Bruns Garage, Inc.

BRUNS GARAGE, INC.. -- 363 E. Conclusion Upon consideration of all the pertinent factors in this case, and with particular emphasis being placed upon the terms of the various collective-bargaining agreements covering the work in dispute, the integrated nature of the work and its most efficient operation, and the prior practice at the plant, we shall not disturb the Company's assignment of the disputed work to employees represented by the Pressmen's Union. Accordingly, we shall determine the existing juris- dictional dispute by awarding the offset preparatory work of camera operation, darkroom work, opaquing and stripping, and platemaking to the pressmen, represented by the Pressmens' Union, rather than the compositors, represented by Local 4, ITU, or the stereotypers, rep- resented by the Stereotypers' Union. In making this determination, we are assigning the work in question to employees represented by the Pressmen's Union, and not to the Pressmen's Union or its members. ,Our present determination is limited to the particular controversy which gave rise to this proceeding. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings, and upon the entire record in this proceeding, the Board makes the following determination of dispute, pursuant to Section 10(k) of the Act : Pressmen employed by the Company who are represented by Al- bany Printing Pressmen and Assistants' Union No. 23, International Printing Pressmen and Assistants' Union of North America, are en- titled to perform the offset preparatory work of camera operation, darkroom work, stripping and opaquing, and platemaking which is performed in connection with newspaper work at the Company's plant in Albany, New York. Bruns Garage, Inc. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, and its Local 443. Case No. 30-CA-17 (formerly' 13-CA-5598). August 19, 1964 DECISION AND ORDER On December 4, 1963, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor, practices within the meaning of the Act and recommending that it cease and 148 NLRB No. 42. 364 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD desist therefrom and take certain affirmative action, as set forth in the attached Decision. The Trial Examiner also found that the Respond- ent had not engaged in certain other unfair labor practices and recom- mended dismissal of the complaint thereto. Thereafter, the Respond- ent, the Charging Union, and the General Counsel filed exceptions to the Decision and briefs in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor' Relations 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 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner except as modified herein. 1. The Trial Examiner found that the Respondent violated Sec- tion 8 (a) (1) of the Act when, on March 6, 1963, Supervisor Moeller said to employee Biggins that if it were not for this "mess you would be making $3.00 an hour rather than your current rate of $2.30 an hour." _ As this case progressed to hearing, and at the hearing itself, the Re- spondent, with permission, repeatedly moved for a bill of particulars. Iii renewing this request at the hearing, and at the conclusion of the General Counsel's case, the Respondent moved for a dismissal of all charges of violations of Section 8 (a) (1). The Trial Examiner then asked the General Counsel what evidence had been adduced in sup- port of those allegations, and in the ensuing colloquy the General Counsel enumerated several instances, but, although specifically asked by the Trial Examiner about the above alleged incident, did not men- tion that incident as being encompassed within the evidence supporting the Section 8(a) (1) allegations. The Trial Examiner thereupon denied Respondent's motion to dismiss, but in so doing indicated not only that the _ General Counsel's preceding enumeration of alleged violations constituted an exact joinder of issues, but also that he was disposed to conclude that no violations of Section 8(a) (1) had been established. The Respondent raised no defense to the allegation in issue. Taken together, the factors mentioned above, and most particularly the remarks of the- Trial Examiner at the conclusion of the General Counsel's case, require, dismissal of this aspect "of the case. - As a re= silt of these statements by 't'he 'General Counsel and the, Trial ' Ex- aminer, no defense was put forward by the Respondent, as to the al- BRUNS GARAGE, INC 365 ]eged July 6 incident and the matter was not fully litigated i Accord- ingly, we shall reverse the Trial Examiner's conclusion finding a viola- tion of Section 8(a) (1) of the Act based on that incident,' and we shall dismiss the complaint insofar as it alleges any violations of ,Section 8(a) (1) 2 The Trial Examiner found, and we agree, that the Respondent did not violate Section 8(a) (3) and (1) by suspending employee Riggins on two occasions and employee Holcomb on another 3 The iecord reflects, and the Trial Examiner found, that from March 22, 1963, when the Union was certified, until May 3, 1963, the paities baigauied in apparent good faith The prunicipal issue sep- <aiating them was the Union's demand that employees be remunerated on a "flat-iate" basis iather than on stiaight hourly scale as had been the case Flat-iate, essentially, is the time expiessed in terms of 100 units to the houi, which Volkswagen estimates for performance of a given service function The mechanics were usually able to com- plete the fobs in less than the recommended flat-rate time When baigaining bioke