Lasko Metal Products, Inc.

976 DECISIONS,'OF NATIONAL LABOR RELATIONS BOARD [The Board set aside the election conducted herein on December 19, 1963.] [Text of Direction of Second Election omitted from publication.] Lasko Metal Products, Inc. and District Lodge No. 155, Inter- national Association of Machinists, AFL-CIO. Case No. ^96-, CA-1584. September 14, 1964 DECISION AND ORDER On March 19, 1964, Trial Examiner George A. Downing issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the Act and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in, the attached Decision. Thereafter, both Respondent 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 [Chairman McCulloch and Members Fanning and Jenkins]. 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 Ex- aminer's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner only to the extent consistent with this Decision and Order. We agree with the Trial Examiner's findings that Respondent vio- lated Section 8(a) (1) of the Act in the manner and to the extent set forth in his Decision. We agree also with his dismissal of the allega- tions of the complaint relating to general bad-faith bargaining, the institution of unilateral wage increases and other benefits, and the dis- charge of employee Howard Sands. However, we cannot agree with the Trial Examiner's findings that (1) certain unilateral layoffs and recalls violated the Act; (2) the strike of July 22, 1963,1 was caused by Respondent's unfair labor practices; and (3) Respondent's refusal to furnish certain information requested by the Union violated Sec- tion 8 (a) (5) of the Act. As to the unilateral layoffs and recalls, the facts are not in dispute and may be summarized as follows. Following its certification on 'Unless otherwise stated, all events occurred in 1963. 148 NLRB No. 104. LASKO METAL PRODUCTS, INC. 977 May 31, the Union, by letter of June 4, formally requested bargaining with Respondent. On June 7, Respondent acknowledged the request and offered to meet on June 12. On the same date (June 7), Respond- ent unilaterally laid off certain employees without notice to or con- sultation with the Union.2 It is conceded that these were temporary layoffs prompted solely by economic considerations. At the first bar- gaining session on June 12, the Union protested the unilateral nature of the layoff and Respondent's alleged failure to select employees for layoff in accordance with seniority. Respondent explained that the layoffs were to be brief and that it had applied seniority in selecting employees for layoff. Following a discussion of the seniority rights of individual employees, the Union stated that the method used by Respondent in selecting employees for layoff was acceptable if uni- formly applied. However, although at the second meeting between the parties on June 26 the Union again protested that certain em- ployees had been called back out of seniority, there was no further discussion of this issue by the parties in the series of meetings that continued to September 10. The Trial Examiner concluded that Respondent, both by unilater- ally laying off employees on Jnuie 7 and by thereafter unilaterally re- calling them without notice to or consultation or bargaining with the Union, refused to bargain within the meaning of Section 8(a) (5) of the Act. We do not agree. Assuming arguendo that Respondent's failure to consult with the Union about the layoff on June 7 would establish a prima facie case of refusal to bargain, the ultimate determi- nation as to whether a Section 8(a) (5) violation has been committed depends not only upon the specific act itself, but upon the circum- stances surrounding such action. Here, at the first meeting on June 12, the Union, after lodging its initial protest, reached agreement with Respondent over the method used in selecting employees for layoff, and thereafter this issue did not recur to any significant extent during later negotiations. Under all the circumstances related above, we conclude that there is'insufficient basis upon which to find Respondent violated Section 8"(a) (5) of the Act by its conduct in this regard.' Likewise, we are unable to conclude, as did the Trial Examiner, that the strike of July 22 was caused or prolonged by Respondent's unfair labor practices. While the Trial Examiner found that the Respond- ent did not engage in general bad-faith bargaining as alleged in the complaint, he nevertheless found that the strike had been caused by Respondent's prior unfair labor practices, namely, its preelection See- 2 The record does not disclose how many employees were laid o8 on June 7 (although the indications are that they were few) or when they were recalled to work. 8 Hartmann Luggage Company, 145 NLRB 1572. 760-577-65-vol. 148--6 3 978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion 8(a) (1) conduct and its unilateral action in laying off and re- calling employees, which was found by the Trial Examiner to be viola- tive of Section 8(a) (5). As stated supra, we have found Respondent did not violate Section 8(a) (5) by unilaterally laying off and recall- ing these employees. We have also adopted the Trial Examiner's find- ing that Respondent did not engage in general bad-faith bargaining. Hence any finding that the strike was caused by Respondent's unfair labor practices would of necessity have to be based solely upon Re- spondent's preelection 8 (a) (1) conduct. All the 8 (a) (1) conduct detailed in the Trial Examiner's Decision occurred before the Union's certification, and there is no evidence that it had any effect upon the course of negotiations. The Trial Exam- iner relied on testimony that the employees struck because of Respond- ent's refusal to bargain and other unfair labor practices. But the testimony of George Wells, the union business representative and its chief negotiator, indicates that the employees were concerned about unfair labor practices during the negotiations. Moreover, it is clear that the major stumbling block to an agreement between the parties was Respondent's failure to offer terms as favorable as the Union ex- pected. However, we have found, in agreement with the Trial Exam- iner, that Respondent's general course of conduct during the negotia- tions did not exceed the permissible bounds of good-faith bargaining. Therefore, as we find no evidence of any causal connection between Respondent's unfair labor practices and the July 22 strike of its em- ployees, we conclude that the strike was not caused or prolonged by Respondent's unfair labor practices.4 The remaining issue before us for consideration is Respondent's alleged failure to comply with the Union's request for information regarding newly hired employees. The record shows that on August 9, during the course of the strike, Wells, the union business representa- tive, requested that Respondent furnish "the names, the hire dates and wage rates of all new hires and employees who were hired since July 22, 1963," stating that this information was requested for bar- gaining purposes. Respondent Attorney Harwood acknowledged this request on August 12, stating that the information would be available to him (Harwood) within the next few days and that it would be made available providing Wells was interested in negotiating a contract which would fully recognize the rights of these newly hired employees. Wells repeated his request on August 14 and also protested Harwood's attempt to impose' conditions upon its receipt. On August 19, Har- wood informed Wells by letter that he had the information requested I In view of our finding that the strike was not an unfair labor practice strike and the uncontroverted evidence that at the time'the striking employees sought reinstatement there were no jobs available, we do not' adopt the Trial Examiner's findings with respect to the rights of the striking employees to backpay and reinstatement. LASKO METAL PRODUCTS, INC. 979 and that Wells might see it in Harwood's office at any reasonable time and make a copy of it if he wished. On August 20, Wells requested that the information be made available by mail. Subsequently at a bargaining session on September 10, at which both Wells and Harwood were present, Wells made no further request for the information and Harwood did not offer to produce it. At the hearing, the Trial Exam- iner directed Harwood to make this information available to Wells and he complied. The Trial Examiner found that the information was readily avail- able in Respondent's records and the compilation of it was no burden- some task. Therefore, he concluded that as Respondent advanced no reasonable excuse or justification for failing to deliver the informa- tion on August 19, the failure to do so was in violation of Section 8(a) (5) of the Act. We do not agree. Although Respondent was obligated to make the information requested available to the Union, it does not follow that the Union has a right to such information under the terms and conditions it imposed. Good-faith bargaining requires only that such information be made available at a reasonable time and in a reason- able place and with an opportunity for the Union to make a copy of such information if it so desires. These are precisely the terms upon which Harwood offered the information to the Union when it came into his possession. Accordingly, we find that Respondent met its obligation to bargain in good faith by making the information re- quested available at a reasonable time and at a reasonable place. Therefore, we shall dismiss this allegation of the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Lasko Metal Products, Inc., its officers, agents, succes- sors, and assigns, shall : 1. Cease and desist from : (a) Interrogating coercively employees concerning' their voting in- tentions and concerning the union membership, activities, and senti- ments of themselves and other employees. (b) Threatening employees with a plant shutdown, with the with- drawal of plant expansion, and with discharge or other reprisals if they become or remain members of the Union or give it assistance or support. (c) Engaging in surveillance, or in conduct which is calculated to create the impression of surveillance, of union meetings and activities. (d) In any like or similar manner interfering with, restraining, or coercing its employees in the exercise of their right to self-orga- 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nization, to form, join, or assist said District Lodge No. 155, Interna- tional Association of Machinists, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action : (a) Post at its offices and plant at Franklin, Tennessee, copies of the attached notice marked "Appendix." I Copies of said notice, to be furnished by the Regional Director for Region 26, shall, after being signed by Respondent's representative, be posted by Respond- ent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 26, in writing, within 10 days from the date of this Decision and Order, what steps Re- spondent has taken to comply herewith. 