospi- talization, liability, and wages. The Company declined the offer and the Union then asked whether the Company would settle "the other three matters" if the Union conceded on the preamble and arbitration. When the Company rejected this offer also, the Union asked whether the Company would yield on the remaining two issues (wages and liability) if the Union conceded on the preamble, arbitra- tion, and hospitalization. The Company turned down this offer also. On another 32 The record does not show the particular dates when agreement was reached on all of these matters but it is apparent that agreement thereon was reached before Minch left the negotiations sometime in March. Both Minch and Femia testified that the items agreed upon, as listed above, were so marked by Minch on the Company's draft but agreement was, of course, tentative subject to the consummation of the entire contract. 33 May 17, 23, and 31 ; June 1 and 20; July 9 and 24; and August 7. RADIATOR SPECIALTY COMPANY 367 occasion the Union offered to produce "the hundreds of contracts" it had with other employers and permit the Company to "select the one that he (Blumenthal) wanted out of the hundreds" but the Company would not consider the suggestion. h. The Union's abortive attempts to meet further with the Company After the conclusion of the August 7 meeting, the parties made no further attempt to contact each other until November 16, 1962, when John Taylor, a new Inter- national representative, contacted Blumenthal by telephone.34 Taylor first attempted to arrange a bargaining meeting through the conciliator's office (as the prior meet- ings were arranged) but that office was tied up with other work. In the November 16 conversation Blumenthal initially agreed to meet with the Union on November 20, but he later called Taylor to tell him that he could not meet that week because he was "extremely busy" and a meeting was then scheduled for November 30. On November 29, Blumenthal called Taylor and told him that he could not meet with the Union the next day "unless there was a conciliator present." 35 Taylor then contacted the conciliator who later arranged a meeting for December 6. The con- ciliator could not make the December 6 meeting and so notified Blumenthal who in turn notified Taylor. A day or two later Taylor contacted the conciliator, told him that he was leaving for the weekend, and requested him to arrange a meeting for the following week. No meeting was actually arranged and the parties never met again. Conclusions Respecting Respondent's Failure To Bargain in Good Faith 1. As already found, Respondent and the Union, the certified bargaining repre- sentative of the plant employees, met on 37 occasions between October 4, 1961, and August 7, 1962, to negotiate a collective-bargaining agreement. During these meet- ings the parties exchanged drafts and agreed upon proposals, mostly minor in nature, but deadlocked on the major issues. The question presented is whether Respondent in its negotiations with the Union fulfilled the obligation which Section 8(a) (5) and (d) of the Act imposed upon it "to meet at reasonable times and confer in good faith with respect to wages, hours, and other conditions of employment, or the negotiation of an agreement, or any question arising thereunder . The statute does not, of course, define, and indeed could not define, what con- stitutes good-faith bargaining. Whether a party has complied with its bargaining obligations must be determined from his total course of conduct. Such determina- tion normally "can only be inferred from circumstantial evidence." N.L.R B. v. Reed & Prince Manufacturing Company, 205 F. 2d 131, 139-140 (C.A. 1), cert. denied 346 U.S. 887. "The problem is essentially to determine from the record the intention or the state of mind of respondents in the matter of their negotiation with the Union." N.L.R.B. v. National Shoes, Inc., and National Syracuse Cor- poration, 208 F. 2d 688, 691 (C.A. 2). While the determination of the character of bargaining is "frequently difficult of ascertainment and establishment" (L. L. Majure Transport Company v N.L.R B., 198 F. 2d 735, 739 (C.A. 5) ), the Board and the courts have over the years laid down the guiding principles for the assessment of good faith. Thus, respecting the duty to meet, it has long been recognized that "the obligation to bargain collectively surely encompasses the affirmative duty to make expeditious and prompt arrange- ments, with reason, for meeting and conferring." J. H. Rutter-Rex Manufacturing Company, Inc., 86 NLRB 470, 506. So also it has long been recognized that "performance of the duty to bargain requires more than a willingness to enter upon a sterile discussion of union-management differences." N.L R.B. v. American Na- tional Insurance Co., 343 U.S. 395, 402. It presupposes "discussion with an open and fair mind, and a sincere purpose to find a basis of agreement" (N L R B. v. Highland Park Manufacturing Company, 110 F. 2d 632, 637 (C.A. 4)) and not mere "surface bargaining" (N.L.R.B. v. Whittier Mills Company, et al., 111 F. 2d 474, 478-479 (C.A. 5) ). A party's "approach and attitude toward negotiations as well as [his] specific treatment of items for negotiations" are relevant considera- tions. N.L.R.B. v. George P. Pilling & Son Co., 119 F. 2d 32, 37 (C.A. 3). And 14 Smitbhart, who represented the International at the August 7 meeting, testified that Conciliator Rosenberry undertook to schedule another meeting within 2 weeks after August 7, but that the conciliator never contacted him further. ae Blumenthal testified that he did not "recall" making the Presence of the conciliator a condition to the meeting He admitted, however, that he did request his presence as in all the prior meetings the conciliator attended "the meetings were orderly . . . and there was no shouting and yelling and no insults thrown around." 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD while an employer is not obligated to make any particular concession , it is clear that he is "obligated to make some reasonable effort in some direction to compose his differences with the Union if Section 8(a)(5) is to be read as imposing any substantial obligation at all " N.L.R.B. v. Reed & Prince Manufacturing Company, 205 F. 2d 131, 134-135. "Collective bargaining, then, is not simply an occasion for purely formal meetings between management and labor, in which each maintains an attitude of `take it or leave it'; it presupposes a desire to reach ultimate agreement to enter into a collective bargaining contract ." N.L.R.B. v. Insurance Agents' In- ternational Union, AFL-CIO (Prudential Ins. Co.), 361 U.S. 477, 485. 