Star Expansion Industries Corp.

STAR EXPANSION INDUSTRIES Star Expansion Industries Corporation and Albert Dinges and United Electrical, Radio & Machine Workers of America (UE). Cases 2-CA-9839-2, 2-CA-10081, 2-CA-10248-2, and 2-CA-10340 May 12, 1967 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On September 29, 1965, Trial Examiner Herman Tocker issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint. Thereafter, the Respondent, the Charging Party, United Electrical, Radio & Machine Workers of America, herein referred to as the UE, and the General Counsel filed exceptions and briefs, and the Respondent filed an answering brief.' 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. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that although certain of his rulings were in error, none of the erroneous rulings constituted prejudicial error. Unless otherwise set forth herein, the rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner insofar as they are consistent with this Decision and Order. 1. The Trial Examiner found that an arbitration award holding that the Employer was justified under its contract with the International Brotherhood of Electrical Workers, AFL-CIO, herein called IBEW, in discharging Albert Dinges on December 5, 1963, should not foreclose the Board from considering the validity of Dinges' discharge under Section 8(a)(1) and (3) of the Act. Accordingly, the Trial Examiner considered the allegation that Dinges was discriminatorily discharged and, after an evaluation of the evidence, concluded that the complaint in regard thereto should be dismissed for lack of substantial evidence. Under the facts and circumstances herein, we agree that the Board should not defer to the arbitration decision in regard ' Respondent's request for oral argument is hereby denied as the record, the exceptions, and briefs adequately present the issues and positions of the parties. 2 See Tex-Tan Welhausen Company, 159 NLRB 1605, Roadway 164 NLRB No. 95 563 to Dinges' discharge.2 However, unlike the Trial Examiner, we conclude that Dinges was discriminatorily discharged in violation of Section 8(a)(1) and (3) of the Act. Dinges was chief union steward for the IBEW from the latter part of 1957, when it was certified as the collective-bargaining agent for the Respondent's production and maintenance employees pursuant to a Board-conducted election, until the date of his discharge. During that period, the parties negotiated two successive 3-year contracts, the first running from 1958 to 1961, and the second from 1961 to March 11, 1964. Dinges' main duties as chief steward were seeing that the Respondent followed the terms of the contract, and processing grievances which arose therefrom. He met approximately two or three times a week on complaints and shop problems with Respondent's officials, including Respondent's Personnel Manager Stanley. There is little evidence as to Dinges' relationship with the Respondent and with the IBEW officials during the first 4 years of the contractual relationship. However, it appears that near the end of 1962, Dinges became more militant in the processing of grievances, and in the administration of contract provisions. He took positions which, for the first time, were in direct opposition to Kamen, business agent of Local 1968, IBEW, and the Respondent. His actions resulted in reversals of decisions put into effect by the Respondent, and in at least one instance resulted in the outlay by the Respondent of a substantial sum of money. Around the end of 1962, Dinges, acting upon a complaint received from a woman employee in the power actuated tool department that women employees were receiving less pay than men for the same type of work, took the matter up with the Respondent. Dinges persisted in his position and finally, in September 1963, at a meeting attended by Respondent's attorney Orenstein, Personnel Manager Stanley, Business Agent Kamen, the shop stewards, and Dinges, the Respondent agreed that the women involved were entitled to the higher wage rate and gave them backpay for a period of approximately 9 months. Again, in August 1963, Dinges insisted after a layoff that certain employees be called back according to plantwide seniority as required by the terms of the contract. The Respondent sought to recall only those employees who had worked on the day shift and was supported in this position by Kamen. Dinges called a meeting of employee officers of Local 1968 and shop stewards, and at this meeting openly expressed his opposition to the position of Kamen and the Respondent. Dinges' position regarding the interpretation of the contract prevailed. Express, Inc, 145 NLRB 513, 514-515, La Prensa, Inc, 131 NLRB 527, 529, Youngstown Cartage Company, 146 NLRB 305, 308,fn 4 298-668 0-69-37 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dinges again took a position in opposition to Business Agent Kamen and the Respondent around September 1963, when the Federal minimum wage was raised from $1.15 to $1.25 an hour. Dinges told Kamen that the 15-cent-an-hour increase provided for by the contract should be added to the new $1.25 minimum wage rather than to the $1.15-an-hour wage which was the minimum at the time the contract was signed . However, at a meeting attended by Respondent's representatives, Kamen, Dinges, and other union stewards, Kamen overruled Dinges and the matter was thereafter deferred. Still another incident occurred around the middle of November 1963, when Dinges and Union Steward Chessman were processing a grievance on behalf of an employee. The Respondent was represented by Personnel Manager Stanley and General Foreman Delsky. After the grievance was settled, Dinges and Chessman were asked to remain for a discussion of a long-standing problem concerning working foremen. The ensuing discussion became heated, with Respondent's representatives taking the position that supervisors would perform production work whenever Respondent deemed it necessary. Dinges and Chessman argued that under the contract such work should be limited to emergencies. Delsky and Chessman apparently uttered certain personal remarks to each other, and Delsky threatened to "get" Chessman. Dinges interjected, "Just don't include Andy Chessman, include myself," and Stanley replied, "This can be arranged." Around the first week in December 1963, Dinges complained to Liggett, International vice president of District 4, IBEW, about the caliber of the representatives and the ineffective service the Local had been receiving from union officials, specifically mentioning International Representative Terry and Business Agent Kamen. Upon request from Liggett, Dinges submitted a written complaint regarding Kamen signed by a majority of the stewards. About December 2 or 3, Terry called an evening meeting of shop stewards at which there was a frank discussion of the IBEW's representation and servicing of the contract. At that meeting Dinges indicated that Terry's visit had served no useful purpose. On the afternoon of December 5, 1963, Dinges went to see Stanley concerning a pending grievance involving some employees. Stanley directed Dinges to the conference room and also asked General Foreman Delsky to be present. When the three were in the conference room, Stanley stated that the Respondent was discharging Dinges. When asked for the reason, Stanley told Dinges it was because he had been talking strike, that he had been telling workers to slow down in their work, and that he had engaged in racial discrimination. Stanley added that the Respondent could not tolerate such conduct and that its proof was based upon an extensive investigation conducted over the prior 4 to 6 weeks. When Dinges asked Stanley what the proof was, Stanley replied he would present such proof at the proper time. Stanley had Dinges' check ready and permitted him to call Kamen and to notify one of the stewards of his discharge before leaving the plant. On the following morning, the stewards asked Stanley about Dinges' discharge and Stanley listed essentially the same reasons given Dinges, without further explanation. Within a week after this meeting, Stanley met with the stewards, Kamen, and the IBEW attorney regarding the discharge. Stanley refused to rescind his action, and Kamen said that the IBEW would take the case to arbitration. Before the arbitration proceeding there were no further discussions regarding the discharge, except a letter Dinges received from the IBEW attorney who had been retained to represent him indicating that in addition to the three grounds previously given, the Respondent had listed a fourth, namely; "he instructed an employee not to perform work assigned by her supervisor." Prior to the notice of discharge on December 5, Dinges, although meeting frequently with Respondent's officials, had received no warning regarding his alleged improper activities. Nor does the record show that any employee had been questioned or made any complaint in regard to Respondent's claimed reasons for the discharge. Dinges categorically denied the charges leveled against him. After his termination, Dinges applied for unemployment insurance with the New York State Department of Labor, Division of Employment. Accepted in evidence was a letter dated January 15, 1964, denying him insurance benefits. The determination stated as the basis for the refusal: "Your employer reports there is evidence disclosing you committed certain union activities which were detrimental to his interest," and was characterized by the division of employment as "misconduct in connection with employment." The Respondent did not controvert the contents of the letter or offer any evidence as to those union activities of Dinges which were detrimental to its interests. The Respondent presented no affirmative defense after the General Counsel presented his case, but instead relied, inter alia, on alleged deficiencies in the pleadings, and on the record and award in the arbitration proceeding. As for the pleadings, the Respondent argues that the charge filed is at fatal variance with the complaint. In this regard, the original charge filed on February 20, 1964, alleged that Dinges was discharged because of his activity on behalf of the UE. An amended charge was filed on April 16, 1964 , alleging that the discharge was because of militant activity "on behalf of a labor organization." The second amended complaint issued on February 11, 1965, alleged that Dinges was discharged while "engaged in lawful protected activities in connection with his duties as shop steward for the IBEW." Contrary to the Respondent, we agree with the Trial Examiner that the amended complaint was not at fatal variance STAR EXPANSION INDUSTRIES with the charge and dealt with the same or related conduct as that alleged in the charge.3 As for the arbitration award, we have heretofore indicated our agreement with the Trial Examiner's rejection of this defense. Unlike the Trial Examiner, we find that the evidence, considered in its totality, presents a strong prima facie case to support the allegations in the complaint. As detailed above, Dinges, in the performance of his duties as chief steward during the months immediately preceding his discharge, was militant and persistent in his presentation of grievances, and in his enforcement of the contract vigorously opposed the positions of both the Respondent and his superiors in the IBEW. The settlement of the equal pay for women issue resulted in a considerable backpay liability for the Respondent. Other positions he took were equally disturbing to the Respondent. In view of this background, we do not agree with the Trial Examiner that the remark made by Stanley to Dinges about a threat to "get him" and "this can be arranged" can be characterized as a "quip." It is also significant that this remark took place while Dinges was in a heated discussion opposing the Respondent's position as to the application of the contract. We also disagree with the Trial Examiner's findings that the Respondent did not know of Dinges' problems within the IBEW and thus would not associate Dinges personally, rather than the IBEW, with the grievances and contract administration differences. His open opposition to Kamen in dealing with the Respondent made this self-evident. Respondent's contention that Dinges was discharged after a 4- to 6-week investigation is severely weakened by the fact that Dinges, although in constant contact with Respondent's officials for over 6 years, was never at any time warned or notified that his work or conduct was unsatisfactory and the record fails to show that any employees had complained, or even knew of any investigation. And finally, we find significant the peremptory manner in which the discharge was announced to Dinges at a time when he had sought out Stanley to discuss pending grievances, and the failure of the Respondent at any time to indicate the specific basis for the allegations of misconduct. Upon a consideration of all the evidence presented, we find that the General Counsel has a N L R B v Font Milling Co , 360 U S 301, 306-307 " See Local 1.38, International Union of Operating Engineers, 123 NLRB 1393, 1397-98, Idaho Concrete Products Company, 123 NLRB 1649, 1663 Cf Wagner-Wood Company, 148 NLRB 963, 967-968. 5 See Elco Corporation, 155 NLRB 796, 800-801; N.L R.B. v Nu-Car Carriers, Inc , 189 F 2d 756, 760 (C A. 3) 6 We adopt the Trial Examiner's findings, grounded on certain of his credibility resolutions, that the allegations regarding preelection interrogations and threats made by Stanley to Santiamagro , and Supervisor Loalbo to Howard be dismissed, 565 made out a prima facie case which imposed upon the Respondent the duty of going forward with the evidence and giving an adequate explanation of the discharge.4 The Respondent offered no evidence to dissipate the unfavorable inferences to be drawn from the General Counsel's evidence. Accordingly, we find that Respondent's discharge of Dinges on December 5, 1964, was motivated, not by the reasons stated, but by its hostility to his union activities as union steward for the IBEW as alleged in the complaint, and that Respondent thereby violated Section 8(a)(3) and (1) of the Act.-5 2. Paragraphs 10 and 11 of the amended complaint allege, inter alia, that Respondent's Personnel Manager Stanley in January 1964 coercively interrogated employees concerning their support and assistance to the UE which had started an organizing campaign among Respondent's employees. Respondent, in addition to denying these allegations to the complaint, also contends that consideration of the alleged incidents are barred by Section 10(b) of the Act. The Trial Examiner found the allegations in question to be without merit, and found it unnecessary to pass on Respondent's 10(b) defense. For the reasons set forth below, we reject the Respondent's contention that any finding of unfair labor practices in regard to Stanley's activity in January 1964 is barred by Section 10(b) of the Act, and, contrary to the Trial Examiner, we find that Stanely's interrogation of Bellucci and Brown violated Section 8(a)(1) of the Act.6 The charge involving Dinges in Case 2-CA-9838-2 was filed on February 20, 1964, alleging only that Dinges was unlawfully discharged. The first amended charge was filed on April 16, and contained the following: "By the above acts described and by other acts the above-named employer has interfered with, restrained, and coerced its said employee (Dinges) in the exercise of rights guaranteed by Section 7 of the Act, as amended." It also charged a violation of Section 8(a)(1) in addition to the Section 8(a)(3) charge involving Dinges' discharge. The charge in Case 2-CA-10081 involving the Section 8(a)(5) conduct, filed on June 18, 1964, also contained a separate paragraph stating, "It (the Company) also engaged in a campaign of threats and intimidation prior to and after the strike" of June 2, 1964. This allegation was repeated in the First Amended Charge filed on July 8, 1964, and was also referred to in the first since it is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless, as is not the case here, the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc , 91 NLRB 544, enfd. 188 F 2d 362 (C A. 3) However , in accepting the Trial Examiner's credibility findings regarding Supervisor Loalbo, we do not adopt his additional reason that "in any event Loalbo was only a minor supervisor" and "the plant never closed and was not moved " Indeed, if the alleged threat was made, neither fact would in the circumstances constitute a defense. 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD paragraph of the second amended charge filed on January 27, 1965, which also contained a broad "By these and other Acts" clause in the last paragraph. We are satisfied, on the basis of the foregoing, that our consideration of conduct engaged in by the Respondent in January 1964 is not barred by Section 10(b) of the Act. Plainly, the charges were adequate to support the allegations of interference, restraint, and coercion contained in the complaint, and since the conduct in question occurred within the 10(b) period it is properly before the Board for consideration.7 The record shows that Stanley admitted, during his direct testimony, that he interrogated employees. He testified that on December 23, 1963, he received a telegram from the UE advising him that it had petitioned for an election, and further testified that this came as a complete surprise to him. Sometime after the first of the year, more than a week after he received the telegram, he went out into the shop and spoke to employee Bellucci. He inquired of Bellucci whether he knew anything of the UE in the plant. Bellucci said he did not. Stanley testified that he also approached employee Brown in the factory about the same time and had a similar conversation. Brown also replied that he had heard nothing about the UE. The Trial Examiner viewed the interrogations "as a normal reaction of a personnel manager to the sudden advent of the UE on the scene and his desire to ascertain whether in fact there was genuine and sufficient interest of the employees on behalf of UE as opposed to IBEW, the then recognized bargaining agent." He found that such conversations were nothing more than casual or idle curiosity about the new Union and were protected under the Board's Blue Flash doctrine." We do not agree, and find, when viewed in the context in which the interrogation occurred, that the conduct engaged in by Stanley was coercive. Despite the inherent danger of coercion therein, the Board and the courts have held that where an employer has a legitimate cause to inquire, he may exercise the privilege of interrogating employees on matters involving Section 7 rights without incurring 8(a)(1) liability, as where the purpose is to verify a union's claimed majority status to determine whether recognition should be extended. Here the facts show that Stanley had been apprised of the UE's petition more than a week before the incident, and the interrogations were not directed at the question of the majority status of the UE. Additionally, in allowing the employer the privilege of ascertaining necessary facts in such circumstances, the Board and the courts have established specific safeguards designed to minimize the coercive impact of such employer interrogation. Here, no such safeguards were provided. In the circumstances, we do not believe that the Respondent's conduct was privileged and, contrary to the Trial Examiner, we find the Respondent violated Section 8(a)(1) of the Act by its interrogation. 