5In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT interrogate coercively our employees concerning 'their voting intentions or concerning the union membership, ac- tivities, and sentiments of themselves and other employees. WE WILL NOT threaten our employees with a plant shutdown, with the withdrawal of plant expansion, or with discharge or other reprisals if they become or remain members of the Union or give it assistance or support. WE WILL NOT engage in surveillance or in conduct which is calculated to create the impression of surveillance of union meet- ings and activities. WE WILL NOT in any like or similar manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist said District Lodge No. 155, International Association of Machinists, AFL-CIO, or any other labor organization of our employees, to bargain col- lectively through representatives of their own choosing, or to LASKO METAL PRODUCTS, INC. 981 engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. LASKO METAL PRODUCTS, 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, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No. 534-3161, if they have any question concern- ing this notice or compliance with its provisions. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 163, 73 Stat. 519), was heard before Trial Examiner George A. Downing at Franklin, Tennessee, on October 22, 23, and 24, 1963 , pursu- ant to due notice . The complaint; issued on September 13, 1963, by the General Counsel of the National Labor Relations Board, on a charge and an amended charge dated July 29 and August 19, 1963 , respectively, alleged, in substance (as amended), that Respondent engaged in unfair labor practices proscribed by Section 8(a) (1), (3), and (5 ) of the Act, by certain specified acts of interference, restraint, and coercion, of discrimination, and of refusal to bargain in various respects hereinafter more fully adverted to. Respondent answered on September 23, denying the unfair labor prac- tices as alleged. Upon the entire record in the case , and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTIONAL FINDINGS Respondent, a Pennsylvania corporation licensed to do business in the State of Tennessee, is engaged in the manufacture of electrical appliances at its plant in Franklin, Tennessee, from which it sold and shipped directly to points outside said State during the past 12 months products valued in excess of $50,000. Respondent is therefore engaged in commerce within the meaning of Section 2(6) of the Act. U. THE LABOR ORGANIZATION INVOLVED The Charging Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction and issues Respondent is owned by Harry Lasko and Oscar Lasko , brothers, who manage both a plant at West Chester, Pennsylvania, and the plant at Franklin , which is in- volved in this proceeding. Following a consent election held on May 22, 1963, won by the Union, a certification issued on May 31. The chief issues in the case concern a refusal to bargain as claimed by the General Counsel in the following respects : (a) bad-faith bargaining without intent to reach an agreement; (b) a unilateral layoff and a unilateral recall of employees without consulting the Union ; (c) the submission of a "take it or leave it " proposal ; (d) the unilateral institution of a wage increase , a seniority system, and paid holidays; and (e) a refusal to furnish certain information requested by the Union. A further issue concerns the discharge of Howard Sands on May 20 (reinstated on June 13), de- 982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fended by Respondent on the ground of cause and on the ground of settlement Re- spondent offered no refutation, however, of the evidence which the General Counsel offered in support of the Section 8(a)(1) allegations Directly connected with the foregoing issues was an alleged unfair labor practice strike begun on July 22, and alleged discrimination resulting from failure and re- fusal to reinstate the stokers upon application following the termination of the strike on August 12 B Interference, ,estraint, and coercion, the discharge of Howard Sands As Respondent offered no testimony denying that given by the General Counsel's witnesses in support of the Section 8(a)(1) allegations, the evidence will be briefly summarized Chronologically, the conduct began with surveillance of a union meet- ing at the home of an employee in Franklin on the evening of April 9, and with com- ments concerning the meeting made by Harry Lasko on April 10 and later Though the testimony concerning actual surveillance was none too strong (in view of the population and layout of the town of Franklin and the location of the employee's home), yet it was sufficient to establish a prima facie case Aside from that, as will be seen, Lasko's later comments plainly indicated that Respondent was engaging in surveillance, as well as in calculated attempts to create the impression of surveillance The union meeting was held on the evening of April 9 at the home of Betty Camp- bell, 228 Second Avenue, South, in Franklin (population around 7,000) Testimony was given by Owen Sullivan, Edgar Perry, and George Wells, business manager of the Union, to the effect that Supervisor Allen Browne drove back and forth in front of Campbell's home during the meeting and then parked his car on a street nearby While checking on Browne's presence, they also discovered Elizabeth Moses, Harry Lasko's secretary, parked in her car on the opposite corner to that on which Browne was parked Though simple explanations might well have accounted for the conduct of Browne and Moses, none were forthcoming, and Lasko's comments the next morning re- moved any doubt that Respondent had engaged in surveillance Gladys Beasley, who attended the meeting and who had formerly lived on Second Avenue, North, testified that she was called into Harry Lasko's office the next day, in the presence of a supervisor and other employees designated by Lasko as "witnesses," and that Lasko stated he had been informed that Beasley was a union promoter and had held a union meeting at her house the previous night Lasko refused to tell Beasley who had informed on her, and she suggested that he check on her own house at 1231 Adams Street to see if a union meeting was held there Corinne Jennette, who did not attend the meeting, was also called to Lasko's office on April 10 Lasko questioned her about her whereabouts the night before, and she gave him her itinerary after leaving the plant Although assuring her that his in- quiry would not interfere with her job Lasko stated he understood that Jennette was the union leader, and inquired if she had signed a card Lasko stated further that the city of Franklin had wanted him to locate there, that he did not have to remain, that he had intended to expand the plant, but that if the Union came in, he would not expand it, which would mean that some 500 or 600 people would be out of jobs in Franklin On May 17, Lasko called Mildred Irvin to his office and told her he understood she was "one of the chief instigators" in the Union, and when Irvin asked if Lasko could prove his statement, he replied that he thought he could Lasko also reminded Irvin how well he had treated her and told her he wished she would forget about "that damned union" and help him On May 17, the Union held a barbecue at Neapolis, some 16 miles from Franklin Lasko questioned Howard Sands the next day concerning the happenings at the barbecue, the number in attendance, and as to Sands' opinion of how the Company stood In a subsequent conversation Lasko expressed disappointment in Sands be- cause Sands had attended the barbecue and because he understood Sands was taking a leading part in forming the Union When Sands denied taking a leading part, Lasko agreed that Sands was telling the truth "for T have ways of knowing such " Other statements attributed to Lasko were as follows On an earlier occasion in April, Lasko questioned Sands about his knowledge of "this union," stated he had no use for unions and would never grant seniority unless it were forced upon him, and inquired what the Company could do to "wean" the people away or satisfy them without having a union On May 21, Lasko told Evelyn Ann Bennett that the Union was no good and would never do the employees any good On July 19, Lasko told Jesse Milton King he was sorry to have to tell King's friends that King had gone against the Company King acknowledged that that was LASKO METAL PRODUCTS, I-NC. 983 the way it was, and Lasko continued that it was not too late for King "to come back with us now." When King insisted that he was going to stay with the Union, Lasko stated that King would get no more by staying with the Union than he would if he came back with the Company. Some of Respondent's supervisors engaged in similar conduct . Around May 25, Foreman Louis Mosly informed employee Frances Edwards that she was going to be sorry for wearing the union button which Edwards was wearing at the time. On May 29 Mosly told employee Evelyn Ann Bennett the employees would be sorry for voting the Union in and wearing those little (union ) buttons. On the day before the election, Foreman Bob Sullivan called his employees to- gether and told them that when they went to' vote, they should remember all the things he had done for them and to think of him. Mary Frances Simmons testified that when she went to work the next morning (after the election, which the Union won), Sullivan did not speak to her, and when she asked if he was angry, Sullivan stated he was not but that "I'm going to have to make it harder on you." In a later conversation concerning the Union, Sullivan said he would not work for a union, that Lasko would never sign a contract, and that Lasko had a buyer for the plant and would either sell it or close it down before he would sign a contract. On the day of the election, Foreman Bill Padilla questioned Thelma Harper about whether she was going