2. Applying the foregoing principles to the instant case, I find that the record as a whole establishes that Respondent's course of conduct falls short of compliance with its statutory obligation to bargain in good faith. This is not to say, as is often the situation in cases of this type, that this record is totally devoid of any facets tending to indicate good-faith bargaining on the part of Respondent. Thus on the surface, at least, the record shows that Respondent did meet with the Union on numerous occasions in a 10-month period, it furnished the Union requested bar- gaining data, submitted some counterproposals and made some compromises, and, as we shall see below, its intransigent position on one major issue was wholly justified. In addition , the conduct of one of the Union's representatives during one period of the negotiations certainly was far from exemplary. Nevertheless, after carefully weighing the factors militating for and against a finding of good- faith bargaining, I am convinced from the totality of Respondent's conduct that it entertained no sincere desire and made no genuine effort to conclude an agreement with the Union. On the record as a whole, and particularly in view of the con- siderations outlined below, I am convinced that Respondent merely went through the motions of negotiation, to cloak its objective of undermining the Union at the bargaining table. (a) The record shows that Respondent was strongly opposed to the organization of its plant. The admissions of its own officials-two of them ( Plant Manager McKiernan and Personnel Manager Waggoner ) members of Respondent's three- man negotiation committee-demonstrate the extent to which the Company went in planning and establishing a committee to keep the Union out of the plant.36 Sub- sequent to the establishment of the Union in the plant and, indeed , during the very period of the negotiations , various company officials warned employees that the Company would close the plant, that it would never sign a contract, and that the Union was just wasting its time. Personnel Manager Waggoner himself contributed to the undermining of the Union when , on the first day of the strike and during the pendency of the negotiations, he solicited two employees to return to work, promising them benefits if they did and threatening them with reprisals if they did not. Such demonstrations of hostility to the Union and interference with employees' rights tend to negate any claim that the Company entered the negotiations, and negotiated, with a sincere desire to find some mutually satisfactory basis for an accord with the Union through the give and take of collective bargaining. Rather, such conduct tends to show that the Company was more bent on destroying the Union than on reaching agreement with it at the bargaining table. Cf. N.L.R.B. v. Marion G. Denton and Valedia W. Denton, d/b/a Marden Mfg. Co., 217 F. 2d 567, 570 (C.A. 5), cert. denied 348 U.S. 981. (b) Also indicative of Respondent's lack of good faith in the negotiations is its attitude toward the scheduling of bargaining conferences . While neither the Board nor the courts have evolved, or indeed can evolve , any particular formula by which to test whether any given frequency of meetings or amount of time spent in nego- tiations, satisfies the statutory requirement "to meet at reasonable times," the Board has repeatedly admonished that parties to collective bargaining are obligated to display as great a degree of diligence and promptness in the discharge of their bargaining obligations as they display in other business affairs of importance.37 For, "Agreement is stifled at its source if opportunity is not accorded for discussion or so delayed as to invite or prolong unrest or suspicion ." J. H. Rutter-Rex Manu- facturing Company, Inc., 86 NLRB 470, 506. Moreover, "delay in collective bar- gaining entails more than mere postponement of an ordinary business transaction, for the passage of time itself, while employees grow ... impatient at their desig- ° As already noted, in the unusual circumstances of this case , I found that the Com- panv's activities in this respect should not be held to be violations of the statute This findinc does not, of course , preclude me from considering the character of the Company's activities on the question of union animus 37J H Rutter-Rex Manufacturing Company, Inc , 86 NLRB 470, 506-508 ; "M" System, Inc., Mobile Home Division Mid-States Corporation, 129 NLRB 527, 549. RADIATOR SPECIALTY COMPANY 369 nated bargaining agent's failure to report progress, weakens the unity and economic power of the group and impairs the Union's ability to secure a beneficial contract." Burgie Vinegar Company, 71 NLRB 829, 830. The record in the instant case shows that the parties met on numerous occasions- 37 times in a 10-month period . Some of these meetings, particularly those in May when the strike was imminent , were at close intervals and a few meetings were lengthy. However, the great bulk of the meetings were of short duration , lasting about 2 hours, and the lags between many were considerable . Discounting lags up to the fourth meeting on November 17 (involving lags of 23, 10, and 11 days between each meeting, respectively)-as to which the delays may conceivably be explained by the need to prepare for the negotiations-the record shows that 6 or more days elapsed between the meeting dates in at least 20 of the remaining 33 sessions . There was a lag of as much as 1 month between the February 6 and March 6 meetings because Company Vice President Blumenthal was then engaged in a 2-week litigation on a nonlabor matter. Twenty-two days elapsed between the December 19 and January 10 meetings because the Company would not meet earlier for "a variety of reasons . . . particularly the Christmas shutdown of the plant." There was a 19-day delay in setting one meeting in June and a 15-day delay in setting another in July because , as Blumenthal explained , a Board investigator was at the plant; Blumenthal conceded, however, that he spent no more than 2 days with the investigator in his June visit . A period of 2 weeks elapsed between the November 17 and 30 meetings because, as Blumenthal explained , he had to take business trips in the interim 38 The Union repeatedly protested the lags between the meetings and it expressed willingness to meet evenings and weekends to accommodate Blu- menthal who claimed that he had other important business matters to attend to and could not meet at more frequent intervals. While it may well be that genuine business considerations motivated the lengthy intervals insisted upon by Respondent between many of the meetings , I cannot accept this explanation as legally justifiable . It is clear from this record that Re- spondent did not feel the same sense of urgency about bargaining meetings as it did about important business affairs. Moreover, if Blumenthal's other activities made it impossible for him to devote adequate time "to reasonably prompt and continuous negotiations," it was Respondent's obligation to furnish a representative who could, so as not to interfere with the employees ' statutory right to the expeditious resolu- tion of disputes over contract terms. "M" System, Inc., Mobile Home Division Mid-States Corporation, 129 NLRB 527, 54938 The Act does not permit a party to hide behind the crowded calendar of his negotiator , whether he be a busy labor attorney or an overworked company officer.40 (c) Of further significance in assessing Respondent 's good faith in the negotia- tions here is the position taken by it on the bargaining issues. While Respondent readily accepted the Union's proposals on noncontroversial subjects such as recogni- tion, and on trivial and minor matters such as bulletin boards and safety and house- keeping, and while it compromised on issues such as holidays and vacations , it con- tinued to maintain from beginning to end an uncompromising and irrevocable position with respect to wages, grievance procedure and arbitration, liability, seniority, and overtime 41 As to wages, the Company first took the position that it would not grant any increases, although it disclaimed any inability to pay. Later the Union reduced its original demand from a 25-cent per hour increase across the board to a 5-cent per hour quarterly increase , but the Company took the position that it could not pay this. The 2-week delay between the April 13 and 27 meetings was , of course . justified In view of a death in Blumenthal's family. The Union was responsible for a 2 -day delay in post- poning the March 27 meeting to March 29. 