3. We are satisfied from the record as a whole, and in agreement with the Trial Examiner, that the Respondent did not refuse to bargain within the meaning of Section 8(a)(5).9 Accordingly, we adopt the recommendations of the Trial Examiner that the allegations of the complaint with respect to Section 8(a)(5) violations be dismissed. In view of our conclusion with respect to Respondent's good-faith bargaining during the negotiations, we further adopt the Trial Examiner's findings that the strike of June 2 was not an unfair labor practice strike, and the Respondent could legally replace the strikers as economic strikers.10 The record also fully supports the Trial Examiner's further findings that all the strikers, with the exception of Radzikowski, who were not replaced were either rehired in the classifications and at rates of pay to which they were entitled or were validly offered reemployment which was refused. Accordingly, no blanket order for reinstatement will be issued. As for Radzikowski, we find that the record supports the Trial Examiner's finding that he was denied reinstatement on June 29, 1964, for discriminatory reasons, and the Respondent thereby violated Section 8(a)(1) and (3) of the Act. As provided below, the Respondent is directed to offer him immediate and full resinstatement to his former or a substantially equivalent position and make him whole for any loss of earnings and benefits he may have suffered thereby. 4. Vacations with pay were provided for under the collective-bargaining agreement between Respondent and the IBEW which expired on March 11, 1964. When the UE was certified on March 12, 1964, the Respondent kept in effect the economic terms of the IBEW contract, including vacation pay. Employees who did not join the strike, and who were otherwise qualified under the expired contract between the Respondent and the IBEW, received vacation pay up to 2 weeks for the period beginning July 17, 1964, during the annual plant closing. However, the Respondent denied vacation r See Sam Klain and Sons, 127 NLRB 776, 777-778, Kohler Co., 128 NLRB 1062, 1097-98, remanded on other grounds 300 F 2d 699 (C A.D C ) 8109 NLRB 591, 592 Y In agreeing with the Trial Examiner's conclusion that there was not bad-faith bargaining, we do not adopt his reliance on Respondent counsel's conduct during the hearing However, we find that such reliance by the Trial Examiner was not prejudicial since there was sufficient other probative evidence upon which the Trial Examiner relied to support his dismissal of 8(a)(5) allegations Nor do we deem it necessary to pass upon the Trial Examiner's views regarding preemption and the rights of State and Federal courts in that area 10 In the circumstances, we find it unnecessary to pass on whether Blanchard, Secor, Brown, Sansone, and Drake were in any event not entitled to reinstatement because of alleged misconduct during the strike. STAR EXPANSION INDUSTRIES pay to employees on strike and also to strikers who returned to work before the end of the strike, on the basis of its interpretation of the contract that they were not eligible. We agree with the Trial Examiner that the vacation issue falls within our rule of Great Dane Trailers, Inc.," in which we held in regard to vacation pay that "any striker who had not yet been permanently replaced was entitled, as an employee under Section 2(3) of the Act, to be treated in the same fashion as other employees." Moreover, we further find that those strikers who had been permanently replaced before the date of the payments of vacation benefits were entitled to a "pro-rata share" as provided under the expired contract. Since it is clear from the record that the basis for denying the vacation benefits to the employees involved was because of their strike activity, we find the Respondent thereby violated Section 8(a)(1) and (3) of the Act. As provided below, the Respondent will be required to pay each employee the vacation pay so withheld.12 THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices in addition to those found by the Trial Examiner, we shall order it to cease and desist therefrom, and to take certain affirmative action designed to effectuate the policies of the Act. Unlike the Trial Examiner, we have found that the Respondent discharged Albert Dinges on December 5, 1963, in violation of Section 8(a)(1) and (3) of the Act. As noted above, for the reasons set forth in the Trial Examiner's Decision, we have also found that Radzikowski was discriminatorily refused reemployment on June 29, 1964. Accordingly, we shall order the Respondent to cease and desist from such unfair labor practices and require that it take certain affirmative action which we find necessary to remedy and remove the effects of these unfair labor practices and to effectuate the policies of the Act. We shall, therefore, order that Dinges and Radzikowski be offered immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered by reason of the discrimination against them, from the date of '" 150 NLRB 438, enforcement denied 363 F 2d 130 (C A 5), cert granted 385 U S 1000 12 The Respondent contends that the Board should defer any decision on the issue of vacation pay for the strikers since there is now pending in the New York Supreme Court an action by the striking employees based upon the construction and interpretation of the IBEW agreement Our power to order reimbursement of vacation benefits to the strikers here is not based on the interpretation of the contract or the contractual rights of the employees, whatever they may be, but the need to remedy the unfair labor practice committed Indeed, the Supreme Court has held that the Board's jurisdiction to remedy unfair labor practices is not preempted by the possible existence of a 567 Dinges' discharge on December 5, 1963, and the refusal to reinstate Radzikowski on June 29, 1964, to the date of valid offers of reinstatement. Loss of pay shall be computed as prescribed in F. W. Woolworth Company, 90 NLRB 289, and interest on such backpay shall be computed at 6 percent per annum in accordance with Isis Plumbing & Heating Co., 138 NLRB 716. We shall also order that Respondent make available to the Board, upon request, payroll and other records in order to facilitate the checking of the amounts of backpay and vacation benefits due. We have also found, contrary to the Trial Examiner, that the interrogations by Respondent's Personnel Manager Stanley in January 1964 of Bellucci and Brown were coercive, and constituted independent violations of Section 8(a)(1) of the Act. Accordingly, we shall order the Respondent to cease and desist therefrom. Having found that the Respondent discriminatorily refused vacation benefits to employees who were on strike, we shall also require Respondent to pay all employees who earned such vacation credits vacation pay so withheld. The amount due each employee shall bear interest at the rate of 6 percent per annum from the date such vacation pay was payable under the provisions of the applicable contract until paid.13 In view of the nature and extent of the unfair labor practices found herein, and as it appears that a potential threat of future violations exists, we shall also provide for broad cease-and-desist provisions in our Order. CONCLUSIONS OF LAW 1. The Respondent, Star Expansion Industries Corporation, is engaged in commerce within the meaning of the Act. 2. United Electrical, Radio & Machine Workers of America, Independent, is a labor organization within the meaning of Section 2(5) of the Act. 3. By unlawfully interrogating employees in regard to their union activity, the Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. contractual obligation arising from the same circumstances See Local 174, Teamsters v Lucas Flour Co , 369 U S 95, fn 9 Consequently, under the facts of this case, we do not find merit in the Respondent's contention that the findings in regard to vacation pay should be deferred pending the determination of the interpretation of the contract by the State Court in action under 301 of the Labor Management Relations Act C & C Plywood, 385 U S 421 ' 1 At the hearing the parties stipulated that in the event that the decision went against the Respondent with respect to vacation pay, a blanket or general ruling would be adequate and that a listing of the affected employees was not necessary 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. By discriminatorily discharging Albert Dinges, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 5. By discriminatorily refusing to reinstate George Radzikowski , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 6. By withholding vacation pay from its employees as set forth above, Respondent engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(1) and (3) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 8. Respondent has not violated the Act in respects not found herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Star Expansion Industries Corporation, Mountainville, New York, its officers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Discharging or in any other manner discriminating against any employees in the exercise of their right to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection. (b) Coercively interrogating employees as to their activities in connection with a labor organization. (c) Discouraging membership in United Electrical, Radio & Machine Workers of America, or in any other labor organization , by discharging, refusing to reinstate, withholding vacation pay, or otherwise discriminating against employees in i'gard to their hire or tenure of employment or any other condition of employment. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1957. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to Albert Dinges immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights or privileges. (b) Offer to George Radzikowski immediate and full reinstatement to his former or substantially equivalent position , without prejudice to his seniority or other rights and privileges. (c) Make whole the above -named employees, in the manner set forth in the section herein entitled "The Remedy," for any loss of pay and benefits each may have suffered by reason of the Respondent's discrimination against him. (d) Forthwith pay, in the manner provided above in the section herein entitled , "The Remedy," to the strikers involved in the June 2, 1964 , strike who qualified for but were discriminatorily denied vacation pay under the agreement between Star Expansion Industries Corporation and Local 1968, International Brotherhood of Electrical Workers, AFL-CIO, the vacation pay due them , together with interest thereon in the amount of 6 percent per annum, until paid. (e) Preserve and, upon request , make available to the Board or its agents, for examination and copying, all payroll records , social security payment records, timecards , personnel records and reports, and all other records necessary to analyze the amount of backpay and vacation pay due under the terms of this Order. (f) Post at its plant in Mountainville, New York, copies of the attached notice marked "Appendix." 14 Copies of said notice , to be furnished by the Regional Director for Region 2, after being duly signed by Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced , or covered by any other material. (g) Notify the Regional Director for Region 2, in writing, within 10 days from the receipt of this Decision, what steps have been taken to comply herewith. 14 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL offer Albert Dinges his former or substantially equivalent job, without prejudice STAR EXPANSION INDUSTRIES to his seniority or other employment rights and privileges, and pay him for any loss of earnings and benefits he may have suffered because of our discrimination against him. WE WILL offer to George Radzikowski immediate and full reinstatement to his former or a substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings and benefits he may have suffered as a result of the discrimination against him. WE WILL pay to all those strikers who engaged in the June 2, 1964, strike, and who qualified for vacation pay under our agreement with Local 1968, IBEW, the vacation pay discriminatorily denied them. WE WILL NOT coercively interrogate employees as to their activities in connection with a labor organization. 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 United Electrical, Radio & Machine Workers of America, Independent, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL notify Albert Dinges and George Radzikowski if presently serving in the Armea Forces of the United States of their right to reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. STAR EXPANSION INDUSTRIES CORPORATION (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 745 Fifth Avenue, New York, New York 10022, Telephone 751-5500. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 569 HERMAN TOCKER, Trial Examiner: This proceeding, with all the parties represented, was heard before me in Newburgh, New York, at a hearing which commenced March 16, 1965, continued at intervals for a total of 26 separate hearing days, and concluded late in the evening of May 20, 1965. The case was heard on pleadings consisting of the General Counsel's second consolidated amended complaint, as supplemented by a bill of particulars and the Respondent 's answer. Following the conclusion of the hearing exceptionally well prepared briefs were submitted by the General Counsel, Respondent's attorney, and counsel for the United Electrical, Radio & Machine Workers of America (UE), the principal Charging Party. THE PLEADINGS The complaint, in general , alleged that the Respondent had violated Section 8(a)(1), (3), and (5) of the Labor Management Relations Act of 1947 , as amended. Specifically, it alleged that the Respondent committed these violations: (a) By discharging Albert Dinges because of his activities on behalf of the International Brotherhood of Electrical Workers, AFL-CIO, Local 1968. (b) By unlawfully interrogating its employees and threatening them in various respects during the period preceding the certification of UE as the bargaining agent for the relevant unit. (c) By sponsoring and causing the circulation among its employees of petitions expressing opposition to UE proposals during collective-bargaining negotiations during June, July, and August 1964, and threatening employees in various manners for the purpose of getting them to sign such petitions. (d) By negotiating with UE in bad faith and without any intention to enter into a final agreement with it as evidenced (1) by its acts with respect to the aforementioned petitions and its failure to accede to UE's request to disavow them and to dispel their effects and (2) its submission to UE, during the course of such negotiations , predictably unacceptable proposals relating to arbitrator's powers and jurisdiction, management prerogative , union security , and subcontracting, and (3) insisting on the acceptance by UE of such proposals as a condition precedent to any bargaining agreement to be made-all such conduct being predicated on the existence of those petitions. (e) By, during the months of May and June 1964, threatening its employees with discharge , loss of vacation, and other reprisals if they struck or supported a strike by UE. (f) By causing a strike, which started June 2, 1964, and ended August 28, 1964, in which 136 employees, listed in a schedule attached to the complaint, participated, which strike is characterized as an unfair labor strike resulting from Respondent's conduct mentioned above and prolonged by other unfair labor practices. (g) By wrongfully denying vacation pay to those employees who had participated in the strike, with the purpose of undermining UE's status as collective- bargaining agent. (h) By wrongfully denying reinstatement to two-named returning strikers and, following the termination of the 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strike, on or about August 28, 1964, by wrongfully refusing to reinstate the 136 employees listed in the schedule (whether or not the strike was an unfair labor practice strike), this too for the purpose of undermining UE's status as collective-bargaining agent. The Respondent in its answer admitted substantially all or most of the formal and jurisdictional allegations but, to the extent that any allegation asserted a violation of the Act, it was denied. It admitted that the two employees who had been named specifically had offered to return to work but it claimed that, following the termination of the strike, every employee listed in the schedule attached to the complaint who had not been replaced by a permanent employee had been reinstated to his former or a substantially equivalent position with his former seniority and other rights and privileges, except that certain employees had been denied reinstatement because of misconduct. It added also that, subject to the same exceptions for misconduct, all employees listed in the schedule have been rehired with the exception of some who refused reemployment and that the wage rates at which they were rehired were either the maximum for the job in which they were rehired or the same as their prestrike wage rate, whichever was the lower, plus some additional exceptions not relevant here. While admitting that there had been a strike, it denied that it should be regarded as an unfair labor practice strike. It alleged also several affirmative offenses, (1) and (2) that the Dinges discharge had been disposed of in an arbitration proceeding duly held and completed; (3) that the General Counsel was chargeable with delay in violation of section 6(a) of the Administrative Procedure Act as far as the Dinges discharge was concerned; (4) that the statute of limitations (Section 10(b) of the Act) barred the prosecution of the alleged unfair labor practices involving preelection interrogation and threats , failure to grant vacation pay, and one of the two employees named specifically as having been denied reinstatement; (5) that an action was presently pending in the New York State Supreme Court to recover the vacation pay allegedly denied to strikers. During the hearing, several motions to amend the complaint were granted but these are not of material significance at this point . To the extent that any particular amendment became significant it is discussed in the body of this decision. THE ISSUES In a summary fashion the issues may be set forth as involving: (1) whether Dinges was discharged because of his lawful, protected activities as an IBEW steward; (2) whether the arbitration award should be regarded as foreclosing consideration of the Dinges