to vote for the Union. A week after the election, Plant Superintendent Frank Bastelle questioned Harper about whether she was going to join the Union, and about a week later Bastelle told Harper that those who joined the Union would not have a job after the Union was thrown out. The facts concerning Sands' discharge may be briefly stated. On May 20, Lasko approached Sands and demanded angrily what Sands and his "lousy union" meant by spreading rumors that Lasko did not think anything of his key employees. Sands denied the accusation, and there followed a bitter and angry argument between them during which each called the other a liar and which terminated in Lasko discharging Sands on the spot. C. The former charges and the settlement by the parties On April 17 and May 28, 1963, the Union filed separate charges in Cases Nos. 26-CA-1517 and 26-CA-1546, respectively, alleging in the former a single act of surveillance on April 9, and in the latter that Sands had been discriminatorily dis- charged and that Respondent had engaged also in "intimidation, threats and .. . other acts and conduct " On June 3, the Regional Director issued a complaint in Case No. 26-CA-1517 charging a single act of surveillance on April 9 by Supervisor Allen Browne and Agent Elizabeth Moses. No complaint was issued in Case No. 26-CA-1546. Preliminary to entering upon negotiations for a contract at their first meeting on June 12, Respondent and Union reached an amicable agreement for the settlement and withdrawal of the Union's charges. On June 17, the Union filed with the Re- gional Director separate withdrawals of the charges "without prejudice ." On June 18, the Regional Director issued an order in Case No. 26-CA-1517, which recited his approval of the withdrawal of the charge and which dismissed the complaint. In Case No. 26-CA-1546, he notified the parties he had approved the withdrawal of the Union's charges. It is necessary to review briefly the events and the discussions which led to settle- ment of the Sands' discharge, for they bear directly upon the issue of discriminatory motivation. Concurrently with its request to bargain on June 4, the Union notified Respondent that Sands was a member of its negotiating committee . In his acknowl- edgement of the request, Lasko questioned whether Sands' presence on the com- mittee would "be conducive to amiable relations," explaining that Sands was no longer an employee and that he would not be reemployed "unless he makes a public apology to me for the abusive statements that he made to me in the presence of other employees," and that "if he wants to make such an apology I will thereupon re- employ him." Lasko added, however, that if the Union wanted to employ Sands in some capacity for the negotiations , that was its business. Respondent repeated at the June 12 meeting its offer to reemploy Sands if he would make a public apology to Lasko; it took the position that Sands had been rather abusive and insulting to Lasko and that the discharge was not motivated by his union membership . Agreement was reached for Sands ' reinstatement upon ex- change of the following letters: Sands wrote Lasko on June 12 expressing his apologies for anything he might have said to offend Lasko during their discussion and conversation on May 21. 984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lasko replied on June 13, acknowledging Sands' expressions of regret and stating that he was sorry that "the differences between us arose." A final commentary on the settlement was Wells' testimony that he understood that the pending charges (including surveillance) were settled by the exchange of letters, by the reinstatement of Sands, and by the withdrawal of the charges. D. The course of the negotiations 1. Introduction Formal negotiation meetings were held before the strike on June 12 and 26 and July 10, 16, and 19, and there were in addition telephone calls between George Wells, business representative of the Union, and Judson Harwood, attorney for Re- spondent, on July 10 and 11, and an informal meeting between them on July 11. Following the strike on July 22, further meetings were held on August 2 and Sep- tember 10. Beginning July 16, all meetings were held in the presence of a com- missioner of the mediation and conciliation service, who was called in by the Union. The Union was represented throughout by Business Representative Wells and (ex- cept in the meeting of July 11) by an employee committee consisting of Howard Sands, Gladys Beasley, and Corinne Jennette. Respondent was represented through- out by its counsel, Harwood, with Harry Lasko in attendance on June 10 and 26, July 10, and September 10, and Oscar Lasko on June 26 and July 10. Because one of the facets of the General Counsel' s case is a general contention of bad-faith bargaining, a more extended review of the evidence is necessary than would have been required if only the other specific matters were relied upon. The bad-faith bargaining claim was based principally on contentions concerning the num- ber and length of meetings,' difficulty in arranging meetings with Harwood, sub- mission of an economic proposal on a "take it or leave it" basis with a refusal to bargain further on contract language and other issues, and bargaining with no intent to enter into an agreement. It is on those issues that the evidence is in sharp con- flict, there being little dispute on the material facts concerning other specific aspects of the claimed refusal to bargain. A detailed review of the evidence will therefore be limited as nearly as possible to the conflicts on the points which are critical to the bad-faith bargaining claim, resolu- tion of which depends almost entirely on the issue of credibility between Wells and Harwood, who were the principal spokesmen for the parties and the principal wit- nesses concerning the negotiations. Indeed, the corroborating testimony offered on both sides was of slight value. The Laskos, for example, did little more than to affirm on leading questions Harwood's rerecital of his own testimony as given earlier in their presence. On the other side, testimony by the committee members con- firmed about as much of Harwood's testimony on significant points as it did of Wells' and on one critical point was refuted, like Wells', by later correspondence between Wells and Harwood. Though other disputed points will be resolved as they are reached in the summary of the negotiations, it will be helpful preliminarily to dispose of a sharp dispute con- cerning the length of the meetings, since that will assist materially in the resolution of further conflicts as to the extent of the discussion of contract issues and contract language. In brief, at opposite polls stood Wells' minimal estimates and the maximum esti- mates made by Harwood's secretary, Verna Woods, with the truth lying somewhere between them. I find on the other hand that Harwood's estimates were the more realistic under all the circumstances. As for the meeting of July 19, for example, his estimate of 30 minutes (over Wells' minimal estimate of 5 minutes) was confirmed by Sands' identical estimate. Wells also grossly underestimated the length of the July 16 meeting at 10 minutes. That was the first meeting held before a commis- sioner of the mediation service, and there was necessarily involved (as Harwood testified) the matter of acquainting the commissioner with the issues in dispute and the positions of the parties thereon. There was also some further discussion of the issues, and there were, as well, private conferences held separately by the commis- sioner with the respective parties. Attempted justification of his erroneous time estimates faced Wells in turn with the necessity for minimizing comparably the extent of the discussions on specific contract provisions and issues. Concerning the June 26 meeting, for example, Wells, 1 Although the General Counsel disclaimed in oral argument reliance on those factors as alone constituting a refusal to bargain, he reserved their relevancy to his contention of Respondent's alleged unwillingness to enter into an agreement. LASKO METAL PRODUCTS, INC. 985 though admitting that the parties went through the entire proposal from the begin- ning, testified on direct examination that as they went along the extent of Harwood's comments, reaching only a few of the articles, was that he saw nothing wrong with them or that they appeared to be okay, but that in Wells' estimation nothing specifi- cally was agreed upon . On cross-examination , however, when taken through the contract section by section , Wells admitted that agreement was reached, or that no objection was made by Respondent, to numerous provisions of the contract ; that on others Respondent rejected the proposals ; that on some others modifications of the contract language were discussed , agreed upon, and made; and that on certain sub- jects (e.g., holidays and insurance ) Respondent proposed that it continue its existing practices. Wells admitted further that as to the grievance procedure Respondent suggested the possibility of using the one contained in the contract covering its West Chester plant. For the foregoing reasons, I credit Harwood's testimony as to the length of the meetings and as to the extent of the discussions concerning contract provisions and contract language. 2. The meeting of June 12 The June 12 meeting was devoted in part to reaching an agreement for the settle- ment of the Union's prior charges, as set forth in section C, supra. The Union also protested Respondent's unilateral action in laying off, on June 7, certain employees (stipulated to be strictly economic ) without notice to or consultation or bargaining with the Union . The Union was informed that the layoff was temporary and that the employees would be called back in a week or so? I do not credit Wells' testi- mony, over Harwood's denial, that Harwood stated that the layoff was none of the Union's business until a contract was signed. Aside from the foregoing , the negotiations consisted of Wells' submission of the Union's contract proposal of some 35 pages. Harwood thumbed through the pro- posal, without examining it carefully, and stated that the Company would need time to study its provisions in order to negotiate intelligently. Thereupon, because of Wells' impending vacation, the next meeting was set for June 26. 