20 See also NL.R.B. v. Martin Brothers Box Company, 130 F. 2d 202 , 207 (CA 7), cert. denied 317 U S. 600. In this connection T note that Blumenthal, whose pre'enee the Com- pany apparently felt indispensable, had no prior bargaining experience . nhoreas HeKlernan, whose attendance was not considered as essential, did have prior experience "In view of the above findings I do not find it necessary to determine whether Respond- ent further violated itls statutory duty "to meet at reasonable times" arler November iii, 1962, as alleged in the complaint. This allegation In the complaiiir appears to be grounded on the fact, as found supra, that Herman Blumenthal had inAsted that the Federal con- ciliator be present at the meeting which International Representative Taylor requested in November. 11 Respondent also displayed an uncompromising attitude on the preamble clause--an- other major issue in the bargaining. Respondent's position on this issue , which I find to be justified as a matter of law, Is discussed infra. 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the later stages of the negotiations the Company maintained that it could not consider any wage increases until it took inventory and knew its financial position, but the Company continued to assert that it still did not know its financial position at the last meeting on August 7. As to overtime pay, Respondent was willing to contract only foi the overtime pay provided by Federal law. With respect to seniority, Respondent took the position that it would not permit promotions of employees on the basis of length of service as it was going "to place them [the employees ] where we damned please." And the Company stood pat on its position as to hospitalization , rejecting the Union's demand that the Company share half of its cost. It is clear that as to these issues , as well as to the others discussed below, Respondent "showed no disposition to consider the seriously disputed items from any other point of view than requiring a complete surrender on the part of the Union to the proposals of the Respondent ." N.L.R.B. v. Reed & Prince Manufacturing Company, 118 F. 2d 874, 882 (C.A. 1). The record fui ther shows that Respondent throughout the negotiations insisted on the "final say" in the resolution of grievances , while at the same time it adamantly insisted on a no-strike clause and stubbornly rejected even the mildest form of arbitration . In Herman Blumenthal 's words, the Company felt that "Grievances are up to the Company and if outside arbitration is called in, it takes away the powers of the Company. The Company felt that it wanted to manage the company and with outside arbitration it could not do so .... The Company wanted to have the final say in grievances ." Respondent rejected the Union 's compromise offer for even a limited form of arbitration, giving Respondent the option of limiting arbitra- tion either to discharge cases only, or, in the alternative , to other than discharge cases. In addition, the Union offered Respondent the privilege of selecting the arbitrator. While there is nothing inherently improper in an employer's insistence on a no- strike clause 42-and, indeed , no-strike clauses are quite common in collective- bargaining contracts-an employer's insistence upon such a clause when coupled with a refusal to provide arbitration may, along with other factors , provide reveal- ing insight into the employer 's attitude toward the collective -bargaining process. The Supreme Court has stated that "Plainly the agreement to arbitrate grievance disputes is the quid pro quo for an agreement not to strike." Textile Workers Union v Lincoln Mills, 353 U.S. 448, 455.443 Respondent here adamantly resisted grant- ing the Union the "quid pro quo" for the no-strike clause it had demanded . Instead, it stubbornly insisted that the Union surrender its most potent economic weapon in the redressing of grievances and that the Union entrust to it unilateral control in the ultimate disposition of grievances , even those in which the Company itself was charged with transgressions of the contract. On top of the no-strike and no arbitra- tion clause, Respondent, as indicated below, insisted upon a liability clause and offered no concessions on wages and other important terms and conditions of em. ployment. As the Union asserted in the negotiations, no self-respecting union could be expected to accept such proposals 44 For, acceptance of such proposals might well have been construed by the employees as nothing less than abdication by the Union of its statutory responsibility to give effective representation to the employees . See "M" System , Inc., Mobile Home Division Mid-States Corporation, 129 NLRB 527, 550-551.45 Respondent's insistence on the liability clause is another relevant element in deter- mining Respondent's frame of mind . This clause in substance provided that: "If in the Union , either directly or indirectly authorizes , promotes, supports , or con- dones any violation" of the no-strike clause, "the Company shall have such rights and recourse as the law may provide and the Union shall be subject to such liability as the law may provide," to the full extent of its resources ; the Company agreed to assume similar liability for similar violations on its part . The Company tenaciously "See Shell Oil Company, Incorporated and Hawaii Employers' Council, et al., 77 NLRB 1306. 48 See also United Steelworkers of America v. American Manufacturing Co, 363 U S 564, 567; Parks, et al v. I B E W , 52 LRRM 2281, 2299 (C 'A 4) ; United Textile Workers of America, AFL-CIO, Local Union No. 1 20 v. Newberry Mills, Inc., 52 LRRM 2650, 2651 (C A. 4) 44 Cf. N.L R B. v. Reed & Prince Manufacturing Company, 205 F. 2d 131, 139 (C A. 1), cert denied 346 U S 887 ; Vanderbilt Products, Inc V N L R.B , 297 F 2d 833, 834 (C A 2) ; N L R B. v. Tower Hosiery Mills, Inc., 180 F. 2d 701 , 704 (C.A. 4), cert. denied 340 U.S. 811. 