down on May 3, some of the mechanics engaged in a slowdown which continued uuitil May 23, 1963 3 At the end of the woiking day on May 23, 1963, Shop Foreman Rossow assembled the mechanics and told them they would have to accelerate their pace or face disciplmaiy action Employee Riggms challenged Rossow to iepeat his statement made earlier that day to Riggins, that they would have to "beat flat-iate or be discharged," and Rossow publicly confirmed that statement The next morning, following an unsuccessful attempt to see Service Manager Moeller, the employees ent on sti eke The Trial Examinee found that the foregoing statements by Rossow constituted a unilateral change in woiking conditions, and that the Respondent theeeby violated Section 8 (a) (5) and (1) of the Act He also concluded that the ensuing strike was caused by that violation .and hence constituted an unfair labor practice strike, and that the striking employees were entitled to reinstatement and backpay begin- ning 5 days after the Union's request for eemstatement on their behalf We do not agree ' For essentially the same reasons , we agree with the Trial Examiner's refusal to con- sider an incident of alleged surveillance as a violation of Section 8(a) (1) The Trial Examiner also recommended dismissal of all other allegations of violation of Section 8 (a)(1) As no exceptions were filed to those recommended dismissals they are hereby adopted pro forma ' See Porter DeWstte Conatructson Co , Inc, 134 NLRB 963, 965-966 , Waukesha Sales f Services, Inc, 137 NLRB 460 9 While the employees consistently completed jobs in less than flat rate time during the slowdown, they nevertheless consumed substantially more time in the performance of their various service functions than they had before May 3 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is well established that a unilateral change in working conditions,, without notice to or opportunity to bargain by a certified bargaining representative, constitutes a violation of Section 8(a) (5) and (1) of the Act. We do not believe, however, that we are here presented with such a case. Rather, we are persuaded that Rossow's statement to the assembled employees on May 23 was designed to impress the employees that the slowdown had not gone unnoticed, that the Re- spondent was concerned with the rate of performance, and that a return to a normal working pace was required. In substance, we- are convinced that Rossow's announcement constituted no more than an effort to combat the slowdown, a temporary expedient designed to induce the employees to return to a normal pace. For, Rossow's statement must be considered in light of the practice of Respondent's employees, both before and during the slowdown, of consistently beating flat-rate, and, most particularly, in light of Respondent's refusal during bargaining to accede to the union demand for flat-rate remuneration. In that light Rossow's remark constituted a mere re- affirmation of practice and policy and not a change in working conditions. Accordingly, we find that the" Respondent did not unilaterally change conditions of employment in violation of Section 8(a) (5) and (1), and that the strike was consequently economic in origin. We shall, therefore, dismiss the complaint in its entirety. [The Board dismissed the complaint.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This case was heard at Madison, Wisconsin, on October 7 through 9, 1963,1 pur- suant to a charge filed May 8 and a complaint issued August 2. At issue are whether Bruns Garage , Inc., herein called Respondent , by interrogation, threats, and other statements interfered with, restrained, and coerced its employees in the exercise of their statutory rights, whether Respondent discriminatorily suspended employees Jewell Riggins and Conrad Holcomb on certain occasions because of their union activities, whether Respondent on May 23 announced a change of conditions of em- ployment without having first notified International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, and its Local 443,2 herein called the Union, which was the certified bargaining representative, and whether the strike which commenced the following day was caused by the aforemen- tioned alleged unfair labor practices. Upon the entire record in the case,3 including my observation of the witnesses, and after due consideration of the unusually helpful briefs filed by the several parties hereto, I make the following: 1 All dates herein refer to the year 1963 unless otherwise specified. "The name reflects an amendment of the complaint made at the, hearing pursuant to a motion of the General Counsel which was unopposed. ",After the close of the hearing , both the Company and the General Counsel filed motions to correct the record in certain respects and both motions were granted. BRUNS GARAGE, INC. 367 FINDINGS OF FACT ` I. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent is a Wisconsin corporation engaged at Madison in the sale and repair of Volkswagen automobiles. Its, gross receipts in 1962 exceeded $1,000,000 and in that year it purchased and received from points outside the State, automobiles and materials valued in excess of $600,000 . On these facts, the Company admits and I find that it is engaged in- commerce within the meaning of Section 2 (6) and (7) of the Act. The Charging Party is a labor organization which on March 22, follow- ing an election on March 13, was certified as the statutory bargaining representative of the Company's employees. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion The amended complaint (which the Company repeatedly but unsuccessfully at- tacked as lacking in sufficient particularity) alleged unlawful interrogation of -em- ployees by Service Manager Wally Moeller and Manager Bob Bruns on or about April 1, and unlawful statements or threats to employees by Moeller on or "about March 1 and May 23, by Bob Bruns and Company President Clarence Bruns on or about March 13, and by Shop Foreman Noal Rossow on or about May 23. The testimony in support of these allegations may be summarized as follows: (a) According to the testimony of employee Jewell Riggins, which in this respect was not denied by Moeller, about March 6, a week before the Union's victory in the election, Moeller said to Riggins that "if it wasn't for this mess" Riggins "would be making $3.00 an hour," instead of his current rate of $2.30. • I find that the "mess" to which Moeller referred was the union campaign and the pending election. An employer may reasonably feel that the law frowns on his granting a wage increase on the eve of an election (cf. Exchange Parts Company, 131 NLRB 806, set aside, 304 F. 2d 368 (C.A. 5), cert. granted 375 U.S. 931), and may reasonably explain these limitations to his employees, while assuring them that he will propose the increase to the Union should it win the election. But Moeller in this case bluntly conveyed the message that the Union's entry on the scene was responsible for Riggins' failure to receive a wage increase, and clearly implied that the employee would receive a direct economic benefit if the Union were not in the picture. Moreover, the sub- stantial character of the potential wage increase, from $2.30 to $3 an hour, has all the earmarks of a promise of benefit conditioned on the Union's defeat. Neither the Union nor the Company proposed any such increase ,in the proposed contracts they presented in the ensuing negotiations. I find, therefore, that Moeller's state- ment to Riggins on March 6 tended to"interfere with the, free exercise of rights under the Act and violated Section 8 (a) (1). N.E.R.B. v. Illinois Tool Works, 153. F. 2d 811, 814 (C.A:3). (b) On another occasion about that time Moeller said he did not think the Union would help the employees and that an employee would be wasting money by pay- ing union dues. . Such statements constitute "views, argument or opinion" protected by Section 8(c). " (c) On the day of the election,. after the counting of ballots, Bob Bruns said to Riggins,,who had served as the Union's observer, "You won this one, but. we will see how you do across the bargaining table," and when Riggins replied that Bruns should not blame him, Bruns continued, "Well, you was observer for the Union; you didn't have to take that position."" This episode suggests some company hostility -to the Union, but on its face is merely a warning that "hard" bargaining is to be ex- pected. I see nothing, even faintly intimidatory in Bruns' comment, on Riggins' role as union observer. " (d) On'or about April 1, employee Conrad Holcomb went to the company office to inquire into,the reason for the suspension of Riggins, discussed infra. In the course of the conversation, some member of`management asked Holcomb why he wanted a union, to which Holcomb replied that he "was 100 percent for the Union and didn't care if they knew it," and that "we wanted a union [for] job security; livable wage, seniority rights, and contract." Under all the circumstances, and particularly in view of the Union's victory in the' election less than 3 weeks before, I find that the "interrogation" of. Holcomb was not violative of the Act in that it had no tendency `toward' interference, restraint, or coercion. 'Cf. Blue Flash Express, Inc.`, •109 NLRB591. '. , ' ," '''' 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) On May 23, Rossow, under circumstances described more fully below, an- nounced a change in working conditions without first notifying the Union This unilateral action is found below to have violated Section 8(a)(5), and, derivatively, Section 8(a) (1) of the Act, but I do not regard it as independently violative of that section 4 B The suspensions of Riggins and Holcomb The Company suspended employee Jewell Riggins for 3 weeks, commencing March 22, and again suspended him for 1 week, commencing April 22 It also sus- pended employee Conrad Holcomb for 1 week, commencing April 29 The issue with respect to each of the three suspensions is whether, as General Counsel con- tends, the Company was motivated by the employee's union activity (a) Riggins, one of three union committeemen, was suspended on March 22 for 3 weeks, following a conversation he had with one Harley Jacobi, a maintenance employee, in which Riggins told Jacobi (according to the latter's testimony, which I credit) that Jacobi would have to join the Union to keep his job Jacobi brought the matter to the attention of management, and Bob Bruns thereupon summoned Riggins to the office to inquire into the matter When Riggins denied having threatened Jacobi, Bruns, disbelieving Riggins, suspended him for 3 weeks Accord- ing to Bruns, he would have disposed of the affair more lightly but for the fact that Riggins, instead of admitting the matter, denied it Riggins' statement that Jacobi would have to join the Union to keep his job falls outside the area of protected activity, even if the Union were to obtain a union-security agreement, Jacobi could retain his job without joining the Union by tendering the