Frick Co.

FRICK COMPANY 1089 United Papermakers and Paperworkers, AFL-CIO, concerning the issuance of hunting permits for the use of employees in the appropriate units for hunt- ing at the Pasture for the hunting season of 1966-67 , and on the subject of the use of the Pasture for hunting by employees generally. SOUTHLAND PAPER MILLS, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of post- ing, and must not be altered , defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 8A24, Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Tel- ephone 334-2941. Frick Company and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO. Case 6-CA-3379. November 16, 1966 DECISION AND ORDER On May 12, 1966, Trial Examiner Harry H. Luskin 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 also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dis- missal of these allegations of the complaint. Thereafter, the Respond- ent, the General Counsel, and the Charging Union filed exceptions to the Trial Examiner's Decision and supporting briefs. The Charg- ing Party filed a reply to Respondent's exceptions while the Respond- ent filed a reply brief to the brief filed by the General Counsel.' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations 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 Examiner's Decision, the exceptions, briefs and reply briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] 2 Respondent has requested oral argument. As the record, the Trial Examiner's Decision, and the exceptions and briefs adequately set forth the Issues and the positions of the parties, this request is hereby denied. 161 NLRB No. 99. 264-188-67-vol. 161-70 1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding was heard before Trial Examiner Harry H. Kuskin at Cham- bersburg, Pennsylvania, on January 11, 12, 13, and 14, 1966; it was the outgrowth of a charge, amended charge, and a second amended charge filed on July 12, Au- gust 6, and November 12, 1965, respectively, and a complaint, which was there- after amended at the hearing, issued on November 16, 1965.1 The questions pre- sented are whether Frick Company, herein callea Respondent,2 has (1) violated Section 8(a)(5) and (1) of the Act by refusing to bargain collectively in good faith with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, herein called the Union; (2) violated Section 8(a)(3) and (1) of the Act by discharging and/or removing employees, who were engaging in a strike called by the Union, from its payroll and by re- fusing to pay vacation pay to employees who were so engaged; and (3) violated Section 8(a)(1) of the Act by promises of benefit and threats of reprisal to strik- ing employees and by surveillance of its employees engaged in soliciting strike funds at plant gates of other companies on behalf of the Union. Respondent admits the status of the Union as a labor organization, that the production and maintenance unit at its Waynesboro plant, as alleged in the complaint, is appro- priate, that a majority of its employees in such unit had, as of April 1, designated and selected the Union as their bargaining representative, that it is engaged in commerce within the Act's meaning, that the individuals named in paragraph 5 of the complaint, as amended, are supervisors and agents of Respondent, and that it engaged in photographing its employees who were soliciting strike funds at the gates of plants of other companies; however, it denies that it engaged in any unfair labor practices and contends that the Union rather than Respondent has refused to bargain in good faith. Upon the entire record,3 including my observation of the witnesses, and after due consideration of the briefs of the General Counsel, Respondent, and the Union, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint alleges, and Respondent admits, that Respondent has its principal office in Claymont, Delaware, and is engaged in the manufacture of refrigeration equipment; 4 and further that during the 12 months preceding November 1, it received directly from outside Pennsylvania, for use in its Waynesboro plant, goods and materials valued in excess of $50,000, and also shipped directly outside Penn- sylvania from this plant goods valued in excess of $50,000. I find, upon the foregoing, that Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent also admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Some background facts The Union's first approach to Respondent with a demand for recognition as the collective-bargaining representative of its employees occurred on March 31. It was staged dramatically and in precipitate fashion by the Union. According to 1 Unless otherwise indicated, all dates mentioned hereinafter are In 1965. 2 The name of Respondent appears In the caption, as amended at the hearing 8As corrected (1) by my order correcting transcript dated April 5, 1966, with modifica- tions thereof In accordance with the General Counsel's motion dated April 7, 1966, which I grant; (2) by the joint motion to correct transcript dated February 10, 1966, and signed by counsel for all parties, which I grant ; and (3) by the motion to correct transcript dated February 16, 1966, filed jointly by the General Counsel and counsel for the Union, to which no formal opposition has been filed by counsel for Respondent, which I also grant. * It appears that Respondent also manufactures air-conditioning equipment and forest and farm machinery. FRICK COMPANY 1091 the testimony of B. W . Bothe, assistant director of the Union's Eighth Region, "it had been determined . . . that a demand for recognition would be made on the Company on the 31st 5 and in connection with this demand it was planned that the employees would leave the plant during their lunch period and engage in a demonstration outside of the plant . [He] arrived at the plant on the 31st at about quarter of twelve . There were in the neighborhood of 200 employees gathered on the sidewalk which runs in front of the plant and another large number, maybe 100, were on the other side of the street . While [he] was in the area, additional employees came out of the plant. Other employees were arriving by car. Shortly after noon, [he] would estimate there were about 400 of the plant employees in the demonstration." At this point, Bothe and his committee entered the plant . In the group was the Union's associate general counsel, who acted as spokesman . A meeting ensued with the executive committee of Respondent consisting of Richard C. Hoff, industl ial relations director , Thadeus M. Glen, vice president and general manager of the refrigeration division, and Mr. Aubrey, a director and senior consultant of Respond- ent. The Union informed the executive committee that it was claiming major- ity status and offered to submit to a card check; it also pointed out that a look outside would show that a majority of Respondent's employees were out in front of the plant asking for recognition . When Respondent's executive committee indi- cated a desire to have Lacy I. Rice, company counsel, present , the Union urged that Rice be reached on the telephone and perhaps this matter of recognition could be resolved - over the telephone and, if resolved , the demonstration outside would cease. The executive committee telephoned Rice at his office in Martinsburg, West Virginia, about 40 miles away , and reported back to the Union that Rice had said that he could not get to Waynesboro that day, that there were details as to the composition of the appropriate unit for collective -bargaining purposes which Rice wished to settle first and that, if there was no doubt of a majority, an agree- ment could be worked out. The Union replied that it was anxious to finalize recog- nition then and, if not worked out, the demonstration could be converted into a strike for recognition "very shortly." At the urging of counsel for the Union, the executive committee placed . him in telephonic communication with Rice. His effort to persuade Rice to come to Waynesboro that day' or to have the terms of the recognition agreement settled over the telephone proved abortive .6 Whereupon, after a recess by the union delegation, the Union informed the executive commit- tee that "the demonstration would be converted into a recognition strike inasmuch as [Respondent ] was refusing to recognize and bargain with the Union in the light of its undoubted majority." The executive committee 's response was that Rice would be available the next morning at,10 o 'clock, but that nothing further could be accomplished that day. The union delegation left the meeting and ' a mass meeting of Respondent's employees was convened on Respondent's,' King Street parking lot. Picket ,lines were established at the major plant gates , and entrances . The employees, who demonstrated during the noon hour, were, at the request of the union delegation, given permission by Respondent to return to pick up their belongings . It ,appears that about 25 employees of the approximately 800 employee complement remained in the plant that afternoon, while the rest stayed out that day. • Pickets, carrying signs, remained on duty until about 5 : 30 p.m. That afternoon, the Union filed unfair labor practice charges with the Board 's Regional Office. The employees were still on strike the following morning when the same union delegation met with Respondent's executive committee and with Rice , company counsel. Rice had, in the interim, prepared a form of recognition agreement. Dur- ing the , meeting, Respondent's representatives counted, but did not look at the face of, the union authorization cards, which numbered in excess of a majority among the production and maintenance employees. Thereafter, the prepared recog- nition clause was discussed and edited and some changes in the description of the unit were made. The recognition agreement was thereupon signed . Where- upon; the union delegation indicated that the unfair labor practice charges already on file would be withdrawn 7 and that the recognition strike would be terminated 5 Bothe had no knowledge of any contact with the Company about recognition before this, and it would appear that there had been no prior contact. e It would appear that Rice had agreed during the telephone conversation with counsel for the Union to meet with the union delegation in Waynesboro the following morning at 10 o'clock. 7 It appears that Rice voiced objection to such withdrawal. 1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD immediately. Arrangements were made for the strikers to return starting with the sec- ond shift that day and the strikers were so advised by the union delegation at a meeting called by it. Arrangements were also made for the' commencement of bargaining on Monday, April 5. There is testimony by Bothe that Rice opened the April 1 meeting by saying that Respondent greatly resents the tactics used by the Union in raising the recog- nition issue. However, Hoff testified that "to the best of his knowledge" it is com- pletely false that the first thing that occurred at the meeting was derogatory remarks about the Union by Rice. I find that Hoff's testimony is not inconsistent with a finding that Rice expressed resentment over the tactics of the Union dur- ing the course of this meeting, and I so conclude .8 B. The bargaining sessions and the accompanying events 1. The sessions beginning with April 5 to May 14, inclusive The bargaining sessions began on April 5, and proceeded on a twice-a-week basis through May 14. The strike, which occurred on May 17, interrupted this bargaining routine. Thereafter, there was one bargaining session on July 7, which was called by the Union; it occurred in between two meetings called by a Federal mediator, one on May 28 and the other on August 13. More particularly, the par- ties met before the strike on Mondays and Fridays of each week, except that the first meeting in May occurred on a Wednesday instead of a Monday. Present for the Union were International Representative William H. Baker, who was the Union's chief spokesman at all meetings but the one on May 14, when Bothe appeared at the bargaining table and assumed the role of chief spokesman; Joseph Craig, a fellow International representative; and the union committee members consisting of Smith, Johnson, and Shade. Present for Respondent were Rice, who acted as spokesman, John Miller, his associate, and the members of the above- mentioned executive committee. Except for some absences by Aubrey and absences by Glen from the meetings on May 5, 7, and 10, the representatives of Respondent were the same at each meeting. When Aubrey was absent, Watts, the secretary of Respondent corporation, substituted for him and when Glen was absent, George Frank, the controller of Respondent corporation, acted in his stead. Testifying in behalf of the Union as to these meetings, in the main, were Baker as to all except the meeting on May 14, and Bothe as to the meeting on May 14; and testifying on behalf of Respondent were Hoff and Glen. The account herein- after of these meetings is a composite of the testimony of all these individuals. In those instances where there are testimonial differences between Baker or Bothe, on the one hand, and Hoff and Glen on the other, I have credited the latter two. I have done so because both Hoff and Glen impressed me with their veracity, more so than did Baker and Bothe. Craig also testified for the Union on rebuttal and I have credited Hoff and Glen over him as I was more impressed with the testi- mony of Hoff and Glen 9 than that of Craig. - 8 That the circumstances leading up to recognition were deemed an irritant in the bargain- ing picture by Rice is suggested by Hoff's testimony in respect to the time when Rice recapitulated to Federal Mediator Harry Young the course which bargaining had taken According'to Hoff, Rice then explained "the Company's position with some repeating of the history that led up to the strike and the negotiations." 