45 See also , Reel, "The Duty To Bargain and the Right To Strike," 29 George Washing- ton Law Review 479, 481-488. But compare, N L.R.B. v. Cummer-Oi aham Company, 279 F. 2d 757 (C.A. 5), reversing 122 NLRB 1044. RADIATOR SPECIALTY COMPANY 371 insisted upon this clause throughout the negotiations and the Union resisted it with- equal vigor. It is clear, however-and Respondent at the hearing did not claim otherwise-that Respondent's proposal would have accorded it no greater rights than that it already had by operation of law, including the right to remedy breaches of the contract under Section 301 of the Labor Management Relations Act,46 and. the right to take disciplinary action against employees guilty of violating the contract 47 Why then did Respondent so unyieldingly insist upon this clause? There is no evidence, not even a claim, that the Company's insistence was prompted by breaches of prior no-strike agreements by this Union at other plants. Cf. Local 164, et al., Brotherhood of Painters, et al. v. N.L.R.B., 293 F. 2d 133, 137. Nor did the clause purport to assure Respondent liquidated damages as, for example, a performance bond would do.48 Finally, Respondent can hardly claim that it sought the clause in order to bind the International as only a local was to be a party to the contract, for Respondent at the same time made it clear (and in this respect quite properly, see infra) that it would never sign a contract without the signature of the Inter- national, the certified union . The only inference I can draw, from the context of Respondent's position on this and other major issues, is that Respondent's purpose in pressing for the liability clause was to widen the area of disagreement between itself and the Union in order to create another insuperable obstacle to agreement. Cf. N.L.R.B. v. Darlington Veneer Company, Inc., 236 F. 2d 85, 87 (C.A. 4). Indeed, the record is replete with evidence indicating that this clause was a recurrent subject of bitter controversy throughout the negotiations. 49 It would appear that absent a special situation, an employer disposed toward concluding an agreement with a union would hardly have injected and adamantly insisted upon a controversial clause of this type which ostensibly gave it no more than a duplicate of the rights it already possessed by operation of law. 3. In the preceding section I treated the bargaining positions taken by Respond- ent on various clauses not for the purpose of sitting "in judgment on the substantive terms of collective bargaining" (N.L.R.B. v. American National Insurance Co., 343 U.S. 395, 404), for it certainly is not mine nor the Board's function to pass upon the desirability or undesirability of bargaining proposals. "But," as pointed out by the First Circuit in N.L.R.B. v. Reed & Prince Manufacturing Company, 205 F. 2d 131, 134, in commenting upon the Supreme Court's admonition in American National Insurance Co., supra, against attempts by the Board to devise contracts for the parties, "at the same time it seems clear that if the Board is not to be blinded by empty talk and by mere surface motions of collective bargaining, it must take some cognizance of the reasonableness of the positions taken by an employer in the course of bargaining negotiations." Thus, the Board, in determining the bona fides of the employer, is not precluded from considering whether the employer "fail[ed] to do little more than reject" the Union's demands (N.L.R.B. v. Century Cement Mfg. Co., Inc., 208 F. 2d 84, 86 (C.A. 2)); whether the employer was "willing to make counter-suggestion or proposal" (N.L.R.B. v. George O. Pilling & Son Co., 119 F. 2d 32, 37 (C.A. 3)) ; whether he merely "maintains an attitude of 'take it or leave it"' (N.L R.B. v. Insurance Agents' International Union, AFL-CIO, 361 U.S. 477, 485) ; whether his offers were merely "nominal and illusory 'concessions' " (N.L.R.B. v. Marion G. Denton and Valedia W. Denton, d/bla Marden Mfg. Co., 217 F. 2d 567, 570 (C.A. 5), cert. denied 348 U.S. 981); whether his offers "had the slightest chance of acceptance by a self-respecting union" (Vanderbilt Products, Inc. v. N.L.R.B., 297 F. 2d 833, 834 (C.A. 2)); and whether the employer was but 90 See Local 164i, Local 1287, and Local 1010, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, et al. (A D Cheatham Painting Co. of Jacksonville, Fla) v NLRB., 293 F 2d 133, 135 (C A.D C), cert denied 368 U.S 824 47 N.L R B v Sands Manufacturing Co, 306 U.S 332, 344 48 This is not to say that Respondent's insistence on the liability clause would have been justified even if motivated by good-faith considerations See discussion below 49 Thus, the Union, distrustful of Respondent's motive in pressing for the clause, ex- pressed the fear that the clause could be used by Respondent to hold the Union liable for the acts of nonmembers in the bargaining unit as well as those of members and, possibly, even of "spies" planted by the Company. It is apparent to me, however, that the Union's interpretation of the clause was erroneous, for even though the clause sought to hold the Union liable for breaches of the no-strike clause which it "indirectly" authorized or con- doned, the Union would not, in fact, have been liable unless union responsibility therefor were established. However, I do not construe the Union's misinterpretation of the clause as foreclosing me from making an independent appraisal of the Company's good faith in advancing it in the first place. 717-672-64-vol. 143-25 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "giving the Union a runaround while purporting to be meeting with the Union for the purpose of collective bargaining" (N.L.R.B. v. Athens Manufacturing Company, 161 F. 2d 8 (C.A. 5)). In short, as the Supreme Court has pointed out , "the Board has been afforded flexibility to determine . . . whether a party's conduct at the bargaining table evidences a real desire to come into agreement." Insurance Agents' International Union, AFL-CIO, 361 U.S. 477, 498. See also N.L.R.B. v. Fitzgerald Mills Corporation, 313 F. 2d 260, 265-266 (C.A. 2). 4. In any event, insofar as Respondent's liability proposal is concerned, I must find that Respondent's insistence on this clause constitutes an independent unfair labor practice, even assuming that Respondent had advanced and maintained this proposal in good faith . In North Carolina Furniture, Inc., 121 NLRB 41, the respondent insisted that the union in that case-the certified local-include a liability clause identical in terms to that in the instant case except that the liability there was to be assumed by the parent of the certified local, as well as the loca160 The Trial Examiner there found that the respondent's requirement that the International pledge its resources to reimburse the respondent for breach of contract damages was evidence of lack of good faith and, therefore, a violation of Section 8(a)(5). In upholding the Trial Examiner's finding, the Board stated: We agree with the Trial Examiner's conclusion but find it unnecessary to deter- mine the good or bad faith of the Respondent . We base our unfair labor practice on the fact that the provision in question [the liability clause] was not a mandatory subject for collective bargaining as it did not relate to "wages, hours, and other terms and conditions of employment" within the meaning of Section 