proper dues and initiation fee Cf Mavis Lane v N L R B , 186 F 2d 671, 674 (C A 10) But the real question before us is not whether Riggins' statement was protected but whether the discipline visited upon him was occasioned by his union activity The record establishes that Riggins was a union committeeman, that he had been the union representative at the election, that the Company knew of his union activity, and that the Company had opposed the Union in the election The record also shows that when management first learned of the episode involving Riggins and Jacobi, it took the somewhat unusual step of obtaining an affidavit from Jacobi that same day setting forth his version of the event These circumstances give rise to some suspicion that the Company was prepared to take Riggins' offense more seri- ously than might appear warranted, and more seriously than it might have taken some altercation between two nonunion employees on a nonunion matter On the other hand, Riggins' denial of the statements attributed to him may well have "riled" Bruns more than the statements themselves In any event, suspicion is no sub- stitute for proof, and I am constrained to hold that the General Counsel failed to sustain his burden in this matter, as I am unwilling to infer from the testimony that any legitimate union activity was the cause of the suspension (b) Shortly after Riggins returned from his 3-week suspension, he was suspended for I week because a valve cover clip had not been fastened on the valve cover of an engine he had installed The record falls far short of establishing that Riggins was particularly to blame for this mishap, and while the affair is shrouded in some mystery, I think it most likely that the clip was never fastened on properly, a matter that both Riggins and Rossow, the shop foreman, who helped install the engine, should have noticed Of more significance in determining whether the week's suspension was motivated in part by Riggins' union activity is the fact that he had received no prior warnings for poor work, as had several other employees It should also be noted that at least one equally serious dereliction on the part of some mechanic a month before had not resulted in a similar disciplinary layoff On the other hand, the relatively, minor character of the discipline-a short sus- pension rather than discharge-suggests that Respondent was not motivated by a desire to rid itself of a union proponent, although it is possible that Respondent was undertaking to harass Riggins to lead him to quit Cf the "constructive dis- charge" cases, exemplified by N L R B v Saxe-Glassman Shoe Corporation, 201 F 2d 238, 243 (CA 1) Under all the circumstances, I conclude that General I Some of the allegedly illegal statements were denied by company witnesses I credit the testimony of Riggins and Holcomb that the statements in question were made Gen eral Counsel and the Union refer in their briefs to statements allegedly made by Moeller to Riggins early in February which crested an impression of surveillance, and which im plied that the employees would receive benefits if they rejected the Union The complaint does not allege the commission of any unfair labor practices prior to "on or about March 1," and I therefore make no finding with respect to these matters BRUNS GARAGE, INC. 369 Counsel's case with respect to the second suspension, even when considered in the light of the earlier suspension, does not rise above the level of creating a suspicion of discrimination, and the allegation should therefore be dismissed for want of proof. (c) The same result follows a fortiori in the case of Holcomb, a known union adherent but less prominent in union affairs than Riggins. Holcomb was given a week's suspension for failure to replace a gasket on a valve cover. The record establishes that no mechanics, other than Riggins and Holcomb, had been suspended for poor work, but this fact-even when considered in the light of Holcomb's support of, and the Company's hostility to, the Union-will not suffice to show that the suspension of Holcomb for 1 week was in any sense related to his union activity. C. The unilateral change of working conditons, and the strike 1. The bargaining negotiations The primary issue in the case is whether the strike which commenced May 24 was caused by an unfair labor practice,5 and this turns, at least in part, on whether the Company on May 23 announced a change in working conditions without first notifying the Union. A full understanding of this matter requires some discussion of the prior negotiations between the Company and the Union. Promptly following the certification of the Union, the parties engaged in what appeared to be good-faith, but unsuccessful, bargaining negotiations. Several meet- ings were held, and the services of a Federal mediator were invoked, but as of May 3, when the last bargaining session was held, no agreement had been reached. The principal rock on which negotiations foundered, so far as this record shows, was the Union's demand (similar to that it had successfully pressed with some other employers) that the men be paid "flat-rate," a proposal which the Company re- peatedly rejected. "Flat-rate" is the number of units of time (100 to an hour) which the manufacturer estimates for a given repair job. To quote the example most utilized in the testi- mony, "flat-rate" for a lubrication and inspection is 195 units or 1 hour, 55 minutes. It is this rate which the customer is charged for the job, whether the mechanic completes