National Springs Corp.

148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Springs Corporation and Upholsterers' International Union of North America, AFL-CIO. Case 11-CA-2776. July 12, 1966 DECISION AND ORDER On February 18, 1966, Trial Examiner Sidney Sherman issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom, and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. 'He further found that the Respondent had not engaged in certain other unfair labor practices alleged in,the com- plaint and recommended that such allegations be dismissed. There- after,-the Respondent filed exceptions to the Trial Examiner's Deci- sion and a supporting brief. The National Labor Relations 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 entire record in the case, including the Trial Examin- er's Decision and the Respondent's exceptions and brief, and hereby adopts the Trial Examiner's findings, conclusions, and recommenda- tions to the extent consistent herewith. We agree with the Trial Examiner that Supervisor Emerson's remarks violated Section 8 (a) (1) of the National Labor Relations Act, as amended. However, we find merit in Respondent's exception to- the Trial Examiner's conclusion that Emerson's statement to Wright concerning Respondent's purported bargaining strategy sup- ports a finding that Respondent did not bargain in good faith. The, Trial Examiner found that Respondent's foremen were informed by higher management that Respondent would engage in delaying tactics until a new election could be secured and that this demonstrated an inflexible position. In reaching this conclusion, the Trial Examiner mainly relied upon employee Wright's testimony concerning a conversation she had had with Foreman Emerson. Hav- ing found that Emerson had told Wright that Respondent would fight the Union and would protract bargaining until the Union could be voted out, the Trial Examiner then concluded that such statement did not express Emerson's personal opinion but in fact represented what higher management had told Emerson and other supervisory personnel at a foremen's meeting. The Trial Examiner's principal basis for this latter finding was his holding that Emerson's state- ment to Wright was to the effect that Respondent's bargaining strat- 160 NLRB No. 14. NATIONAL SPRINGS CORPORATION 149 egy and union matters had been discussed at a foremen's meeting and the Trial Examiner's view that Emerson had no reason to misrepre- sent to Wright what occurred at such meeting. We are not persuaded that Wright's testimony is sufficiently clear or probative to warrant the interpretation of the Trial Examiner, or, even accepting his interpretation, that there is substantial basis for concluding that Emerson's statement in fact revealed what man- agement said. Wright's testimony, credited by the Trial Examiner, is as follows : Well, Henry [Emerson] had been to a foremen's meeting in the office with Mr. Clapp, the President, and when he come back I asked him what went on and he told me it was about insurance, and I asked him had he discussed the Union and he told me yes; and he told me it was going to be long and drawn out, and that if Paul [Clapp] and them could hold it off until June, they would have another election and vote it out. Wright thus did not testify that Emerson attributed the protraction strategy to higher management or say that a statement to this effect was made at the meeting., Accordingly, we find the evidence insuffi- cient to establish that Emerson told Wright that the bargaining strategy had been discussed at the meeting or to establish the truth of such an assertion. Furthermore, we do not agree with the Trial Examiner's refusal to credit testimony by Clapp, Reddick, and Koch, Respondent's presi- dent, assistant secretary, and vice president, respectively, as well as by Emerson, all of whom denied that any discussion of the course of bargaining had occurred at the foremen's meeting. The Trial Exam- iner's holding rested on his interpretation of the above ambiguous bit of testimony by Wright and the absence of an indication in the rec- ord why Emerson would misrepresent what occurred.' But in view of the record as a whole, this credibility resolution is clearly contrary to the weight of the evidence. Since we conclude for the reasons stated above as well as on the record as a whole that there is insufficient evidence to establish that Respondent adopted and maintained a fixed determination to delay bargaining until a new election could be secured, we shall dismiss the complaint insofar as it alleges a violation of Section 8(a) (5) of the Act. 1 Wright's pretrial affidavit concerning this matter is similarly ambiguous 2 In determining whether Respondent violated Section 8(a) (5), the Trial Examiner relied only on Respondent's purported bargaining attitude as revealed through Emerson 's remarks He concluded that it was not necessary to evaluate Respondent ' s actual bargaining posi- tions taken (luring the negotiations No exception was taken to this conclusion and, ac- cordingly, we do not pass upon it. 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the above, the strike herein was economic in origin rather than an unfair labor practice strike, and the Trial Examiner's finding that the Respondent violated Section 8 (a) (3) in refusing, upon application, to reinstate replaced strikers cannot stand. We shall, therefore, also dismiss the 8(a) (3) 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 the Respondent, National Springs Corporation, High Point, North Caro- lina, its agents, officers, successors, and assigns, shall: 1. Cease and desist from : (a) Threatening employees with reprisals for engaging in con- certed activities and for giving a statement to a Board agent, and warning them of the futility of collective bargaining. (b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist Upholsterers' International Union of North America, AFL-CIO, or any other labor organization, and to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action, which is deemed neces- sary to effectuate the policies of the Act : (a) Post at its High Point, North Carolina, plant, copies of the notice attached hereto, marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for Region 11 shall, after being duly signed by the Respondent's representative, be posted by it immediately upon receipt thereof and maintained by it for 60 con- secutive 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 