8 Exception was taken by Respondent to my ruling of not allowing Glen to use type- written material prepared from Hoff's notes of the negotiation meetings, as edited and supplemented by Hoff, it being.shown that a copy of the typewritten material was read over and checked for accuracy by Glen on the,day the notes were taken or on the next day. The issue arose in connection with the following question by Rice, Respondent's counsel: "Who was present at the, [April.lst] meeting if you remember?," and.the answer of Glen as follows: "I can't remember these, Air: Rice, quite as accurately as Mr. Hoff. I heard Mr. Hoff's testimony and in general I am in agreement with the details of all the people were present at meetings and times and so ,forth." As I have credited Hoff as to such details, the issue raised by Respondent's exception has,thereby been mooted. Insofar as Respondent appears to suggest that my ruling had broader implications in precluding the use of such notes in connection with testimony by Glen on the substance of the negotia- tion meetings, it was not shown at this time or'at any other time during Glen's testimony that his memory needed refreshing as to the content of these meetings and thus no predicate was laid for such use of the typewritten notes. Moreover, Glen testified in con- siderable detail as to all matters involved during these negotiations thereby demonstrat- ing that his recollection was good. Furthermore, I have found Glen's testimony to be corroborative of that of witness Hoff in such respects and have credited it. FRICK COMPANY 1093 At the first meeting the Union presented a form of written contract containing some 31 provisions in all, some provisions being set forth in skeletal form and to be supplemented thereafter ; it also made an oral request for present company practices, fringe benefits, and other like information. Pursuant to Respondent's suggestion, this request for information was followed by a letter to the same effect from the Union to Respondent, bearing the date of April 6. The Union's supplementary language on grievance procedure , management responsibility, strike stoppages and lockouts , union shop, and arbitration was presented at the next meeting on April 9 . The Union also indicated that addi- tional provisions on safety and on washup time and a wage proposal would prob- ably be ready at the next meeting . Respondent , in turn, presented to the Union some requested data in either oral or written form. At the next meeting on April 12, the Union presented a cost -of-living proposal and a wage range proposal which set forth a 10 labor grade structure and a pro- giession system from minimum to maximum. Respondent, in turn, furnished the Union with some additional information that the Union had requested. The next meeting occurred on April 16 . At that time, the Union submitted its benefit levels on the pension plan proposal, together with draft proposals on washup time, jury duty, and bereavement pay and a copy of a Blue Cross and Blue Shield proposal prepared for another corporation , which proposal, it claimed, was similar to the type of Lehigh Valley Insurance Program expected to be pro- vided by Respondent. This was also the meeting at which Respondent presented its counterproposals on the subjects of management responsibility and seniority and indicated that at the next meeting a detailed explanation of its position con- cerning the proposals by the Union would be given. The parties met again on April 19 . The Union then informed Respondent that it was readying a proposal on an apprentice program and, in connection therewith, it was requesting that Respondent furnish to the Union the company program in this area . Respondent, in turn, furnished the Union with data as to job descrip- tions, labor grades, and base rates in effect at the plant and gave a detailed explanation of Respondent's position concerning the Union's proposals, accepting some provisionally, suggesting revisions in some, rejecting some, and deferring on others. The next meeting took place on April 23. Respondent furnished the Union requested information as to various types of insurance in effect at the plant and also a copy of the existing apprenticeship program. Additionally , Respondent pre- sented its counterproposals as to wages and pensions . There was a discussion thereof and also of an apprenticeship program and seniority. Rice also summa- rized the Company's position on the other union proposals . Baker, on behalf of the Union, indicated that he would present this wage and pension counterproposal, which he regarded as inadequate, to the membership of the Union on the follow- ing Tuesday, April 27, but would not recommend approval. At the ensuing April 26 meeting , no progress was made; Baker again commented that he regarded Respondent's proposals on economic issues inadequate and that he would not recommend acceptance thereof at the union meeting to be held the next day. When the parties reconvened on April 30, Baker reported to Respondent that the membership of the Union had rejected Respondent 's counterproposals as to wages and pensions . There followed a discussion of the wage issue in which Baker urged Respondent to increase its offer on wages as the offer made was not enough. When the Union was asked what was meant by enough , the response was, "put your best foot forward"; the 12 cents was "not enough"; and that the Union was demanding "more money than you have presently offered." Baker also advised Respondent's representatives that a form had been submitted by the local of the Union to "the Detroit office" in order to get strike action approval and that "if real progress were not made within a week, the Union would advise [Respondent] when they were going to close down the Frick operation." At the next session , which took place on May 5, the Union accused Respondent of going to "the newspaper" with a misrepresentation that the Union's wage pro- posal would cost Respondent $ 1 per hour; it added that such matters should be confined to the bargaining table. The Union submitted a single copy of an appren- ticeship proposal and there was some discussion thereon . There was also a review of the Union's other proposals and Repondent's counterproposals , with the Union reminding Respondent that strike procedure was in process and "if the Company didn't show a realistic position at the bargaining table that a strike was imminent." The Union stated its views on the proposals and counterproposals and, in effect, 1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reasserted its position that it was flexible on wages and pensions, that Respondent's offer was not enough and that Respondent should "put [its] best foot forward." Respondent, for its part, indicated no change in its position, which was given at the meeting of April 23, except that if the parties could agree on its wage package of 12 cents for wages and 5 cents for pensions , the wage offer being in conformity with the area wage pattern, it might add $500 to the existing employee life insurance coverage. The next meeting occurred on May 7. The main topic discussed was the Union's apprenticeship proposal, with the Union urging adoption thereof by Respondent, and with Respondent expressing its partiality to its own apprenticeship program which had been, in its view, a successful one for a span of about 50 years. The Union sought further discussion of the - Union' s proposals again, stating its posi- tion as flexible but that Respondent should "put [its] best foot forward." There was no change in the position of either party. The subject of strikes was again dis- cussed, with Respondent giving its arguments against their advisability. At the outset of the following meeting on May 10, Baker registered a complaint concerning a news item which appeared in the Record Herald, a newspaper of gen- eral circulation in Waynesboro, saying that many issues were unresolved. Baker said that he felt Respondent was wrong in its citing wages and union shop as the major problems at that time. The parties again indicated that there was no change in their expressed positions on any of the proposals. Thus, as formerly, the Union repeated that it was flexible on all its proposals and, in answer to Respondent's contention that the wage package Respondent proffered would alone amount to $175,000, it said that Respondent's wage rates and fringe benefits were out of line in the area and were unacceptable and further that Respondent had much "catching up" to do. Reference was again made by the Union to the strike vote and authorization and that a strike would be called when the Union felt that it had exhausted every avenue to get Respondent to bargain in good faith. Bothe, who had been present at the recognition meeting on April 1, and had not participated in any of the negotiating sessions concerning a contract, took over the role of chief spokesman for the Union at the next negotiation session on May 14. Each side, at the urging of Bothe, reviewed its bargaining position, with Baker giv- ing the union position and Rice giving Respondent's position. Bothe asserted that no issue, including the union shop and seniority or combination of issues was a "must," that economic issues were more important at that time and that if Respondent was prepared to alter its previous position, this might start further movement from the Union.lo Rice replied that Respondent's offer was a considered one and that he had nothing new to propose, implying thereby that any discussion concerning benefit lev- els in advance of any agreement as to the amount to be paid into pensions was pre- mature. More particularly, Rice stated that Respondent was adhering to its 17-cent package consisting of 12 cents in wages and 5 cents in pensions, but it would give serious consideration to any union suggestion to split the 17 cents in any other way. With specific reference to the union shop, Rice said that Respondent is fundamen- tally opposed to a union shop on the ground that employees should have the indi- vidual right to decide the matter of belonging to any organization. A 15-minute recess was taken by both sides at this point. Upon resumption of the session, Bothe advised Respondent that the local Union's request for strike authori- zation had been granted and, based on the developments of the meeting that day, Respondent's refusal to bargain in good faith would result in a strike which would be authorized for 6 a.m. on Monday, May 17, and that the strike deadline was not intended as a threat but as a notification so that bargaining could take place in the intervening hours. No further meetings were scheduled at that time and none was held that weekend. The strike took place on Monday, May 17, as forecast by the Union, and was accompanied by picketing. The strike is still in progress. Operations continued on May 17 and thereafter at the plant without interruption, but with a reduced staff. As of the date of the strike there were 527 employees in the production and main- tenance unit. At the time of the instant hearing, in excess of 400 employees were employed in this unit, and there was a total complement of between 800 and 900 employees. * 10 Although Bothe and Craig denied that the Union's request for additional bargaining at this meeting was conditioned by P,othe on Respondent increasing its offer, I find, in the light of all the foregoing that bargaining was in fact so conditioned by Bothe Further- more, I find on the basis of the credited testimony of Hoff that Bothe then said, "we need a bigger pie but we can't state the size now." FRICK COMPANY 1095 2. The bargaining session on July 7 and the meetings with the Federal mediator on May 28 and August 13 Since the close of the meeting of May 14, events occurred away from the bar- gaining table which are alleged in the complaint as unfair labor practices. However, I shall defer, until later, discussion thereof in the interest of presenting the bargain- ing sequentially. On May 28, Federal Mediator Harry Young called Respondent and the Union to a meeting . Present for the Union were Baker and Craig; present for Respondent were Hoff, Glen, Watts, Rice, and Miller. Young asked for an oral review of the issues and this was done by Baker for the Union, and by Rice for Respondent. Baker accused Respondent of maintaining an inflexible position, except that it had changed its offer in one respect, viz, its proposal to increase group life insurance coverage by $500. Rice explained "the Company's position with some repeating of the history that led up to the strike and the negotiations." Young, after listening to both reviews, volunteered that the parties appeared to be poles apart and that per- haps some progress might be made if the parties could talk about specific contract issues, mentioning seniority. Whereupon, Rice indicated that "prior to working on seniority," he would prefer to reach agreement on the major issues which were "the economic matters plus union shop, union security." After some discussion, Young remarked that neither side seemed to be ready for mediation but that he would keep in touch with the parties and, if he felt that another meeting was warranted, he would request it. Whereupon, the meeting ended. Pursuant to a telegraphic request of the Union for another negotiating session, the parties met on July 7. Present for the Union were Bothe, Baker, Craig, and the union committee consisting of Johnson, Smith, and Shade; present for Respondent were Hoff, Glen, Aubrey, Rice, and Miller. Again, the account of this meeting is a composite of the testimony of Bothe, Baker, and Craig, who testified for the Union, and the testimony of Hoff and Glen, who testified for Respondent, and I here credit the latter two for reasons already given where there are testimonial differences with Bothe, Baker, and Craig. During this meeting, the Union proposed a compromise set of demands and, for the first time during the negotiations, framed its wage and pension demands in terms of cents an hour; it stressed the greater importance to the Union of the pen- sion; it took issue with Respondent's view of the Union's position on the union-shop issue and stated its position thereon. Preliminarily, Bothe