discharge, the arbitrator having sustained the validity of the discharge; (3) whether there had been unlawful interrogation and threats during the preelection campaign; (4) whether the Company was responsible for the preparation and circulation of the petitions claimed to have been in' opposition to UE proposals and whether it wrongfully' interrogated and coerced employees with respect to them; (5) whether the Company should be held to have bargained in bad faith and without an intention to enter into a final agreement with UE because of its conduct with respect to the petitions and its failure to dispel their effects, because of its insistence on certain arbitration , management, prerogative , and subcontracting clauses as a condition precedent to any final agreement and its rejection of UE's union security proposals, all predicated upon the existence of the aforementioned petitions; (6) whether the Company's arbitration, management, union security, and subcontracting proposals were predictably unacceptable and consequently in and of themselves constituted bad- faith bargaining; (7) whether there had been a threat to deny vacation pay to strikers and whether the actual denial was a violation of the Act; (8) whether the strike was or became an unfair labor practice strike, thereby imposing on the Respondent the obligation to reinstate all returning employees who had participated in it; (9) whether certain employees rightfully had been denied reinstatement because of misconduct; and finally (10) whether; assuming that the strike had not been and had not become an unfair labor strike, did the Company wrongfully refuse to reinstate certain returning strikers? THE LABOR ORGANIZATIONS INVOLVED Between 1957 and March 1964 the employees in the relevant unit had been represented by the recognized bargaining agent , Local 1968 , International Brotherhood of Electrical Workers, AFL-CIO . Following an organization and election campaign which commenced in January 1964, United Electrical , Radio and Machine Workers of America (UE) was, on or about March 12, 1964, duly certified by the Regional Director as the exclusive collective-bargaining representative of the employees in the unit. Both these unions are labor organizations within the meaning of Section 2(5) of the Act. On the basis of admissions contained in the answer of the Respondent I make the following: PRELIMINARY FINDINGS AND CONCLUSIONS 1. (a) The Charge in Case 2-CA-9839-2 was filed by Albert Dinges on February 20, 1964, and served by registered mail upon Respondent on or about February 25, 1964. (b) The first amended charge in Case 2-CA-9839-2 was filed by Albert Dinges on April 16, 1964, and served by registered mail upon Respondent on or about April 20, 1964. (c) The charge in Case 2-CA-10081 was filed by UE on June 18, 1964, and served by registered mail upon Respondent on or about June 22, 1964. (d) The first amended charge in Case 2-CA-10081 was filed by UE on July 8, 1964, and served by registered mail upon Respondent on or about July 9, 1964. (e) The second amended charge in Case 2-CA-10081 was filed by UE on January 27, 1965, and served by registered mail upon Respondent on or about January 28, 1965. (f) The charge in Case 2-CA-10248-2 was filed by UE on September 21, 1964, and served by registered mail upon Respondent on or about September 22, 1964. (g) The charge in Case 2-CA-10340 was filed by UE on October 27, 1964, and served by registered mail upon Respondent on or about October 29, 1964. 2. (a) Respondent is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of Delaware. (b) At all times material herein Respondent has maintained an office and place of business in Mountainville, New York, herein called the Mountainville plant where it is, and has been at all times material herein, STAR EXPANSION INDUSTRIES 571 engaged in the manufacture , sale, and distribution of hardware fasteners and related products. (c) During 1964, a year representative of its annual operations generally, Respondent , in the course and conduct of its business operations , manufactured, sold, and distributed at its Mountainville plant , products valued in excess of $1 million of which products valued in excess of $50,000 were shipped from said plant in interstate commerce directly to States of the United States other than the State in which it is located. 3. Respondent is, and has been at all times material herein , an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 4. UE and Local 1968, International Brotherhood of Electrical Workers , AFL-CIO , herein called IBEW, and each of them , are, and have been at all times material herein , labor organizations within the meaning of Section 2(5) of the Act. 5. At all times material herein , up to on or about March 12, 1964, Respondent recognized IBEW as the collective-bargaining representative of its production and maintenance employees at the Mountainville plant. 6. The Respondent discharged Albert Dinges in December 1963. 7. All full-time and regular part -time production and maintenance employees of Respondent, employed at its Mountainville plant, exclusive of office clericals, temporary employees , professional employees , executives, guards, watchmen and all supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 8. In or about . the month of January 1964 UE commenced an organizing campaign among Respondent's employees in the unit described above. 9. On or about March 4, 1964, a majority of the employees in that unit , in a secret election conducted under the supervision of the Regional Director for Region 2 of the National Labor Relations Board , designated and selected UE as their representative for the purpose of collective bargaining . with Respondent ; on or about March 12, 1964, said Regional Director certified UE as such exclusive collective -bargaining representative, and at all times since that day, UE, by virtue of Section 9(a) of the Act, has been and is now the exclusive representative of all the employees in that unit for the purpose of collective bargaining. 10. On or about March 23, 1964, and at various times thereafter, Respondent engaged in negotiations with UE respecting the wages , hours, and other terms and conditions of employment for the employees in that unit. The matters in issue now will become the subject of further findings and conclusions . I shall discuss them in the following order: (1) the Dinges discharge and subsidiary questions of law related thereto ; (2) the vacation pay issue ; (3) the so-called anti-UE petitions; (4) the alleged threats to employees for supporting the strike ; (5) the alleged refusal or failure to bargain in good faith and its various ramifications which include not only those issues discussed separately but also the contract clauses which were the stumbling blocks, the complicated questions of law underlying the Employer's insistence on those clauses and the overall general conduct of the Employer; (6) the failure to reinstate Radzikowski and Drake; (7) the failure to reinstate Blanchard , Secor, and Brown ; (8) the failure to reinstate Sal Sansone; (9) my conclusion that the June, July, and Augu st 1964 strike was not an unfair labor strike and, (10 ) the matter of reinstatement of returning strikers. Upon the entire record , consisting of all oral testimony and documentary evidence , on the basis of my careful observations of all the witnesses , their demeanor on the witness stand, the manner in which they gave their testimony, the overall impressions they made upon me during the time they gave their testimony, and after carefully considering all the briefs, I hereby make the following: I. FINDINGS AND CONCLUSIONS AS TO ALL MATTERS IN ISSUE A. The Discharge of Albert Dinges On February 20, 1964, Albert E. Dinges filed a charge against Star alleging that it discharged him on December 5, 1963, because of his "activity and support of United Electrical and Radio Machine Workers of America (UE)." On April 16, 1964, he filed an amended charge alleging that he was discharged "because of his militant activity rendered on behalf of a labor organization." At the hearing he identified this "labor organization" as UE. Despite the fact that UE is the labor organization to which Dinges twice referred as the Union on whose behalf he had acted , the complaint refers not to UE but to IBEW. It alleges, "Respondent discharged and thereafter failed and refused to reinstate Albert Dinges ... because said employee engaged in lawful protected activities in connection with his duties as shop steward for IBEW." [Emphasis supplied.] The evidence embraces activities both on behalf of IBEW and on behalf of UE and portrays the transition of Dinges' loyalty from IBEW to UE. Respondent admits it discharged Dinges and has refused to offer him reinstatement but denies that it discharged him for the reasons set forth in the complaint. It alleges several affirmative defenses : (1) that the collective-bargaining agreement in effect at the time of the discharge provided that a discharge claimed to be "not for just cause" had to be arbitrated, that an arbitration was conducted and that the arbitrator ruled that "the discharge was for just cause"; (2) that UE, though not a party to the collective -bargaining agreement in effect when Dinges was discharged , claimed the right to conduct the arbitration proceeding on his behalf, that while IBEW refused to grant UE that right it "offered to call any witnesses, ask any questions , and submit any memoranda that UE might wish to present" but that UE and Dinges refused this offer, all of which was follow ed by a motion in an action brought in the United States District Court, Southern District of New York, to enjoin the arbitration, which motion was denied, and the subsequent rendition by the arbitrator of his award sustaining the discharge, without any application thereafter by Dinges for a reopening of the arbitration hearing; (3) that the General Counsel had dismissed an unfair labor practice charge against Star for violation of the Act in refusing to arbitrate the discharge with UE instead of with IBEW; (4) that the time lapse between the filing of the charges, the filing of the second amended complaint following the first amended complaint , and the failure to include the charge in the original complaint was such a lack of "reasonable dispatch" as to constitute a violation of Section 6(a) of the Administrative Procedure Act, 5 USC 1005(a). I shall discuss these defenses in inverse order. The defense based on Section 6(a) of the Administrative Procedure Act is rejected not only on the law (W.C. Nabors 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company, 134 NLRB 1078, 1079, fn. 3) but also on the facts. The Dinges claim was only one incident in a long series of incidents involving the Respondent with which the General Counsel was occupied. It cannot be said that it was not appropriate administrative practice for the General Counsel to defer precipitate action on this charge in the original complaint or ultimately to consolidate it with all the other charges for determination in a single hearing. Next is the U.S. District Court action. It is alleged that following the rejection of the IBEW offer to have Dinges' case channeled through its attorney, Dinges and his lawyer left the hearing and advised the arbitrator that an action would be brought for a determination that UE had the exclusive right .to represent Dinges in the arbitration. UE then brought the action in the district court and moved for a temporary injunction restraining the arbitration. This application was denied essentially on the ground that arbitration is a matter of contract and, in view of the fact that the discharge was to be arbitrated under a contract between IBEW and the Employer, UE, not being a party to that contract, was not entitled to relief. This order was not appealed and the time to appeal therefrom has expired. No request was made to the arbitrator to reopen the hearing or to receive additional testimony. The order denying the application for temporary injunction is not res judicator. Montogomery Building & Construction Trades Council v. Ledbetter Erection Co., 344 U.S. 178. At best, it was concerned only with the conflicting claims of UE and IBEW and was an intermediate step in the lawsuit. The result might have been different if, following the arbitration award, Star had made a motion for summary judgment or had brought a separate action under Section 301 LMRA or a summary motion under Title 9, U.S.C. to confirm the arbitrator's award and had had judgment entered on it. None of these procedures was followed. The defense based on the proceedings in the district court is rejected. The Respondent alleged also that UE's charge that Star had violated the Act by refusing to arbitrate the Dinges discharge with UE instead of IBEW was dismissed by the General Counsel. The issue, as I see it, is not whether Star wrongfully refused to arbitrate with UE. As the District Judge correctly stated in denying the motion for a temporary injunction, arbitration is mandatory only where there is a contract between parties providing for it. UE had no such contract with the Respondent and it could not compel the Respondent to engage in any arbitration with it. Consequently , it is irrelevant that the General Counsel dismissed UE's charge that the Respondent wrongfully had refused to arbitrate the Dinges discharge with UE. Respondent's primary affirmative defense that the Dinges discharge has been arbitrated, that an award has been rendered in that arbitration , and that the award is to the effect that the discharge was for just cause presents a more difficult problem . It is well established, as far as the National Labor Relations Board is concerned, buttressed by such cases as Textile Workers Union v. Lincoln Mills, 353 U.S. 448; Goodall-Sanford, Inc. v. United Textile Workers of America, 353 U.S. 550; General Electric Co. v. Local 205, UE, 353 U.S. 547; and Republic Steel Corp. v. Maddox, 379 U.S. 650, that when an arbitration award has been rendered and the proceedings were fair, just, regular, and not at odds with the Act, the Board will not go behind that award to reexamine the facts but will allow it to stand. Spielberg Manufacturing Company, 112 NLRB 1080; International Harvester Company, 138 NLRB 923, 927; affirmed sub nom. Thomas Ramsey v. N.L.R.B., 327 F.2d 784 (C.A. 7). Republic Steel v. Maddox, 379 U.S. 650, 652, points, however, to an exception to the rule: As a general rule in cases to which federal law applies, federal labor policy requires that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress. If the union refuses to press or only perfunctorily presses the individual's claim, differences may arise as to the forms of redress then available. See Humphrey v. Moore, 375 U.S. 335; Labor Board v. Miranda Fuel Co., 326 F.2d 172. The authorities make clear that while an arbitrator's award ordinarily will not be disturbed by the Board, it is by no means unassailable . Monsanto Chemical Company, 130 NLRB 1097; Raytheon Company, 140 NLRB 883; N.L.R.B. v. Walt Disney Productions, 146 F.2d 44 (C.A. 9), cert. denied 324 U.S. 877. Republic Steel v. Maddox, 379 U.S. 650, above, which Mr. Justice Black in a blistering dissent denounced as depriving a member of a union of the historic right to have his claim adjudicated before a court and jury, recognizes that "if the union refuses to press or only perfunctorily presses the individual's claim, differences may arise as to the forms of redress then available." It is correct that the contract which governed the working conditions and terms of employment in the Respondent's plant provided for arbitration of grievances, including one resulting from a discharge . It is true also that Dinges was discharged prior to its expiration and that under Republic Steel and even under Ramsey where the collective-bargaining agreement, as here, had expired the union, IBEW here, presumptively was the party entitled to demand and have arbitration, and that ordinarily the resulting award would be binding and final. The facts in our case dictate a contrary result. In the first place, the IBEW contract with the Employer gives a discharged employee the right to file the grievance [section XIX (a)]. The grievance procedure distinguishes disputes , differences , and grievances between an employer and the Company from disputes, differences, and grievances between the union and the Company [section XXII (a)(2), (c)]. In making this observation, I do not overlook (D) of section XXII, which provides that "either the Union or the Company may institute such arbitration proceedings . . ." because the preceding paragraph (C) vests in the employee a right to arbitration distinguished from that of the Union. Despite re Soto, 7 N.Y. 2d 397, and Parker v. Boroch, 5 N.Y. 2d 156, relied on by Respondent, I am not convinced that the employee would not have been entitled independently to institute and participate in the arbitration proceeding . Pattenge v. Wagner Iron Works, 275 Wis. 495, 82 N.W. 2d 172; Clark v. Hein-Werner, 8 Wis. 2d 397, 99 N.W. 2d 132; Hughes Tool Company, 56 NLRB 981, 982, 983; U.S. Automatic Corporation, 57 NLRB 124, 135; and see Section 9(a) LMRA. In Parker the agreement precluded intervention by the employee and in Soto, as was noted by Judge Froessel in his dissent, the agreement was not before the court. As a matter of fact , if Dinges had not tried to have his claim arbitrated someone might have suggested that he had failed to exhaust his remedies under the contract. In any event, as has been emphasized so often , in unfair labor practice cases involving interstate commerce, it is the national labor policy and not state law which is controlling, STAR EXPANSION INDUSTRIES 573 Textile Workers v. Lincoln Mills, 353 U.S. 448. "The Board is empowered ... to prevent any person from engaging in any unfair labor practice ... affecting commerce [which] power shall not be affected by any other means of adjustment or prevention that has or may be established by agreement, law or otherwise ...." Section 10(a), LMRA. The question thus remaining is only whether the Board should exercise this power in this case. Under the conditions existing at the time of the arbitration, it was patently improbable that the IBEW could diligently and faithfully prosecute Dinges' claim of wrongful discharge. For a long time prior thereto, he had been at odds with it and its business agent who appeared, purportedly on his behalf, before the arbitrator. As a matter of fact, Dinges had filed charges within the IBEW against him. The handling of the grievance arising out of his discharge and his legal representation in any proceedings concerned with that discharge became the subject of a bitter dispute between him and the IBEW attorney. This involved not only claims by Dinges that this attorney was not representing him adequately, but also that he could not represent him faithfully because Dinges was the leader of the movement to have UE replace IBEW as the bargaining agent for Respondent's employees. This was aggravated to the extent that, during the election campaign, the IBEW publicized a