altered, defaced, or covered by any other material. (b) Notify the said Regional Director for Region 11, in writing, within 10 days of the date of this Order, what steps it has taken to comply therewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that Respondent violated Section 8(a) (5) and(3) of the Act. In the event that this Order is enforced by a decree of a United States Court of Ap- peals, there shall he substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order." NATIONAL SPRINGS CORPORATION APPENDIX NOTICE TO ALL EMPLOYEES 151 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 threaten our employees with reprisals for engag- ing in concerted activities, or for giving statements to Board agents nor warn them of the futility of collective bargaining. WE WILL NOT in any like or related manner interfere with, restrain, coerce our employees in the exercise of their right to self-organization, to form, join or assist Upholsterers' Interna- tional Union of North America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing and to 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. All of our employees are free to become, remain, or refrain from becoming or remaining, members of Upholsterers' International Union of North America, AFL-CIO, or any other labor organization. NATIONAL SPRINGS CORPORATION, '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. If employees have any question concerning this notice or compli- ance with its provisions, they may communicate directly with the Board's Regional Office, 1624 Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 723-2911, Extension 302. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The original charge herein was served upon Respondent on July 14, 1965.1 The complaint was issued on August 27, and the case was heard on October 26, 27, and 28 and January 28, 1966. A brief was filed by the General Counsel. The issues litigated related to alleged violations of Section 8(a) (1), (3), and (5) of the Act. Upon the entire record in the case, including my observation of the witnesses, I adopt the following findings and conclusions: 1. RESPONDENT'S BUSINESS National Springs Corporation, herein called Respondent, is a North Carolina corporation, and is engaged in the manufacture of furniture springs at its High 1 All dates refer to 1965, unless otherwise stated. 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Point, North Carolina , plant. Respondent annually ships from its High Point plant to out-of-State points goods valued in excess of $50 ,000. Respondent is engaged in commerce under the Act. II. THE LABOR ORGANIZATION INVOLVED Upholsters' International Union of North America, AFL-CIO, herein called the Union, is a labor organization under the Act. IIL THE UNFAIR LABOR PRACTICES The complaint, as amended at the hearing, alleges that Respondent violated Section 8(a)(1) of the Act, inter alia, by threats of reprisal for union activity and by interrogation of employees concerning their union activity, violated Section 8(a)(3) and (1) by refusing to reinstate certain strikers on or about Septem- ber 16, and violated Section 8(a)(5) and (1) by refusing to bargain in good faith with the Union.2 The answer denies any violation. A. Sequence of events On July 22, 1964, the Union was certified as the representative of Respondent's employees. Bargaining for a contract began on September 25, 1964, and continued up to the date of the instant hearing without any agreement. In that period there were 25 bargaining sessions . On July 26, a number of the employees struck, but Respondent continued to operate, hiring replacements for the strikers. On Sep- tember 15, the Union, on behalf of the strikers, submitted to Respondent an unconditional offer to return to work. The next day, Respondent countered with a request that all strikers who desired to return to work present themselves at the plant at 7:30.a.m. on September 17. Most of the strikers did appear at the time and place designated, but none of them was rehired, and on September 21, Respondent wrote the Union that there were no openings for any of the strikers. On October 8, the Union renewed its offer- on behalf of all the strikers, and on October 11 Respondent stated that those who had reported in person on Septem- ber 17 would be "accorded every legal right due them," but so far as the record shows, none of the strikers has since been rehired. B. Discussion 1. The 8(a)(1) issues The amended complaint alleges that Respondent violated Section 8(a)(1) of the Act because of various coercive statements to employees by its supervisors, which will be next discussed. a. Emerson Respondent concedes that Emerson became a supervisor early in March. He directed the work of employees, including Wright, who at the time of the hearing was one of the strikers. The amended complaint alleges that on March 22 and April 14, Emerson made coercive remarks about the Respondent's bargaining pol- icy. In support of these allegations, Wright testified (1) that late in March, after Emerson had returned from a foremen's meeting, she elicited from him the admis- sion that the Union had been discussed at the meeting and (2) that, with reference to the contract negotiations, Emerson declared "it was going to be long and drawn out, and that if Paula and them could hold it off until June, they would have another eletction and vote it out." Love corroborated Wright as to this incident. Wright added that about April 1, she had another conversation with Emerson, in which he again stated that the contract negotiations would be "long and drawn out." 2 The amended complaint also alleged the discriminatory discharge of McClure on Au- gust 30. However, at the hearing held on January 28, 1966, the parties entered into a set- tlement agreement providing for her immediate reinstatement and other relief and on February 11, 1966 I granted the General Counsel's motion to withdraw the foregoing al- legation ; and, pursuant to such settlement agreement, the evidence relating to her discharge will not be here considered _ 3 The reference here Is to Paul Clapp, Responent's president. NATIONAL SPRINGS CORPORATION 153 Although Emerson at first denied that he had ever talked to Wright about the contract negotiations, he later admitted that he might have told her that the bar- gaining might last longer than she thought, but he insisted at the hearing that this was only an expression