adverted to some com- pany announcements in community newspapers, labeling as a gross distortion the company claim therein that the strike was caused by the Union's continued insist- ence on a union shop. When Rice insisted that the Union had not withdrawn its union-shop demand and that it was a stumbling block in the previous meeting, Bothe replied that Rice was wrong, and that he was prepared for some "hard nose" bargaining and had with him a set of revised proposals. Bothe had nothing in writ- ing to present; however, he had in his possession a typewritten sheet of the Union's revised proposals from which he read, while Respondent's representatives endeav- ored to take notes. Bothe stated that the Union's revised offer on pensions would add 7 cents an hour to Respondent's pension offer and was about 6 cents an hour less than the Union's original pension demand. He followed with the Union's pro- posals as to sickness, accident, hospitalization and life insurance coverage; its pro- posal as to shift premium pay, requesting 10 cents an hour in lieu of a 10-percent differential for employees on the second and third shifts as proposed earlier; and its proposal as to leadman premium pay, which the Union would standardize at 15- cent-per-hour minimum. Bothe also indicated at this time acceptance of (1) the Company's proposals of six paid holidays as theretofore, provided the day before and day after eligibility qualifications proposed by the Company were eliminated; (2) the Company's earlier agreement to jury duty pay and bereavement pay, subject to agreement on language; (3) the Company's proposal to eliminate the Union's cost-of-living escalator; and (4) the Company's position on the noneconomic issues of grievance procedure, arbi- tration, and seniority, subject to the drafting of mutually agreeable language. Bothe also offered language on union security,ii which he said went along with the Com- pany's desire to eliminate it. As to the Company's 12-cent-an-hour wage proposal, the Union indicated it would accept 24 cents an hour in lieu thereof. All the above economic proposals by the Union were premised on the contract term being for 1 year. As one alternative, Bothe proposed a 2-year term, provided "According to Bothe, he said, "we would sign a contract and would not require an employee to become a member of the Union, unless it was his voluntary choice." 1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a cost-of-living escalator clause, an additional holiday, and 12 cents more an hour in wages effective on the anniversary date, were part of the package. As a second alternative, he proposed a 3-year term, provided there were added to the provisions for a 2-year term, an additional 12 cents an hour in wages, effective on the second anniversary date, and an additional paid holiday. Bothe pointed out to Rice and the other representatives of Respondent that the Union had always disputed Respond- ent's figure that the Union's economic proposals amounted to $1 per hour but added that, assuming that figure, the Union had scaled down its demands to about one half that amount. At the conclusion of this presentation by Bothe, Rice said that the parties were too far apart to make it worth while to talk, that the Union had made minor changes but still wanted additional money on the wage increase, still wanted the union shop, and still wanted to negotiate the pension details, that Respondent had made an early decision on these matters and there was no reason for a change of mind. Bothe protested Rice's rejection of the Union's compromise offer as a basis for further discussions and asked for a recess. A 20-minute recess was thereupon taken. Upon reconvening, Rice summarized "the Company's reaction and position." Rice said that the Company's offer still stands; Respondent offered a 17-cent package "ini- tially in an effort not to piecemeal up to where we thought we could go"; the 12- cent-an-hour increase in wages was judged by the Company to be fair; and the 5- cent proposal on pensions would permit the establishment of a modest pension plan; 12 the Union's economic demands were exorbitant and not realistic; Bothe's proposal with respect to union security was "99 percent a union shop"; based on a strict calculation, the Union's revised scale of economic demands would add approx- imately 75 cents an hour to current costs; 13 that it was evident that-the parties were still far apart and the Company had no further offer to make at this time. It appears that Bothe tried to turn the discussion during the postrecess period to the subject of pensions, saying that pensions "had great importance in the mind of the Union and that if we could work something out on it perhaps all these other things would fall into line." To this, Rice replied that Respondent had made its offer to pay 5 cents an hour into a pension fund, that the details could be worked out later and that there was nothing further on the issues. The meeting adjourned at about this time. The final session between the parties was held on August 13 at the instance of Federal Mediator Young. Present for the Union were Bothe, Baker, Craig, one D. J. Burton of the Union's Regional Office, and two members of the union com- mittee, i.e., Shade and Smith. Present on behalf of Respondent were Rice, Aubrey, Hoff, and Glen. At this meeting, Young asked for a review of all the issues and both sides complied. After a recess for lunch, Young conferred with each side sepa- rately. However, nothing was accomplished thereby and Young did not reconvene the parties after the recess. There have been no further meetings. 3. The incidents away from the bargaining table occurring on May 14, after the meeting that day, and thereafter The parties stipulated that, on May 14, Respondent posted throughout the plant at places where notices to employees are customarily posted, the following notice, signed by Hoff on behalf of the Industrial Relations Department: We have been advised by the negotiating team of the United Automobile Work- ers Union that our employees in the bargaining unit will be instructed to "strike" at 6:00 a.m., Monday, May 17. However, work will be available, as usual, Monday for all employees who enter the plant, and all are requested to do so. The National Labor Relations Act guarantees all employees the right to work during a strike . . . whether or not they are members of the union call- ing the strike. 11 In this connection, I am not persuaded that Rice used the phrase "not one mill more," as Bothe testified. is Although Hoff testified to the 75-cent figure while Glen recalled that 80 cents was stated by Rice, I regard this minor discrepancy as insufficient to affect my credibility find- ings herein. According to Hoff, a later calculation was made by Respondent and it discovered that its original estimate of 75 cents was relatively accurate and a bit'on the low side. FRICK COMPANY 1097 All employees considered to be in the bargaining unit who report for work on their normal jobs will receive a general increase of 12 cents per hour, effec- tive May 17th. Employees who have questions should consult with their Foremen, Super- visors, or members of the Industrial Relations Department. On May 15, there appeared an announcement by Respondent in the Record Her- ald, a newspaper of general circulation in Waynesboro, entitled "The Strike at Frick Company," with the explanation at the beginning that the purpose thereof was "in order that our employees may understand what has taken place during negotiations with the United Automobile Workers Union during the past six weeks" and with the statement at the close that the Company had been notified by the union com- mittee on May 14 that a strike would take place on Monday, May 17, at 6 a.m. The Company set forth therein that the Union had "demanded" many items from the Company including (1) a "substantial" wage increase; (2) a pension plan; and (3) a union-shop agreement and a checkoff provision. With respect to wages, the announcement said that, after careful study of the demands and current factors and trends, the Company made a fair wage and pension proposal offer of 17 cents, con- sisting of a general wage increase of 12 cents per hour and a pension plan contri- bution of 5 cents per hour; the Union rejected the Company's wage increase offer, although it was considerably higher than the current industrial average increase of 7.7 cents and was also in line with the Company's long-established policy of main- taining a wage increase pattern comparable with other local industrial firms; the Union has not made a counterproposal to Respondent's above-wage increase pro- posal on a cents-per-hour increase basis; early in the negotiations it submitted a "wage scale" proposal which, estimated conservatively, would increase company wage rates approximately $1 per hour; and "this impractical proposal, of course, was not seriously considered by company negotiators." With respect to pensions, the Company hearkened back to several years ago when it made plans to establish a pension plan for hourly employees, pointing out that although the plan was not installed, the Company-has continued basic plans for such a program, thus indicat- ing its pension-plan intentions are in line with, and actually have preceded, the Union's current demand therefor. As to the union shop and checkoff, the announce- ment asserted that these demands had been rejected. In the case of the union shop, it alluded to indications from some employees that the union shop was objectionable because of their religious beliefs and/or personal convictions; and, in respect to the checkoff, it asserted that among the moneys to be deducted from payroll checks are dues, initiation fees, fines, and other union charges which "the Company feels should be made directly by members on an individual and voluntary basis-not on an automatic payroll deduction basis." The announcement also set forth that seniority was another stumbling block, in that the Union- wanted a' plantwide seniority while the Company wanted a senior- ity provision which would "protect them on a departmental and occupational skill basis-not on years of -service alone." The Company also asserted that while it has stood firm on the .17-cent-per-hour package offer, it "has indicated a willingness to consider several of the Union's demands-prpvided agreement on major issues can be resolved," while the Union "has continued to insist upon acceptance of most of its original `demand' items." Thereafter, according to Hoff, the following form was prepared for all employ- ees who went on strike on May 17;' it was marked to be effective on May 24, and a copy was made for every such employee'and,placed in his official employee folder: CHANGE IN EMPLOYEE'S STATUS Employee ' Clock ' Effective Name No' Date 5-24-65 Detail of Removed from payroll as a Quit effective May 24, 1965; Change absent seven calendar days on unauthorized basis. Absence is in violation of following paragraph extracted from page 2, under heading Tardiness-Absence, in booklet Frick Employees' Manual, Rules and Regulations, August 1956: An employee absent seven (7) consecutive calendar days for un- authorized or unexplained reason will be considered to have quit the employ of the Company. His name will then be removed from the payroll. Authorized Richard C. Hoff Signature Director of Industrial Relations 1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The above-mentioned manual is given to every new employee and explained to him, and it was in effect during 1965 and for many years prior thereto. According to Hoff, this regulation would apply to any employee, whether or not on strike, if he were absent.14 Subsequently, on June 25, Respondent placed another announcement in the Rec- ord Herald entitled, "A Message for Frick employees on Strike " This advised strik- ing employees that they could not be fined by the Union for crossing the picket line, would be protected in their homes and on the street from violence or acts of van- dalism by pickets or union representatives , that "Frick Company will not agree to a Union shop contract, and that there will never be a question of losing your jobs if you return to work now," and finally that over 100 men including an increasing number of bargaining unit employees are now working in the plant. The parties stipulated further that on or about July 8, the following letter was mailed to,all hourly paid employees, under Glen's signature: July 8, 1965 Dear Fellow Worker: You have one more opportunity to qualify for Vacation Pay this year. You will receive a Vacation Pay check on July 16, in accordance with stand- ard practice, provided: You return to your job, and thereby have your name again placed on our payroll, on or before July 14. And, work on July 14, 15 and 16. There is no other way. If you do not work on the three days cited above, eligibility for Vacation Pay this year will be forfeited. Are you going to return to work and thereby become eligible for Vacation Pay? It's up to you. Sincerely yours, (S) T. M. Glen Vice President & General Manager Refrigeration Division The standard practice reference above was to Respondent's vacation plan which was then in effect. This plan provides for vacation pay on a graduated scale after 1 year or more of active service, as of the period ending the nearest June 30th. It becomes applicable if any employee has worked at least 75 percent of the pay periods during the preceding year, subject to exceptions not here material, and fixes the vacation week as the third full calendar week in July of each year 15 and fixes the payment thereof during the week preceding said vacation week. Also bearing on the vacation pay issue is section 8 of the vacation plan, which reads as follows: No vacation or vacation pay will be allowed or paid to any person who is not on the payroll of the Company on Wednesday preceding the week in which vacation pay is distributed. It is clear from the testimony of Hoff that vacation paychecks were not given or sent to striking employees who did not return to work by July 14 and