letter sent to Dinges by its attorney maligning Dinges in connection with his activities against IBEW and on behalf of UE. The exchange of correspondence was so bitter that under no stretch of the imagination could it be expected that the IBEW attorney would make an adequate and effective presentation of Dinges' side of the case before the arbitrator. If an employee "is friendly to a rival union or part of an insurgent faction in the bargaining union, he may well be wary of a union-controlled grievance procedure." Note, Federal Protection of Individual Rights Under Labor Contracts, 73 Yale L.J. (1964) p. 1215. The ruling in Ramsey v. N.L.R.B., 327 F.2d 784 (C.A. 7), "There is no statutory or constitutional right of an employee to be present at an arbitration hearing" is not absolute. The court hastened to add, "It appears that the Company fully and adequately defended petitioner's position at the hearing." (p. 788.) See also Cox, Rights Under a Labor Agreement, 69 Harvard L.Rev. 601, particularly 630 et seq. (1956) and Judge Froessel's dissenting opinion in re Soto, 7 N.Y. 2d 397 at 400, with Van Voorhis J. concurring. And see Roadway Express, Inc., 145 NLRB 513, 514, 515. The arbitrator was duly informed by Dinges, in a telegram dated February 7, 1964, of his objections to being represented by the IBEW attorney and his reasons therefor. These included not only the matters concerned with the divergent interests of IBEW and UE, but also claimed defective proceedings within the grievance procedure and lack of consultation between Dinges and the IBEW lawyer. The arbitrator replied to the effect that he had been appointed by the New York State Board of Mediation after a request by the Employer and the IBEW, and that he was in no position to interfere in the affairs of either the Employer or the Union or to suggest to either of them the identity of their representatives. In short, he took the position that he was concerned only with the arbitration of a dispute between IBEW and the Employer and was not concerned with the fact that Dinges was the real party in interest . Prior to the writing of that letter to Dinges, the Respondent's attorney had telegraphed the arbitrator demanding that the arbitration proceed "at first available date." The arbitrator convened his hearing on March 23, 1964. Dinges and his own attorney (not the IBEW attorney) appeared there. Present also were the IBEW attorney and representatives of the Employer. Dinges stated that he did not wish to be represented by the IBEW attorney but only by his own attorney. The IBEW attorney offered to allow Dinges the opportunity to call witnesses on his behalf but restricted this offer to the condition that whatever questions were asked of the witnesses and whatever submissions were made on behalf of Dinges were to be channeled through him, the IBEW attorney. He refused to yield to Dinges' attorney the presentation of the arbitration case. While Dinges' attorney made clear that he demanded to be recognized as such in the presentation of the grievance, he demanded also that UE be recognized as the prosecutor of the grievance, giving as his reason UE's status as exclusive bargaining agent for the employees at that time. The employer's attorney opposed any substitution of UE for IBEW in the proceeding. The arbitrator ruled that he had no authority to substitute UE for IBEW, or to substitute Dinges' personal attorney for the attorney selected by and representing IBEW. Dinges and his attorney then left and the hearing proceeded in their absence. All this was set forth in a letter dated March 27, 1964, which the arbitrator wrote to all the attorneys concerned. In it he stated further that he would defer completion of his award for a reasonable period within a maximum of 30 days because of his understanding that Dinges' attorney intended to take court action with respect to the arbitration. The arbitrator made his award on or about April 28, 1964. It appears from it that he had before him and considered only the Employer's alleged reasons for the discharge and held that Dinges' actions in certain respects set forth in detail in the award constituted a violation of the parties' agreement and that his discharge was for just cause . I do not believe that the Employer's action in discharging Mr. Dinges constituted a breach of the agreement or that the Union suffered any damages by reason of Mr. Dinges' "discharge." Clearly, from its face, the arbitrator failed to give any consideration at all to whether the Employer's alleged reasons were pretextual only and whether the real reason was because of his protected union activities. Clearly, his only concern was whether the discharge was a breach of the contract with IBEW. Clearly he held only that the Union suffered no damages by reason of the discharge. Both Dinges' rights and the public interest, with which the Board is concerned, were ignored completely and were not adjudicated. Consequently it is necessary to examine the facts and decide de novo whether the Respondent should be held to have discharged Dinges because he engaged in union activities which were protected under the Act. Youngstown Cartage Company, 146 NLRB 305. At the threshold we are met with an objection that the complaint is at complete variance with the charges. Both the charge and the amended charge, supplemented by Dinges' testimony, alleged that he had been discharged because of his activities on behalf of UE. The complaint, on the other hand, alleged that the discharge was because of his activities on behalf of IBEW. N.L.R.B. v. Fant Milling Co., 360 U.S. 301, following National Licorice Co. v. N.L.R.B., 309 U.S. 350, was concerned with the complaint's expansion of a charge as filed to the end that certain actions of the employer, which occurred after the filing of the charge, were presented'for adjudication by the 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board . Quoting from National Licorice, the Court, in f ant Milling, said: "It is unnecessary for us to consider now how far the statutory requirement of a charge as a condition precedent to a complaint excludes from the subsequent proceedings matters existing when the charge was filed , but not included in it. Whatever restrictions the requirements of a charge may be thought to place upon subsequent proceedings by the Board , we can find no warrant in the language or purposes of the Act for saying that it precludes the Board from dealing adequately with unfair labor practices which are related to those alleged in the charge and which grow out of them while the proceeding is pending before the Board ." [pp. 306, 307] What has been said is not to imply that the Board is, in the words of the Court of Appeals, to be left "carte blanche to expand the charge as they might please, or to ignore it altogether ." 258 F.2d at 856. [p. 309] Here also it is unnecessary to reach the point not reached by the Supreme Court in Fant and National Licorice. Although Dinges did testify that when he filed his amended charge he was referring to UE, the charge itself made no reference to UE but alleged only that he had been discharged because of "his militant activity rendered on behalf of a labor organization ," not otherwise identified. The Charging Party is not to be expected to be fully familiar with the law governing unfair labor practices nor is the General Counsel to be restricted in his investigation and his formulation of the complaint based on that investigation when the charge itself does not limit him to UE but refers only to an unidentified labor organization. Therefore, it is my ruling that the complaint is not at fatal variance with the charge. The Respondent did not rely solely on the legal defenses discussed above. Its attorney, in response to a request for a stipulation to that effect, said: The issue is whether the discharge was discriminatory, and that depends upon the showing made by the General Counsel in his direct case. And we would rely upon the record as to that as well as the arbitration proceeding. It is necessary, therefore , to determine whether the almost totally unrebutted prima facie case is sufficient to support a finding of an unfair labor practice discharge because of Dinges' activity on behalf of IBEW. Was Star's conduct motivated by union animus or did it interfere with Dinges' exercise of rights under Section 7 or discriminate against him as an IBEW member or steward to discourage his or any other employee's membership in or activities on behalf of IBEW? The only evidence which has been offered in support of such a finding is Dinges ' testimony and a communication from the New York State Industrial Commission. He was discharged on December 5, 1964. In August 1963, having become dissatisfied with the manner in which the IBEW business agent had handled a grievance , he sought to enlist union officials employed in the shop against both the Company and IBEW and told them there "could be firings over this." There is no evidence the Company knew of this. He settled , satisfactorily, a seniority grievance in August 1963. He settled , satisfactorily , an inequity grievance in September 1963. He disagreed with the business agent's handling of a step increase grievance arising out of a change in minimum pay but the agent's action seems to have been reasonable . He, together with another steward , in November 1963, settled satisfactorily a "working boss" grievance but, after the settlement, something else came up and this is discussed at greater length below . These incidents and his 6 or 7 years of service as chief steward for IBEW constitute the only evidence of his activities on behalf of IBEW . His other activities were political within IBEW and, later , on behalf of UE against IBEW. There is no evidence that the Company at the time of the discharge knew anything about his troubles with IBEW or his support of UE . (The theory of the case as a whole is largely that Respondent was friendly to IBEW, the union mentioned in the Dinges part of the complaint .) The decision to discharge him (his check was ready) must have been made before a meeting he demanded to discuss a holiday pay grievance . (The holiday pay was a gratuitous act of the Company following President Kennedy's assassination and not required by the contract .) There is no evidence or contention (not resolved by the General Counsel in favor of the Company ) that any other IBEW steward or member ever was discharged or disciplined. There is not a scintilla of evidence that the Respondent bore any union animus. I disregard those portions of Dinges ' testimony referring to his dissatisfaction with IBEW's handling and settling of grievances , his conduct within the IBEW , and the communication from the New York State Industrial Commission . None of these is sufficient to bring this case within either the rule of N.L .R.B. v. Draper, Corp., 145 F.2d 199 (C.A. 4) or that of N.L.R.B. v. Nu-Car Carriers, Inc., 189 F.2d 756 (C.A. 3), and cases following. They are at variance also with the complaint . The communication from the New York State Industrial Commission gives, as the Employer's reason for the discharge, the commission by Dinges of "certain union activities that were detrimental to his interests ." This is only secondary evidence and, at best , only a State employee's version of what the Employer had said. Respondent's attorney suggests correctly that , even if considered, there is no indication whether the activities mentioned were protected or not. There is some similarity between Dinges ' version of the Employer's alleged reasons for the discharge and that of the Employer. Dinges, in his testimony , said that at the time he was discharged he was told that he "was talking strike ... was telling workers to slow down ... (and he "understood" that it) was discriminating against colored people." He testified that Respondent's personnel manager refused to give him further facts concerning these charges against him, that he had never heard of any investigation made by the Company concerning these alleged activities on his part , that he had never been given warning concerning any of them, that he had never told any workers to slow down, that he had never discriminated against Negro workers in his union representation activities. The incident which followed the "working boss" grievance (deferred above for discussion here) came about after the grievance talk was settled satisfactorily and terminated . Andy Chessman , the steward who had accompanied Dinges, and the general foreman had gotten into an argument (probably personal) during which the latter is alleged to have said to him , "As long as you are making this personal , I'm personally going out to get you." At this point Dinges interrupted and said, "Just don't include Andy Chessman, include myself." Following this, it is alleged , the personnel manager said , "This can be arranged." I am not at all influenced by this because, STAR EXPANSION INDUSTRIES 575 following my continuous observation of the personnel manager both on and off the witness stand during and throughout 26 hearing days, I am convinced that, separately and apart from the fact that the alleged remarks were made in the context of a personal argument between the other steward (who, incidentally, never was discharged) and the general foreman , after the grievance for which the meeting had been called had been settled and closed, the personnel manager's remark , "This can be arranged," (even if made) was nothing more than a quip and should not be regarded as a threat to discharge for "not doing work" or for union activities. This leaves only Dinges' long service as chief steward, his activities in the settlement of grievances, his uneventful work record, and his categorical denials of the alleged reasons for the discharge . Is the condition of the record such that, in view of Dinges' denials of the conduct he says the Employer assigned as the reasons for his discharge, the duty of going forward with the evidence further than it did and presenting evidence in support of the alleged reasons given for the discharge fell upon the Respondent ? The Respondent did not go forward except to deny that there was talk about firing and to show that Chessman never was even disciplined . Must the decision therefore go against it? I am not so persuaded . Even if there was a duty to go forward to a degree greater than that to which the Respondent went we still are required to determine whether, despite such failure to go forward, there is a "preponderance of ... testimony (to support a finding that the Respondent) has engaged in (the) unfair labor practice" alleged in the complaint. Giving all the evidence here presented every fair intendment, I am unable to find, regardless of what the true motives for the discharge might have been , that Respondent (as alleged in the complaint , by which I am bound), interfered with or discriminated against Dinges as an IBEW member or steward or discharged him to discourage his or any other employee's membership in IBEW (Northeastern Indiana Building and Construction Trades Council [Centiliure Village Apts.] v. N.L.R.B., 352 F.2d 696, (C.A.D.C.)). His own testimony shows that during all the years he was chief steward his activities as such were respected and there is no suggestion that the Company ever was opposed to his union activities or to IBEW, or ever hindered them. Moreover, during all this time no charge prior to the Dinges charge had been filed with the Board against Respondent. I am not unmindful that it could be argued that an employer's discharge of an employee for "talking strike" could be a violation of Section 7 but this argument is of no avail because a strike might be unprotected within the rule of Draper, 145 F.2d 199, and certainly would have been a violation of the "no-strike " clause of the contract in effect. The per se implications of N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21, do not come into play here because of Dinges' longtime respected union activity and the lack of IBEW animus. Paragraphs 6 and 7 and paragraphs 22, 23, and 25 of the second consolidated amended complaint, insofar as they are concerned with Dinges , should be dismissed for lack of substantial evidence in support of the charge as therein alleged. B. The Vacation Issue During the hearing the language of the complaint was amended to allege that "since on or about July 16, 1964, Respondent has failed and refused to grant vacation pay to various of its striking employees , whose right thereto had accrued prior to the (June 2, 1964) strike ... under the terms and conditions of employment then prevailing. . ." and a number of employees were added to the schedule which had been attached . There is no need to list the employees involved because it has been agreed that they can be referred to in a general ruling if the order goes against the Respondent . The Respondent admits that employees who joined the June, July, and August 1964 strike were denied vacation pay but denies that they are entitled to any relief. It has taken the same position in a New York State Supreme Court action which had been brought on their behalf for the recovery of vacation pay. It appears from the record that employees who did not join the strike and otherwise were qualified for vacation pay under the contract between the Company and the IBEW did receive vacation pay. This procedure was adopted voluntarily by the Company even though the contract with IBEW had expired on March 11 , 1964, and a new contract with UE, the newly certified bargaining agent , had not been consummated . As a matter of fact, at the April 28, 1964, negotiating meeting, the Company said "We are still operating under the economic conditions of the old I .B.E.W. contract." That a civil action is pending in the New York State Supreme Court for the recovery of these vacation benefits and that a direction that they be paid in this proceeding in effect may result in the enforcement of a contractual obligation is irrelevant if it be found in this proceeding that the denial of vacation pay constituted an unfair labor practice . In Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 101, footnote 9, the Supreme Court said: It is, of course, true that conduct which is a violation of a contractual obilgation may also be conduct constituting an unfair labor practice , and what has been said is not to imply that enforcement by a court of a contract obligation affects the jurisdiction of the N.L.R.B . to remedy unfair labor practices, as such. The only reason for denying vacation pay to the employees involved was attributed by the Respondent to their having been out on strike. The Respondent specifically agreed that any employees who remained at work "until the plant closed for vacation on July 17, 1964 ... (were) eligible for vacation pay." Thus, it regarded its obligation to give vacation pay as surviving the expiration of the contract. As noted before , it so stated at a negotiating session . Section XV of the expired contract was concerned with vacations. It defined the "vacation year" as being the period starting July 1 and ending June 30, inclusive . This provision, since it provided for a vacation year ending more than 3-1/2 months after the termination date of the contract , must be regarded as evidence of the intention of the parties that the right to vacations was to survive its expiration. Whether that be the case or whether vacation rights are to be regarded as a form of deferred compensation, it seems clear to me that employees who qualified in the manner provided in section XV for vacations acquired vested rights thereto which could not be divested merely because they engaged in a strike on June 2, 1964 . Without getting into the overall question of the rights of an individual under an employer- union collective-bargaining agreement (see references to this in the portion of this Decision concerned with the discharge of Albert Dinges, Summers , 37 N.Y.U.L. Rev. 362; note, 73 Yale L. Journal , 1215, and Cox, 69 Harvard L. Rev. 601), the individual employees at the very least were third party beneficiaries. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This vacation issue seems to be squarely within the rule of Great Dane Trailers, Inc., 150 NLRB 438. There the Board held, after finding facts similar to those here, that "Any striker who had not yet been permanently replaced was entitled, as an employee under Section 2(3) of the Act, to be treated in the same fashion as other employees. And even those strikers who had been permanently replaced before the date of payment of vacation benefits were entitled to a pro-rata share . . ." of vacation pay. In our case, although the vacation year ended June 30, 1964, the contract provided, "Vacation pay will be computed on the basis of the straight time hourly rate in effect on June First." The strike did not start until June 2. Respondent refers to the vacation clause and points out that it provides that "An employee who quits or is discharged for cause shall not be entitled to any vacation pay." Its interpretation of the clause , although I disagree with it , appears to have been sincere. This was made clear from the ante litam motam position taken as early as April 9, 1964. It was consistent in this interpretation because strikers who returned to work prior to the end of the strike also were denied vacation pay. Since the strike did not start until June 2, 1964, I do not perceive how the argument that some had been permanently replaced and thereby became ineligible for vacation pay can be valid. Even if there could have been a permanent replacement as early as June 2, the first day of the strike, obviously there had been none on June 1, the date specified in the contract as the basis for computation of vacation pay. Moreover, under the Board's ruling in Great Dane, even strikers permanently replaced were entitled to receive a pro rata share of vacation pay. An employee who strikes, whether or not he is permanently replaced is not an employee "who quits or is discharged for cause." For that reason the quoted portion from the vacation clause of the contract is inapplicable. Respondent argues also that the expired contract "contemplated that employees would be actively at work at vacation time unless the employer had laid them off for lack of work." I do not find any such provision in the vacation clause but the Company did make this assertion as early as April 9, 1964. Although a portion of the clause does refer to "laid off" employees, that does not require us to imply and read into the contract that employees actually must be employed at vacation time. The provision concerned with laid-off employees is a plus provision for the benefit of such employees. It provides specifically for the payment of vacation pay to them within the schedule set up in the clause and when such payment shall be made. Respondent argues further that, since the expired contract contained a no-strike clause which would have made a strike unlawful, subjecting the strikers to discharge , the strikers in effect broke the contract and were not entitled to receive vacation pay. The expired contract is not susceptible to such a construction. By its very terms the vacation clause survived its expiration. The no-strike clause in combination with the vacation clause and all other clauses of the contract did not result in such an entire contract as to make it indivisible as far as vacations were concerned . To the extent that any individual employee earned vacation credits by working, there was substantial performance of his obligations under the contract, both during the time it was in effect and after its expiration. It seems fallacious to argue that if the contract had continued in effect, a striking employee could have been discharged when the circumstances were such that the contract no longer was in effect. Moreover, even if it had been in effect and an employee became subject to discharge for striking, no employee actually was discharged in this context. Since the only reason for denying the employees involved vacation benefits was that they had gone out on strike, Respondent did violate Section 8(a)(1) and (3) of the Act for the reason stated by the Trial Examiner at 442 in his decision in the Great Dane case. Although the General Counsel contends also for a finding of violation of Section 8(a)(5), I am unable to conclude from the facts of this case that the Employer did in fact violate that section by the position it took on the vacation issue. The matter of these vacations was discussed during the negotiations . The Employer listened to the discussion, gave it consideration , and later informed the Union's representatives that it had concluded that striking employees were not entitled , according to its interpretation of the contract to receive vacation pay. This, I emphasize , was not a new position but a reaffirmation of its earlier position. I am unable to find that there was a refusal to bargain as to vacation pay or that the Employer did not bargain in good faith with respect to it. Every difference as to the legal interpretation of a contract, particularly a difference apparently sincere, should not be regarded as a basis for a finding of violation of Section 8(a)(5) of the Act. For the same reason I preceive no basis for a finding that the Company's action with respect to vacation pay was undertaken for the purpose of undermining UE. It cannot be considered in the overall consideration of whether there was good-faith bargaining during the negotiating sessions. I have no doubt that its position would have been the same if the Union had been IBEW. Nor may the denial of vacation pay be regarded as converting what started as an economic strike into an unfair labor strike. The result might have been different had the Union offered unequivocally to terminate the strike if the Employer changed its position and agreed to give the employees their vacation pay and the Employer then rejected his offer, causing the strike to be prolonged thereby. This the Union never did. It always coupled that issue into the other issues. C. The Alleged Preelection Interrogation and Threats Paragraphs 10 and 11 of the complaint allege that, at times in January and during the months of January through March 1964, Respondent's personnel manager and a supervisor interrogated its employees concerning their UE membership , activities , and sympathies and threatened plant closing, discharge, and other reprisals for UE membership and support. These allegations are denied by the Respondent which pleads as well that prosecution is barred by the 6-month statute of limitations contained in the proviso of Section 10(b) of the Act. The General Counsel opposes the plea in bar on the basis of Sam Klain and Sons, 127 NLRB 776. In the Klain case a broad interpretation was given to the language, "and by other acts and statements ." The Board used it as justifying consideration of events not specifically alleged in a charge filed "within a few days after the time" they happened. The first amended charge here was filed April 16,1964, in Case 2-CA-9839-2. This uses the words, "and by other acts the above-named employer has interfered, restricted and coerced its said employee." These words are not used as they were used in Klain. They refer to "its said employee," meaning Dinges and no STAR EXPANSION INDUSTRIES 577 other employee. The General Counsel then cites the wording of a charge filed in Case 2-CA-10081 on June 18, 1964, also timely if effective, "It (the Company) also engaged in a campaign of threats and intimidation prior to and after the strike." The linking of this alleged campaign of threats and intimidation to the strike which did not occur until June 2, 1964, seems to be stretching too far when it is sought to embrace within it alleged conduct during an organization campaign prior to an election held March 4, 1964. While the reliance on Klain is rather thin I find it unnecessary to rule specifically whether the statute of limitations should be held to bar consideration of these two paragraphs of the complaint. It is desirable that I pass on their merits because the General Counsel relies on them not only as the basis for an independent charge but also as background for the overall charge of lack of good- faith bargaining during the contract negotiations following the certification. Of great significance, both in the consideration of these charges and in the consideration of the bad-faith bargaining charges, is the obviously traumatic experience of the Respondent when suddenly, after 6 years of apparently cordial relations with IBEW, a different union, UE, appeared on the scene and sought to represent its employees as their bargaining agent . Somewhat more than casual or idle curiosity about the new union, provided that it does not lead to clearly positive violations of the rights of employees under Section 7 of the Act, should be expected. In support of these allegations the General Counsel relies on alleged remarks to Annette Santiamagro, Vincent Bellucci, Herb Brown, and Virginia Howard. Santimagro's testimony is about two incidents. She says (1) that on January 3, 1964, the personnel manager asked her whether she had seen UE cards and if she knew who was passing them out, and (2) that about a week later, after he told her there was no job opening for her father, he said (a) that he knew UE business was going on in the plant and who was involved in it, (b) that a lot of people were going to be hurt and fired, and (c) if she was involved she should watch her step "as a warning." She says that these conversations arose in connection with her desire that her father be employed at the plant to ease the transportation problem of her sister and herself. While not of decisive importance, the record shows that, although she suggested that this potential hiring was something new that came up in January 1964, her father actually had signed an application for employment at the same time that she and her sister had filed their applications, August 5, 1963. Within a day or at most a very few days after the January 1964 meetings she gave a Board agent statements of the alleged conversations. (They were dated January 12 and 14, 1964.) Her version of the conversations must have been conditioned by her resentment of or her disappointment with the fact that her father was not hired. She testified also that sometime during the spring, about 2 weeks before the election, she was approached by her supervisor (whose name she did not even know), and that, after complimenting her on her work, he asked her whether she was still with IBEW, saying that he really did not care and that he was just curious. She told him that she did not want to have anything to do with either union. This last incident was not the subject of an immediate statement or communication to the Board. It was communicated by her to the General Counsel's attorney during his preparation of the case, only a few days before she testified. This failure to report the new interrogation seems notable considering the timing of her prior reports and that she had attended many union meetings and the UE campaign had become very active after it is alleged to have occurred. She was never disciplined or discharged and seems to have terminated her employment voluntarily. The personnel manager denied interrogating her about UE activities and warning her of any reprisals. At best, her conversation with her supervisor , if actually there was one, suggests that it was a friendly interchange of pleasantries. To the extent that the personnel manager 's version of the conversation contradicts hers, I accept his. I have concluded that the rest of her testimony as to interrogation - and threats is not to be credited. The testimony given by Bellucci is to the effect that the personnel manager , when interrogating him, referred to the "rebel union ." In the same breath that he so quoted the personnel manager he said , "Well, I couldn't give you word for word, but just a supposition." This "supposition" was based on the fact that he had "UE in mind (because) they were the ones that were petitioning." The personnel manager denies making this sort of inquiry of Bellucci. He affirmatively states that, having been surprised by the UE petition, he inquired of Bellucci (and also of Brown above mentioned and other employees) whether they had heard anything about it. A strong effort is made by the General Counsel to discredit his versions of the conversations by pointing to inconsistencies or contradictions in his testimony with the contents of the statement given by him to a Board agent. An argument could be made that there are some inconsistencies or contradictions. However, considering the circumstances under which that statement was taken down by the Board agent (it was written in' longhand in a rambling fashion), its ex parte nature, and bearing in mind as I have said before (see p. 10 hereof) that laymen are not so familiar with the niceties of labor law as to understand fully the broad spectrum of inferences which may be drawn from words lightly used in documents not subjected to painstaking analysis at the time of their execution, we should not be quick to condemn testimony as false dust because some contradictions and inconsistencies may be argued after searching analysis. We are all aware of the fact that some very experienced lawyers, hearing examiners , judges, and others write and rewrite even single sentences anywhere from two to a dozen or more times to make sure that they set forth what is intended to be set forth. To the extent that there were interrogations I view them as a normal reaction of a personnel manager to the sudden advent of UE on the scene and his desire to ascertain whether in fact there was genuine and sufficient interest of the employees on behalf of UE as opposed to IBEW, the then recognized bargaining agent. Blue Flash Express, Inc., 109 NLRB 591, 592. There remains the alleged threat, about 2 days before the election, that the plant would be closed down or moved and that everyone would be out of a job. This is found in `Virginia Howard's testimony. The context in which this alleged threat was made was a discussion with her by Loalbo, a minor supervisor, about an argument that she had had with another employee concerning the respective campaigns of IBEW and UE. Loalbo did whatever any supervisor would be expected to do. He tried to get her and the other employee to compose their differences. It was during this effort that Loalbo said, according to Howard, that people in the plant were getting themselves into trouble because the owner "could" close the plant or move it. (She subsequently changed the word "could" to "would.") She admitted that Loalbo also said that the 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other employee had the "right to feel the way she felt and that (she, Howard) had a right to feel the way (she) felt." Loalbo denied that he had said anything about closing the plant . He supported the unlikelihood of any such remark by showing that he had never had any conversations with the plant's owner about union matters or with any officials about the possibility of the plant being closed. If plant closing actually was discussed in the conversation, the actual nature of this discussion and whether in fact it was threatening or coercive under Section 7 of the Act is greatly in doubt. Even Virginia Howard initially did not testify that Loalbo said that plant would be closed or moved. She testified, after referring to her argument with another worker, that he said, "The people in here are getting themselves into trouble because Mr. Ogden, the owner, could either close this plant or move it and we will all be out of a job." To me this seems more like an exploring of possibilities and conjecture on the part of Loalbo at worst as to what might result not because of union activities but because of intramural bickering among the employees. In any event Loalbo was only a minor supervisor. He was not in any position where he could make or even influence a decision to close the plant . The alleged remark (the only such remark in the entire case) was not "made by one who is a part of the company management, and who has the power to change prophesies into realities . . . ." N.L.R.B. v. Nabors, 196 F.2d 272 (C.A. 5). The plant never closed and was not moved. For all the foregoing reasons the allegations contained in paragraphs 10 and 11 of the complaint should be dismissed. D. The Anti-UE Petitions The UE, on December 23, 1963, applied to the Board for certification as bargaining representative on behalf of the production and maintenance employees at Respondent's factory in Mountainville , New York. An election was held. Out of approximately 350 eligible voters, 183 voted for UE, 148 voted for IBEW , 3 voted against both and there were 6 challenged ballots. On March 12 , 1964, the UE was certified as the exclusive representative of all the employees in the bargaining unit. Following such a close election and bearing in mind that the IBEW had been the recognized bargaining agent since 1957, it is not strange that there remained a good deal of IBEW loyalty in the shop and that many employees remained opposed to UE. In the complaint [paragraphs 14(a), (b), (c)j it is alleged that the Respondent "sponsored and caused to be circulated among the employees at said plant, petitions expressing opposition to the proposals made by UE" in the contract negotiations (which commenced within 2 weeks after the certification); that the Respondent "orally threatened employees ... with discharge and other reprisals in order to induce them to sign " such petitions, and "coercively interrogated various employees concerning whether they had signed such petitions"; and that Respondent 's object with respect to the sponsorship and circulation of the petitions and its threats and interrogations concerning them was "to undermine UE's status as collective bargaining representative, and its position respecting collective bargaining with Respondent." Many witnesses were called by the General Counsel to demonstrate that "petitions" had been circulated around the plant, that signatures therefor had been solicited and procured, and that UE