3. The meeting of June 26 There was no dispute about the fact that in the second meeting the parties went through the Union's proposal, section by section, from the beginning to end, though there was disagreement as to the extent of the discussions and the extent of the agree- ments which were reached. Wells' version of the discussion has been set forth in section 1, supra. As there found, his admissions on cross-examination concerning numerous provisions on which agreement was reached exploded his claim on direct examination that nothing specifically was agreed upon. Measured against Wells' testimony on cross-examination, Harwood's testimony differed mainly in his specification of a larger number of provisions which were agreed upon, in the definiteness with which he expressed his acceptance or rejection of specific provisions , and in the extent of the discussions between the parties and the extent of modifications in contract language as suggested by Respondent and accepted by the Union. Testimony of the other witnesses was not helpful for rea- sons which have been previously mentioned . Sands, for example, who was testify- ing on rebuttal after having heard the testimony of Wells and Harwood, agreed (without endorsing either witness ) that the testimony he had heard agreed with his recollection of that meeting .3 Harwood did not deny Wells' testimony that at the conclusion of the meeting Wells inquired whether Respondent would prepare counterproposals and that he agreed to do so insofar as certain items were concerned , such as hourly wages, classi- fications, grievance procedures, seniority, and others . Harwood admitted that the only counterproposals he submitted were those which he made verbally at the bar- gaining conferences and that he did not rewrite certain provisions because he had interlined in his copy of the Union 's proposal the modifying language agreed upon and that, therefore, the drafting of the final contract language would be no problem. 2 Though it was also stipulated that the recalls were made and that certain of them were discussed with the Union on several occasions during the first bargaining sessions, there was no denial of Wells ' testimony that in the June 26 meeting the Union made a further protest that Respondent had recalled some of the employees out of seniority 3 The fallibility of Sands' appraisals of what might or might not be agreed to was demonstrated by his testimony elsewhere on cross-examination that though Respondent offered a week' s vacation and the Union agreed to it, he did not think the matter was settled. 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The meeting of July 10 The points which were chiefly in dispute concerning the events at the third meeting were whether Harwood submitted Respondent's offer on the economic issues on a "take it or leave it" basis, refusing to discuss "contract language" or other provi- sions, and whether Harwood's alternative offer of a wage increase for the first year would be at the price of giving up a vacation the first year. Wells testified that when Harwood announced his readiness to submit Respondent's economic offer on a "take it or leave it" basis, Wells demurred that the Union was not concerned with economic matters until agreement was reached on other contract terms and language, and he testified that Harwood replied that until the economic offer was accepted, Respondent was not in a position to discuss contract terms. Harwood denied that he refused to discuss contract language as Wells claimed, testifying that they went through a number of items on which language interlinings were made at that meeting, that they verified the interlineations which had been made and agreed to in the prior meeting, and that Wells brought up a number of proposals which Respondent had previously rejected, and that Respondent rejected some of them again. Harwood testified further that there was no question of mis- understanding concerning language as such, and that the only issues between the parties were on the substantive provisions of the contract. I credit that testimony. I find further that Harwood did not submit Respondent's economic offer on a "take it or leave it" basis, though that was doubtless the implication which the Union's representatives read into Harwood's statements set out below and which they persuaded themselves they actually heard him express.4 Thus Harwood testi- fied he told Wells the Company did not have a lot to offer and asked whether Wells preferred it "in driblets" and to "haggle" over it or whether he wanted it all at one time. When Wells suggested a preference for "one package," Harwood submitted the offer, concluding with the statement that it was the last offer as far as the Com- pany was concerned and that it would not be increased.5 In brief, Respondent's proposal was that, in addition to agreements previously reached on other items, it would give five holidays, a week's vacation, and a 10-cent wage increase to be spread over a 3-year period, with Harwood suggesting initially that the 10 cents be allocated on the basis of 5 cents the second year and 5 cents the third year. Upon Wells' expression of indignance. Harwood proposed alterna- tively (with Lasko's approval) to give the vacations and holidays and to divide the 10-cent wage increase on the basis, of 4 cents the first year and 3 cents for each of the second and third years. Harwood denied that- he at any time offered an alternative of 5 cents for the first year but no vacation, testifying that Wells had previously agreed to a week's vacation and that the Company at no time thereafter proposed not to give it regardless of the other items. I credit Harwood's testimony, finding that the Union's representatives were con- fused by Harwood's initial suggestion that though the vacation would be given the first year, the first 5 cents of the proposed wage increase would begin with the second year. 5. The telephone calls; the meeting of July 11 Immediately after the meeting on July 10, Wells discussed with his committee the question of making a counterproposal to Respondent's economic offer and decided to submit at once a counterproposal for a 3-year contract on the following basis: For the first year, a 5-cent wage increase, five paid holidays, a week's paid vacation, and the existing insurance plan; for the second year a 6-cent wage in- crease and six holidays; and for the third year a 7-cent wage increase and seven paid holidays, plus, of course, the vacation and the insurance plan. Wells testified that after considerable delay in reaching Harwood on the tele- phone, he submitted that counterproposal to Harwood on the afternoon of the 10th, and Harwood agreed to pass it on to the Laskos, though he stated he had no particular reason to believe they would change their mind. The calls were renewed that evening, with Harwood's reply being delayed by his difficulty in ob- taining an answer from the Laskos. Harwood finally notified Wells that the Laskos would be unable to meet on the 11th and he did not know when they could meet again. 6 "Witnesses will read an implication into a statement or act and ascribe to the speaker or actor an explicit utterance in conformity with it." Sears, Roebuck and Company, 123 NLRB 1236, 1240. 5 That the offer was neither the last one nor submitted on a "take it or leave it basis" was demonstrated by the events which immediately followed that meeting . See section 5, infra. LASKOi METAL PRODUCTS, INC. 987 Harwood testified that the 'Laskos authorized him on the telephone to raise their wage offer from a total of.10 cents to a total of 15 cents, to be allocated 5 cents the first year, 5 cents the second year, and 5 cents the third year, but not to grant any additional holidays. He testified emphatically that he informed Wells on the telephone of that offer, and that vacations were not mentioned because they had previously been accepted by the Union on the Company's offer, and that he at no time indicated that any part of the wage offer was conditioned upon a vacation or a lack of one. That testimony, denied by Wells, posed the most hotly contested factual issue in the case, though there is no dearth of other evidence to resolve the conflict. We start with Wells' other testimony that it.was not until August 2 that Harwood first made the offer of 5, 5, and 5, with five holidays and a week's vacation, though he conceded that Harwood then claimed he had made the same offer previously. Wells also affirmed the correctness of the following transcription from a recording made by Harwood at the September 10 meeting, in which reference was being made to the telephone calls on July 10. Mr. Harwood: And I called you back, and Mr. Lasko authorized me to make a final offer of five, five,-and five on'the wages and stick to the five holi- days. Now, there is no misunderstanding about that, is there? Mr Wells: No misunderstanding that this was the company's position of five, five, and five for the three years. Certainly not. Wells also admitted- that in his affidavit to the Board he stated, in reference to the meeting between him and Harwood on July 11, that Harwood indicated the Company would give "a nickel raise now, and a nickel for each of the second and third years." Still denying, however, that Harwood in fact submitted such a wage increase offer, Wells represented he could explain "without any difficulty," and proceeded to testify that though Harwood offered the three 5-cent increases and the five holi- days, he made no mention of vacations, which would mean , Wells assumed, the Union would have to forego the vacation for the first year in accordance with Wells' version (previously rejected) of Respondent's economic offer as submitted in the meeting on the 10th. A dozen lines later in his testimony, however, Wells again flatly denied that Harwood reported during the telephone conversations that the Company was increasing its wage offer to three 5-cent increases. Wells himself supplied still further evidence that cut sharply against his testimony and his explanations. On September 24 Wells wrote Harwood in reference to an offer contained in Harwood's letter of September 20 in which Harwood renewed his earlier economic offers in the exact terms of his testimony concerning the tele- phone conversations, i.e., a 3-year contract with a 5-cent increase for each year, five paid holidays, and a week's vacation. Wells rejected that offer, stating: As you know, the Company's offer is the same as the one made on a take it or leave it basis in the early stages of negotiations. Finally, Sands' testimony