of his personal opinion. He admitted also, that, as testified by Love, he told Wright that if any contract was signed he would buy her "a new outfit," but claimed that the remark was intended merely to be facetious. Even apart from the foregoing vacillation in his testimony, Emerson was not an impressive witness. His responses were hesitant, and, despite his emphatic denials of any of the coercive remarks attributed to him, neither his tone nor manner carried conviction. On the other hand, I was favorably impressed by Wright's demeanor and by the spontaneity and specificity of her testimony, and, as already noted, her testimony was corroborated by Love. Accordingly, I credit Wright, and find that late in March Emerson told her, after returning from a foremen's meeting, that the current contract negotiations had been discussed at that meeting and indicated, in effect, that Respondent's strategy in the negotiations would be to prolong them until such time as the Union could be "voted out." 4 Under the circumstances, Wright was justified in assuming that Emerson was not merely expressing his personal opinion but was reporting a disclosure made by top management at the foremen's meeting as to its future bargaining policy 5 It is well settled that statements by a supervisor calculated to impress upon employ- ees the futility of collective bargaining violate Section 8(a)(1) of the Act. It is so found here with regard to Emerson's assertion that Respondent would prolong negotiations until the Union could be voted out. Love testified that late in March Emerson stated that Clapp would "fight this Union to the wall before he signed a contract." While denying generally that he discussed Respondent's bargaining policy with the employees, Emerson did not specifically contradict the foregoing testimony. Moreover, for reasons already related, I have not credited his foregoing general denial. Accordingly, I credit Love as to the foregoing remark, and find that Respondent thereby additionally violated Section 8(a)(1). The amended complaint alleges that on April 16 Emerson told an employee that striking employees would be "blacklisted" and denied reinstatement. Wright testified that early in April Emerson warned her that, if the employees struck, Respondent would not only replace them but would also put them on a blacklist and they would "get no jobs in High Point." McClure confirmed that some time in April she overheard Emerson deliver the foregoing warning to Wright. Emer- son denied that he had done so. However, for reasons already stated, I do not deem him a credible witness, and find that, by the foregoing warning that any strikers would be blacklisted, Respondent violated Section 8(a)(1) of the Act. The amended complaint further alleges that on May 11, Emerson warned of reprisals against any employee who had given a Board agent an affidavit regarding Emerson. Wright testified that she had given such an affidavit on April 16, pre- sumably in support of a charge filed on April 14 by the Union against Respond- ent,6 and that on May 1, Emerson told her that "somebody had signed a state- ment on him" and that, if he found out who it was, he would "deal with him personally." According to the witness, Emerson disclosed at the same time that President Clapp had upbraided him for talking to the employees about the Union. Emerson denied that he had made any such remarks, insisting that he did not know about any charge that he was involved in antiunion conduct until after the instant complaint issued (on August 27). Clapp likewise disclaimed any knowl- edge prior to that date of any such charge. However, as I was favorably im- pressed by Wright's demeanor, and by the circumstantiality of her account of 4 The Union's certification would be 1 year old on July 22, at which time it would no longer operate as an absolute bar to a new election Emerson 's reference to the possibility of voting the Union out in June , may have been predicated on the mistaken assumption that the 1-year "certification bar" period ran from the date of the election , which was held on June 25, 1964 5 Both Clapp and Emerson insisted at the hearing that at the meeting there was no discussion of contract negotiations . This was corroborated by Respondent's assistant secre- tary , Reddick , and its vice president , Koch. However, at this point it is not necessary to determine whether Emerson's report to Wright was accurate , since its coercive impact on Wright would be the same whether or not it was accurate u Case 11-CA-2693 Withdrawal of this charge was approved by the Regional Director on May 14. 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the May I incident, I am disposed to credit her.7 I find therefore that, by Emer- son's threat of reprisals against the author of the affidavit in question, Respondent violated Section 8(a)(1) of the Act. The amended complaint further alleges that on May 12, Emerson interrogated an employee about associating with union officials. The only evidence bearing on this was Wright's testimony that in the evening of May 1 she entered the automo- bile of Davis, one of the union negotiators, that the next day Emerson asked her whose automobile it was, and, upon receiving an evasive answer, cautioned her to be careful who she "messed around with or they would have me mixed up with him." Assuming the veracity of this testimony 8 I find no violation here. While it may be inferred that Emerson was aware that the car belonged to Davis, I nevertheless find that Emerson's concluding remark was intended, and under- stood, merely as a warning that, by entering Davis' car after working hours, Wright, a married woman, was inviting scandalous gossip.9 In view of this context, I find that Emerson's foregoing inquiry about the iden- tity of the owner of the car- (assuming that it was made 10) did not constitute unlawful interrogation but was merely a prelude to a friendly warning to Wright about observing the proprieties. It is further alleged that Respondent violated Section 8(a)(1) by Emerson's statement to an employee on July 23 that the employee had suffered loss of bene- fits because of involvement with the Union. Wright testified that on July 23, imme- diately after she had attended a bargaining session, Emerson, after asking her about the progress of negotiations, remarked that, if she had not got mixed up with the Union, Respondent would have given her a raise. McClure corroborated Wright. Although Emerson denied this, I credit Wright in view of McClure's cor- roborative testimony, and because, for reasons already noted, I consider Wright a more candid witness than Emerson, and I find that by the foregoing remark of Emerson Respondent violated Section 8(a)(1).11 b. Reddick The amended complaint alleges certain coercive acts on March 30, by Reddick, an officer of Respondent. 