adherents were bypassed in connection with such solicitations . There was testimony also that several supervisors had inquired about the petitions , had demonstrated their desires that the petitions be signed, had intimated , suggested , or actually warned of reprisals which would be taken against employees who did not sign the petitions. Despite the fact that the testimony establishes clearly that many papers were being circulated around the plant and that signatures were being sought for them, the General Counsel was unable to produce even one paper which he was able to connect directly to the Respondent. The nearest he came to producing any paper was when, on the direction of the Trial Examiner, he subpenaed an IBEW business representative to bring to the hearing "all papers, petitions, circulars and communications of any kind or nature, signed by employees of Star Expansion Industries Corporation, with respect to a preference on the part of said employees in opposition to the United Electrical , Radio and Machine Workers of America (UE), or in opposition to a union shop or a checkoff clause in favor of said UE in any contract it might enter into with Star Expansion Industries Corporation, covering the period March 4, 1964 to the present." The IBEW representative appeared with 20 sheets of paper each of which contained many signatures and eac h of which had at the top an identical legend . He testifie d that these had been circulated and the signatures obtained thereon by several persons who, during the course of the hearing, were identified as persons who had circulated petitions among the employees and obtained signatures thereon. He testified also that he had received them in August 1964. None of these papers, although offered by the General Counsel, was received in evidence . The reasons for not receiving them were that they were not within the framework of the allegations of the complaint and that there was a failure to link them directly to the Respondent. The General Counsel never availed himself of the Examiner's specific invitation to him to link them to the Respondent. For that reason the legend at their top appears in the record only as an offer of proof. In order to clarify the first of the two reasons for not receiving them, I observe here that they were merely to the effect that the signers did not want to be represented by UE and rescinded a prior authorization, if any, that UE represent them. Thus, even if the papers brought in by the IBEW representative had been linked to the Respondent they would not have supported the allegations contained in the three subdivisions of paragraph 14 of the complaint. There was nothing in them "expressing opposition to the proposals made by UE" in the bargaining negotiations. The IBEW's representative testified that these papers had been solicited by employees, not supervisors or agents, of the Respondent. There is no credible evidence of any petition "expressing opposition to the proposals made by UE" in the negotiations . Most of the evidence is hearsay or secondary and of a general nature . All but two of the witnesses disclaimed having read or seen the contents of any of the papers . These two brought out that certain of the papers were opposed to a checkoff, were anti-UE and favored an "open shop." The sum total of all the credible and probative evidence , putting together both that in support of the complaint and that of Respondent's witnesses is that, regardless of the actual contents or wording of the petitions , Respondent had an awareness that they were either pro-IBEW or anti-UE, that although the measures taken by the Respondent to control the UE STAR EXPANSION INDUSTRIES 579 opponents from soliciting such petitions on company premises during working hours proved ineffective the same was true about UE activities , that some of its supervisors by inquiring about them may have given some employees the impression that they encouraged them, and that Respondent, with knowledge of all that was going on sought to obtain advantages from it in connection with the negotiations which were, during all that time, being conducted with UE for a collective-bargaining agreement. I am not convinced by any of the testimony that Respondent had any responsibility for or caused to be circulated among its employees the various "petitions" about which the testimony was given. The General Counsel, himself, stated on the record that the papers were IBEW papers brought by IBEW people for IBEW people. The quantity of the petitions and the emotions following the certification of UE could have been expected to and did generate a great deal of turmoil in the shop. As was said in Burnup & Sims, Inc., 379 U.S. 21, "Union activity often engenders strong emotions and gives rise to active rumors." I do not credit any of the testimony in support of charges of discrimination, threats, or promises of reprisals which might follow a failure to sign any petition. Not a single instance of discrimination or reprisal for failing to sign a petition is suggested in the record The General Counsel argues strongly that, during the course of the bargaining negotiations, union representatives frequently complained of anti-UE petitions and activities in the shop, requested that the Respondent take various measures to stop them and that the Respondent did not take enough measures and those which it did take were ineffective. This evidence was received over Respondent's objection but with the oft- repeated admonition of the Trial Examiner that it was not being received as evidence that the events did occur but only as evidence of what transpired at the bargaining table. To accept the evidence now as proof of the facts would be contrary to that ruling and, in effect, would be allowing the case to be built on the second floor in the air without a first floor and foundation. It cannot be found, on the basis of complaints having been made, that either (1) the complaints were valid or (2) that Respondent failed to take effective measures to curtail or stop the activities of which complaints were made. The maximum finding that I can make in this general area is that Respondent was not antiunion but it was willing to reap the benefits of any employee activities, whether IBEW, anti-UE, or if the occasion had arisen, anti-IBEW and pro-UE, if such activities could be utilized in furthering its objectives. With respect to paragraphs 14(a), (b), and (c), of the complaint, I am unable to find the facts as therein alleged. I deliberately avoid making any Section 8(a)(1) finding of a lesser gravity (assuming that there were ground for so doing) because, by Section 5(a) of the Administrative Procedure Act, Respondent is entitled to have notice of "the matters of fact and law asserted" and because the good-faith bargaining elements of the complaint , alleged elsewhere, could be seriously affected thereby, to Respondent's prejudice. E. Alleged Threats to Employees for Supporting the Strike In paragraph 16 of the complaint it is alleged that the Respondent, by certain of its supervisory employees, "orally threatened its employees with discharge and loss of vacation and other reprisals if they ceased work and went out on strike or supported a strike by UE." The evidence in support of this allegation consists of testimony by three witnesses, each of whom testified to conversations held with a different supervisor. It is the only evidence of such alleged threats made in connection with a strike which lasted from June 2, 1964, until August 28, 1964, almost three full months. One of the witnesses, Blanchard, testified that while she was working at her machine on either May 21 or 22, 1964, her supervisor came over to her and said, "By the way, if you people go out on strike again, I have it on good authority that you are all going to be fired." The reason for his having made such a spontaneous remark is not apparent and why he should have singled her out for the threat is likewise unapparent. The remark is denied by the supervisor. The circumstances under which it is alleged the remark was made cast suspicion on whether , in fact, it was made. This is not however my only reason for rejection of this testimony. As far as Blanchard is concerned, because of my conclusions (expressed elsewhere) with respect to her veracity and role in certain events which transpired during the strike, I would not and do not credit her testimony in any respect. Another witness testified that following an argument with her immediate supervisor, she had gone to the general foreman of the plant to talk to him about this. It seems that something which her immediate supervisor had said during the argument caused her to suspect or believe that this supervisor intended to get her discharged in order to deprive her of her vacation. Her testimony suggests to me that her view of the conversation with the general foreman was a subjective reaction to the argument between her and her immediate supervisor. This argument is not of any importance as far as the charge is concerned. It provided only the reason or occasion for her having the related discussion with the general foreman. It seems that he had become aware of the dispute and, after some short conversation about it, the employee says that he blurted out, "Vacation?" ". . . Now, there will be no vacation for anybody that goes out on strike." This is a complete non sequitur because the matter of a strike had not come up at all in the argument with her immediate supervisor. There seems to be no logic or reason for the general foreman to have injected into this conversation any threat related to a strike. The witness' positive testimony, purporting to quote the exact words used by the general foreman, is at variance with her complete inability to remember any strike talk at any union meeting although she testified that she attended all such meetings but the last, which came long after this incident. The conversation occurred, according to her, on a Wednesday in the week before the commencement of the strike on the following Tuesday, the day after Memorial Day. Bargaining negotiations still were in progress and meetings were had on May 25, 2 days before the alleged conversation, on May 28, the day after, on May 29, and again on June 1, the day before the strike. It seems to me that this witness was so emotionally wrought up about her understanding of the dispute with her immediate supervisor that she connected the strike which followed a week later with her conversation with the general foreman and, possibly in brooding about it, came to the conclusion that he, while discussing her vacation problem as it arose in her dispute with her immediate supervisor, converted it into a strike issue as distinguished from a work performance issue. He denies so having threatened this employee and denies having any 298-668 0-69-38 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD administrative duties relating to the allowance or disallowance of vacations. My consideration of this particular testimony had led me to explore the possibility that the Company's general position with respect to vacations might have been known by him and this knowledge might have prompted him, since the matter of vacations was the subject of the conversation, to advise this employee about the possibility that strikers would not get vacations. This, however, is sheer speculation on my part and is not enough to alter the fact that I dust am not convinced by this witness' testimony that the general foreman, in fact, had made the remark. For this reason I discard this testimony. The third witness gave testimony to which Respondent objected because the supervisor who allegedly made the threat had not been mentioned in the complaint, and this particular threat came up only when this witness was called. Over Respondent's objection, I allowed an amendment on the ground that it was squarely within the thrust of_paragraph 16 and could be regarded more properly as a further bill of particulars. I did this despite the General Counsel's admission that the failure to include in the complaint the particular supervisor involved was sheer oversight on the part of his office. That there was an oversight is not in doubt because, in the charge filed June 18, 1964, specific reference was made to this alleged threat. The circumstances of the conversation during which the alleged threat was made are not in dispute. At a social meeting of an American Legion auxiliary, the witness, the employee involved, happened to get into what was definitely a friendly conversation related to her being out on strike. She is an elderly lady, not in very good health, and a widow. There is no doubt that she was concerned with her job and her livelihood. It seems only natural that, despite the social nature of her meeting with the supervisor involved, in view of their friendly relationship, the matter of her being on strike and her possible future employment was discussed. It is clear from both versions of the conversation that the necessity for her future employment was in the minds of both and that it was discussed. It is also clear that this friend and supervisor said substantially that if she wanted to go back to work she would have to apply to the personnel manager and that she would have the former's help in getting her reinstated. I am satisfied also that the witness' age was a factor which entered into the conversation. The only real issue, is, did this supervisor tell her that if she was not reemployed she would never get a job anywhere else because "the Company would never give her a reference to any other job." Assuming that the supervisor did say what she says he said about a reference, taking into consideration the entire conversation, the place where it was held, its nature, and the friendly relationship between the two, I hardly think that the remark, if actually made, could be regarded as anything else but a friend's advice to another friend as to his personal opinion of the possible actions of the Company in the future. This is hardly a threat. The witness never was denied reemployment and was actually in the Company's employ, although out on sick leave, at the time she gave her testimony. The supervisor denied having told her that the Company would not give her a reference. Apart from this, the only substantial difference between his version of the conversation and hers is that he says the conversation was had while they were dancing together and she says that he came over to the table where she was sitting with her friends and in three short sentences told her that if she wanted to go back to work she would have to apply to the Company's employment bureau, that he would help her, that she was too old to get another job, and that the Company would not give her a reference to any other job. This was all at the table where she had been sitting with her friends. A conversation of this nature more probably was not conducted so publicly and so abruptly at a table where the witness was sitting with her friends. The likelihood is that such a conversation would not have been so publicly aired and the supervisor's version of it and the conditions under which it was held is the more likely and more credible version. Again, not only am I not convinced that if any remark about references was made that it was a threat, I am not even convinced that it was made. I am unable to find that any one of these alleged threats was made, and for that reason subdivisions (a) and (b) which constitute paragraph 16 of the complaint should be dismissed. F. The Alleged Refusal or Failure to Bargain in Good Faith (Section 8(a)(5)) A large part, if not most, of the bad-faith bargaining portion of this case is related to the Respondent's advocacy for and insistence upon certain contract terms during the course of 38 negotiating sessions starting on March 23, 1964 (11 days after UE was certified as the collective-bargaining representative of the Company's employees), and ending on January 13, 1965 (more than 4- 1/2 months after UE had agreed to end a strike it had started June 2, 1964,-UE's offer to return to work having been made on August 27, 1964). Thus, it appears that the Company quite promptly entered on its statutory duty to bargain collectively with UE and continued with great frequency. This continued during both the short-lived April strike and the June, July, and August strike. For a long time after the 3-month strike was abandoned Respondent continued to meet and confer with the Union at reasonable times in its effort to negotiate an agreement. It is unfortunate that we have been deprived of the testimony of Respondent's attorney who was its principal negotiator at every one of the bargaining sessions and that of the Union's attorney who participated, although he was not its principal negotiator, in 22 sessions. Both originally had planned to testify. During the course of the hearing their attention was directed to the opinion of the Circuit Court of Appeals in Vanderbilt Products, Inc. v. N.L.R.B., 297 F.2d 833 (C.A. 2). Presumably, because of the ethical considerations cited in that opinion they elected not to testify. The record however does have in it much testimony by union representatives and by Respondent's personnel manager, copies of documents which frequently were the subject of the negotiations and, what I believe to be truthful and pretty accurate, a set of notes of what transpired at most of if not all the crucial sessions held. These were made by Respondent's personnel manager. The charge of bad-faith bargaining (paragraph 15 of the complaint) is hinged, to a great extent, on the claim that behind it all and as primary evidence of its intention never to enter into an agreement with UE were the Respondent's sponsorship and circulation among its employees of petitions objecting to the bargaining proposals made by UE. I can make no finding of fact that such actually was the case. This has been treated at length elsewhere in this Decision. Nevertheless, I do not agree with Respondent's STAR EXPANSION INDUSTRIES 581 contention that , because of the hinging of that particular allegation to the charge of bad-faith bargaining, in the event that it is not sustained , a finding of bad-faith bargaining may not be made because consideration of the additional matters alleged in paragraph 15 of the complaint would be varying its theory. Regardless of any criticism of the manner in which the complaint was drawn , if any of the additional matters alleged in that paragraph were in fact found to be bad-faith bargaining the charge of violation of Section 8(a)(5) would have to be sustained. Thus interpreted , paragraph 15 may be read to include allegations to the effect that Respondent violated its obligations under Section 8(a)(5)of the Act by the position it took with respect to its proposals involving arbitration (coupled with an injunctive provision specifically applicable to the no-strike, no lockout clause, a management prerogative clause , a sub-contracting clause, and its opposition to certain union-security provisions). It is alleged, "Respondent insisted on acceptance by UE of such