it in more time or less. Usually, but not always, a mechanic will "beat flat-rate," i.e., do the job in less time. Occasionally he will take longer than the "flat-rate" allowance. The employees in this case were paid at an hourly rate, and in their bargaining demands asked that they also be compensated at "flat-rate" as this was the basis on which the customer was billed and hence represented, to the employees, the real value of their services. Respondent refused to pay on a "flat-rate" basis, repeatedly expressing the view that it desired a high degree of quality from its mechanics, and feared that if they were paid by the job, the quality would suffer as they hastened to complete more jobs. Each side, in short, maintained an economic position, which, so far as the National Labor Relations Act is concerned, each side could lawfully maintain in good faith. 2. The "slowdown" The Company introduced testimony that during the month of May (i.e., after the unsuccessful bargaining conference on May 3 and before the strike which com- menced May 24) the mechanics embarked on a "slowdown," intended to utilize the full time on each job that the manufacturer's "flat-rate" prescribed. As the mechanics at their customary pace could usually (but not always)6 "beat flat-rate," Shop Foreman Rossow and Service Manager Moeller testified that the "slowdown" curtailed the amount of work handled at the garage and became of some concern to them. General Counsel and the Union introduced employee testimony that no "slow- down" occurred, and the Company introduced compilations made from its records to support its contrary contention. From my review of the record and my observa- 6 This matter is critical because the right of the strikers to reinstatement turns on whether this was an "unfair labor practice strike." Mastro Plastics Corp , and Trench- American Reeds Mfg. Co., Inc. v. N L R.B., 350 U S. 270, 278. 9 McGraw testified that before he became an assistant foreman he failed to "beat flat- rate" 20 or 25 percent of the time. No employee was ever disciplined for taking longer than the flat-rate time 760-5 77-6 5-vol 148-25 0 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of the witnesses , I find that, as is so often the case, the actual facts are neither so damning as the Company paints them nor so exculpatory as General Counsel and the Union contend. The testimony specifically attributes "slowdown" tactics to Hoffman, Holcomb, Gray, and McLeisch. No witness before me named any other employees among the 11 mechanics as participating in a slowdown. Gray, testifying before the Wisconsin Employment Relations Board in a related matter, admitted that when the Company "refused to give us flat-rate in'the bargaining . . . we starting taking" the full time that the manufacturer prescribed. The record does not indicate which employees. are embraced in Gray's "we," but it may fairly be construed as including his fellow committeemen, Olson and Riggins. Both Olson and Riggins testified after Gray at the Wisconsin board hearing and substantially adopted his testimony of the "events" or "incidents" "which led up to the work stoppage." It seems reasonably clear that they regarded Gray's description to the slowdown as among those events or incidents. As the Company concedes in its brief, its record show that most of the lubrication and inspection jobs performed in May were completed in less than the "flat-rate" time prescribed by the manufacturer. The impression which might be gleaned from the testimony that the employees deliberately slowed down in May to consume the "flat-rate" time on such work is therefore inaccurate, although this does not dispel the related contention that some "slowdown," albeit to a lesser extent, did occur. The individual records introduced by the Company show that, contrasting April with May, the worst offenders were Holcomb, Hoffman, and Gray, along with one Peickert, whose average hourly productivity, however, was substantially better in May than it had been in March. The same records show that Riggins and McLeisch also suffered a loss of average hourly productivity in May as contrasted with April, but McLeisch merely fell back to the level of his March performance. Other employees, notably Smithson, Herschleb, Olson, and McGraw showed no decline in May from their April rate. Olson, on the other hand, seems to be fairly implicated by the testimony before the Wisconsin board, and before me Olson was unwilling to state whether his pace of work changed for the slower in May. The Company also submitted other documents, compiled from its records, tending to show that Hoffman and Gray performed at a reasonable pace in April and that both slowed appreciably in May. Upon all the evidence I find that some of the employees-definitely Holcomb, Hoffman, and Gray, and quite probably Riggins and Olson-engaged in a deliberate slowdown during May after the Union's efforts to obtain payment for them on a "flat-rate" basis bogged down. The record does not establish that other mechanics deliberately slowed down in that month, and there is no evidence showing that the Union (either the local or the International) authorized or even knew about the slowdown tactics of the above-named individuals. 