7 Respondent cites as a circumstance militating against Wright's credibility the conces- sion of the General Counsel at the hearing that, at a conference with Respondent's repre- sentatives on May 7 about the refusal-to-bargain charge then pending, the Board agent who took Wright's affidavit concerning Emerson did not disclose to Respondent that he had any employee affidavits however, the foregoing concession is of little aid to Respondent unless one assumes that, apart from the foregoing May 7 conference, the Board agent had no contact with Respondent regarding the charge in Case 11-CA-2693, or, if he did, made no reference to the substance of the remarks attributed to Emerson by Wright, such as would have alerted Respondent to the fact that the Board agent had been approached by the employee involved. s As I did not believe that Wright's testimony on its face established any violation, I ruled at the hearing that there was no need tor Respondent to question Emerson about this incident, and counsel desisted for that reason from such questioning 91t would have been pointless for Emerson to warn her that her open association v ith Davis invited economic reprisals, because she was thereby demonstrating her union proclivities Such proclivities were already well known to management by reason of the fact that, as a member of the Union's bargaining committee, she had attended the bargain- ing sessions, anti the record suggests no reason why management would regard the fact that she left the plant in Davis' car as any more offensive to it than her participation with Davis in negotiations on behalf of the Union, or why Wright would believe that such was the case 11 See footnote 8 above 11It was also alleged that Emerson unlawfully warned an employee on July 23 against exercising the right to strike Wright testified that on July 23 Emerson "advised us not to go out on strike, if we do Ave would be sorry." Emerson did not dispute that lie had given such "advice." however, Wright was unclear whether the foregoing warning was coupled with a reference to Respondent's right to replace strikers, in which case it might be con- strued as merely as privileged prediction that Respondent would exercise that light In any event, as it has already been found that Emerson's previous warning that strikers would be blacklisted was unlawful, a violation finding based on the July 23 incident would be merely cumulative Accordingly, I do not deem it necessary to pass on the instant allegation. NATIONAL SPRINGS CORPORATION 155 Love testified that late in March Reddick indicated to her that he was surprised to learn that she was a member of the Union, and, when she asked in effect how he had come to that conclusion, he referred to the fact that she had attended a baigaining session She added that, when she asserted that attendance at a bar- gaining session did not constitute one a union member, he warned that those who were in the Union would be "sorry afterwards." The General Counsel contends that, by the foregoing remarks ascribed to Red- dick, Respondent unlawfully interrogated and threatened Love. Reddick denied that there was any such conversation, and Love admitted that her pretrial affidavit of April 21, omits any reference thereto, although such affi- davit purports to relate all remarks made to her by supervisors about the Union 12 Moreover, under cross-examination she vacillated considerably as to the date of the foregoing incident. Under all the circumstances , I credit Reddick and find no violation here. 2. The 8 (a)(5) issue It is not disputed, and I find, that the Union has at all times here material been the statutory representative of the employees in the following appropriate unit: all production and maintenance employees of Respondent at its High Point, North Carolina, plant, including job leaders and drivers, but excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. The amended complaint alleged that Respondent has since February 1, 1965, refused to bargain in good faith with the Union in that it has: (a) Failed and refused to meet diligently with the Union and to set meeting dates at the end of bargaining sessions. (b) Maintained a fixed and adamant attitude against granting checkoff, union bulletin board space, and an arbitration clause. (c) Indicated a fixed attitude against signing an agreement. (d) Told union representatives that the "door was closed" in respect to sub- jects such as dues checkoff, arbitration, plant visitation by union officials, posting of notices on bulletin boards, pension programs, jury duty, and insurance. a. The due diligence issue It appears from the foregoing that General Counsel taxes Respondent with a lack of due diligence in scheduling and holding meetings. As to the scheduling of meetings, the record shows that of the 24 meetings held after the first meeting on September 25, 1964, 16 were scheduled at the conclusion of the preceding meeting, by mutual agreement.13 As to the remaining eight meetings, it was stip- ulated that the scheduling of one was deferred at the Union's request, that as to three meetings the parties agreed that the date would be set by the Federal media- tor, and that no effort was made at the July 23 meeting to schedule the next meet- ing,14 presumably because of the imminence of the strike. Only as to the remaining three meetings does it appear that it was arranged that the date would be set by the parties on a later occasion. In view of this, I do not believe that the record, as a whole, warrants a finding of undue procrastination by Respondent in schedul- ing meetings. As to the frequency of the meetings, the Union's initial request that a date be set for a bargaining meeting was made on August 20, 1964, Respondent delayed compliance with this request, citing the fact that its president, Clapp, had been hospitalized because of a heart attack, and suggesting that, in view of Clapp's special familiarity with Respondent's labor relations, negotiations be deferred until his recovery. However, at the insistence of the Union, the first meeting was held on September 25, without Clapp.15 As already noted, there were 25 meetings in all during the period of 14 months after the August 20 request for bargaining or it Love admitted that she regarded Reddiek as it supers isor, and she pleaded inadvei tence as the only reason for not mentioning him in her afhdaiit 13 In the case of two of the meeting,, the date originally fixed was changed at Respond- ent's request shield on September 1. idle Ras absent fiom the first three meetings, and there is no dispute that such absence was due to his physical condition. 