concerning events at the July 16 meeting supported Harwood. Sands testified that under Harwood's economic offer as then outlined (and again later on July 19) a 5-cent wage increase was to be given for the first year in addition to the first year's vacation. As Sands was not privy to the tele- phone calls between Wells and Harwood nor to the meeting between them on July 11, the meeting on the 16th was his first opportunity to hear the Company state the increase in its economic offer. On the foregoing overwhelming preponderance of the evidence, I credit Har- wood's testimony over Wells. Wells renewed his calls, to Harwood on the 11th, suggesting that Respondent was guilty of a refusal to bargain and that unless it changed its attitude the Union would have to call a strike.. Harwood suggested that Wells come to his office to discuss the matter further. Wells did so, and following further discussions, Har- wood called the Laskos in Wells' presence but reported to Wells that their position was not changed .6 There was also a discussion of an overtime provision, of the grievance procedure, and of Harwood's suggestion that Professor Sanders, of Van- derbilt Law School, be designated to select arbitrators. - Harwood testified that Wells also brought up the subject of checkoff, which Respondent had previously rejected because of the necessity for additional book- keeping and recordkeeping. Though Wells never said he would recommend the 0 There had again been reference to Respondent's offer of a total of a 15-cent raise to be spread over 3 years, as acknowledged by Wells in his affidavit to the Board. -988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rest of the Company's proposal if it would give him the checkoff, Harwood was under the impression from their discussions that such was the case. At the con- clusion of their discussions, however, Wells was still insisting on an extra penny .or two an hour and the extra holidays. 6. The meetings of July 16 and 19 The meeting of July 16 was the first one held in the presence of a commissioner from the mediation service. The commissioner was first acquainted with the issues in dispute and the positions of the parties (as previously recounted under section 1, supra), including the terms of Respondent's increased wage offer (as testified to by Sands, section 5, supra). Harwood testified that when the issues of wages and holi- days were reached, Wells continued to insist on the additional wages and the addi- tional holidays which the Union was seeking and also insisted on the checkoff, and that those were the only bargaining issues of any consequence which were discussed. After the commissioner held separate private conferences with the parties, Wells an- nounced that the Union was not going to accept the Company's offer, that he was going to recommend against it, and that though Wells did not use the words "unfair labor practices," Harwood got the impression the Union was going to call a strike? The next meeting was held on the 19th, pursuant to arrangement made on July 16; it was a short one. Harwood stated that Respondent was continuing its offer as previously submitted (i.e., the economic offer, plus all the other items previously agreed upon) and that he had been instructed not to increase it. Sands' testimony previously referred to confirms Harwood's that the wage offer as then repeated in- cluded 5 cents for the first year, as well as a week's vacation. Though Sands cor- roborated Wells' testimony that Wells suggested they go back again through the con- tract language, he corroborated Harwood's position in stating in reply that that had all been disposed of. Following a private conversation between Harwood and the commissioner, Wells announced that the Union would take a strike vote that afternoon and that it pro- posed to call a strike on the 22d because of Respondent's refusal to bargain. Har- wood probed Wells as to whether the Union was rejecting Respondent's offer, and Wells replied emphatically that it was. 7. The strike; Respondent puts its economic offer into effect Following the meeting of July 19, Wells reported the results to the employees, as he had done throughout the progress of the negotiations, and informed them that in his opinion Respondent was refusing to bargain in good faith. There was dis- cussion of the matter during a question-and-answer period, and finally a motion was made by Lois Barnhill, recording secretary, that a strike be called for Monday, July 22, because of Respondent's refusal to bargain and its other unfair labor prac- tices. The motion carried by a vote of 109 to 1. The strike began as scheduled, with approximately 120 employees going out on strike, and picketing was begun with signs which bore a legend, that the Union was on legal strike against the Lasko Corporation .. . . Mary F. Simmons testified that Lasko made an announcement to the employees over the loudspeaker at the plant on the afternoon of July 19, in which he referred to the impending strike and informed them of the terms of his offer to the Union on the economic items and of the Union's rejection, and stated that he hoped all the employees would be back on Monday. It was stipulated that on or about July 24 Respondent put into effect a wage in- crease of 5 cents an hour, that the employees were told around the same date that those who had been employed as much as 1 year would be given a week's vacation with pay, and further that the Company was putting into effect exactly what had been offered to the Union. 7 Wells testified that as the meeting was breaking up and after the committee had left the office there was a discussion between the commissioner, Wells, and Harwood, initiated by the commissioner, concerning a report (confirmed by Harwood) that some difficulty had been created in the negotiations by the fact that Sands had made an abusive remark concerning Harry Lasko. Whether that was the same remark which led to Sands' dis- charge was not disclosed, nor was its bearing upon the negotiations assessed or evaluated In any way. LASKO METAL PRODUCTS, INC . 989 8. The meetings of August 2 and September 10 Poststrike negotiations were resumed on August 2. At Wells' insistence the parties went through the whole contract, with Respondent agreeing to the items it had previ- ously accepted, rejecting the same ones it had previously rejected, and reiterating the terms of its economic offer. Inevitably, the issue of reinstatement of strikers arose, and on that, Respondent's position was that the strikers had been lawfully replaced by the hiring of permanent employees, but that it would put the strikers on a prefer- ential hiring list and take them back as fast as they could be absorbed. The Union, however, demanded the reinstatement of all strikers . It also renewed its demands for a dues checkoff clause as previously made during the negotiations , and Harwood expressed the view that it was only for that clause that the Union had struck.8 To refute that claim, Wells offered to take a 1-year contract, foregoing the checkoff clause, for a 5-cent wage increase, a week's vacation, and five holidays, provided Respondent would reinstate the strikers . Harwood refused. Nor was any substantial progress made at the final meeting on September 10. Wells testified that the parties again went through the contract proposals in their entirety and in detail , that the Union agreed to some concessions and agreed to give up on some of its original proposals, and that the Company at that time "concretely agreed" to a seniority provision. E. The termination of the strike and the applications for reinstatement On August 8, Wells notified Respondent by the following telegram to Harwood and Harry Lasko that the strike was being terminated: THIS IS TO OFFICIALLY ADVISE YOU THAT THE STRIKING LASKO METAL PRODUCTS INC. EMPLOYEES VOTED THIS DATE TO TERMI- NATE THE STRIKE AGAINST THE COMPANY EFFECTIVE MIDNIGHT SATURDAY AUGUST 10, 1963 FURTHER BE ADVISED THAT THEY WILL UNCONDITIONALLY RETURN TO WORK AT THEIR REGULAR TIME MONDAY MORNING, AUGUST 12, 1963 NOTE HOWEVER THAT THERE ARE A FEW ILL EMPLOYEES AND THEY WILL RETURN WHEN RELEASED BY THEIR PHYSICIANS THESE NAMES WILL BE FURNISHED TO YOU LATER Wells met with the strikers on Monday and directed them to report in for work as if they had never been out . He suggested, however, that although all of them go to the plant, they select a committee to act as their spokesmen and that the others remain in the parking lot area until the committee obtained permission for them to enter the plant. That procedure was followed , with Sands, Beasley, and Ed Fulcher being chosen as the committee. After the strikers reached the parking lot, the committee approached the office entrance to the plant and found there Plant Manager Frank Bastelle and Purchasing Agent John McCloud .9 Sands testified that he informed Bastelle, "We are reporting back to work," and when Bastelle asked whether "your people are coming down," Sands replied that the three on the committee were "acting as spokesmen for them. We are returning to work ." Bastelle stated that there were no openings available, but when Sands requested separation slips, Bastelle refused to give them and suggested that they take the matter up with their counsel . Bastelle added that if the committee would leave a list of the names of the strikers , the Company would notify them whenever any openings were available, but Sands commented that the Company already had a list "of every one of us." Sands and Beasley estimated that there were around 100 strikers on the parking lot that morning, and they testified that immediately thereafter all of them reported to the union hall and there signed their names to a register at Wells' suggestion to attest their presence at the plant at the time of their attempted return to work. Neither Bastelle nor McCloud was called as a witness . Oscar Lasko, who re- turned to West Chester on July 26, and who remained there thenceforth, testified, 8 That the checkoff clause was in fact a major issue from the Union 's point of view (as Harwood assumed, but which Wells did not acknowledge ), was plainly shown by the testimony of Lois Barnhill , of the Union's committee, that the checkoff was a major issue and was more important to the Union 's negotiators than the other issues. Oscar Lasko was at that time in Philadelphia and Harry Lasko was incapacitated as a result of an attack of angina. 