actually worked on July 14, 15, and 16. It is the further testimony of Hoff that, in order to qualify for vacation pay in July 1966, striking employees would have had to return to work by September 30, 1965. Beginning with July 9 and extending into August, Respondent, through its super- visors, made overtures to striking employees to return to work, doing so either in person at their homes or at or near the picket lines or over the telephone. The complaint alleges that, during these discussions, threats of reprisal and promises of benefit were made. Also on July 9 during the afternoon, while some of the strikers were soliciting strike funds at entrances to the Fairchild Company plant and the Mack Truck Company plant, both being located in Hagerstown, Maryland, Hoff I{ Hoff testified that he did not know, in all cases , that the employee whose name was removed from the payroll was on strike . It is apparent , however, and I find, in the absence of any evidence to the contrary, and in view of the fact that the change was made effective exactly 7 chronological days after the strike began, that very few, if any, nonstrikers were involved at this time. 15 In 1965 the third full calendar week began on July 19. FRICK COMPANY 1099 and one Miller, who is chief of plant guards for Respondent, drove near to them in a car and Miller took their photographs. This conduct is alleged to be surveil- lance in violation of the Act. As to the taking of photographs, the facts are not in dispute. Hoff testified that Miller and he drove to the entrances of the Fairchild plant and the Mack Truck plant on July 9, that Miller took the photographs at his request, taking 'seven pho- tographs in all, i.e., two at the rear entrance and two at the front entrance of the Mack Truck plant and one photograph at each of the three gates at the Fairchild plant. Hoff said he arranged for Miller to get a Polaroid camera and go with him "for the purpose of identification," that he was interested in knowing whether the solicitors for strike funds were actually Frick strikers, and whether there might be in the solicitation group employees from other plants. According to employee Woodrow Creider, who was at the Mack Truck plant on that day with other employees, the men stationed themselves at the back entrance, placed a sign in a grass plot in the center of the highway which read that Frick employees were on strike, and the men were carrying boxes to solicit for the strike fund. There is also testimony by striking employees John Buhrman, Jr., and Ralph Plum, indicating that about seven or eight persons were engaged in soliciting funds at the different gates at Fairchild and signs were displayed indicating they were on strike at Frick, that the car approached them slowly and was in sight for about 3 minutes. Appar- ently there was no conversation between Hoff and Miller on the one hand, and those soliciting funds on the other. With respect to the overtures to employees, the record discloses the following background testimony. According to Hoff, a series of meetings were held during the strike by management with supervisors. Presiding at these meetings was Glen, and assisting him was Hoff. Glen and Hoff "asked the foreman to contact striking employees and to tell them that the Company would like to have them come back to work. [They] advised the foremen what they could do legally in [their] opinion and what they should not do . . . [they] asked the foremen to remind the employ- ees of the vacation policy which had been in effect since 1952, and to advise them with the details . . ." Glen corroborated Hoff in all significant respects. Glen emphasized that they had a selling job to do to persuade foremen that they should participate in this effort and- that the, instructions to the foremen were to "use every persuasive method you can to convince workers to go back to work." The testimony of both the supervisors and the striking employees approached by them is that the discussions were friendly ones and the home visits were not prearranged. According to striking employee Barry W. Riber, Foreman Kenneth McNew, the supervisor of his department, spoke to' him in front of the plant on July 9 or 10, saying that, "if [he] was not back to work by the following Wednesday, [he] would have no job and there would be no ands, ifs or buts about it. He [McNew] was instructed to hire someone else in [his] place." Kenneth McNew did not take issue in his testimony- with Riber's version. However, he added that his remarks were directed to five or six individuals who were there in a group along with Riber; and that he said that if the men were not back by July 14, they would not receive their vacation pay. According to striking employee Charles F. Stoops, Foremen Fred Kirkpatrick and Richard Omer, tool department supervisor and assistant supervisor , respec- tively, paid a visit to his home on or about July 9 at approximately 6:30 p.m. At that time, Kirkpatrick said that he was there with information that he, Stoops, had to be back to work by 7 a.m. on July 14 and that after' that date "maybe [he] could be back and maybe [he] couldn't. But [he] would have to come through the personnel office and be hired at the option of the company." According to Stoops, he inquired about whether Kirkpatrick would recommend him for a new job, and Kirkpatrick said he could not do it, and he also received a "no" answer from Orner to the same question. However,.Kirkpatrick testified that he did not mention a loss of job, that he did say that if Stoops was not back to work by 7 a.m. on July 14, Stoops would lose his vacation pay. Omer's testimony was that, after Kirkpatrick's statement about vacation pay, he, Orner, added that he would like to have Stoops back at work and that, if Respondent did not get enough strikers back to work, there was a possibility that the manufacturing facilities would cease, and that Respondent had plans for the eventual replacement of those who did not return. Omer acknowledged that Stoops asked about a recommendation but his version was that Stoops asked if he, Stoops, were to ask for a recommendation, would they give him one; and that neither Kirkpatrick nor he answered the query. 1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The same supervisors visited striking employee Walter H. Beard in his home on Monday evening, July 12 , at 8:30. According to Beard, Kirkpatrick, after exchang- ing greetings , said that he had come to inform Beard that he was supposed to be at work on July 14 at 7 a .m. and "we don't mean 5 minutes after 7 or a quarter after 7, we mean 7 o'clock. If you are not there by 7 o'clock you no longer have a job with the Frick Company," that thereafter he might be hired as a new employee. He testified further that Kirkpatrick said that the Company did not want some employees , like Stoops, to return, adding, "Boy, we got the goods on him. We got pictures and everything of him." Beard also testified that Orner said that if enough strikers did not return , Respondent was going out on the street to hire new employees and if there were not enough new ones, Respondent was going to turn the plant into an engineering and assembly plant and had already started to evaluate the machinery for sale purposes . It was Kirkpatrick's testimony that what he said about returning to work by 7 a.m . on July 14 was in the context of loss of vacation pay, that he mentioned nothing about pictures . Orner corrob- orated Kirkpatrick's testimony. He indicated , too, that the statement was made that replacements would be hired for the strikers if they stayed out and that there was a possibility of a cessation of the manufacturing operations if Respondent could not get the strikers back. The same supervisors visited striking employee Vernon C. Hartman , just outside his home, on or about the same day at 6 o'clock in the evening . According to Hart- man, Kirkpatrick and Orner asked him when he was coming back to work, that his reply was that he would not return until the Union said so, and that he was told by one of them, whom he could not identify , that if he was not back to work by July 14 his job would be terminated and he would have to be hired as a new 'man at a 10- to 15-cent cut in wages. However, Kirkpatrick testified that his con- versation with Hartman was along the same lines as the one with Stoops , that he never mentioned a 10-cent cut in wages, and that Hartman indicated that he did not believe that he was going to return to work . Orner testified that he made the reference to possible replacement and to the possibility of a cessation of manufac- turing operations if the Company was not successful in getting the strikers to return. On July 13 , about noon, according to striking employee Ralph Plum, he received a telephone call from Foreman Charles Poole . At that time, Poole told him that if he came back,to work on July 14, 15, and 16, he would receive his vacation pay, and, if he did not return by July 19, he would have to start as a new man. Plum testified further that he, in turn , replied that he would not return until the Union had a contract. This ' telephone call, according to Plum, was followed by another about 2 weeks later. He was, told then by Poole that his job was still open and if Plum returned he would receive the 12-cent wage increase . It is Plum's further testimony that Poole said "if this thing-gets broke up [sic] you might get your vacation pay." The testimony of Poole , however, was to the effect that he spoke about Plum's -returning to work in order not to forfeit vacation pay and that Plum seems to have misunderstood him in attributing to him the above remark about not returning by July 19. It is Poole's testimony that he told Plum that he was needed and that the Company was hiring; that, although he; Poole, moves his men around all over the shop, Plum would be in .Poole 's group if he returns and there always will:;be, room , for him as he is a valuable man. As , to the second telephone conversation , Poole testified that, he urged Plum to return , that he, Plum, was a valuable man, and that he, Poole, would like Plum to` come back . He was not interrogated as to the remark attributed to him by Plum as to vacation pay being paid to Plum "if this thing gets broke up." On July 14, around',9:30 a.m., Foreman Martin visited striking employee James W. Cool at his home. According to Cool, Martin told him that if he came in to work that day, he would get vacation pay and the 12-cent wage raise, otherwise he would not; that if he came back later there was a possibility he would not get the 12 cents. About 2 or 3 weeks later, in the evening according to Cool, Martin again visited his home. Martin told him he had forfeited his vacation pay, and indicated to him that he might as well return as the Company was still looking for people. Cool replied that he figured that he should have come back but he could see no reason to do it then, as the vacation pay was gone . A third visit was paid to Cool's home one evening 2 or 3 weeks later. Again, according to Cool, Martin told him that he might as well come in to work as the Company was not going to give 1 cent more no matter how long he stayed out and that his job was available with the 12-cent wage increase . According to Martin's testimony, the first discussion was FRICK COMPANY 1101 with regard to forfeiture of vacation pay if Cool did not return by July 14; dur- ing the second visit he spoke about the Company's hiring of replacements and of the possibility of closing down the foundry for lack of help; and during the third visit he spoke about the fact that the Company was still looking for Cool to return. Martin said that Cool asked about the 12-cent wage increase and he replied, "yes." Foreman Martin also paid a visit to striking employee Kenneth E. Nunemaker at his home during the last week in July. Nunemaker testified that Martin talked to him about coming back to work, indicating that, if he did not return to work by August 9, he would not be reinstated but would have to be rehired as a new employee and, further, that the Company was talking about shutting down the foundry where he worked about the middle of August if by that time there were not enough men back to operate the foundry properly. According to Nunemaker, he replied that, "there wouldn't be no [sic] use for [his] going back" if he had to do so as a new employee since he would lose almost 10 years of seniority thereby. Martin's testimony was at odds with that of Nunemaker in that he denied saying that Nunemaker would have to start all over as a new man. According to Martin, he told Nunemaker that if he would return to work his job was still open, and that Respondent needed him. He added that he told Nunemaker that Respondent was "hiring people and he would have to go to personnel" and that Nunemaker said, "I will be one of the last to return." Martin also visited striking employee Richard C. Good on July 29, at the home of Good's neighbor. According to Good, Martin said that if he, Good, would return to work he would receive his original wage plus 12 cents , that he, Martin, had always treated Good well in the past as to overtime and raises and would do the same again if he returned to work, that Good had to return by August 3 and, if he did not do so, the Company was going to close the factory down. According to Good, he answered that Respondent "might just as well close the foundry down. [He] wasn't coming back to work, if the Union didn't make it. [He] would never come back." Martin testified that he asked Good to return to work and said that if enough employees did not return there was a possibility of closing down . He testi- fied further that Good replied that he was not going to return until the Union had a contract. Martin did not mention anything about giving Good a deadline for returning. There is also testimony by striking employee Glen Fetterhoff that on August 3, while he was on picket duty in front of the plant's main office, Merle Benchoff, foreman of the shipping department, walked up to him and said that if he , Fetter- hoff, was