proposals as a condition of any collective- bargaining agreement to be made, predicating its conduct upon the existence of the petitions ...... (discussed and rejected elsewhere). It is alleged also that the proposals were "predictably unacceptable ." The General Counsel, during the hearing and in his brief , has argued that some of these, if not totally at least in some respects , were per se violations of Section 8(a)(5) and therefore in and of themselves justification for the issuance of an order. These include particularly the so-called injunctive power sought for the arbitrator, a waiver of the right of removal of a State court proceeding to a Federal court , and the subcontracting clause, which I shall discuss at length below. A charge of bad-faith bargaining should be determined after consideration of the overall conduct of the employer. Emphasis on this should not obscure the concomitant obligation to weigh allegedly offensive acts of the employer against the background of the union generally and its activities and conduct directly related to this employer and this case , or relevant thereto. Such factors, are, for example, UE's announced antipathy to arbitration (contrary to the National Labor Policy), its vituperative preelection campaign against IBEW in which it made serious charges against the employer suggesting not only corrupt and collusive administration of the then existing contract with IBEW but also collusive agreement upon unfavorable terms and conditions of employment and finally the Union's own adamant and immutable attitudes frequently taken during the course of the bargaining sessions . Just as the Board considered general, public utterances of the company 's labor relations counsel as having a bearing on the determination of its good faith in N.L.R.B. v. Reed & Prince Mfg. Co., 118 F.2d 874 (C.A. 1), at 882, I too regard as significant and as having a bearing upon whether the Company acted reasonably in its insistence on certain provisions UE's public announcement expressing a policy against arbitration of grievances and its preference for a resolution of such grievances either directly in the shop or by strike. In consequence of all this, it is my mature conclusion that, having just completed 6 years of good labor relations under contracts with IBEW and the sudden displacement of IBEW by UE following a bitter campaign and its awareness of UE's general policies , the Respondent approached its bargaining negotiations with UE not with bad faith or an intention not to execute a final binding contract but rather with fear and a hope that it would achieve contract provisions which would assure quiet and cordial labor conditions in its plant. This fear of UE was aggravated further by the Company's concern over its past widespread subcontracting practices and the possible impact upon them of the Board's Decision in East Bay Union of Machinists, Local 1304, Steelworkers (Fibreboard Paper Products Corp.) v. N.L.R.B., 138 NLRB 500, enfd. 322 F.2d 411 (C.A.D.C.),just a few months before UE was certified. I have mentioned UE's adamant position. It was particularly so on union shop and checkoffbefore the June, July, and August strike and on union security after the strike started. The Employer was against them. It did not predicate its conduct on the existence of the petitions. Some of its objections to union security and checkoff were based on its belief that there was widespread opposition to UE in the plant. This is supported by evidence discussed in other parts of this Decision and also by the fact that the UE was unable to get effective employee participation, either in the April walkout or the prolonged June-August strike. Only about half struck on June 2 and, by June 29, nearly 50 returned. On that day it had a working force of more than three-quarters of its normal employment. Under such circumstances, opposition to a union shop or agency shop and to checkoff does not seem to be unreasonable, frivolous, or arbitrary. It is important to note that Respondent's position was not like that of General Motors in N.L.R.B. v. General Motors Corp., 373 U.S. 734, where GM "decline(d) to comply with (the Union's) request for a meeting" to bargain over the proposal. Here there was no such categorical refusal to bargain . On the contrary there were numerous times when the Union's proposal came up for discussion and the Union's proposed modification also was discussed frequently. These were among the so-called noneconomic issues which were taken up at intervals and at other intervals deferred-a procedure not unusual in negotiations. Pointing to cases where an employer denied such clauses to a union when such clauses had been in a prior contract as evidence of bad faith and as indicative of intention to downgrade the union does not change the result. Apart from the undeniable fact that a large proportion of Respondent's employees either were not members of UE or were strongly opposed to it, the prior union contract in our case had not been made with UE but had been made with another union, IBEW. There is also great reliance on a contention that Respondent had said that union security would be denied "even at the end" indicating that there would be no agreement which contained any sort of union-security clause. There is grave doubt whether any such statement ever was made by the Respondent although both Bloch, the Union's principal negotiator, and Farris, the employees' committee member, so testified. Bloch obviously had memorized his testimony and they both testified mainly on the basis of the Farris notes (which had been edited and rewritten) and purported to quote Respondent's attorney as having used those words. Bloch later admitted that his affidavit submitted to a Board agent made no such claim and that his own notes contained no such statement . Farris admitted that her original notes, although they generally showed what various persons said, did not show that Respondent's attorney made this statement . If such a comment appears in her original notes it is entirely consistent with her admissions that it could have been her subjective reaction to a proposal to leave 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this clause to the end. Opposed to the Union's claim, there is testimony that no such statement was made. As far as the other references to the Respondent's position on union security are concerned, a reading of General Counsel's Exhibit 36, on which he relies greatly by selective quotation, demonstrates only that this was a recurring topic of discussion, that the Respondent took a strong position opposed to an equally strong union position with minor concessions, and that there were numerous deferments for the purpose of going to other matters in order to avoid a breaking off of negotiations. This exhibit shows also that union negotiators took the flat position that without union security there would be no agreement. Union security and checkoff are matters for collective bargaining and subject to impasse. Consequently, a continued and final inability of the parties to agree on the inclusion in or exclusion of such provisions from the collective-bargaining agreement is not a violation of Section 8(a)(5). Section 8(d) of the Act expressly provides that the obligation to bargain collectively, etc. "does not compel either party to agree to a proposal or require the making of a concession." The management prerogative clause as proposed by Respondent specifically restricted it to matters not covered by the contract. There is in the record an agreement made between UE and a company in Schenectady which has incorporated within it a broad management clause. While not precisely in the words of other management prerogative clauses, the Respondent's proposal did not vary to any remarkable degree from such heretofore held to be legitimate for negotiation to an impasse. A portion which would have allowed management "to determine the work pace and levels of work required of employees" was eliminated during the course of negotiations Another portion, to which the Union had strenuous objection, was that the Company would have the right to "determine the number and location of the company's plants." This is not an unnatural prerogative of management. Regardless of the Union's objection to the management clause, I am unable to understand why it stopped short of merely "standing pat" on its objections when it is entirely probable that adequate provision could have been worked out to protect it and the employees in the unit for which it had been certified. This is particularly so in the light of the fact that Respondent agreed to recognize UE in any new factory in Mountainville if the work was the same. I am not convinced that if UE had had a broader conception of its own obligation to bargain in good faith, some mutually acceptable management clause could not have been worked out. This too comes within the exculpatory portion of Section 8(d) of the Act. The great difference of the parties with respect to the arbitration clause was not so much whether or not there would be such a clause but rather the insistence by the Employer that there be woven into it (1) an authorization to the arbitrator, upon ex parte telephone or telegram request, in the event of a breach of the no-strike, no- lockout clause, to issue a temporary enforcement order which would have the effect of an interim arbitration award , (2) a contemporaneous provision that the enforcement award be adjudicated in New York State courts, under New York law, and (3) another contemporaneous provision that the Union and the Company would not seek removal of such proceeding from a New York State court to a United States court. At no time in the consideration of these three items should we lose sight of the fact that this so-called injunction provision was limited expressly to section IX of the contract , the no- strike, no -lockout provision , which was identical with that which had been in the old IBEW contract . It is conceded that various changes of the proposal were offered by the Respondent during the negotiations . These are claimed to be of no significance because the basic elements - ex parte injunction and waiver of removal to the Federal courts always remained. The particular problem involved is well known. It has come up in many court opinions and has been discussed in numerous law review articles. It was considered most recently at length in the first part of the report of the Committee on State Labor Legislation of the Labor Relations Section of the American Bar Association presented at its meeting in Miami, Florida, August 10, 1965, 59 LRR 297-305. Thus, the provisions, intended to cope with the problem , sought by the employer during the bargaining sessions, obviously were not frivolous. Respondent's attorney made clear his reasons for wanting them. His position was based on the decision of the United States Supreme Court in Sinclair Refining Co. v. Atkins, 370 U.S. 195. The Court there held that the Federal courts did not have jurisdiction to enjoin a strike believed to be a breach of the no-strike clause in a collective- bargaining agreement . It is sound professional conduct on the part of an attorney , when confronted with a court decision establishing a rule of law like Sinclair (or Fibreboard, below) to attempt , by means of contract provisions, to provide for the resulting situation . This is what Respondent's attorney did when advocating and seeking the waiver provision with respect to removal from a State to a Federal court. Because of its novelty and importance , I quote the entire clause: (I) In the event of any claimed violation of Section IX the Union or the Company may apply to the Arbitrator for an order directing the violation of Section IX to cease. Such application may be made by telephone or telegram without notice to the other party and without first following the procedure set forth in (A) of this Section. The Arbitrator is authorized to issue a temporary order directing the Company or the Union and employees to cease the violation of Section IX forthwith , and such temporary order shall have the effect of an -arbitration award. In the event the Arbitrator issues such a temporary order he shall thereafter call a hearing on such notice as he deems appropriate and may issue a permanent order enjoining the violation of Section IX. In such case, notice of the hearing may be given by telephone or telegram . The party claiming a violation of Section IX shall have the option, in its discretion, to submit the question of damages in connection with the violation of Section IX to the Arbitrator or any appropriate court of law . In the event the Arbitrator issues an order, whether temporary or permanent, restraining a violation of Section IX, his order may be enforced in the courts of the State of New York and it is expressly agreed that neither the Company nor the Union or any employee will seek removal of any such proceeding in the courts of the State of New York to the Federal Courts and they expressly waive their right to seek such removal. This clause is not unilateral. It applies not only to strikes in breach of Section IX of the contract but also to lockouts and the order whether temporary or final , could go against either the Union or the Company. STAR EXPANSION INDUSTRIES 583 The first problem is concerned with the temporary order. It is clear also from its wording that there is nothing manadatory about the issuance of a temporary order after telephone or telegram request. Similarly, because of the use of the words, "In the event," at the beginning of the fourth sentence , it is clear that the arbitrator may elect not to issue a temporary order . Moreover , there is no reason to ,assume that the arbitrator, should he decide to consider the request for a temporary order, will not make some sort of preliminary inquiry before issuin g it. All these possibilities show that the wording of the clause could have been tempered by appropriate modifications or additional language had the Union not closed its mind to any consideration of it. The General Counsel's concession that the Respondent consented to some modifications of the original clause is watered down by his characterization that they were "insignificant." It has long been the law that the NLRB may not sit in judgment on the substantive terms and conditions of a proposal. N.L.R.B. v. American National Insurance Co., 343 U.S. 395. Although the position of the Union and that of the General Counsel is that a temporary return-to-work order (the half which might be made applicable to it) is unprecedented and unheard of, the practice or procedure is not at all new. The evidence in the record shows that arbitrators do issue temporary orders which have the effect of enjoining a breach of a no-strike clause. The fact that the practice may not have been incorporated in writing within any particular contract is not reason for saying that the Respondent here was in bad faith in seeking that it so be incorporated I perceive nothing wrong about the desire on the part of any party to have in writing any provision that is a part of the agreement. The Act itself contemplates a written and signed agreement when negotiations have been completed (Section 8(d)). This temporary order provision did not astonish me as much as it seems to have astonished General Counsel and counsel for the Union. Just as soon as it came up in the hearing I informed all counsel that I would take official notice that it had been standard policy of the National War Labor Board to require a union to terminate a strike before it would consider settling a dispute. Professor Nathan Feinsinger, public member, writing for the National War Labor Board in E.A. Laboratories, 21 War Lab. Rep., 232, 235, after noting that a strike would interfere with the Board's main objective of minimizing interference with war production , was not content to rely on that as a basis for an interim return -to-work order, and added: Experience has shown, moreover, that the Board cannot give proper consideration to a labor dispute in the atmosphere of a strike. A necessary first step in the Board's procedure is therefore to direct that the strike be terminated and that the strikers be restored to their jobs with utmost dispatch. Fairness requires that neither party obtain an advantage because of the strike. Therefore, as a corollary to the first step, the Board directs that the strike be terminated and production resumed under the conditions prevailing at the time of the strike, leaving the underlying dispute and questions arising out of the strike for determination after the status quo has thus been restored. [Emphasis supplied.] Consequently, the provision for the temporary order is not so outrageous as to be "predictably unacceptable" to a self-respecting labor union , thus resulting in a per se violation of Section 8(a)(5). Nor can I say, for the reasons about to be discussed, that the waiver of resort to the Federal courts in the event of a State court proceeding to enforce a return-to-work arbitration award is similarly predictably unacceptable and a per se violation of Section 8(a)(5). The Supreme Court in Charles Dowd Box Co. v. Courtney, 368 U.S. 502, in concluding its opinion in that case, recognized that diversities and conflicts may occur not only among the circuit courts but also among the State courts. In the concluding footnote it stressed that it had not yet ruled on the effect of the Norri s-LaGuardia Act upon the jurisdiction of Federal courts in the area of actions brought for violation by a union of its contract, the effect of Norris-LaGuardia on the jurisdiction of State courts and the problems concerning removal of such actions for the State courts to the Federal courts. It did expressly hold that Section 301(a) LMRA did not preclude State court jurisdiction of actions authorized by that section. Shortly after Charles Dowd Box Co., the Supreme Court, in Sinclair Refining Co. v. Atkinson, 370 U.S. 195, did rule, as noted before, that Norris-LaGuardia required Federal courts to deny enforcement of a no-strike clause coupled with an arbitration provision by issuing an injunction requiring termination of a strike pending resort to the contract's grievance procedure. The reason simply was lack of jurisdiction because of Norris-LaGuardia. It did so despite Textile Workers Union v. Lincoln Mills, 353 U.S. 448, where it had held that Norris-LaGuardia did not prevent a judgment compelling parties to a collective- bargaining agreement to submit a dispute to arbitration where the agreement itself required arbitration. It left pregnant, however, the possibility that there might be a distinction between an injunction barring a strike pending arbitration and an order enforcing an arbitration award directing a return to work. I say this because of the Court's comments upon Brotherhood of Railroad Trainmen v. Chicago River & Indiana Railroad Co., 353 U.S. 30. It justified that decision by saying that in Chicago River, arbitration by the Railroad Adjustment Board was involved and this arbitration had been imposed statutorily by the Railway