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an average of less than 2 meetings a month . The record shows also that the aver- age duration of a meeting was about 4 hours.16 Davis, one of the union negotia- tors, testified without contradiction , and I find, that at the close of each bargain- ing session he proposed that the parties resume after dinner,17 and failing this, that they reconvene the next day, but Respondent would not agree to either pro- cedure, pleading other demands on its time , and questioning the efficacy of bar- gaining in the late hours of the night. In a case involving a situation strikingly similar on this point to that here involved, the Board said: Because the Union was the newly certified representative of the employ- ees, and there had been no prior collective -bargaining contract , the parties were of necessity faced with the task of negotiating an initial complete con- tract with all the detail that such an undertaking would entail . Yet the sched- ule of negotiating meetings . consumed an average of only 8 hours a month over an 8-month period. Such a schedule on its face hardly reflects a concerted endeavor by the parties to put forth an effort commensurate with the enormity of the task facing them , particularly as there is no evidence that at any stage in such negotiations the parties were near reaching agreement. The record establishes , however, that the Respondents alone were responsible for the delay . . . . 18 Here, it would seem to be equally true that the amout of time devoted to bar- gaining was not on its face commensurate with the task of negotiating an initial contract, particularly when one considers the degree of divergence between the parties on the many issues discussed . As it is undisputed that the Respondent con- sistently rejected the Union's proposals for longer and more frequent meetings, it must be found that Respondent was primarily responsible for unduly limiting the time spent in bargaining,19 and here, as in Exchange Parts, it is appropriate to con- sider this factor in the light of all the other circumstances , in evaluating Respondent's good faith. b. Respondent's positions on bargaining issues The complaint cites only three aspects of the bargaining-bulletin boards, checkoff, and arbitration-20 as manifesting Respondent's bad faith, and raises no question as to the bona fides of Respondent's bargaining with respect to the numerous other matters discussed , including such topics as wages, seniority , and various fringe bene- fits. The recoid indicates that checkoff , arbitiation , and bulletin boards were dis- cussed at some length ,21 and the General Counsel 's attack focuses on the validity and cogency of the reasons advanced by Respondent for rejecting the Union's proposals 10 The parties' stipulation shows the duration of 23 of the meetings, and it appears from such stipulation that the aggregate duration of all 23 meetings was 90 hours 17 Typically , a meeting began about 2 p in and adjourned between 6 and 7 p in is Exchange Parts Company , 139 NLRB 710, 713. See also Insulating Fabricator s, Inc. 144 NLRB 1325 19 The fact that a few of the meetings were cut short at the request of the Union and that the scheduling of one meeting was deferred to accommodate one of the union negotia- tors does not suffice to negate the conclusion that Respondent was the principal offendei in this area. It is well settled that the reason assigned by Respondent for not acceding to the Union's proposal for more frequent meetings-the preoccupation of Respondent 's negotia- tois with other matters-is not a valid excuse for unduly delaying negotiations It is the responsibility of a party to furnish negotiators who are not too busy to bargain Exchange Parts Company, supra; Derenson's, 104 NLRB 273, 286; Carnnrer-Graham Company, 122 NLRB 1044, 1069. At the hearing the General Counsel attempted to litigate the good faith of Respond- ent's bargaining with regard the right of union agents to visit the plant However in view of my disposition of the case , there is no need to consider whether this issue was adequately litigated or to scrutinize the various reasons advanced by Respondent for rejecting the Union's proposal on that subject. 21 Union Negotiator Davis testified that on July 23, leis fellow negotiator , Woodall, was told by Respondent's president , Clapp, that " the door was closed " on further negotiations regarding a number of items, including bulletin boards arbitration and checkoff IIowever, Clapp' s denial of this charge was corroborated by Reddick , who offered a different, in- nocuous version of the same incident , and Woodall , although present was not asked about the matter. Under these circumstances , I find no preponderance of evidence here in favor of the General Counsel. NATIONAL SPRINGS CORPORATION 157 in these areas, and for refusing to make any counterproposals, other than a slight movement on the issue of union bulletin boards.22 However, I do not deem it neces- sary to examine in detail the various reasons assigned by Respondent for rejecting the Union's proposals, since a more significant clue to Respondent's good faith may be found elsewhere in the record, and Respondent's obduracy on particular issues may better be understood in the light of such evidence, which will next be considered. c. Statements of attitude to bargaining The amended complaint alleges, in effect, that Respondent's refusal to bargain in good faith was evidenced by its "statements indicating a fixed attitude against sign- ing an agreement." In support of this allegation, the General Counsel cites, inter alia,23 the evidence discussed above concerning Emerson's remarks to Wright late in March. As has already been found, on that occasion Wright elicited from Emerson the admission that the Union had been discussed at a foremen's meeting held that day, and