not back in the plant by the next morning, there would be two fellows to take his place operating the crane and that Benchoff specifically mentioned Earle Bare and Clarence Pebble as the replacements . However, it is apparent from Fet- terhoff's own testimony that both Bare and Pebble were on strike at the time of the conversation . Furthermore, Benchoff denied making this reference to Bare and Pebble, adding that in any event, only one of these two individuals works for him. As to the content of the conversation with Fetterhoff, Benchoff testified that Fetter- hoff is a good man and that he stopped to talk with Fetterhoff, asking him whether he had given any thought to coming back, and that Fetterhoff answered , "he was waiting." According to the testimony of striking employee George H. Carbough, on Au- gust 16, at 8:30 p.m. be was standing with a group of employees in front of the office and Enoch Newlon, supervisor of the vise'and assembly shop, spoke to them saying that if all the employees were not back at work by September 1, "they would be out . . . other fellows would take their jobs." Carbough testified further that Newlon, without mentioning names, said some of them would be, and others would not be, rehired. In respect to the foregoing, Newlon testified to a conversation at the above-mentioned time in front of the building but not in front of the plant office and that he did not know Carbough before the time of his giving testimony herein. As to the content of the conversation, Newlon said he asked the employees, some of whom were from his department, to come back to work because he had lots of work and would like to' have all the employees- back, and that the Company would just as soon have old employees as anyone. He testified further that in response to a question by one of the employees about vacations, he replied that this had already been sacrificed by not returning to work on 'July 14, 15, and 16, and that if they were not' back by September, 30, they would sacrifice their vacation for the year 1966. Newlon specifically denied.,the remarks attributed, to him by, _Carbough, namely, that if the strikers did not 'return to work by September '1, they would auto- matically lose their jobs and would have to be rehired as new employees. 1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The allegations of the complaint and conclusions thereon 1. The appropriate unit The complaint alleges, Respondent admits, and I find, that all production and maintenance employees at Respondent's Waynesboro, Pennsylvania, plant, including shop clerical employees, inspectors, leaders who are not supervisors as defined in the Act, and factory and plant janitors, excluding timekeepers, farm machinery and sawmill parts retail sales and store employees, refrigerator engineer trainees, pat- ternmakers and their apprentices, other office clerical employees (including office clerical employees of the production control department), technical employees (including employees of the engineering and drafting department), watchmen, guards, professional employees, and supervisors as defined in the Act constitute an appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 2. The majority status of the Union Respondent admits, and I find, that a majority of the employees in the aforesaid unit had, as of April 1, 1965, designated and selected the Union as their bargaining representative. As already found, on April 1, Respondent entered into a recognition agreement with the Union covering the appropriate unit herein. I therefore find further that the Union has, at all times material herein, represented a majority of the employees in the aforesaid appropriate unit. 3. Concluding findings as to the alleged overall bad-faith bargaining and alleged bad-faith bargaining as to specific subjects 16 Contrary to the General Counsel, I find no warrant for concluding that at the very inception, Respondent, through its chief negotiator, Rice, displayed animus toward the Union and its organizational approach and that this animus pervaded the bargaining. While the events of March 31 and April 1 leading up to recogni- tion may have rankled Respondent's negotiators, I am not persuaded that this so affected Respondent's attitude toward collective bargaining as to become an opera- tive factor in determining whether Respondent met its bargaining obligations under the Act. Nor do I find anything adverse to Respondent in the fact that the parties did not meet more frequently. While it is true that Baker, on behalf of the Union, requested more frequent sessions than twice a week, the Union did agree, after Respondent's claimed inability to meet more frequently, to hold sessions twice a week on Mondays and Fridays, and this schedule was thereafter observed up to the time of the strike, with one insignificant deviation. Nor do I find persuasive the evidence adduced by Respondent to show that Respondent's negotiators, beginning with the sixth session, cut the meetings short over the objection of the Union's nego- tiators and thereby curtailed discussion of the issues. Moreover, even assuming that such curtailment by Respondent did occur, such conduct, in and of itself, or in com- bination with the other factors, referred to above, or discussed hereinafter, do not add up in the circumstances to a preconditioned attitude by Respondent of hostility to the principles of collective bargaining. Furthermore, it is apparent, and I find, from the entire course of bargaining that, whether or not Respondent violated Sec- tion 8(a) (5) of the Act turns upon the substantive positions taken by both Respond- ent and the Union during the course of bargaining on the various matters under consideration. I shall, therefore, proceed to a consideration of these positions. While the Union presented a written "contract proposal" containing 31 provisions, in all, at the first negotiation meeting, many of these provisions were skeletal in form. The Union kept supplementing the proposal at subsequent meetings and ask- ing Respondent to furnish data and other information in addition to that requested at the first meeting. Thus, the Union furnished at the April 9 meeting supplemen- tary language on grievance procedure, management responsibility, strike stoppages 19 The complaint alleges an independent violation of Section 8(a) (5) in that Respond- ent unilaterally granted a wage increase and pension contribution to employees who remained at work during the strike. However, the record discloses, and I find, that only a wage increase was unilaterally granted to such employees. FRICK COMPANY 1103 and lockouts, union shop, and arbitration; presented at the April 12 meeting a cost- of-living proposal and a wage-range proposal; furnished at the April 16 meeting benefit levels on the pension plan proposal and proposed language on washup time, bereavement pay, jury pay, and a copy of a Blue Cross-Blue Shield proposal which it had admittedly prepared for another corporation; indicated at the April 19 meeting that it was preparing a proposal'on an apprentice program and in connec- tion therewith it requested Respondent to furnish the Union with the company pro- gram in, this area; and at the meeting on May 5 furnished a copy of the Union's proposed apprenticeship program. Respondent, in turn, made available to the Union, at the second and third meetings, data and information requested by the Union; furnished a counterproposal on management responsibility and seniority at the fourth meeting on April 16; furnished more data at the fifth meeting on April 19 and gave a detailed explanation of Respondent's position on the Union's proposals,17 accepting some outright 18 and some provisionally, 19 suggesting revisions of some,20 rejecting some,21 and deferring on others; 22 and furnished, at the April 23 meeting, more data as requested during prior meetings and presented its counterproposals on wages and pensions at that time. It is, therefore, obvious that many economic and noneconomic differences existed between the parties as of the close of the meeting on April 23. Yet, thereafter, until the time of the strike, no significant change occurred at any of the meetings in either the Union's position or Respondent's position on the economic or the noneconomic issues.23 Baker submitted Respondent's wage package counterproposal to the union membership meeting of April 27 but did not recommend its approval. Following the rejection by the membership of this proposal, Baker advised Respondent thereof at the April 30 meeting and asked Respondent to increase its offer as it was not enough. However, Baker refused to specify what was enough, saying only "put [your] best foot forward" or that the Union was demanding "more than you have presently offered" or "a substantial wage offer." The fact that the Union kept reas- suring Respondent at this meeting and subsequent meetings that it was flexible on wages and pensions did not add any substance to its blanket demand for "more" money in this area. The parties had thus arrived at a stalemate on the issue of "While Rice had indicated Respondent's position on some of these provisions at prior meetings, there is no need to state them here, as Rice appears to have incorporated such positions into his explanation at this meeting. 18 Article 1, Agreement ; Article 2, Recognition. 10 Article 9, Strikes, Stoppages, Lockouts ; Article 11, Hours of work and overtime pay ; Article 13, Lost Time and Incomplete Day's Work ; Article 16, Bereavement Pay ; Article 17, Jury Duty Pay ; Article 20, Leaves of Absence ; Article 21, Illness and Health ; Article 23, Waiver; Article 24, Qualification (Rice would go along only with part B provisionally) ; Article 25, Assignability, Article 27, Notices (Rice would go along with a part thereof, saying there was no need for, or he could not go along, with the rest) ; Article 29, Super- visory Force; Article 30, General Provisions (however, Rice rejected the rest period clause and questioned the necessity of the discrimination clause or the Armed Forces clause) ; and Article 31, Duration (Rice was speaking of a 1 year agreement, but he was not ruling out a 2 or 3 year agreement). 20 Article 3, Management Responsibility ; Article 7, Grievance Procedures ; and Article 8, Arbitration. 21 Article 4, Union Shop and Checkoff (Rice said the Company fundamentally does not believe in a union shop ; it believes the right of the individual to decide for himself is a fundamental right that should be respected. In rejecting the checkoff Respondent was apparently taking the position that dues etc. should be paid directly to the Union and not on an automatic payroll deduction basis) ; Article 5, Representation , Article 6, Duties and Responsibilities of Union Representatives; Article 10, Seniority (Rice would adhere to present departmentwide seniority) ; Article 18, Shift Differential (Rice would adhere to present plan ) ; and Article 28, Bulletin Boards (Rice said the Union could not have a bulletin board of its own ; it could furnish notices to the Company for approval and post- ing on company bulletin boards). 22 Article 12, Wages ; Article 14, Holidays ; Article 15, Vacation Pay ; Article 19, In- surance ; and Article 26, Safety (Rice asked for deferral on the washup proposal ; as to the rest of the Article, Rice said State law would suffice). 48I do not regard as a significant concession Respondent's statement at the May 5 meeting that if the parties could agree on Respondent's wage and pension offer, Respondent might increase the existing employee life insurance coverage by $500. 1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wages and pensions, with no indication that either side was willing to make the first move to alter the situation. The developments on the noneconomic issues took a parallel course. The emphasis at all times seemed to be that Respondent should change its position from that expressed-at the April 23 meeting and this might start further movement by the Union. At no time, however, did the Union take the initi- ative and suggest language changes or revisions in its original contract proposal, as thereafter supplemented. Indeed the credible testimony of Hoff establishes that Baker was unwilling to participate in the writing or editing of any language in rela- tion to any proposal. The consequence of all this was that the Union was adhering to its stated position on each issue and Respondent was doing the same, and such discussion that did occur was no more than the same type of verbal sparring as took place on the economic issues.24 I am therefore persuaded that, as of the time of the strike on May 17, the parties had reached an impasse on the wage issue 25 and, because of the primacy attached by the Union to wages at the time, a deadlock in the negotiations, and that as of that time Respondent had not violated its obligation to bargain collectively in good faith. In this connecion, I am not persuaded on this record that Rice, on behalf of Respondent, had precluded bargaining on the issue of the union shop. I do not regard as reliable the testimony of Baker and Bothe that Rice stated at several meet- ings that he would "never" grant a union shop. Rather do I find, as Hoff testified, that Rice did not use the word "never", that he discussed the union shop with the Union indicating, inter alia, that Respondent was "fundamentally opposed" to the union shop and believed in the right of the individual to decide for himself whether to belong to any organization. While Respondent's position was an adamant one, and while it aired such adamance in the local newspaper on May 15 this was in a context of discussion of the issue with the Union, even though such discussion proved fruitless. Accordingly, I find no refusal to bargain on union security prior to the strike 26 Nor do I fault Respondent because of an alleged refusal to discuss benefit levels of pensions until its offer of 5 cents per hour payable into a pension fund was accepted by the Union. Respondent's position was, in part, as Glen testified credibly, that before benefits were calculated, the matter of "whether the pension benefit would be paid out immediately or some years in the future had to be ascertained." I am also persuaded that Respondent indicated that it would not be adverse to mak- ing more than 5 cents of its 17-cent wage package available for pensions should the Union prefer a different mix of the wage package. Thus, while the Union was seek- ing a discussion of benefit levels, Respondent, not improperly, regarded such dis- cussion as premature until the amount to be paid into a pension fund and the effec- tive date for the commencement of pension benefits were fixed 27 During the strike, the bargaining situation continued unchanged until the session on July 7 which was requested by the Union 28 At that meeting, the Union proposed a compromise set of demands in which it, in effect, accepted Respondent's position n I am aware that Baker , for the Union, was denied permission to visit the plant, although he claimed that it would better equip him to revise the Union's proposal on the issue of seniority . However, I do not find such denial supportive of a finding of a refusal to bargain as I am not persuaded that the Union had indulged in more than sparring in this respect, as well. As found above, on July 7, the Union accepted Respondent 's proposal of departmental seniority in lieu of its demand for plant-wide seniority. 