3. The "unilateral action," and the strike As stated, Rossow became concerned over the "slowdown," and on May 23 he told Riggins that from then on the men would have to "beat flat-rate" or be dis- charged. Late that afternoon Rossow called a shop meeting in which the told the assembled mechanics that they would have to accelerate their. pace or face disci- plinary action. Riggins then challenged Rossow to repeat to the group what Rossow had earlier said to Riggins alone, namely, that henceforward the employees would have to "beat flat-rate" or be fired. Rossow then publicly confirmed this statement.? Promptly after Rossow's announcement, which came at the end of the working day, the mechanics assembled again outside the shop to discuss this newest develop- ment. Although they had previously (on some undisclosed date after the last bar- gaining conference on May 3) applied to the International Union for strike authoriza- tion, they now decided to go on strike in advance of receiving such authorization. As they viewed the matter, they were now subject to discharge for failing to "beat flat-rate," and they allegedly feared discharge for poor work if they worked-too fast to satisfy the Company's repeated emphasis, in bargaining negotiations, on the high quality it desired. Accordingly, when they returned to work the next morning, Friday, May 24, they were prepared to go on strike. Early that morning Union Committeemen Riggins, Gray, and Olson went to the office and asked to see 7 The facts int his paragraph are sharply controverted by Rossow and Moeller, who deny that Rossow ever made the statement to Biggins or to the employees that men who failed to "beat flat-rate" would be discharged. On my observation of the witnesses, how- ever, and considering the testimony of each as to the meeting of May 23, I find the facts as set forth in the text above. 0 BRUNS GARAGE, INC. 371 Service Manager Moeller. When told that Moeller was not in, they called to the other mechanics to walk out, and the strike began. That-evening the striking em- ployees notified a representative of the International-,Union that they had struck; by coincidence, the strike authorization they had-previously requested was granted that day and received by them the following week. 4. Poststrike developments Several poststrike matters were brought out' at the hearing and require brief mention. First, a number of the striking employees have gone into business to- gether in Madison, repairing Volkswagen automobiles in apparent competition with the Company. Second, a number of persons sympathetic with the strikers have participated in picketing the company premises and in distributing literature which emphasizes the economic issues dividing the Union and the Company. Third, during the course of the hearing before me, the Union formally asked the Company to reinstate all the mechanics who went on strike except for one McGraw, who, the record shows, has been employed at another establishment in Madison since early June and apparently does not desire reinstatement. The Company had made no response to this application for reinstatement at the time the hearing closed. The record also discloses that the Company has hired some mechanics since the strike began, so that at least some, and perhaps all, of the strikers have been replaced. Finally, it appears that since May 24 some of the nonstriking employees have on occasion failed to "beat flat-rate," but have not been discharged or threatened with discharge therefor. 5. Concluding findings - The basic issue in this case is whether Rossow's remarks at the May 23 meeting constituted an unfair labor practice If they did, then the strike which followed was an "unfair labor practice strike," for the record is clear that Rossow's remarks constituted at least one of the causes of the strike. N.L.R.B. V. Wichita Television Corporation, Inc., d/b/a KARD-TV, 277 F. 2d 579, 584 (C.A. 10), cert. denied 364 U.S. 871, and cases there cited; N.L.R.B. v. Stilley Plywood Company, Inc., 199 F. 2d 319, 320-321 (C.A. 4), cert. denied 344 U.S. 933, quoting Berkshire Knitting Mills v. N.L.R.B, 139 F 2d 134, 137 (C.A. 3). Assuming arguendo that Rossow's remarks constituted an unfair labor practice, the fact that the men had applied for strike authorization before Rossow's statement would not, under the above cited cases, alter the character of the strike as an "unfair labor practice strike." In the first place, the seeking of strike authorization is by no_ means, conclusive evidence that, once authorization was received, the men would actually have gone on strike. And, as the cited cases show, even if the causes of the strike were in part economic, a strike is deemed an "unfair labor practice strike" for purposes of determining the rights of strikers if one of its causes was an unfair labor practice. This result is not altered by the publicity attending the strike which tended to em- phasize its'economic aspects. There is no showing that the Union controlled the action of the volunteer pickets or the contents of the newssheet published by the volunteers. And even- if the Union had chosen in its publicity to emphasize its economic demands, the fact remains that it was Rossow's statement, and not 'the breakdown of negotiations, which triggered the strike. The timing of the strike and the testimony of the strikers lead me to find that the strike was caused in part, if not altogether, by Rossow's remarks' on May -23., - , - I have found that Rossow on May 23 told' the assembled mechanics that hence- forward they would "beat flat-rate" or be discharged. Prior to this, occurrence- no such rule had ever been in effect, and it was by no means unusual for mechanics -to take longer than the "flat-rate" allowance 'on' a- particular job, without suffering any