Emer- son added that the negotiations would be "long and drawn out," and that, if Respondent could prolong the negotiations until June, there would be another election in which the Union would be "voted out." While it has been found that Wright was justified in regarding the foregoing remark as based on a statement of policy made by higher management at the fore- men's meeting, it becomes pertinent to consider here whether there was in fact any such statement of policy or whether Emerson was merely relating to Wright his per- sonal opinion as to the future course of the bargaining. Emerson denied that there was any such statement by management and Reddick denied that he had ever dis- cussed with any supervisors the future course or outcome of the bargaining, and insisted as did Clapp and Koch, that the only topic discussed at the foremen's meet- ings in March was workmen's compensation insurance, and that any reference to the Union at foremen's meetings was limited to an admonition not to discuss the Union with the employees. Thus, it appears to be Respondent's position that, if any such remarks were made by Emerson, they merely reflected his personal views. However, the circumstances that Emerson's remarks, as credibly reported by Wright, were not couched in terms of an expression of personal opinion, but in terms of a factual account of Respondent's bargaining strategy, and that such state- ment was coupled with an admission that the Union had been discussed at the fore- men's meeting, are persuasive that Emerson was not merely expressing a personal opinion but was purporting, rather, to divulge what has been said at the meeting, and the record suggests no reason why Emerson would misrepresent to Wright what had been there said about protracting the negotiations. Accordingly, I do not credit Respondent's witnesses on this issue, and find that, as Emerson's admission to Wright implied, Respondent's higher management in fact told its foremen at their March meeting that its bargaining strategy was to protract the negotiations with the Union until it could be voted out.24 The Board, with judicial approval, has frequently found bad-faith bargaining, even where a respondent's conduct at the bargaining table outwardly comported with all the requirements of the Act, the Board relying in such cases on evidence of admis- sions by the respondent's agents that it had no intention of reaching agreement. 22 On September 10, Respondent offered to compromise that issue by providing a small space on the existing plant bulletin board for "non-controversial" notices of union meetings 24 The General Counsel, in this connection, also adduced testimony by Davis that at a bargaining meeting on April 13, Clapp stated that, if he was going to sign a contract, he would not mind including therein the Union's seniority proposal This was substantially corroborated by Wright and Tyson. However, Clapp, Reddick, and Koch, all of whom repre- sented Respondent at the negotiations, denied that any such statement was made I do not deem it necessary to resolve this conflict, since, even if the statement was made, it is readily susceptible to the interpretation that Clapp meant only to say that, if all other issues were resolved, he would have no objection to the seniority proposal or that lie did not regard the seniority issue, in itself, of such importance as to preclude him from reaching an agreement. 2s So far as the record shows, no effort has in fact been made by Respondent, to petition for a new election. However, such a petition could not have been timely filed before July 22, the anniversary of the Union's certification, and would have been barred thereafter by the pendency of the instant charge, which was filed on July 14. 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus, in a recent case, where the facts were strikingly similar to those here pre- sented , the Board affirmed a finding by a Trial Examiner of bad -faith bargaining, even though the "actual content of the bargaining conferences" and "the positions which the Company maintained in bargaining " were not "per se invalid or even indicative of bad faith," and the respondent was not found to be derelict in any of the other objective bargaining requirements of the Act. The Board relied, rather, solely on statements by supervisors to employees that the respondent would not sign a contract and that the union could be voted out in a year. The Trial Examiner there observed: When an employer approaches the bargaining table with a preconceived -deter- mination not to reach agreement , he cannot be heard to say that he has bar- gained in good faith, even though on the surface none of his positions in the bargaining would be untenable if taken in good faith. Stark Ceramics, Inc., 155 NLRB 1258. The rationale underlying this and other decisions , in which bad -faith- bargaining has been found despite an outward appearance of diligent , albeit fruitless , bargain- ing would seem to be that it is not too difficult a matter for a negotiator to gauge the temper of his opposite number at the bargaining table and to determine just how far to go in 'makmg concessions, wihtout incurring any undue risk that such con- cessions will remove all the obstacles to agreement. That Respondent pursued such a course here is evidenced not only by Emerson's aforementioned disclosures to Wright, but also by an exchange at the hearing between Respondent's counsel and Union Negotiator Davis, indicating that Respond- ent was aware of the issues which the Union regarded as essential to an agreement. Thus, during the course of the cross-examination of Davis, Respondent 's counsel for the first time broached the subject of the Union 's "hard list," which, it developed, was a list of those items which the Union regarded as indispensable to an agree- ment, and counsel elicited Davis' admission that checkoff, bulletin boards,, and arbitration were on that list. These were all items as to which Respondent made no concession, except for the.slight movement on bulletin boards, noted above. It does not appear from the record how Respondent learned of this "hard list," 25 but, know- ing of the list, it was a simple matter for Respondent to steer a course in the bar- gaining which would forestall reaching any agreement. Accordingly, I am persuaded that, as Emerson's disclosure to Wright indicated, Respondent's bargaining strategy was dominated throughout by a fixed determination