25Dallas General Drivers, Warehousemen and Helpers, Local Union No. 745 Interna- tional Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers Y. NL.R.B. [Empire Terminal Warehouse Company ], 355 F.2d 842 (C.A.D.C.), enfg. 151 NLRB 1359. ."McCulloch Corporation, 132 NLRB 201, 211, cited with approval on this issue in Capitol Aviation Inc. v. NL.R.B ., 355 F.2d 875 (C.A. 7). For similar reasons, I find similarly as to Respondent's adamant position on the issue of checkoff. 27 It would appear that Respondent withheld from the Union , which was seeking to have its actuary and Respondent's actuary get together on benefit levels, the fact that it had consulted with an actuary in preparing the proposal of 5 cents an hour on pensions. However, in view of the above finding that Respondent did not act improperly in seeking to defer discussion thereof, I reject this as a factor to be considered in appraising, the refusal-to-bargain issue. At the intervening meeting on May 28 called by Federal Mediator Young, nothing was accomplished . The meeting adjourned with the statement by Young thai neither side seemed to be ready for mediation. FRICK COMPANY 1105 on the noneconomic issues and on such economic issues as paid holidays, jury duty pay, bereavement pay, and cost-of-living escalator. Also, for the first time during the negotiations the Union framed its wage and pension demands in terms of cents an hour, stressing the greater importance to it of the pension demand; it offered revised proposals on sickness, accident, hospitalization and life insurance coverage, on shift differential pay, and on leadman premium pay; it also took issue with Respondent's view of the 'Union's position on the union-shop issue and stated its position thereon. For some unexplained reason, Bothe, the Union's chief negotiator had nothing in writing to present;'he did have in his possession a typewritten sheet of the Union's revised proposals from which he read, while Respondent's representa- tives endeavored to take notes, in conformity with a statement by Bothe that they should do so. The situation was thus handicapped insofar as allowing for discussion, free from misunderstanding as to exactly what the Union's revised proposals were. In essence, the Union sought to communicate to Respondent that reaching a collective-bargaining agreement depended upon settlement of the economic issues of wages, pensions, the various forms of insurance coverage, shift premium pay, and leadman premium pay, and that it was removing the union-shop issue from the bar- gaining picture. With respect to the latter, however, the message from the Union did not appear to come through clearly to Rice, the chief spokesman of Respondent. Communica- tion was partly complicated by the fact that the clause to be inserted on union secur- ity was not presented by the Union in written form and, as Glen credibly testified, the text of the language was read by Bothe to them from his notes "at a rapid rate" and he is "not sure to this day [Respondent has] it correctly." Additionally, accord- ing to Hoff, when Rice sought to get the Union's position on the checkoff contem- poraneously therewith from Bothe, the latter "elected not to answer Rice's questions in that area, at that time." Under all these circumstances, Rice's characterization of Bothe's proposal as "99 percent a union shop" and the fact that he remained unper- suaded by the Union's assertion that it was withdrawing its demand for a union shop do not add up, I find, to the taking of a position with a conscious purpose of frustrating agreement. Hence, I conclude that Respondent did not manifest any bad- faith bargaining thereby. With respect to the Union's revised position on the economic issues, I am also satisfied for the reasons set forth hereinafter that the record in this area does not preponderate in favor of a finding that Respondent did not, in fact, have an honest intention of reaching an agreement with the Union and desired to avoid rather than foster collective bargaining. It is true that the Union's revised proposals on eco- nomic issues represented a substantial reduction in its demands in terms of cents- per-hour cost to Respondent; in this connection, the Union, in effect, claimed it had reduced its economic demands by one-half, whereas Respondent claimed, in effect, that the reduction was no more than one-fourth. However, throughout all these meetings, Respondent remained unpersuaded that it should grant more than its original offer of 12 cents an hour on wages and 5 cents an hour on pensions 20 In offering 12 cents an hour on wages, Respondent did not plead inability to pay; rather it was persuaded that it was thereby adhering to area practice in line with company policy and it relied for support on the fact that the Landis Machine Com- pany and Landis Tool Company in the area had granted a 12-cent-an-hour increase to their employees about that time 30 While it is true that these companies manufac- 90 As I have already found, Respondent did not preclude a different distribution of the 17 cents per hour involved , had the Union so desired. so I draw no adverse inference, as would the General Counsel, from Respondent's refer- ence to the Union's wage demand in the full page announcement in the Record Herald of Waynesboro on May 15 concerning the strike. The relevant part of the announcement reads as follows: "Although Union negotiators do not accept the Company's Wage Increase proposal, they have not made a counter-proposal on a cents-per-hour increase basis. Early in the series of negotiating meetings the Union submitted a `wage scale' proposal that, according to conservative estimates , would increase the Company 's wage rates approxi- mately $1 per hour. This impractical proposal, of course, was not seriously considered by the Company negotiators." I find that Respondent had reference, as Glen explained, to the fact that the demand was so high relative to Respondent's wages that Respondent felt the demand was not a serious demand. 264-188-67-vol. 161-71 1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ture machine tools, products dissimilar to those of Respondent, the credible testi- mony of Glen establishes that, in general, the employees of these employers use the same skills as do Frick employees. It is also true that Rice conceded at this meeting that Respondent had made an early decision on these matters and there was no reason for a change of mind, that it had offered a 17-cent package "initially in an effort not to piecemeal up to where we thought we could go." However, as the Board said in a situation in which Respondent remained unpersuaded throughout the negotiations that it should grant any wage increase or other economic benefits,31 As the Trial Examiner noted, the Statute does not require that either party agree to any proposal or make any concession . The fact that Respondent may have sought a contract that would not increase its economic costs does not per se establish bad faith bargaining. The Respondent was satisfied that its present wage structure reflected the local labor market and was adequate for the type of work involved . This Act is not a substitute for an effective argument to the contrary. In the context of the instant case, we are constrained to disagree with the Trial Examiner that Respondent's attitude toward bargaining was "tanta- mount to an outright refusal to bargain." The instant situation presents an a fortiori situation in that Respondent was per- suaded that it should grant a wage increase and other economic benefits but remained unpersuaded that it should go beyond what it regarded to be proper in the premises. Accordingly, in accord with the cited case, I find that there was no refusal to bargain in violation of Section 8(a)(5) of the Act in the aforesaid attitude of Respondent toward bargaining on the wage issue and other economic benefits. In sum, I am persuaded , and find, that Respondent did not bargain in bad faith during the July 7 meeting ,32 nor did Respondent's overall conduct, during the entire course of bargaining, even when appraised in the light of the incidents to be dis- cussed hereinafter, reveal an attitude inimical to the Act or at odds with its obliga- tions thereunder to bargain collectively in good faith with the representative of its employees in an appropriate unit 33 4. Concluding findings as to the alleged refusal to bargain through unilateral action The record establishes that, on May 14, Respondent unilaterally granted a gen- eral wage increase of 12 cents an hour to employees in the unit who remained at work during the strike. This was announced by Respondent through notices posted in the plant shortly after the adjournment of the negotiation session on that day, to be effective on May 17, the day the strike was to begin. In view of the fact, as I have already found, that Respondent and the Union had arrived at an impasse on the issue of wages, in view of my further finding that this stalemate or impasse on wages did not occur in a context of a refusal to bargain in violation of the Act, and since the, wage increase unilaterally granted was identical to that offered to the Union before such impasse,34 the unilateral action taken by Respondent did not run afoul of the Act, and I so find.35 33 Jake Lipsitz and Josephine Lspsitz, d/b/a American Sanitary Wipers Company, 157 NLRB 1092. 32 While the parties met again at the instance of Federal Mediator Young on August 13, nothing significant occurred . There was no indication by either side of a change of position 83 General Electric Company, 150 NLRB 192, relied on by the Union to support a find- ing of overall bad-faith bargaining is clearly distinguishable on its facts. 34 Although as the General Counsel points out, Respondent did not mention in its notice that it had offered the same amount to the Union, I am satisfied that the employees were conversant with this as they had voted on the 12-cent wage offer at the union meeting on April 27. 35 See N L R B. v Crompton-Highland Mills, Inc, 337 U S. 217, 224, 225 ; N L R B v. Andrew Jergens Co., 175 F 2d 130 (C A. 9), cert denied 338 US 827, Dallas General Drivers Warehousemen and Helpers, Local Union No. 745, supra; and Bs-Rite Foods, use, 147 NLRB 59. N LR B. v. Fitzgerald Mills Corporation , 313 F.2d 260 (C A. 2), enfg. 133 NLRB 8;77, cited by the Union is distinguishable on its facts, among which is the fact that the cited case did not involve a genuine impasse as here. FRICK COMPANY 1107 5. Concluding findings as to the allegations of discrimination in violation of Section 8(a)(3) and (1) of the Act Paragraph 7 of the complaint, as amended at the hearing, alleges that Respond- ent violated Section 8(a)(3) and (1) in two respects: (1) by removing from its payroll and/or discharging its striking employees and (2) by refusing to pay vaca- tion pay to such employees. As to the former, I have found that, after the strike began, Respondent effected a "Change in Employee Status" for all employees who went on strike and placed a notice to that effect in each striker's official employee folder. The change was a removal from the payroll "as a quit effective May 24," and the reason given on the form was absence for 7 calendar days on an unauthorized basis in violation of one of Respondent's Rules and Regulations as set forth in the Frick Employees' Manual. The manual has been extant since 1956 and Respondent has followed the practice of distributing and explaining it to every new employee. The rule states, "An employee absent (7) consecutive calendar days for an unauthorized or unex- plained reason will be considered to have quit the employ of the Company. His name will then be removed from the payroll." The removal from the payroll was thereafter confirmed to the striking employees by Respondent's letter of July 8 relating to vacation pay, which is discussed hereinafter and which conditioned the payment to each employee of vacation pay upon his "return to [the] job and there- by have [his] name again placed on [the Company] payroll, on or before July 14, 15 and 16." Although the removal from the payroll was denominated by Respondent as a "quit" in accordance with its rule, it is clear that to equate withholding of services during a strike to a quit would do violence to Section 13 of the Act. And this is so irrespective of any rule of Respondent which so provides either expressly or impliedly and is made known and explained to the employees in advance.36 Rather, do I find, that the removal from the payroll effected a termination of the employ. ment relationship, tantamount to discharge,37 for engaging in protected strike action. The Board dealt with a related issue in National Seal, Division of Federal- Mogul-Bower