penalty for doing so. From these facts' General Counsel argues, that Rossow an- nounced a change in' conditions of employment, and that his doing so without prior notice to the statutory bargaining representative violated Section 8(a) (5) and ('1') under such cases as' N.L.R.B. v. Benne Katz, etc., -d/b/a Williamsburg Steel Prod- ucts Co., 369 U.S. 736: ` To this argument the Company makes' a theee-pronged response.' First, it denies that Rossow made the statement attributed to him, and' urges that he merely warned the employees 'to stop' slowing down: This 'factual conflict is resolved, as noted above, against the Company. The Company also -urges that Rossow's statement was justified in the light of the deliberate slowdown, and,-, finally, that Rossow's remarks could not have been taken literally as all concerned knew that an inflexible requirement to "beat flat-rate" would not be observed. ' At first blush there is considerable appeal to the 'Company' s- argument that it was entitled to invoke the "beat flat-rate" requirement to counter the slowdown, in which I have found (discrediting employee denials ) some of the employees engaged. 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rossow's irritation over the conduct of these men was only natural and justified, and his direct method of countering the slowdown has a simple and direct appeal It must be remembered, however, that the evidence links only a minority of the employees with the slowdown The Company's duty to bargain ran to the International and to the local, the latter consisting of the employees in a number of Madison garages, not merely in the Company's garage Neither the International nor the local are shown to have authorized, or to have had any connection with, the slowdown, indeed, the record fails to link even a majority of the shop with that tactic The Company was, of course, free to discipline or discharge the employees guilty of the slowdown The Company was free, also, to notify the Union that because of the slowdown (or for any other reason) the Company contemplated the change in conditions which Rossow abruptly announced, and, after an op- portunity for bargaining in good faith, could have put the change into effect, N L R B v Bradley Washfountain Co, 192 F 2d 144, 150-151 (C A 7) Finally, the Com- pany if it believed the union guilty of the slowdown could have filed unfair labor practice charges See NLRB v Insurance Agents' International Union, AFL- CIO (Prudential Insurance Co ), 361 US 477, 496, footnote 28 But the misconduct of individuals, or even of the Union, does not operate to revoke the union's status as bargaining representative, so as to permit the employer to act in disregard or derogation of its status In short, the Company cannot rely on the slowdown as a defense to its unilateral change of working conditions the imposition of a new rule prescribing a penalty for failure to meet a production standard In this connection it must be remembered that failure to "beat flat-rate" was not uncommon before the slowdown, so that imposition of penalty for such failure worked a significant change of working conditions for all employees including those not guilty of a slowdown See footnote 6, supra 8 The Company also argues that the employees must have known better than to take seriously or literally Rossow's statement that they must "beat flat-rate" or face discharge The fact that the Company has not adhered to any such rigid rule since May 24 is far from conclusive, for it has been employing new personnel, strike replacements, as to whom it might well not apply the rigorous standards it would have applied to its experienced men Even laying aside actual practice since May 23, however, the probability is that no such rigid mule could be applied in any garage which hoped to maintain a staff of experienced mechanics On the other hand, the fact that the standard could not reasonably be enforced is by no means diapositive of the question whether the employees took Rossow's words literally The em- ployees could have thought, for example, that the Company was planning to en- force the new rule long enough to rid itself of the union leaders So far as the record shows, the employees decided to strike because they felt that under Rossow's announcement they faced discharge either for poor quality or for failing to "beat flat-rate " They apparently took Rossow so literally that they did not even wait for strike authorization before walking out They did make a fruitless effort, the morning after Rossow's announcement , to see Rossow's superior, and walked out when he was unavailable I find on the basis of the entire record that the men took Rossow's announcement at face value and struck in response thereto The Company suggests that the strike occurred because Rossow's announcement showed the men they were not "getting away with" their slowdown tactics As al- ready noted, the record identifies only a minority of the men as engaged in such tactics, whereas the strike vote lacked but one of being unanimous Under these circumstances I cannot accept the Company's speculation To do so would be as improper, in my judgment, as to speculate that the Company did not promptly accept 8 Even if the Union had been responsible for the slowdown , this would not authorize the Company to act unilaterally in derogation of its statutory bargaining obligation See Kohler Co , 128 NLRB 1062, 1080, footnote 34, enfd 300 F 2d 699 (C % D C ), cert denied 370 U S 911, Consumers Lumber t Veneer Company, et al, 63 