not to reach agreement . The fact that Respondent resisted the Union's demands for more frequent meetings on the untenable ground that Respondent could not spare the time, and the inadequacy. of the total time allotted by Respondent to the nego- tiations , tend to reinforce' the foregoing conclusion .26 It is found therefore that Respondent did not bargain in good faith , thereby violating Section 8(a) (5) and (1) of the Act. 3. The refusal to reinstate the strikers The General Counsel contends that Respondent violated Section 8(a) (3) and (1) of the Act by refusing on or about September 16 to reinstate the strikers , notwith- standing their unconditional offer to return to work. It is admitted that on September 15, at the close of the bargaining session, Woodall submitted to Clapp, on behalf of all the strikers, an unconditional offer to return to work. The next day, in a letter dated September 16,27 Clapp informed Woodall that Respondent could reach no decision on reinstatement of the strikers and indicated that it would aid Respondent to reach such a decision if all the strikers who desired reemployment would present themselves in person at the plant on September 17 at 7:30 a.m. Later on the 16th the Union wired Respondent that -',Presumably, the Union, itself, referred to such a list at the bargaining meetings 24 Further suliport for this conclusion , if any were needed , may be found in Emerson s warning to Weight that, if the employees struck, they would be blacklisted by Respondent and his admission that she had been denied a raise because of her union.activities It is difficult to reconcile such evidence of union animus on the part of Respondent with a sincere destre to reach an accommodation with the Union 27 See Joint Exhibit 42 This letter was delivered manu ally to Woodall on the 16th 25llowever , still later the same day Woodall wired Clapp, inquiring , in effect, whether Respondent's letter of September 16 represented an unconditional offer to reinstate all those who reported at the plant on the 17th These was no reply to this wire NATIONAL SPRINGS CORPORATION 159 the foregoing procedure was acceptable .28 About 30 of the strikers 29 presented them- selves at the appointed place and time, but none were rehired . On September 21, Respondent wrote the Union that, after reviewing its manpower requirements in the light of ' the number bf strikers who had indicated that they wished to return to work, it had determined that its plant was "fully staffed at this time," and that there were no available openings . On October 8, the Union again made an unconditional offer on behalf of the strikers , to return to work. On October 11, Respondent replied that it could not regard this as a request of all the strikers for rehire, in view of the fact that many of them had failed to appear personally at the plant on the 17th. As to those who did ' so ' appear, Respondent promised that they would be accorded "every ' legal right due them." At the time of the hearing none of the strikers had been rehired. Clapp admitted at the hearing that, even before asking that . the strikers report on the 17th, he knew that he could not use them, and that his only purpose in asking them to 'report v3as 'to 'de'termine which of- them was actually available for work, should an opening develop.30 It is accordingly clear thatiRe'spondeiit's letter of September 16 did not constitute an offer of reinstatement ,31 and' that- the failure of any of the strikers to respond thereto cannot defeat their right to reinstatement with backpay. A more fundamental objection to any ' such relief for the strikers is the fact that, so far as the record shows, they had been all 'replaced before September 15, when they first offered to return to work Accordingly,, their right to reinstatement depends on whether they were economic or unfair labor practice strikers. Davis asserted that about 2 or 3 weeks before the strike the Union called a meet- ing of its members to take, a strike vote, that he stated at the meeting , before the vote was taken, that he did, not believe the-Union could obtain a contract without a strike, and that Respondent was determined , to prolong the negotiations until it could destroy the Union's majority, and he testified that an employeee member of the Union's negotiation committee expressed a similar view . Moreover, about 2 weeks before the strike, Davis filed the instant.charge, alleging that Respondent had unlawfully refused to bargain. However, a notice distributed by the Union before the strike contains a statement of the Union's determination to strike, if necessary, for a "fair contract," and a list of benefits which Respondent allegedly had refused to grant in the negotiations,22 and the notice cites certain objectionable features of the existing ' piece rate arrange- ment. Moreover, in an article published by a local newspaper on July 26, there appears the following: 1. A picture of pickets outside Respondent's plant, carrying signs which feature demands for higher wages and a "fair" contract.33 2. A report of an interview ,with Davis, in which he related that Respondent had rejected certain union demands , listing six of the items contained in the aforemen- tioned union notice.34 Nevertheless , even if one assumes that the strike was occasioned solely by dis- satisfaction with the, progress of negotiations , it is well settled that a strike for such a reason is an unfair labor practice strike, where, as here, the Employer has approached the negotiations with a fixed determination to avoid agreement. Thus, ,in the Marathon-Clark case,35 where the Board found the respondent had engaged merely in the surface bargaining , the Board stated: The record shows that the employees struck because they had no contract and because of,their dissatisfaction with the progress of the negotiations. As ^The General Counsel' s amended complaint lists a total of 49 strikers s" In his brief, the General Counsel cites Respondent ' s foregoing, admitted lack of candor in dealing with the Union concerning ' the reinstatement issue as another instance ot Re- spondent' s bad faith However, as the complaint does not allege any violation of Section 8 (a) 5) in that respect, I make no finding to that effect 11 Nor, in view of the Union 's unanswered inquiry of September 16 (see footnote 28, above), can it be said that the Union regarded the September 16 letter as an offer of reinstatement. - '° This list contains eight items including arbitration , bulletin boards , checkoff, and wages ^ Clapp identified the picture as an accurate representation of the picketing. ai Davis acknowledged the accuracy of the newspaper report a Marathon-Clark Cooperative Dairy Association , 137 NLRB 882, 885 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's unlawful refusal to bargain impeded successful negotiations and as it prevented even the possibility of the parties reaching agreement, such unlawful conduct was a causative factor in the walkout. Accordingly, we find that the employees were engaged in an unfair labor practice strike, . 