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD however, that Bastelle and McCloud consulted with him by 'telephone concerning the Union's telegram, which he understood to be a communication calling off the strike and informing the Company the employees were going to report in, but that he did not know how many were going to report. Lasko accordingly directed Bastelle and McCloud to stay in constant contact with Harwood and, in addition, that when the employees reported on Monday to have them give their names so they could be put back to work in orderly fashion because, "We couldn't take the 112 people back on a Monday morning." F. The refusal to furnish information By letter of August 9, Wells requested Respondent to furnish "the names, the hire dates and the wage rates of all new hires and employees who were hired since July 22, 1963," stating that the information was requested for bargaining purposes. Harwood acknowledged the request on August 12, stating in part, that the in- formation "will be made available to you if you are interested in negotiating a contract which will fully recognize the rights of these newly hired employees," and that the requested information should be available to Harwood within the next few days Wells repeated his request for the information by letter of August 14, protesting Harwood's attempt to make receipt of it conditional on "prior commitment" and informing Harwood that he could not commit himself as bargaining representative for the employees except at the bargaining table. On August 19 Harwood wrote Wells that he had the list of the 112 employees hired since the date of the strike, together with their starting wage rates, and that Wells might see it in Harwood's office at any reasonable time and make a copy of it if he wished. Wells replied on August 20, requesting that the informa- tion be made available by mail. Wells' testimony concerning the September 10 bargaining meeting contained no reference to the request for information. Harwood testified at first that he had the information in his brief case at that meeting but that Wells did onot ask for it and he did not produce it. When I asked why he did not simply hand it to Wells across the table, Harwood then claimed he asked whether Wells wanted the information and that Wells made some statement that he did i.ot "give a damn about those strike breakers" and that he did not want the information.10 Sands testified in rebuttal that he heard no mention made of the information in thc, September 10 meeting and heard no offer of it by Harwood to Wells. I credit Sands' testimony on this point, with which Harwood's original version of the mat- ter seemed in full accord, i.e., that Harwood did not offer the list to Wells because Wells did not ask for it at the meeting. G. The correspondence; the ultimate negotiation of a contract Following the termination of the strike, Wells and Harwood engaged in a lengthy battle of correspondence which, because of plentiful interlardings of self-serving statements, is of slight value in resolving either the refusal-to-bargain issue or the issue of the reinstatement of the strikers. On the latter issue the burden of the theme advanced on the union side was that the strikers had unconditionally offered to return to work on August 12, that all were to be reinstated, and that (as in Wells' letter of September 16) Respondent had unilaterally filled some existing vacancies and had unilaterally offered reinstatement to 15 (striking) employees, deliberately bypassing the Union. Implicit, in the Union's position was the assump- tion that the strike was an unfair labor practice strike and that the strikers, there- fore, became entitled to unconditional reinstatement upon their return to work on termination of the strike. The theme of Harwood's letters rested in turn on the unstated' assumption that the strike had resulted from economic causes. His letters recited that Respondent had permanently replaced all or most of the strikers, expressed a willingness to fill other job openings as they developed from the striking group, but stated that those who desired such reemployment should report to Respondent's office and identify 10 When Harwood volunteered that he had the information in his briefcase at the hear- ing and when Wells expressed a desire for it, Harwood produced the information at my suggestion and delivered it to Wells or the record and in my presence. The General Counsel conceded in oral argument that the information as then furnished apparently complied fully with the union's request LASKO METAL PRODUCTS, INC. 991 themselves. Harwood also stated on August 20 that if Wells would prepare a list of those who desired to return to work, all future hirings would be taken from that list strictly according to seniority. The correspondence also contributed little to the progress of the bargaining negotiations as such. On September 19 Wells outlined the Union's new proposal for a 1-year contract to provide for a 7-cent wage increase, six holidays, a week's vacation, a dues checkoff, and the reemployment of all employees with full se- niority rights. On September 20, Harwood repeated the terms of Respondent's prestrike economic offer, stated that the Company would sign either a 1- or a 3-year contract on that basis, and that all future hirings would be made from the strikers on a prefered employment list and on a seniority basis. It was that offer which Wells rejected with the characterization previously referred to in section D, 5, supra, that it was "the same as the one made on a take it or leave it basis in the early stages of negotiations." Finally, Wells submitted on October 4, through the Union's attorney, Cecil D. Branstetter, a proposal for settlement of all issues on three alternative bases, all of which exceeded Respondent's former economic offer and all of which provided for reinstatement of 55 strikers immediately and the remainder within a reasonable period of time. That proposal was rejected on October 9 by Attorney Wilson Sims for the Company, who stated that Respondent would make one additional conces- sion by adding one extra holiday for the second and third years of the contract term. Sims also stated Respondent's agreement to provide by contract for the reinstatement of all strikers within 90 days. Finally, it developed during the course of oral argument at the hearing that cur- rently pending negotiations might well result in the reaching of an agreement, and counsel agreed to notify me in that event. Thereafter, Respondent's counsel forwarded with his brief (with the General Counsel's consent), a copy of the contract executed by the parties on November 21, whose term ran from that date until July 24, 1966 The General Counsel reported in turn in his own brief advice from Respondent and Union that approximately 55 strikers had been offered reinstatement and that the remainder would be offered reinstatement by January 1, 1964. Examination of the contract discloses that its economic provisions follow closely (if not exactly) the terms of Respondent's prestrike offer and that its other pro- visions were in close accord with the agreements reached on contract language before the strike as Harwood testified to them. H. Concluding findings 1. Interference, restraint, and coercion ; the Sands discharge I conclude and find from the undenied testimony summarized in section B, supra, that Respondent, by interrogating employees concerning their voting intentions (Clark Printing Company, Inc., 146 NLRB 121) and, in the context of the other coercive conduct found below, concerning the union membership, activities, and sentiments of themselves and of other employees ; by threatening employees with a plant shutdown, with the withdrawal of plant expansion, and with discharge or other reprisals if they became or remained members of the Union or gave it as- sistance or support; by engaging in surveillance on April 9; and by Lasko's repeated statements which were calculated to create the impression of surveillance of union meetings and activities (Hendrix Manufacturing Company, Inc. v. N.L.R.B., 321 F. 2d 100, 104, footnote 7 (C.A. 5)), Respondent interfered with , restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. I reject Respondent's reliance on the settlement and withdrawal of the earlier charge of surveillance (section C, supra) for the following reasons : In the first place, the settlement was a private one, made without the participation of the Regional Director and without the remedying of the unfair labor practices in the public interest. Secondly, the withdrawal of the charge was made "without prej- udice." Finally, the single act of surveillance embraced in the complaint was shown by the evidence herein to be a part of , and intertwined with, a broader course of similar conduct by which Respondent not only maintained surveillance over union activities for a considerable period of time but represented to employees that it was doing so. The entire body of evidence surounding surveillance must therefore be considered in making findings herein . Nor would it avail Respondent , in view of Lasko's references to the meeting of April 9, if the actual surveillance of that meet- ing were regarded as severable from the rest of the evidence and if findings were based only on the remainder. 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Concerning the discharge of Howard Sands, I conclude and find that the General Counsel did not establish by a preponderance of the evidence that the discharge was discriminatorily motivated . Even assuming that Sands' testimony made out a prima facie case, in view of Lasko's references to the "lousy union" and the earlier 8(a)(1) conduct as found above , it was plainly overcome by the evidence con- cerning the negotiations on June 12 and by Sands ' (and the Union's) acquiescence in Respondent's position that his discharge resulted from his abusive and insulting remarks to Lasko. 