Bearings, Inc., 141 NLRB 661, a case involving a discharge of proba- tionary employees who were absent because of a strike during their 60-day probation- ary period in violation of a company rule that required probationary employees to complete a 60-day period without interruption to become full-fledged employees. The Board there said, The Respondent might, as it contends, have lawfully discharged their proba- tionary employees if their 60 day probationary period had been interrupted because of excused absences, such as illness, since the Act affords no protec- tion to employees who are absent because of illness or other similar reasons, even if such absences are excused. Because the Act does, however, protect employees who are absent because of strike activity, the Respondent may not apply this 60 day rule to employees because of a strike. The Board then cited its former holding in Quality Castings Company, 139 NLRB 928, and added, in part, If an employer may not equate strike time to other forms of absence for the purpose of forfeiting employees' rights in a profit sharing plan [the Quality Castings Case], it surely may not equate strike time to normal absence for the purpose of completely depriving employees of their jobs. The application of the rule herein, equating strike absences to normal absences for such pur- poses, necessarily interferes with the employees' right to engage in protected concerted activity and discriminates against such employees. As the instant case presents an a fortiori situation, in that, here, the discharged employees were, in fact, full-fledged employees at the time of their discharge, I find that the above-cited case is controlling here and conclude that, by removing 361 find no basis for concluding that the manual effected a contiactual ielationship be- tween Respondent and its employees which protected Respondent in its conduct herein. Further, I find no basis for concluding that the employees thereby impaired their fight under the Act to strike. See, in this connection, Section 10 (a) of the Act. 37 See Liberty Electronics Corp. and Flight Electronic Supply Corp , 138 NLRB 1074, 1084. 1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the strikers from the payroll because they were absent for 7 chronological days under Respondent's rule, Respondent violated Section 8(a)(3) and ( 1) of the Act.38 With respect to the allegation relating to vacation pay, I have already set forth the details with respect to Respondent's vacation plan. There is no contention here that any of the striking employees failed to fulfill the eligibility requirements of having worked 75 percent of the pay periods during the year ending June 30, 1965; however, the refusal, or withholding, of payment by Respondent is predicated on the fact that the striking employees did not comply with that part of Respondent's vacation provision set forth in its Employees' Manual which required them to be at work on the Wednesday before the third full calendar week in July, which is fixed as the vacation week. The significant date under the rule was thus July 14.39 Under date of July 8, Respondent dispatched a letter to all hourly paid employees giving each one of them. "one more opportunity to qualify for vacation pay" i.e., provided the employee affected returned to' his job and had his name placed on the payroll on,or before July 14 and worked on July 14, 15, and 16. Failure to work on these 3 days meant forfeiture of vacation pay. The letter concluded with "Are you going to return to work and become eligible for vacation pay? It's up to you.,,, The clear message of the letter was that by continuing on strike the strikers were sure to lose their vacation pay and that the forfeiture could be avoided only by returning to work and working on July 14, 15, and 16. It-is obvious that mere compliance with the rule was not Respondent's condition, for Respondent imposed the requirement of working not only on July 14, the day indicated by the rule, but also on July 15, and 16. The condition was thus cessation of the strike activity. This is understood' by the closing lines of the letter referred to above, viz, "Are you going to return to work and thereby become eligible for vacation pay? It's up, to you." It is evident, and I find, that the rule of the Quality Castings case that time on strike may not be considered the equivalent of normal absence for the purpose of determining profit-sharing forfeiture compels the conclusion that Respondent, by treating the time on strike on Wednesday, July 14, as the equivalent of an unex- cused absence•on that day for the purpose of determining vacation pay forfeiture, violated Section 8(a ' ) (3) and (1) of the Act. Here, as there, the conduct is vul- nerable (1) because, in equating strike time to unexcused absence, it contravened the right of employees under the Act to engage in protected strike activity, and/or (2) it was illegally motivated. The latter is apparent from the fact that Respond- ent conditioned payment of vacation pay on cessation of the strike, endeavoring thereby to utilize the vacation pay rule and payment thereunder as a device or lure to undercut or break the strike. 6. Concluding findings as to the allegations of promises of benefits and threats of reprisal I have already found that beginning about July 9 and'extending into August, Respondent, through its supervisors, made overtures to return to work to striking employees either in person at their homes, or at or near the picket line, or over the telephone. It is apparent from the testimony of Supervisors Kirkpatrick, Orner, McNew, Poole, and Martin that some of these overtures included statements relat- ing to vacation pay forfeiture similar to that contained in Respondent's letter dated 88 Although the Board's decision was thereafter set aside in N.L.R.B. v. National Seal, Division of Federal-Mogul-Bower Bearings, Inc., 336 F.2d 781, I am nevertheless bound by the Board's decision under the rule of Insurance Agents International Union, AFL-CIO (The Prudential Insurance Company of America ), 119 NLRB 768. Moreover, the consid- erations which persuaded the court thereto strike a balance in favor of the employer, namely, the sole motive of the employer that all probationary periods be continuous and unbroken and the fact that the employer acted pursuant to a rule of longstanding which had been rigidly enforced , are not present here . This is so because, as already noted, no considerations relating to qualifying for permanent employment on the work force are present in this case. The fact also that the Quality Castings case was set aside in Quality Castings Com- pany v. N.L.R.B., 325 F.2d 36 ( C.A. 6), does not, for the reasons given above , detract from its binding effect upon me. 80 Under the rule, vacation pay was to be paid during the week preceding the vacation week. FRICK COMPANY 1109 July 8 to its employees, which I have already found violative of the Act. Accord- ingly, for the same reasons, I find that insofar as these overtures represented an implementation of the above letter, they coerced the employees in violation of Section 8 (a)(1) of the Act. That this is so is underscored by the undenied testi- mony of Plum, which I credit, that, in the latter part of July, Supervisor Poole told him over the telephone that, "if this things get broke up [sic], you might get your vacation pay," the reference in this context. being, I find, to the breaking up of the strike. During these overtures, according to the testimony of employees Riber, Stoops, Beard, Hartman, Plum, Carbough, and Nunemaker, they were told by Supervisors McNew, Poole, Newlon; Kirkpatrick, Orner, or Martin as, the case may be,40 that if they did not return to work on the date given they would' have no job and/or would have to be hired as,new employees. While McNew,, Newlon, Poole, Kirk- patrick, and Omer denied making such remarks, Martin made a qualified denial, saying that he told Nunemaker that Respondent was "hiring people and he [Nune- maker] would have to go to personnel." I credit the testimony of Riber, Stoops, Beard, Hartman, Plum, .Carbough, and Nunemaker over these denials. I do so because their testimony is more consistent with the probabilities of the situation, Respondent having theretofore removed them from the payroll as "quits," and because 'I find that Martin's testimony -quoted above, in effect, impiles that Nune- maker would have to be hired just like other new hires. 1, also, credit Stoops' testimony that he asked Kirkpatrick and Orner, in that order, whether he would be given a recommendation if he, Stoops, should seek employment elsewhere and that, first, Kirkpatrick, and then Orner said, "no." Kirkpatrick did not testify concerning this but Omer testified that, "there was some [sic] mentioned if he would ask for a recommendation would he give it," that he, Orner, did not answer and, to his knowledge, Kirkpatrick did not answer. In view of the extent to which the testimony of Omer corroborates that of Stoops, I find that the content of the conversation as to a recommendation was as Stoops testified. - I do not, however, credit the testimony of Hartman, which is denied by Kirk- patrick, that the latter threatened him with a 10-cent or-15-cent cut if he was later rehired or the tesimony of Cool that Martin told him that, if he was'later rehired, -there was a possibility he would not get the 12-cent wage increase. I note, in this latter connection, that Cool testified that in a subsequent overture to him, Martin said he would still get the 12-cent wage increase. In view of the fact that none of the other employees approached by either Kirkpatrick or Martin testified to a similar threat to them, and in view of the unlikelihood that Martin would have acted so inconsistently on two different occasions, and also in view of the overall probabilities of the situation, I find that the evidence falls short of establishing that either Kirkpatrick or Martin threatened a wage cut if these strikers did not return at the time indicated and were later rehired. Nor do I credit the testimony of Fetterhoff that Foreman Benchoff threatened to replace him with two individuals, i.e., Earl Bare and Clarence Pebble, if he was not back in the plant operating the crane as formerly for Benchoff by the next morning. The unlikelihood of such a remark by Benchoff stems from the fact that Bare and Pebble were both on strike at the time and the further fact, to which -Benchoff credibly testified, that only one of these two named individuals work for him. While there was also testimony that during some of these overtures the super- visors involved talked about the possibility of the factory or foundry being shut down or changed over to another type operation if enough strikers did not return, I find no basis for a violation in these statements as they fall short of a threat and constitute mere predictions of what would eventuate if circumstances were such that Respondent could not continue operating as theretofore. In sum, therefore, I find that Respondent's overtures to the strikers were violative of Section 8(a)(1) of the Act, (1) in that they served to implement Respondent's letter, dated July 8, to its employees and thereby coerced the strikers; (2) in that during some overtures certain. supervisors, named above, coercively threatened the strikers that, if they did not return to work on the date mentioned by them for such return they would have no job and/or would have to be hired as new employ- ees and/or would not be recommended for another job; and (3) especially in view '0 McNew to Riber , Poole to Plum, Newlon to Carbough , Kirkpatrick and Orner to Stoops, Beard, and Hartman, each being spoken to separately. 1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of my finding hereinafter that the strike which began as an economic strike was converted into an unfair labor practice strike as early as July 9, in that the state- ments of these supervisors during the overtures urging the employees to- abandon the strike and return to work, constituted attempts to deal with the striking employ- - ees directly rather than through their Union, the majority representative 41 7. Concluding findings- as to the allegation of surveillance It is not disputed that Industrial Relations Director Hoff and Chief of Plant Guards Miller drove to the entrances of the Fairchild plant and the Mack Truck plant in Hagerstown on July 9 for the express purpose of taking photographs of those. individuals who were soliciting strike funds in behalf of the Union at the - plant gates of these companies, that seven photographs were taken from the car ,at close range at the various gates of the solicitors, among whom were Frick employees, and that this was done, "for the purpose of identification," Respondent being interested in knowing whether the solicitors for strike funds were actually Frick strikers and whether there might be in the solicitation group employees from other plants. I am satisfied that this form of scrutiny of employees' union activities constitutes surveillance, which- has been condemned by the Board and courts because experi- ence has shown that employers will resort to labor espionage or surveillance for -the purpose of obstructing and destroying employees' self-organizational rights and activities 42 The fact that this occurred away from the Frick plant is, of course, no defense.43 Nor can it be said that this conduct served a legitimate function in the -employer-employee relationship. In all these circumstances, I conclude and find -that the taking of photographs of the solicitors for strike funds at the plants of these two companies constituted surveillance in violation of Section 8(a)(1) of the Act.44 8. Concluding findings as to the nature of the strike While Respondent's conduct during the bargaining was not a contributing factor to the cause of the strike, I am persuaded that the unfair labor practices which occurred thereafter prolonged the strike. As already found, such unfair labor prac- tices occurred in the form of (1) surveillance on July 9, (2) the letter dated July 8 which was mailed to the employees concerning forfeiture of vacation pay if they continued striking and did not return to work by July 14, and the actual forfeiture of strikers' vacation pay as threatened, and (3) the overtures to strikers beginning July 9 and extending into August in implementation of the letter of July 8, and the threats during this period that if strikers did not return to work on the date mentioned that they would have no job and/or would have to be hired as new employees, or would be refused a recommendation for another job. Furthermore, that the foregoing conduct, in fact, tended to prolong the strike appears from the credible testimony of employees Cool and Nunemaker. Thus, Cool testified that he told Martin during an overture by the latter 2 or 3 weeks after July 14 that, "I figured that maybe I should have come back into work but I could see, no reason why at this time. The vacation was gone." 45 And Nunemaker testified that when Martin visited him at his home, 'he told Martin, "there wouldn't be no [sic] use for [his] going back" if he had to do so as a new employee since he would lose almost 10 years of seniority thereby. In sum, Respondent by its deliberate unlawful course of conduct beginning on July 9, soon after the last negotiation session on July 7, aggravated its differences with the Union and created new and serious 41 See Stark Ceramics Inc, 155 NLRB 1258. 