NLRB 17, 25, 40, footnotes 16 and 45 Cf Smith Transfer Company, Inc v N L R B , 204 F 2d 738, 740 (CA 5), holding that "deplorable" union conduct "is not a justification for counter strong arming on the part of the employer " Indeed, the Supreme Court's holding in NLRB v Insurance Agents' International Union , supra, that the union in that case did not violate Section 8 ( b) (3) by engaging, inter alia, in a slowdown during bargaining would seem to imply that such conduct did not affect the duty resting on both sides to bargain In N L R B v Benno Katz, etc, d/b/a Williamsburg Steel Products Co , 369 U 5 736, 741, footnote 7, the Supreme Court stated that "union instigated slowdowns would not have justified the Company's refusal to bargain," which refusal in Katz, as here, was manifested by unilateral action But in Katz, of course, the unilateral action was not, as here, designed to counteract the slowdown -BRUNS GARAGE, INC. 373 the reinstatement applications (which, if accepted, would have relieved the Com- pany of a potential backpay liability, of an existing strike, and of a competing garage) because the Company saw an opportunity to rid itself of the Union , whose selection as bargaining agent the Company had unsuccessfully resisted. Confining myself to the record, and abjuring the speculations which are conceivable but by no means inevitable from the facts , I find that the employees struck on May 24 in response to, and because of, the change in working standards which the Company, through Ros- sow, announced on May 23 without notice to the bargaining representative. In short, I find that the Company violated Section 8(a)(5) and ( 1) of the Act, and that the strike was caused by this unfair labor practice. III. THE REMEDY The conventional cease-and -desist , remedy prohibiting unilateral action and related refusals to bargain seems appropriate in this case , as does the conventional directive to bargain upon request. An express rescission of the unilateral change of May 23 also seems appropriate, but in view of the "slowdown" I shall recommend that the conventional "notice" include language warning the employees- that their employer's recission of the May 23 announcement does not carry ,with it any license to resume improper conduct. For reasons I have recently set forth in Melrose Processing Co., Case No. 18-CA-1661 [146 NLRB 979], I am incorporating the "armed forces" provision in the order rather than in the notice. Generally speaking, unfair labor practice strikers are entitled to reinstatement upon application, and backpay accrues if such reinstatement is denied. Where no such application has been made at the time of the hearing, the Board customarily allows 5 days after application before backpay liability commences. A similar allowance seems to me appropriate where, as here, the application is made in the course of the hearing. I shall therefore recommend that the Company reinstate the strikers and give them backpay for any failure to do so, commencing Monday, October 14, 1963. Backpay shall be computed in accordance with the formula set forth in F. W. Wool- worth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. The order embraces all the strikers who applied for reinstatement; the sole striker who did not so apply, McGraw, is deemed to have abandoned the strike as he is em- ployed elsewhere and the record affords no other clues for his failure to join in the mass application for reinstatement. The Company, citing Bausch & Lomb Optical Company, 108 NLRB 1555, urges that no bargaining order should issue because the employees have engaged in a competing business. The cited case is inapposite as there is no allegation here that the Union, as such, is engaging in a competing business . The employees who have so engaged in their search for interim employment (see N.L.R.B. v. Cashman Auto Company and Red Cab Company, 223 F. 2d 832, 835-836 (C.A. 1)) have offered to abandon this competing venture and to return to work for the Company. Even if some or all of them were to sever their employment with the Company and to continue to operate a competing business , the effect of such action would be to remove those individuals from the bargaining unit. Such a removal would not affect the status of the Union as bargaining representative of the Company's remaining employees, nor would it put the Union in the position of running a competing business as in Bausch & Lomb Optical Company, supra. The most that can be said for the Com- pany's position is that if the competing garage remains in existence , and if one or more of the individuals operating it remains on the bargaining committee for the Company's employees, the Company might legitimately refuse to bargain with a committee on which he sat. Cf. N.L.R.B. v. Kentucky Utilities Company, 182 F. 2d 810, 813-814 (C.A. 6). CONCLUSIONS OF LAW 1. Respondent by announcing a change of working conditions on May 23, 1963, without prior notice to or bargaining with the Union, engaged in an unfair labor practice affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 2. The strike which commenced May 24, 1963, was an "unfair labor practice strike." 3. Respondent by telling an employee that but for the advent of the Union he would be receiving a wage increase of approximately one-third his present rate engaged in an unfair labor practice affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 4. Except as found above Respondent engaged in no violations of the Act. [Recommended Order omitted from publication.]