2. The refusal to bargain Among the specific claims of a refusal to bargain were two on which there was no substantial factual conflict , i.e., the unilateral layoff and recall of employees be- fore the strike, and the failure to furnish requested information after the strike. I shall resolve those issues before turning to the general claim of bad-faith bargaining and related issues on which the evidence is in dispute. The certification on May 31 established conclusively the Union's status as the exclusive representative of the employees for purposes of collective bargaining in all matters respecting rates of pay, wages, hours of employment , or other conditions of employment, Section 9 (a). The layoff of employees was plainly a matter fall- ing within those mandatory subjects of bargaining , on which Respondent was no longer entitled to act unilaterally without first giving the Union notice and an opportunity for consultation and bargaining. The Union had already made (on June 4) its formal request to bargain, and Respondent took its unilateral action on the very date (June 7 ) on which it acknowl- edged that request and set the first bargaining date. That communication could obviously have served as well as notice to the Union of Respondent 's proposed layoff action . That the layoff was concededly economic and that it was temporary in nature were not matters which affected the Union 's representative status or which excused Respondent's action. Indeed, that the Union had a legitimate interest in bargaining concerning the factors which might lay at the base of Respondent's selections, both for layoff and recall , was established by Wells' undenied testimony concerning the Union's protest in the June 26 meeting that Respondent had recalled some of the employees out of the line of seniority . Nor was the lack of any former practice of applying seniority a circumstance which justified unilateral action, for seniority was a principle which the Union sought sedulously from the beginning, and the opportunities for successful bargaining concerning it might well have been advanced but for Respondent's foreclosure of negotiation by its unilateral actions. 'I therefore conclude and find that Respondent, both by unilaterally laying off em- ployees on June 7 and by thereafter unilaterally recalling them without notice to or consultation or bargaining with the Union , refused to bargain within the meaning of Section 8 (a) (5) of the Act. Southern Coach & Body Company, Inc., 141 NLRB 80, and cases there cited at footnotes 3 and 4; Armstrong Cork Company v. N.L.R.B., 211 F. 2d 843 (C.A. 5). Turning now to the refusal to furnish information, it is established law that the authority conferred by Section 9(a) of the Act entitles a union with representative status to all information which is essential to the intelligent representation of the employees in the bargaining unit , and that it is the employer's duty, on the Union's request, to furnish such information where it is reasonably available only from the employer's records. Whitin Machine Works, 108 NLRB 1537 , 1538-1539, and cases cited at footnotes 1 and 2 ; see also concurring opinion of Chairman Farmer at pages 1541-1542, and the opinion of the court of appeals ordering enforcement 217 F. 2d 593, 594 (C.A. 4), and cases there cited. Of course this does not mean that an employer is required to furnish all informa- tion at the exact time or in the exact manner requested, for "It is sufficient if the information is made available in a manner not so burdensome or time-consuming as to impede the process of bargaining." N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149, 151, quoting with approval from Old Line Life Insurance Company of America, 96 NLRB 499, 503, and The Cincinnati Steel Castings Company, 86 'NLRB 592, 593. And, as always, the surrounding facts and circumstances must be considered, for, each case must turn on its particular facts. Truitt Mfg. Co., supra, at 153. The status of the replacements for the strikers became one of the most important and most difficult issues which faced the negotiators upon the termination of the strike, and information concerning hire dates, wage rates, and classifications was in- dispensable to intelligent negotiations by the parties ii regardless of whether the U Production of the information at the hearing at my suggestion may well have con- tributed to reaching an agreement shortly thereafter for the reinstatement of the strikers. See section G, supra. LASKO METAL PRODUCTS, INC. 993 strike were considered as an unfair labor practice strike or only as an economic one, for even in the latter case it was essential that the parties ascertain exactly which posi- tions, if any, remained open for the returning strikers. The information was readily available in Respondent 's records, and the compila- tion of it was no burdensome task since it required at most (as Harwood 's letter of August 12 showed ) only a few days . Furthermore, Harwood acknowledged on August 19 that the information was in his hands, but he made no attempt to deliver it to the Union either by mail, as requested by Wells on August 20, or in person across the bargaining table on September 10. Indeed it was not until it developed at the hearing that Harwood had the information with him that Harwood first (at my suggestion ) tendered it to Wells across the counsel table. Harwood's explanation- that he wanted to force Wells to come to his office-was plainly specious, since if he had in fact desired another personal meeting he could have gone to Wells' office. On the record here Respondent advanced no reasonable excuse or justification for failing to deliver the information to Wells on August 19, and I therefore conclude and find that on and after that date Respondent refused to bargain with the Union within the meaning of Section 8(a) (5) by its failure to furnish the information to the Union. The most difficult issue in the case is whether the evidence establishes that Re- spondent was not bargaining in good faith or with intent to reach an agreement. To the extent that that contention rests on the claim that Respondent submitted its eco- nomic offer on July 10, on a take-it-or-leave-it basis, refusing to bargain further on other contract provisions, my findings previously made (section D, 4) leave it with- out support. I find similarly unpersuasive the General Counsel 's claims concerning the length of the meetings and the alleged difficulty in reaching Harwood to arrange meetings and to discuss proposals . Support for the latter contention rested largely on Wells' dis- comfiture concerning a delay in reaching Harwood on the telephone on the after- noon of July 10 and his discovery that Harwood had been playing golf with a visitor. That delay, itself a minimal one of a few hours at worst , constituted no impediment to the negotiations, for, as found, Harwood immediately transmitted to Lasko the Union's counterproposal on economic issues and immediately communicated back to Wells Respondent's increase in its wage offer from 10 cents to a total of 15 cents. On July 16, also, Harwood had hurried the negotiations somewhat because of an emergency call concerning the representation of an accused murderer , but findings previously made concerning that first meeting before the commissioner showed not only that there was a full acquainting of the commissioner with the issues and with the respective positions of the parties but that there was also further discussion of certain issues and that a meeting was scheduled for 3 days later. Though the number and length of the meetings were less than is normally found in cases where the parties are unable to reach an agreement , that was not due to any unwillingness on Respondent 's part to reach an agreement on terms which were ac- ceptable to it. Indeed , it was apparent that Respondent was at all times willing to settle on the basis of its economic offer as submitted in the meeting of July 10, and as modified in the telephone calls and repeated in the later meetings . Plainly demon- strative of such willingness were the poststrike negotiations , the correspondence, and finally the fact (as found in section G, supra), that the contract ultimately negotiated after the hearing accorded closely with that , offer and with the agreements on con- tract provisions and language as reached on and prior to July 10. What Wells characterized on Harwood 's part as a refusal to discuss contract language was no more than Harwood's refusal of Wells' attempts to renew discussions on provisions which Respondent had rejected outright but on which Wells apparently hoped to wear Harwood down by attrition or exhaustion (as the General Counsel seemed to concede in oral argument ). But where a party has made a frank and forthright statement of his position, the Act does not require him to engage in fruit- less marathon discussions , N.L.R.B. v. American National Insurance Co., 343 U.S. 395, 404, despite the General Counsel's hope, expressed in oral argument, that "fruit- less marathon discussions" might turn out in the end not to be "fruitless." Furthermore, all the disputed issues fell squarely within the area of compulsory collective bargaining as prescribed by Section 8(d) of the Act, on which, though the obligation to bargain is mandatory and may not be evaded , the bargainer is not com- pelled to accede to or to compromise , demands. He is entitled to bargain hard for acceptance of his position by the other party and is free to reject opposing demands; he is free also to insist on his position to the point of refusing to enter into any con- tract at all except upon terms acceptable to him, N.L.R.B. v. Jones & Laughlin Steel 760-5 77-65-vol 148-64 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Corporation, 301 U.S. 1, 45,12 and if an impasse results, he may unilaterally establish the terms of the particular conditions of employment, at least within the limits of his proposal to the Union. N.L.R.B. v. Crompton-Highland Mills, Inc., 337 U.S. 217, 224; N.L.R.B. v. Benne Katz, etc., d/b/a Williamsburg Steel Products Co., 369 U S. 736, 745. In sum, I conclude and find that the General Counsel failed to establish that Re- spondent engaged in bad-faith bargaining, without intent to reach an agreement, or that it submitted a take-it-or-leave-it proposal, refusing to bargain further on other contract terms or language. It is in the light of the foregoing conclusions that we reach the final facet of the bargaining issue, i.e., whether Respondent refused to bargain by instituting uni- laterally changes in wages, etc., after the strike began. Under the stipulated facts, those changes were in accordance with the terms of Respondent's prior economic offers as previously made to the Union as early as the evening of July 10. Negotia- tions since that date had resulted in emphatic rejection by the Union and by the call- ing of a strike on July 19. I conclude and find that an impasse existed when the Union terminated negotiations at the conclusion of the meeting of