11 See Wallace Press, Inc., 146 NLRB 1236; Calvert Dairy Products Company, 136 NLRB 1508; Preston Feed Corporation, 134 NLRB 629 43 See Kohler Co, 128 NLRB 1062, 1099 (surveillance at strike headquarters). 44 In this connection, I find credible the undented testimony of Stoops that, during the visit by Kirkpatrick and Orner to his home on July 12, Kirkpatrick, when inquiring about his return to work, mentioned that he had pictures but would not elaborate ; I also find credible the testimony of Beard that Kirkpatrick told him during the visit of Kirkpatrick and Orner to his home on July 12 that Respondent does not want some employees back, naming Stoops and saying, "Boy we got the goods on him, we got pictures and everything of him " Kirkpatrick and Orner denied making any reference to pictures. 41 While I have theretofore credited Martin in one instance where his testimony con- troverted that of Cool, the instant testimony is not controverted and I find it credible. FRICK COMPANY impediments to the settlement of the strike with the results that the strike, economic in origin, was prolonged and consequently converted into an unfair labor practice strike as of July 9 .46 Upon the basis of the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By removing employees on strike from the payroll as "quits" because they engaged in protected, concerted and union activity, Respondent has engaged in dis- crimination in-regard to hire and tenure of employment of its employees within the meaning of Section 8(a)(3) of the Act. 4. By effecting a forfeiture of vacation pay of employees on strike because they engaged in protected, concerted and union activity, Respondent has engaged in dis- crimination in regard to terms and conditions of employment of its employees within the meaning of Section 8(a)(3) of the Act. 5. By the foregoing conduct and by threats to strikers of vacation pay forfeiture, of loss of job, of rehire only as new employees, and of refusal of a recommendation for another job, by dealing with employees in an effort to persuade them to aban- don a strike called by the Union, which had become an unfair labor practice strike at the time, by engaging in acts of surveillance through photographing strikers who were soliciting strike funds at the plant gates of other companies, Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, and thereby engaged in, and was engaging in, unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 7. Respondent has not refused to bargain collectively with the Union in violation of Section 8(a)(5) of the Act. THE REMEDY I have found that Respondent has engaged in unfair labor practices and I shall recommend that Respondent cease and desist therefrom. These unfair labor prac- tices include discrimination by Respondent against the strikers by terminating them as of May 24, 1965, through changing company records of each striker to show that he had "quit." However, since I have found further that the strikers did not learn about this until July 9 or thereafter, I have concluded that the strike, which was in progress at the hearing, was prolonged by Respondent's unfair labor practices commencing on July 9, 1965, and not on the earlier date of the aforesaid termina- tion. I have further concluded that the economic strike was converted on July 9, 1965, into an unfair labor practice strike. Employees who were on strike on the latter date and thus became unfair labor practice strikers were, in consequence, entitled to reinstatement upon application irrespective of whether their positions have been filled by Respondent's hire of other employees as replacements for them. It is, of course, clear that in order to restore the status quo as it existed just prior to the conversion of the strike on July 9, 1965, and thereby to effectuate the policies of the Act, an appropriate remedy would require Respondent (1) upon application to offer reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, to all its employees who were on strike on and after July 9, 1965, and had not been replaced as of that a See N L R.B. v. Trinity Valley Iron and Steel Company, a Division of C. C. Griffin Manufacturing Company, Inc, 290 F.2d 47 (C.A. 5), enfg 127 NLRB 417; Comfort Springs Corporation, 143 NLRB 900. While I have also found that, as of May 24, Respondent removed the names of the strikers from its payroll and changed their status to that of "quit" in violation of Section 8(a) (3)" and (1) of the Act, the first notice to strikers bearing upon this was Respondent's letter of July 8 to them, telling them, inter ilia, that their names had been removed from the payroll. Accordingly, this unlawful conduct could not have become an operative factor in prolonging the strike until July 9 or thereafter, and I so find. 1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD date, dismissing , if necessary, any persons hired after that date and (2) to make whole such employees who were on strike on and after July 9 , 1965, for any loss they may have suffered by reason of Respondent 's refusal, if any, to reinstate them, by payment to each of them a sum of money equal to that which he normally would have earned as wages during the period commencing 5 days after the date on which he applied for reinstatement . Such a remedy would then be adequate as to all strikers who had not been replaced as of July 9, 1965, but would make no provision as to those terminated as of May 24, and who may have been replaced prior to July 9, 1965, but after May 24 and who are likewise entitled to reinstate- ment and backpay under the same terms, because of , the discrimination against them 47 Accordingly, because of their unlawful termination and/or their rights as unfair labor practice strikers , I shall recommend that the remedy described above be made operative as to all strikers who had not been replaced as of May 24, 1965. Backpay, with interest at the rate of 6 percent per annum shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 1,38 NLRB 716. Also included among the unfair labor practices found herein is Respondent's conduct of withholding or refusing to pay vacation pay to strikers, which vacation pay had accrued as of June 30 , 1965. To remedy this violation, I shall recommend that Respondent pay to each striker the amount -, of vacation pay which accrued as of June 30 , 1965, together with interest at 6 percent from July 16, 1965, the date on which it would otherwise have been paid. In view of the nature of the unfair labor practices engaged in by Respondent, I shall also recommend that it cease and desist from infringing in any other manner upon the rights guaranteed employees by Section 7 of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that Respondent , its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Union, United Automobile, Aero- space and Agricultural Implement Workers of America, AFL-CIO, or any other labor organization of its employees, by removing them from its payroll as "quits," or by withholding vacation pay, or in any other manner discriminating against any employee in regard to his hire,, tenure, or any other term or condition of employment. (b) Threatening strikers with vacation pay forfeiture , with loss of job, with rehire only as. a new employee, or with refusal of a recommendation for another job. (c) Dealing with individual employees in an effort to persuade them to abandon a strike called by their union. (d) Engaging in acts of surveillance through photographing strikers who are soliciting funds at the plant gates of other companies. (e) In any other manner interfering with, restraining , or coercing its employees in the exercise of their right to self-organization , to form labor organizations, to join or assist International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, 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 purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized by Section 8(a)(3) of the Act, as amended. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon application, offer reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privi- leges, to all employees who were on strike on and after May 24, 1965, and had not been replaced as of that date , dismissing, if necessary, any persons hired after 47 See Sakrete of Northern California, Inc, 140 NLRB 765 FRICK COMPANY 1113 that date and make each such employee whole for any loss of earnings he may have suffered, in the manner set forth in the section hereof entitled "The Remedy." (b) Pay to each striker the full amount of vacation pay which accrued to him as of June 30, 1965. (c) Notify any of its employees who were on strike on and after May 24, 1965, and not replaced as of that date if presently serving in the Armed Forces of the United States, of his right to full reinstatement in accordance with the Selective Service Act and the Universal Military Service and Training Act, as amended, after discharge from the Armed Forces. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security records, timecards, personnel records and reports, and all other records necessary or useful to deter- mine or compute the amount of backpay due, as herein provided. (e) Post at its plant premises in Waynesboro, Pennsylvania, copies of the attached notice marked "Appendix." 48 Copies of said notice, to be furnished by Region 6 of the Board (Pittsburgh, Pennsylvania), after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, in 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. (f) Notify the aforesaid Regional Director, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith.49 IT IS FURTHER ORDERED that those allegations of the complaint alleging viola- tions of Section 8(a)(5) and additional violations of Section 8(a)(1) of the Act not found herein, be, and they hereby are, dismissed. M In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice shall be further amended by the substitution of the words "a Decree of the United States Court of Appeals Enforcing an Order" for the words "a Decision and Order." 4e In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the aforesaid Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers of America, AFL- CIO, or any other labor organization of our employees, by removing them from our payroll as "quits," or by withholding vacation pay, or in any other manner discriminate against any employee in regard to his hire, tenure, or any other term or condition of employment. WE WILL NOT threaten strikers with vacation pay forfeiture, with loss of job, with rehire only as a new employee, and with refusal of recommendation for another job. WE WILL NOT attempt to deal individually with our employees in an effort to persuade them to abandon a strike called by the aforementioned Union. WE WILL NOT engage in acts of surveillance through photographing strikers who are soliciting strike funds at the plant gates of other companies. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist a labor organization, to bargain collectively through a bargaining agent chosen by themselves, to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection; or to refrain from 1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act, as amended. WE WILL offer reinstatement, within 5 days of application therefor, to their former or substantially equivalent positions, without prejudice to their senior- ity or other rights and privileges, to all employees who were on strike on and after May 24, 1965, and had not been replaced as of that date, and WE WILL pay each of them for any loss suffered by him because of our discrimina- tion against him. WE WILL pay to each striker the full amount of vacation pay which accrued to him as of June 30, 1965. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization. FRICK COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon appli- cation in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of post- ing, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1000 Liberty Avenue, 1536 Federal Building, Pittsburgh, Pennsylvania 15222, Telephone 644-2977. Local 545, International Union of Operating Engineers, AFL- CIO (Joseph Saraceno & Sons, Inc.) and William M. Ahles, Sr. Case 3-CB-907. November 16, 1966 DECISION AND ORDER On July 13, 1966, Trial Examiner David S. Davidson issued his Decision in the above-entitled proceedings, finding that Respondent had engaged in and was engaging in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. The General Counsel filed exceptions and a memorandum in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations 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 made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, brief, memorandum, and the 161 NLRB No. 100.