36 While it is true that there is no assurance here that there would have been entire accord, even if Respondent had bargained in good faith, it is well settled that the burden is on the employer in such a case to disentangle the consequences of his wrongdoing.37 It is therefore concluded that as unfair labor practice strikers the instant strikers were entitled to reinstatement upon proper application, that such application was made on September 15, and October 8, and that the subsequent rejection of such applications violated Section 8(a) (3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent violated Section 8(a) (1), (3), and (5) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent refused to bargain in good faith with the Union, which represented a majority of the employees in an appropriate unit. Accordingly, I shall recommend that the Respondent be ordered to bargain, upon request, in good faith with the Union as the exclusive representative of the employ- ees in the appropriate unit. Having also found that the Respondent unlawfully refused on and after Sep- tember 16 to comply with the Union's requests for reinstatement of the strikers, I shall recommend that, to the extent it has not already done so, Respondent be required to reinstate all the strikers to their former or substantially equivalent posi- tions without impairment of seniority or other rights and privileges, discharging, if necessary, any replacements hired on or after July 26. I shall also recommend that Respondent be required to make the strikers whole for any loss of earnings suf- fered by reason of the discrimination against them, by payment to each of a sum of money equal to that which they normally would have earned as wages from Sep- tember 16, to the date of any past or future offer or reinstatement, less their net earnings during such period. Backpay shall be computed in accordance with the formula stated in F. W. Woolworth Company, 90 NLRB 289; interest shall be added to backpay at the rate of 6 percent per annum. Isis Plumbing & Heating Co., 138 NLRB 716.38 In view of the Respondent's unfair labor practices, particularly the discriminatory conduct found above, there exists a threat of future violations, which warrants a broad cease-and-desist order. CONCLUSIONS OF LAW 1. All Respondent's production and maintenance employees at its High Point, North Carolina, plant, including job leaders and drivers but excluding office cleri- 38 Accord : Southwestern Porcelain Steel Corporation, 134 NLRB 1733 ; The General Tire and Rubber Company, 135 NLRB 269; Berger Polishing, Inc, 147 NLRB 21, 37-38; San Antonio Machine & Supply Corp., 147 NLRB 1112; The Stilley Plywood Company, Inc, 94 NLRB 932, 934, 985-986, enfd. 199 F.2d 319 (C.A. 4), cert denied 344 US. 933, J. W. Woodruff, d/b/a Atlanta Broadcasting Company, 90 NLRB 808, 821 39 N.L.R.B. V. Remington Rand, Inc., 94 F 2d 862, 872 (C.A. 2), cert denied 304 US 576; N.L.R B. v. Wooster Division of Borg-Warner Corporation, 236 F.2d 898, 907 C.A 6). 38 Pursuant to the terms of the settlement agreement with respect to McClure, she will be treated as one of the strikers for purposes of determining her entitlement to backpay, and her backpay will therefore run from September 16. See footnote 2, above SNAP-OUT BINDING & FOLDING, INC. 161 cals, professional employees, guards, and supervisors as defined in the Act, consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. At all times material the Union has been and still is the exclusive representa- tive of all the employees in the aforesaid unit for the purposes of collective bar- gaining, within the meaning of Section 9(a) of the Act. 3. By refusing since September 1, 1965, to bargain collectively in good faith with the Union as the exclusive representative of its employees in an appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 4. By threats of reprisals for engaging in concerted activities and for giving a statement to •a Board agent, and by statements calculated to impress upon employ- ees the futility of collective bargaining, Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The strike of Respondent's employees, called on July 26, 1965, was caused by Respondent's unfair labor practices. 6. Respondent has violated Section 8(a)(3) and (1) of the Act by rejecting the reinstatement requests of striking employees received on September 15 and October 8. [Recommended Order omitted from publication.] Snap-out Binding & Folding, Inc., Automated Folding & Binding Co. and Local 63-63A, International Brotherhood of Bookbind- ers, AFL-CIO, Petitioner. Case 21-RC-9894. July 12, 1966 DECISION AND ORDER Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted on January 28, 1966, under the direction and supervision of the Regional Director for Region 21. A tally of the ballots showed that of approximately 45 eligible voters, 15 cast ballots for, and 15 against, the Petitioner, 9 cast challenged ballots, and 1 cast a void ballot. The challenged ballots were sufficient in number to affect the results of the election. Thereafter, the Peti- tioner filed timely objections to conduct affecting the results of the election. In accordance with the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, the Regional Director conducted an investigation and, on May 10, 1966, issued and duly served upon the parties his report on challenged ballots and objections to election. In his report, the Regional Direc- tor recommended that two of the challenges to ballots be overruled, that six of the challenges be sustained, and that the ruling on one ballot be reserved until the National Labor Relations Board makes a determination of the voter's status in a pending unfair labor practice proceeding. He further recommended that certain of the objections 160 NLRB No. 6. 257-551-67-vol. 160-12