July 19, and that by thereafter putting its offer into effect, after correctly informing the employees of the facts, Respondent did not refuse to bargain within the meaning of Section 8(a)(5). N.L.R.B. v. U.S. Sonics Corp., 312 F. 2d 610, 615 (C.A. 1).13 3. The cause of the strike; the application for and denial of reinstatement Following the meeting of July 19, the employees adopted by virtually unanimous vote a motion to strike because of Respondent's refusal to bargain and its other un- fair labor piactices. I have found on undisputed evidence that Respondent had en- gaged in flagrant acts of interference, restraint, and coercion violative of Section 8(a)(1), and that it also refused to bargain before the strike by unilaterally laying off and recalling employees on and after June 7 without notice to, or consultation or bargaining with, the Union.14 I therefore conclude and find that the strike was caused and prolonged by Respondent's unfair labor practices. Though the cross-examination of some of the witnesses indicated (as in Sands' case) that some of the employees were concerned also with the failure to reach agreement as such and to obtain economic concessions from Respondent, even if that showed there was also some economic motive for the strike, it would establish only that the strike had mixed purposes, one of which was explicitly shown by the motion to be Respondent's unfair labor practices. N.L.R.B. v. Stilley Plywood Company, Inc., 199 F. 2d 319 (C A. 4); N.L.R.B. v. West Coast Casket Company, Inc., 205 F. 2d 902, 907 (C.A. 9); N.L.R.B. v. Fitzgerald Mills Corporation, 313 F. 2d 260, 269 (C.A. 2). As the striking employees would therefore become entitled to reinstatement to their former positions upon the termination of the strike and upon their uncondi- tional application for reinstatement, we turn to the evidence which is relevant to that issue. Wells' telegram informed Respondent unequivocally that the strike was being terminated and that the employees would unconditionally return to work at the regular hour on Monday, August 12. See N.L.R.B. v. Pecheur Lozenge Co., Inc., 209 F. 2d 393, 405 (C.A. 2). Oscar Lasko's testimony showed explicitly that he so understood the meaning of the telegram and that he was in fact expecting some 112 employees to report on Monday. Some number in that neighborhood did report to the plant and through their committee informed Bastelle and McCloud that they were returning to work. Such an application is sufficient. Park Edge Sheridan Meats, Inc.; et al., 139 NLRB 748, 759, enfd. 323 F. 2d 956 (C.A. 2). 1' Save that he may not insist upon a substantive provision which would violate an express provision of the Act or which is in conflict with some underlying policy of the Act. is The impasse resulted directly from the fact that the parties became deadlocked on contract terms There was no indication that the earlier unilateral layoff and recall (herein found to be a refusal to bargain ) contributed in any way to the failure to reach agreement. As I find elsewhere that the strike was an unfair labor practice at its inception, I find it unnecessary to reach the question whether the impasse on the bargaining issues was broken by the occurrence of the strike . I point out, however, that the factual situation herein was unlike that which existed in such cases as N.L.R.B. v. United States Cold Storage Corporation, 203 F. 2d 924, 928 ( C.A. 5)'; RJ. Oil & Refining Co, 108 NLRB 641, 644; and Kohler Co., 128 NLRB 1062, 1078. 14 The refusal to furnish information, itself also found to be a refusal to bargain, occurred after the termination of the strike and thus formed no part of the earlier unfair labor practice conduct which the employees were protesting by their strike. LASKO METAL PRODUCTS, INC. 995 I therefore conclude and find that the strikers who reported to work on Au- gust 12 unconditionally applied for reinstatement and were refused such reinstate- ment and that Respondent was legally obligated to reinstate them, discharging, if necessary, all replacements hired on and after July 22. Mastro Plastic Corp., and French-American Reeds Mfg. Co., Inc. v. N.L.R.B., 350 U.S. 270, 278; N.L.R.B. v. Pecheur Lozenge Co., Inc., supra. By failing and refusing to reinstate them on and after August 12, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act The identities of those employees, 103 in number, was established by their signing of the list in the Union's office immediately following the refusal of rein- statement at the plant, a copy of which list was attached to the Union's amended charge on August 20 That list did not include some 13 additional names which the General Counsel added to the complaint by amendment as the hearing opened on October 22, 1963. However, the only evidence which the General Counsel offered that the latter persons were present at the time of the application for rein- statement on August 12 was Wells' testimony that not all of those who were present at the time returned to the union hall to sign the list and that the 13 in question "were later added as they came in and checked, but they did say they reported." In view of the failure to produce the original signed list and the extreme delay in bringing the matter either to the Respondent's or the General Counsel's atten- tion, that testimony does not furnish an adequate basis for a finding that those employees in fact reported to work on August 12. I find, however, that Respond- ent was apprised on October 22, by the motion to amend, that they were apply- ing for reinstatement, and that by failing to reinstate them on and after that date, Respondent engaged in further discrimination within the meaning of Section 8(a) (3). IV. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action of the type which is conventionally ordered in such cases, which I find to be necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. Despite the flagrant violations of Section 8(a)(1) found herein, Respondent remedied during and after the hearing much of the effects of its refusal-to-bargain conduct by furnishing requested information to the Union and by negotiating a collective-bargaining agreement. Though an affirmative order is nonetheless nec- essary to remedy fully the effects of those and of other unfair labor practices as found in section H, supra (United Steelworkers of America, AFL-CIO (Wright Line Division of Barry Wright Corporation), 146 NLRB 71; Clark Printing Com- pany, Inc., 146 NLRB 121, I do not find a broad cease-and-desist order to be nec- essary, and I shall recommend instead that Respondent cease and desist only from such unfair labor practices as are found herein and from any like or similar conduct. The strikers as identified in section H, 3, supra, are, of course, entitled to full reinstatement, with backpay to run from August 12, 1963, for 103 employees, and from October 22 for the 13 additional employees; it will end in both cases on such dates (to be determined at the compliance stage hereof) as Respondent made full reinstatements or unconditional offers of reinstatement.15 Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent engaged in interference, restraint, and coercion within the meaning of Section 8 (a) (1) of the Act. 2. All production and maintenance employees, including the plant clerical em- ployees, inspectors, and other employees, namely, Ron Reynolds, Bob Stephens, Chris Cook, Wayne Oxendine, John Crafton, and George Pewitt, employed by Respondent at its Franklin, Tennessee, plant, excluding all other employee, includ- ing office clerical employees, professional and technical employees, guards, watch- men, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 15 Respondent wrote directly to some of the strikers at various times after August 12, informing them that it was in need of more help and that "if you are interested, please report to work [on a certain date]." I find that those letter did not constitute full offers of reinstatement of the strikers to their former positions. 996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The Union has been at all times since May 22, 1963 , the exclusive repre- sentative of all the employees in said unit for the purposes of collective bargaining with respect to rates of pay, wages , hours of employment, and other conditions of employment. 4. By unilaterally laying off and recalling certain employees on and after June 7, 1963 , Respondent refused to bargain with the Union and engaged in unfair labor practices proscribed by Section 8 (a) (5) and (1) . 5. By refusing on or about August 19, 1963 , to furnish to the Union informa- tion relating to employees hired since July 22, 1963 , Respondent refused to bargain with the Union and engaged in unfair labor practices proscribed by Section 8(a) (5) and (1). 6. The strike which began on July 22 was caused and prolonged by Respond- ent's unfair labor practices found as in section H , 3, supra. 7. By refusing to reinstate the strikers upon their application on August 12, and by refusing to reinstate the additional 13 strikers on and after October 22, Respond- ent engaged in discrimination to discourage membership in the Union and thereby engaged in an unfair labor practice proscribed by Section 8(a)(3) and (1). 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 9. Respondent did not engage in discrimination within the meaning of Section 8(a) (3) by discharging Howard Sands. [Recommended Order omitted from publication.] Borden Cabinet Corporation and District 50, United Mine Work- ers of America. Cases Nos. 9-CA-2969 and 9-RC-5577. Sep- tember 14, 1964 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION On June 24, 1964, Trial Examiner James V. Constantine issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, and recommending further that the election held on November 20, 1963, in Case No. 9-RC-55771 be set aside and a new election held, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's De- cision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases 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.2 The rulings are hereby affirmed. The Board has considered the Trial Ex- 1 Pursuant to a Decision and Direction of Election dated October 24, 1963. 2 Respondent contends that the Trial Examiner was biased and prejudiced and that, as a result, the Respondent was denied the right to a fair hearing. We are satisfied, upon our review of the entire record, that there is no merit in this contention. 148 NLRB No. 97.