8(d) of the Act. In such circumstances and for the reasons set forth in the recent decision of the Supreme Court of the United States in N.L.R.B. V. Wooster Division of Borg-Warner Corporation, we find that whether or not the Respondent acted in bad faith, its insistence on including the controversial liability provision as a condition of agreement violated Section 8 (a) (5) and (1) of the Act. In N.L.R.B. v. Wooster Division of Borg-Warner Corporation, 356 U.S. 342, the Supreme Court upheld the Board 's finding that the employer violated the Act by insisting, to impasse, that the contract include a "ballot clause" requiring a secret vote of all employees on the employer 's last offer before the Union could strike. The Court, finding that this clause settled no terms or conditions of employment and dealt "only with relations between the employees and their union ," (356 U.S. 342, 350), held that the subject was not within the scope of mandatory bargain- ing. Similarly, the Court held that a recognition clause which , despite the certifica- tion in the International's name, recognized only the local union, did not come with- in the definition of mandatory bargaining . Relying on Borg-Warner, the Board and the courts have repeatedly held that performance bonds are not mandatory bar- gaining subjects and may not be insisted upon as conditions precedent to the signing of an agreement . As the court stated in Local 164, et al., Brotherhood of Painters, etc., 293 F. 2d 133, 135, "The requirement of a performance bond has nothing to do with the performance of work, but is a condition which must be met before work is even undertaken." Insistence upon a liability provision , such as the one here involved, is in principle no different from insistence upon a performance bond . Both deal with enforcement of collective-bargaining contracts and with security against contractual defaults, and both fix relations between the employer and the union and not between the em- ployer and employees . See F. McKenzie Davison, W. J. Hardy, Sr. and W. J. Hardy, Jr., d/b/a Arlington Asphalt Company, 136 NLRB 742. Although both may be of vital interest to the employer, they do not concern themselves with the terms and conditions under which the employees are to work . This is not to say that a party may not request or seek to negotiate on a nonmandatory collective bar- gaining subject such as a liability provision . But it is to say that neither party may insist upon it to point of impasse.51 In this connection , I note that Respondent's liability clause was only one of several subjects which remained unresolved in the bargaining and it may well be argued that Respondent's insistence on the clause did not in fact prevent consummation so T note that the respondent in that case was represented by same counsel as Respondent in this case. m "The right . . to urge a non-mandatory subject of bargaining ceases short of ulti- mate insistence " International Longshoremen's Association, Ind. (N Y. Shipping Asso- niation) v. N.L R B , 277 F. 2d 681 , 683 (1C.A D C ). RADIATOR SPECIALTY COMPANY 373 of a contract. But if I am correct in my conclusion that the clause involved a non- mandatory bargaining subject, it follows that Respondent's adamant insistence-not just mere request-in the face of the Union's repeated refusals to accept the clause, was an independent violation, even if it may not have been the sole obstacle to agreement5a Respondent's adamant insistence on the clause-irrespective of the stage of insistence-operated to impair the bargaining process and to impede the conclusion of an agreement on the mandatory subjects of bargaining . See Interna- tional Brotherhood of Teamsters, etc., Local 294 (Conway's Express), 87 NLRB, 972, 978-979, affd. 195 F. 2d 402 (C.A. 2); Douds v. I.L.A. (New York Shipping Assn.), 241 F. 2d 278, 282-283 (C.A. 2), affg. 147 F. Supp. 103, 112-113 (S.D.N.Y.). It follows that Respondent's position with respect to the liability clause even if "taken in good faith [could not be] rightly taken ... or ... maintained." (N.L.R.B. v. Corsicana Cotton Mills, 178 F. 2d 344, 346-347 (C.A. 5) ). 5. While, as I have found, the Company breached its statutory duty to bargain in good faith by various acts and conduct, the record establishes, and I find, that the Union's conduct in the negotiations was not entirely free from reproach. I find, however, that this conduct could not, and did not, justify Respondent 's unlawful refusal to bargain. Thus it is clear that the Union during the negotiations vigorously insisted that the preamble clause name a local of the International-and not the International in whose name the certification ran-as the party to the contract . Since it is "an evasion of [the statutory bargaining ] duty to insist that the certified agent not be a party to the collective-bargaining contract" (N.L.R.B . v. Wooster Division of the Borg-Warner Corporation, 356 U.S. 342, 350), the Union's insistence, if carried to an impasse, would have constituted a violation of the Act 53 I cannot find, however, that the Union's position on this point was intransigent and fixed with finality. Cf. J. H. Rutter-Rex Manufacturing Company, 115 NLRB 388, enfd. 245 F. 2d 594 (C.A. 5). On the contrary, the record shows that the Union had in- formed the Company in the negotiations that the preamble clause "would not be a major issue" blocking ultimate agreement. And it is clear that the Union had offered to recede from its demand on the preamble, if only the Company conceded on other major issues such as arbitration, wages and liability. Cf. N.L.R.B. v. Sun- rise Lumber & Trim Co., 241 F. 2d 620, 624-625 (C.A. 2), cert. denied 355 U.S. 818. The record further shows that during a period of the negotiations, International Representative Minch resorted to what I found to be a "harassing" tactic to force the Company's hand in the negotiations. Thus at the meeting held on December 7, Minch, without prior notice to the Company, enlarged the 6-man employee com- mittee to 38-an action which for a short time disrupted production in the plant and also the negotiations. The Company, however, quickly accommodated itself to the situation and it made no serious issue over this point. Indeed, the Company itself found larger quarters for a meeting place and it thereafter met with the en- larged committee until International Representative Femia, who later entered the negotiations, agreed to revert to the original 6-man committee 54 The record also shows that Minch lost his temper in one of the bargaining ses- sions and, directing his remarks to Herman Blumenthal, Minch said to him: You know, Hilter was right .... Only he didn't go far enough." It is clear, however, that Minch was provoked into making this obnoxious statement by Blumenthal's prior remark that "we had been getting along fine prior to the time that the Union had interjected" itself at the plant. Be that as it may, the record shows that the parties continued to meet after this meeting and Minch was ultimately replaced by Femia and others as to whose conduct Respondent apparently had no complaint. In view of the foregoing, I find that the Union did not engage in the type of misconduct or bargaining tactics which in any way justified Respondent's refusal to bargain with it. Cf. N.L.R.B. v. Insurance Agents International Union, AFL- 52 Compare cases such as those involving unilateral wage increases and refusals to sub- mit bargaining data, which have been held to he per se refusals to bargain, even where the parties end up with an agreement. See NLRB v Benne Katz, etc, d/b/a Wtilliams- burg Steel Products Co., 369 U.S. 736; N.L R.B. v. Yawman & Erbe Manufacturing Co, 187 F 2d 947, 949 (C A 2). 61 There is no evidence that Respondent had filed charges alleging a refusal to bargain by the Union in violation of Section 8(b) (3) of the Act cs It is noteworthy in this connection that whatever concessions Respondent made to the Union on the minor and less substantial issues were made during the period when it met with the large committee. Respondent's revised counterproposals-some of which were accepted by the Union-were submitted on January 17, 1962. 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CIO, 361 U.S. 477. As the Board has pointed out , the reason a union's concurrent misconduct or bargaining tactics may be relevant in determining whether an em- ployer has fulfilled his statutory obligation to bargain is that "a union's refusal to bargain in good faith may remove the possibility of negotiation and thus preclude the existence of a situation in which the employer's own good faith can be tested." Times Publishing Co., 72 NLRB 676, 682-683; see also Phelps Dodge Copper Prod- ucts Corp., 101 NLRB 360, 368. The Union's conduct here can hardly be claimed to preclude a test of Respondent's conduct. On this record I must find that Re- spondent's refusal to bargain was motivated by its opposition to the principle of collective bargaining rather than by any misconduct or bad -faith bargaining on the part of the Union. In conclusion , I find on the basis of the totality of Respondent 's conduct that Respondent failed and refused to bargain in good faith with the Union, the duly certified bargaining representative of its employees, thereby violating Section 8(a) (5) and (1) of the Act. This conduct includes demonstrations of hostility to the Union, interference with employee rights, refusals to meet with the Union with sufficient frequency and regularity, and the positions taken by Respondent on major issues in the negotiations-such as an unyielding insistence on a no-strike clause without any form of arbitration, an adamant insistence on unilateral and unreviewable control over the ultimate disposition of grievances, persistent demands of a liability clause which gave Respondent no more than a duplicate of the rights it already had by operation of law, and a tenacious adherence to existing wages and other existing conditions of employment . I further find that Respondent's adamant insistence on the inclusion of the controversial liability provision in the bargaining contract- which I found to be a nonmandatory subject of collective bargaining-constituted an independent violation of Section 8(a)(5) and (1) of the Act. D. Respondent's refusal to reinstate the strikers As already noted, the Union called a strike at the plant on May 15, 1962. As also noted, the possibility of a strike was a matter of discussion among the Union and the employees as far back as January 1962. By a letter dated January 17, 1962, the Company (through Herman Blumenthal), referring to the then pending negotia- tions and the parties' inability to reach agreement, told its employees: . .. We would like to make it clear to you-as clear and as plain as we possibly can-that a strike will not force us to sign contract terms which we are not willing to sign. We believe that most of you realize that you have more to lose than to gain from a strike. Those who nevertheless wish to strike have, of course, the right to do so. Just as truly, those who do not want to strike have a com- plete right not to strike and to remain at work instead. If anybody tries to prevent you from working or in any way harasses you or places pressure on you to strike or stay away from work, you are entitled to legal protection against such harassment or pressure. If a strike occurs but, despite such a strike, you wish to continue at work, then you are positively entitled to protection in doing so. Those who do see fit to strike or stay away from work, will not only lose pay they will also drawn no unemployment compensation. Most important of all, they will run the risk of losing their jobs completely-for it is the intention of this Company to fill jobs and replace permanently those who may see fit to go on strike. Think about these things carefully. Think about them earnestly-while there is yet time. This matter is of vital importance to you and your family and your future. On January 8, 1963, International Representative Taylor sent the Company a telegram which in pertinent part stated: . on behalf of the URCLPWA International Union and Local Union Num- ber 668 I present an unconditional offer to return to work all striking employees of Radiator Speciality Company Charlotte, N.C. Arrangements have been made for all employees to make personal application to return to work. Com- mencing January 9, 1963, at 2:00 PM said employees will appear at the com- pany office in groups of fifteen or less. This arrangement will continue at two hour intervals throughout the office hours of your company until such time RADIATOR SPECIALTY COMPANY 375 as the 153 striking employees have been allowed to make application to return to work.55 The parties stipulated at the hearing that commencing January 9, 1963, and for some days thereafter, groups of persons who worked for the Company on May 15, 1962, prior to the strike, came to the plant and that Personnel Manager Waggoner read to them the following statement: "Sorry we don't have any openings today. We will be glad for you to check back with us. I am noting your name as one who has come in. We cannot undertake, however to call you or get in touch with you, if and when we have an opening. If you wish to, you will have to check back with us to see if and when we do have an opening." It was further stipulated that at least 141 of the 153 strikers named in the com- plaint (Appendix A attached to this Intermediate Report) had made personal application at the plant and were read the foregoing statement by Waggoner. The General Counsel stipulated that 10 of the remaining strikers did not make personal application. No evidence was adduced on the question whether the remaining two strikers had, or had not, made personal application. It is well settled that a strike which is caused in whole, or in part, by an employer's unfair labor practices is an unfair labor practice strike and the strikers are entitled to reinstatement upon application, even if to do so requires the employer to dis- charge the striker's replacements. Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270, 278; N.L.R.B. v. West Coast Casket Co, 205 F. 2d 902, 907 (C.A. 9). There is no doubt in this case, and I so find, that the strike was from its inception on May 15, 1962, an unfair labor practice strike, caused by Respondent's unlawful refusal to bargain with the Union. It is clear from the record that the employees, dissatisfied with the lack of progress of the negotiations which they attributed to Respondent's attitude, called a strike to remedy the situation. The only question remaining is whether the strikers have made unconditional requests for reinstatement. I find that International Representative Taylor, by his telegraphic request of January 8, 1963, made an unconditional request to reinstate all of the 153 strikers named in the complaint. While Taylor in his telegram indicated that he had also made "arrangements" for all the employees to make "personal application" by appearing at the plant in groups of 15 or less, it is apparent that Taylor by these "arrangements" merely sought to avoid a mass stampede of all 153 strikers at the plant gates and, thus, to permit Respondent an opportunity to act upon his request in an orderly fashion. I therefor find no particular significance in the fact that 12 strikers actually made no personal appearance at the plant, for Taylor clearly indicated as to them, as well as to the rest of the strikers, that they had abandoned the strike and were willing to return to work. In any event, considering Respond- ent's wholesale denial of reinstatement, in identical form and language, to the 141 strikers who did make personal application, I find that personal application by the 12 strikers in question would have been a futile gesture. In view of all of the foregoing, I find that Respondent, by rejecting the strikers' application for reinstatement, violated Section 8(a)(3) and (1) of the Act. IV. THE REMEDY I shall recommend the customary cease-and-desist order and the affirmative relief which is conventionally ordered in cases of this nature. More specifically, I shall recommend that Respondent be ordered (1) to bargain collectively with the Union, upon request; (2) to offer to all the strikers named in the complaint and also in Appendix A attached to this Intermediate Report immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, discharging, if necessary, any replacements in order to provide work for the strikers; and (3) to make whole all said strikers for any loss of earnings they may have suffered by reason of the discrimination against them, by payment to each of a sum of money equal to that which each normally would have earned as wages from 5 days after the strikers' unconditional request for reinstatement on January 8, 1963, to the date of their reinstatement or Respondent's offer of reinstatement, less the net earnings of each during such period, to be computed on a quarterly basis in the manner established by the Board in 55 The telegram also refers to a prior unconditional offer to return to work allegedly made by Union Representatives Cramer and Smithhart on August 7, 1962 In reply to this tele- gram, Herman Blumenthal denied that such offer had been made on August 7, 1962. I credit Blumenthal's denial, as none of the Union's representatives (including ^Smithh'art) who testified at the hearing claimed that such unconditional request had been made. 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. W. Woolworth Company, 90 NLRB 289, 291-294. Interest shall be added at the rate of 6 percent per annum. Isis Plumbing & Heating Co., 138 NLRB 716. In view of the fact that the unfair labor practices committed are of a character striking at the roots of employee rights safeguarded by the Act, I shall also recommend that Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. CONCLUSIONS OF LAW 1. Radiator Specialty Company is an employer engaged in commerce within the meaning of the Act. 2. United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, is a labor organization within the meaning of the Act. 3. Respondent, in violation of Section 8(a)(1) of the Act, interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by informing employees that Respondent will not sign a bargaining agreement with the Union; by threatening employees with plant closing, discharge, and other reprisals if they engage in union and other concerted activities, including strike action; by promising employees benefits if they refrained from such activities; by warning employees that union adherents would not get wage increases; and by coercively questioning employees about union matters. 4. By failing and refusing to bargain in good faith with the Union as the exclu- sive bargaining representative of its production and maintenance employees at its Charlotte, North Carolina, plant, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) and (1) of the Act. 5. The strike, which commenced on May 15, 1962, was caused by Respondent's unfair labor practices, and hence was an unfair labor practice strike. 6. By refusing to reinstate the unfair labor practice strikers, upon their un- conditional request, Respondent has discriminated in regard to their hire and tenure of employment, thereby discouraging membership in the aforestated labor organi- zation, and has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Respondent, Radiator Specialty Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Informing employees that Respondent will not sign a bargaining agreement with the majority representative of its employees; threatening employees with plant closing, discharge, and other reprisals if they engaged in union and other concerted activities, including strike action; promising employees benefits if they refrained from such activities; warning employees that union adherents would not get wage in- creases; coercively questioning employees about union matters; and in any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. (b) Refusing, upon request, to bargain collectively with the United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, as the exclusive representa- tive of all production and maintenance employees at Respondent's Charlotte, North Carolina, plant, including plant clerical employees, but excluding office clerical employees, the time-study man, scheduler, chemist, general foreman, floor foreman, working supervisors, and all guards and supervisors as defined in the Act. (c) Discouraging membership in the above-named Union, or in any other labor organization, by refusing reinstatement to unfair labor practice strikers upon their unconditional request, or by discriminating against its employees in any other manner in regard to their hire or tenure of employment or any terms or conditions of their employment. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Upon request, bargain collectively with United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, as the exclusive representative of the employees in the aforestated appropriate unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understand- ing is reached, embody such understanding in a signed agreement. RADIATOR SPECIALTY COMPANY 377 (b) Offer to all strikers whose names are listed in Appendix A, attached hereto, immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay each may have suffered because of the discrimina- tion against them, in the manner set forth in the section of this report entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agent, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records, necessary to analyze the amounts of backpay due under the terms of this Recommended Order. (d) Post at its Charlotte, North Carolina, plant, copies of the attached notice marked "Appendix B."56 Copies of said notice, to be furnished by the Regional Director for the Eleventh 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. Reason- able steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Eleventh Region, in writing, within 20 days from the receipt of this Intermediate Report, what steps the Respondent has taken to comply therewith.57 se In the event that this Recommended Order be adapted by the Board, the words "A De- cision 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 " 67 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read : "Notify said Regional Director , in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." 1. George Adams 2. Vernell Aery 3. Herman L. Ardrey 4. Ralph Barber 5. Wardell Barber 6. Eddie Barringer 7. Charles Beasley, Jr. 8. Bessie D. Beatty 9. Alberta Bennett 10. Helen G. Bogle 11. Evans Brown 12. Rogers C. Brown 13. Doris L. Bryant 14. Milisia C. Bufford 15. Mayola Bufford 16. John Robert Burris 17. Robert Lewis Burton 18. Samuel D. Byers 19. Frances L. Caldwell 20. Sarah L. Caldwell 21. Helen Caraway 22. Lucy Carr 23. Veola B. Cathcart 24. Melvin S. Cherry 25. Lottie Chisholm 26. Beatsy Coleman 27. Robert Coleman 28. Jessie Counts 29. Jessie Cox, Jr. 30. Charles Culbert, Jr. 31. Hezekiah Cunningham 32. Ishigenia Davis 33. James Davis APPENDIX A 34. Rev. Cornell E. Dewberry 35. Gilbert F. Donald 36. Johnie Mae Edwards 37. Barbara J. Ellerbe 38. Theadore Evans 39. Margaret Farley 40. Margaret Fenner 41. Rosetta P. Ferguson 42. Gertrude Ford 43. Kaye F. Ford 44. Pearline Frazier 45. Willie Frederick 46. James Gaither 47. John Garnett 48. James Gates 49. William Gill 50. James Andrew Good 51. Bernice Grant 52. Reginald L. Graves 53. Matilda Gray 54. Martha Greene 55. Gladys Gresham 56. Annie M. Grier 57. Jannie V. Grier 58. Joseph Grier 59. Cora L. Hailey 60. Edna K. Harper 61. Rachel M. Harper 62. Freddie Henderson 63. Harvey Henderson, Jr. 64. Thomas C. Hicklin 65. William Holmes 66. James Howard 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A-Continued 67. John Hunter 111. Marie Ray 68. Almetta Ivey 112. Alberta Redic 69. George Jackson, Jr. 113. Alphza Reid 70. Lewis Jackson 114. Beulah Reid 71. Robert Jamison 115. Fannie Roberts 72. James Jefferies 116. Dorothy Robinson 73. Thomas Johnson 117. Curtice Rorie 74. Willie J. Johnson, Jr. 118. Andrew Rountree 75. Buddy Jones 119. Larry Rowell 76. John H. Jones 120. William Sadler 77. John T. Jordon 121. Jessie Sanders 78. Edna R. Junious 122. Grady Seigle 79. Mitchell Kilgo 123. Doris Simmons 80. Earnest King 124. Roosevelt Simpson 81. William Knox 125. Beatrice Sims 82. Gordon W. Latimer 126. John Sizemore 83. Margaret Latimer 127. Alexander Sloan 84. John S. Lawerence 128. Cleatus Smith 85. Evelyn Leeper 129. James Smith 86. Betty J. Lewis 130. Richard Steele 87. George Lewis 131. John Stinson 88. James Lewis 132. Peggie Teeter 89. Spurgean Little 133. Johnnie Mc. Thomas 90. Johnny Love 134. Margaret Thomas 91. Willie Lyles 135. Curtis Thompsen 92. Thomas McCaskiel 136. Ethel Thornwell 93. Thomas A. McClary 137. Thelma Todd 94. John M. McCollum 138. Roy Tolliver 95. Margaret McCollugh 139. Ellen Tuggle 96. Rosella McCollough 140. Saylor Tyson 97. William McDuffie 141. Margaret Vanfield 98. Gaderene Mcllwain 142. Marion E. Walker 99. Essie McLain 143. Curtice Wallace 100. Charles McMurray 144. Lizzie Walton 101. John McNeal 145. Ellen Watte 102. Robert Miller 146. Floyd White 103. John Moore 147. George Wilks 104. John Morgan, Jr. 148. John Williams 105. Wilhemenia Nance 149. Mary H. Williams 106. George Norman 150. Robert Williams 107. Mattie Patton 151. Janie Wilson 108. Paul Peterson 152. Cynthia Winchester 109. Cleria Phifer 153. Rosemond Yongue 110. Robert Proctor APPENDIX B NOTICE 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 Rela- tions Act, we hereby notify our employees that: WE WILL NOT inform employees that we will not sign a bargaining contract with United Rubber, Cork, Linoleum and Plastic Workers of America, AFL- CIO, or that we will close our plant, or discharge employees, or take other reprisals against them because they engaged in union or other concerted ac- tivities. Nor will we promise employees benefits to refrain from such activities. Nor will we coercively question employees concerning their union activities. WE WILL NOT discourage membership in United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, or in any other labor organization, by refusing reinstatement to unfair labor practice strikers upon their uncondi- tional request, or by discriminating in any other manner in regard to our em- ployees' hire or tenure of employment or any term or condition of employment. WE WILL offer all unfair labor practice strikers whose names are listed in Appendix A attached to the Trial Examiner's Intermediate Report, immediate and full reinstatement to their former or substantially equivalent positions, and MANUELA MANUFACTURING CO., INC. 379 make them whole for any loss of pay each may have suffered as a result of the discrimination against them. WE WILL, upon request, bargain collectively with United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, as the representative of the employees in the following appropriate unit with respect to rates of pay, wages, hours of work , and other conditions of employment , and, if an under- standing is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees at our Charlotte, North Carolina, plant, including plant clerical employees, but excluding office clerical employees, the time-study man, scheduler, chemist, general fore- man, floor foremen, working supervisors, and all guards and supervisors as defined in the Act. WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of these rights. All our employees have the right to form , join, or assist any labor union, or not to do so. RADIATOR SPECIALTY COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NoTE.-We will notify all employees named in Appendix A to the Trial Ex- aminer's Intermediate Report , if 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, 1831 Nissen Building, 310 West Fourth Street , Winston-Salem, North Carolina, 27101, Telephone No. 724-8356, if they have any question concerning this notice or com- pliance with its provisions. Manuela Manufacturing Co., Inc. and International Ladies Garment Workers Union, Local 601, AFL-CIO and The Manuela Co., Employees Grievance Committee . Case No. 24- CA-1671. June 28, 1963 DECISION AND ORDER On April 3, 1963, Trial Examiner James T. Barker issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. The Respondent filed a reply brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning.] The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- 143 NLRB No. 49.