Labor Act. It added, "And certainly no one could contend that Section 301 (LMRA, 1947, as amended) was intended to set up any such system of `compulsory arbitration' as the exclusive method for settling grievances under the Taft-Hartley Act." The Court, having cursorily dismissed this contention, did not and has not yet decided what its ruling would be in the case of a voluntarily imposed arbitration clause providing for final award if the question of enforcing a return-to-work award came before it or the Federal courts generally. It did, however say, in Chicago River, "The Act (Norris-LaGuardia) aimed to correct existing abuses of the injunctive remedy in labor disputes." The enforcement of an arbitrator's award made in accordance with a contract does not appear to me to be one of those abuses (and see, Local 780, Stage Employee v. Radio Corp. of America, 380 U.S. 973, April 26, 1965, discussed below). The problem exists and there is some support of a view of Section 301 as establishing that, to the extent that State courts must follow Federal law, Norris-LaGuardia is substantive and that State courts may not, in cases wherein interstate commerce is involved, issue an injunction or order enforcing an arbitrator's return-to-work order. There is eminent and persuasive authority to the contrary. In the State of New York, where Respondent's principal place of business is located, Justice Isadore Bookstein wrote a comprehensive opinion , carefully 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reviewing the Federal and New York State authorities and held that the New York courts have jurisdiction to enjoin breach of a no-strike clause (Perry & Sons v. Robilotto, 39 Misc. 2d 147,240 N.Y.S. 2d 331). The majority, in American Dredging Co. v. Local 25, etc., 338 F.2d at 852 (C.A. 3, 1964) said: There is nothing in the language of the (Norris- LaGuardia) Act or its legislative history which can possibly, within the "range of judicial inventiveness," or the process of judicialfashioning, be construed as extending to the jurisdiction of state courts. The Supreme Court of Pennsylvania, also after reviewing carefully the Federal authorities, has held that State courts are not precluded from issuing an injunction restraining activities barred by a collective-bargaining agreement. Shaw Electric Co. v. I.B.E.W., 418 Pa. 1, 208 A 2d 769. Florida also has held expressly that its State courts have jurisdiction to enforce no-strike clauses of collective- bargaining agreements. Again, we are favored with an exhaustive review of the Federal authorities. Radio Corporation of America v. Local 780, etc., 160 So. 2d 150. While not decisive, it is important to note that the United States Supreme Court denied certiorari here, 380 U.S. 973, April 26, 1965. This happened also in McCarroll v. L.A. County District Council, 49 Cal. 2d 45, cert. denied 355 U.S. 932, cited in footnote 5 of Radio Corporation, where Minnesota, New York, Ohio, and Alabama decisions to the same effect also are listed. This brings us to the point of removal of such an action or proceeding from the State court to the Federal court. Title 28, Section 1441, U.S.C.A., imposes a primary condition for removal, the district court must have jurisdiction of the cause. The Sixth Circuit in Direct Transit Lines v. Starr, 219 F.2d 89 (1952), with respect to an action brought in the State court to restrain members of a union from interfering in various ways with its business, said: ... We are of the opinion that the action is not one of which the federal district courts have original jurisdiction, that the district court therefore had no jurisdiction upon removal, and that the cause should accordingly have been remanded to the Superior Court of Grand Rapids. In an unfair labor practice case where an injunction was sought in the Second Circuit, that court of appeals, in Electrical Workers v. Underwood Corp., 219 F.2d 100 (1955) (a decision in which Mr. Justice Frankfurter participated) directed that a union's complaint be dismissed because Norris-LaGuardia forbids Federal courts to grant injunctions in cases involving labor disputes, a United States court has no jurisdiction to issue such an injunction. (That court's companion opinion, at page 99, in which Mr. Justice Frankfurter made it a point to note his concurrence is interesting as well on the matter of State court jurisdiction.) The Court of Appeals for the Third Circuit, in American Dredging, already mentioned, when confronted with the same issue as that posed in Atkinson, above, and after carefully analyzing it, held expressly that where removal from the State court to the Federal court is involved the latter, not having original jurisdiction, may not take jurisdiction by way of removal and then dismiss on the authority of Norris-LaGuardia. It held that removal had been improvident in the first place and that the employer's motion to remand to the State court should have been granted. American Dredging Co. v. Local 25, 338 F.2d 852 (C.A. 3,1964). I do not agree with predictions that the Supreme Court ultimately will rule that Norris-LaGuardia, is such a statement of the national labor policy as to carry over to the State courts so that their jurisdiction to enjoin a strike or to enforce an arbitration award directing a return to work has been preempted. The denials of certiorari in RCA v. Local 780, and McCarroll, above, while not decisive, may be pointing the way. The logic for continuing jurisdiction in the State courts is set forth so well and so much better than I could do in the cases cited that I see no reason to prolong this Decision by repeating it here. There is nothing in Section 301 LMRA from which it could be inferred that Norris-LaGuardia has been established as a national labor policy binding on State courts. To say, as was said by the Supreme Court in Atkinson, that Section 301 "was not intended to have any ... partially repealing effect upon such a longstanding, carefully thought out, and highly significant part of this country's labor legislation as the Norris-LaGuardia Act" is not to say that, because of its silence about partial repealer, it hereby resulted in depriving State courts of their plenary jurisdiction merely because Congress had taken that power away from Federal courts. It seems to me that the rule of preemption should apply only where there is affirmative legislation as distinguished from negative legislation such as Norris-LaGrardia. This is certainly the law at least until the Supreme Court settles the problem which it recognized in footnote 8 of Charles Dowd Box Company, supra, by referring to McCarroll v. Los Angeles District Council of Carpenters, 49 Cal.2d 45, 315 P.2d 322, and of which it was aware when it denied certiorari in the State court cases mentioned above. To summarize, we find that (1) an attempt to remove from the State court a proceeding to enforce an arbitrator's no-strike order undoubtedly cannot survive and must be vulnerable to an application to remand and (2) a New York State court , at least at this time , must be regarded as having authority, notwithstanding Norris- LaGuardia, to issue a judgment or order enforcing an arbitrator's return-to-work order. This being the state of the law, I do not regard the Employer's effort to obtain from the Union the Federal court waiver as being bad-faith bargaining, outrageous in any respect, or predictably unacceptable. As a matter of fact, the contrary most certainly is true with respect to the last. If a party does not have the right to remove to the Federal court a State court proceeding to enforce an arbitrator's return-to-work order, what did the Union have to lose by agreeing to the waiver since actually it was giving up only the delaying tactic of removal inevitably subject to remand? One final question about this clause in its entirety remains. Is its nature such as to make it only a permissive bargaining matter within the rule of N.L.R.B. v. Wooster Division of Borg-Warner, 365 U.S. 342, and the later cases involving surety company bonds or resort for damages to the treasury of an International, not a party to the contract? The law of these cases, as I understand it, is that a mandatory subject for collective bargaining is distinguished from a nonmandatory subject which may require resort to persons who are not parties to the contract. This type of nonmandatory clause is objectionable because it injects into the relations between a company and a union persons or entities not parties to the contract. The General Counsel relies on this line of cases in arguing that the clause we have under consideration here was a nonmadatory clause and therefore not subject to impasse. They are not applicable either to the injunctive provision or the waiver provision because neither injects into the relationship of the parties, the Company and the STAR EXPANSION INDUSTRIES 585 Union, recourse to third parties not parties to the contract. It does no such thing. Certainly the fact that the arbitration clause provides for an arbitrator to determine the dispute and issue an award based upon his determination cannot be objectionable on this ground. The national policy favors arbitration. A no-strike clause is a recognized bargaining clause, Lloyd A. Fry Roofing Co., 123 NLRB 647. The engrafting into the arbitration clause of disputes arising from the breach of the no-strike clause is nothing new and long has been recognized. As a matter of fact, -one might very well inquire whether, since Teamsters v. Lucas Flour, 369 U.S. 95, there is any necessity at all to engraft it. It is not meet for the General Counsel or the Union to take the position that a no-strike clause shall become meaningless merely because a Federal court, by reason of Norris-LaGuardia, may have no power to issue a judgment or order enforcing it. I have been able to find only one case remotely approaching this particular phase of the problem. It is N.L.R.B. v. Dalton Telephone Company, 187 F.2d 811 (C.A. 5, 1951). It refers to Hill v. Florida, 325 U.S. 538, holding that bargaining rights created by the NLRA may not be conditioned upon compliance with State registration law. Consequently, the court in Dalton held that an employer's refusal to sign an agreement in accordance with the requirement of Section 8(a)(5) of the Act until the union registered under the Georgia Code to make it subject to suit in the Georgia courts, properly was found by the NLRB to be a violation of Section 8(a)(5). There, full agreement had been reached on all the terms of the contract. Nothing was left but to sign as required by Section 8(a)(5), if demanded. The employer then refused to sign unless the union complied with the Georgia Code. Of course, no State registration statute could be used to nullify a certification by the NLRB. Even without a certification, a majority union could not be made helpless by such a statute. Here, no such extraneous demand was made by the Respondent on the Union. The most that Respondent here could be said to have demanded from the Union was the right to have the arbitrator's award enforced according to recognized and established processes without any additional or nullifying act on the part either of the Union or of third persons not parties to the contract. Such additional objections as the General Counsel offers to the wording of the clause are not persuasive inasmuch as its wording could have been adapted to take care of Section 502, LMRA, stoppages or unfair labor practice strikes particularly when, in any event, the arbitrator under the agreement would have had not only the right but also the obligation to determine whether a walkout actually was a violation of the no-strike clause. In this connection, see Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270. Upon-all the facts and circumstances, I am unable to conclude that the Employer, by proposing and endeavoring to have the Union agree to this clause, failed to bargain in good faith in accordance with the mandate of Section 8(a)(5). The subcontracting clause is another of the clauses, the Respondent's insistence on, which is cited in further support of the charge of bad-faith bargaining. This clause after several modifications and additions worked out during the course of the negotiations ultimately emerged substantially as follows: The right of the Company, in its discretion, to subcontract or purchase any work or processes (whether or not such work or processes can be or are performed in its factory), including machinery, equipment , parts, materials , supplies, services, and products, is expressly recognized and the Company shall not be required to consult or confer with the Union before subcontracting or purchasing any such work or processes. Actions taken by the Company pursuant to this provision shall not be subject to arbitration except that if the Union claims that the Company is engaging in subcontracting or purchasing under this clause with the purpose and effect of causing the layoff of a substantial number of employees in the bargaining unit, the Arbitrator is empowered to investigate the claim. The Company shall disclose to the Arbitrator all information he may require in the course of his investigation but such information shall be kept confidential and shall not be disclosed to the Union or any other person or party. Should the Arbitrator sustain the Union's claim, he is authorized to direct the Company to discontinue such subcontracting or purchasing which has such purpose and effect. The decision of the Arbitrator shall be final and binding. It may be observed that it provides, when there is a claim by the Union that subcontracting or purchasing by the Employer under the clause has "the purpose and effect of causing the layoff of a substantial number of employees in the bargaining unit , the arbitrator is empowered to investigate the claim." The arbitrator is not limited in his investigation and he may require the Company to disclose any information necessary for his investigation . There is a restriction on the information to be furnished in that the Union and every other person is barred from access to it. Should the arbitrator decide that the Union's claim is justified, he may order the Company to discontinue such subcontracting or purchasing and his decision is final and binding. The Company's reason for desiring that the information be kept confidential is that its volume of subcontracting always has been very great and it does not want to have its internal business activity made public and every subcontract negotiated with the Union so that the Union in effect could become a party to all dealings with contractors. The clause, despite the restriction as to confidentiality, permits the arbitrator to make a decision as to whether in fact the Company's action in any particular situation has "the purpose and effect of causing the layoff of a substantial number of employees in the bargaining unit." If he comes to that conclusion he may order the discontinuance of such subcontracting. This is precisely what the Board has done in the 1965 cases since Fibreboard. Certainly the Union has an interest that the bargaining unit not be injured by subcontracting. It does not follow that because the Union has this interest, it must inject, or that there is any necessity for injecting, itself into the Respondent's dealings with its suppliers. Such a privilege, if accorded to it, very well might hamper seriously the Company's business activities and its obligations to perform its agreements with its customers. If we consider the nature of the subcontracing activites which Respondent was seeking to protect, the proposed clause does not seem to be unreasonable. (Whether we are authorized to consider it to this extent is doubtful in view of the observation of the court in N.L.R.B. v. American National Insurance Co., 343 U.S. 395, that the Board may not be the judge of the substantive terms and conditions of the proposal.) The General Counsel recognizes that ". . . for the nine months 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD period preceding the election in March 1964, the company subcontracted from 2,000 to 2,500 separate purchase orders, to some 68 outside suppliers of services, for the purchase of services and products or parts of a nature which the Company itself produces in its factories. The total cost to the Company for this work during the period of time indicated was a little over a half a million dollars . (and) this subcontracting occurred during the time when the IBEW contract was in effect, and that the company experienced no problem with the Union in connection with this subcontracting work." This prior practice was under a contract with IBEW which had no subcontracting clause. It may be assumed, in the light of the 1965 decisions of the Board, as the General Counsel argues, that such unilateral subcontracting practices could well have been regarded as legal and not in violation of Respondent's obligation to bargain collectively with the Union with respect to subcontracting. This however is hindsight. That Respondent wanted to protect itself and its established practice at a time when the rules about subcontracting had not been catalyzed should not be cause for saying that the Company either insisted on a predicatably unacceptable clause or showed bad faith by trying to have the matters settled by agreement specifically set forth in writing. To suggest, as does the General Counsel , that a union may not waive the obligation for collective bargaining with respect to subcontracting just is not a correct statement of the law. The Board has held explicitly that a collective-bargaining agreement may provide for a waiver by the union of the employer's obligation to bargain with it with respect to subcontracting. Westinghouse Electric Corporation, 150 NLRB 1574,1575. We should not condemn the Employer's effort in 1964 to obtain a specific contract clause governing its subcontracting practices by pointing to the clarifying decisions by the Board in 1965. Every one of the cases cited by the General Counsel in the portion of his brief criticizing this clause was decided on or after February 11, 1965. Another Decision cited by him, to the effect that the Board found a violation because there was a "measurable impact on unit work or unit employees ," was announced on November 26, 1964, after 35 of the 38 collective- bargaining meetings . The cases cited and their dates are American Oil Company, 152 NLRB 56, April 25, 1965, Westinghouse Electric Corp. (Mansfield Plant), 150 NLRB 1574, February 11, 1965, Allied Chemical Corp. (National Aniline Division), 151 NLRB 1666, March 16, 1965, The Fafnir Bearing Company, 151 NLRB 332, March 5, 1965, Superior Coach Corporation, 151 NLRB 118, February 19, 1965. The Respondent's business need to engage in subcontracting properly became a subject of great concern to it because of the Board's decisions in Fibreboard Paper Products Corporation, 138 NLRB 500, and Town & Country Manufacturing Company, Inc., 136 NLRB 1022, enfd. 316 F.2d 846 (C.A. 5). Fibreboard had been enforced by the D.C. Circuit Court of Appeals on July 3, 1963, 322 F.2d 411, just a few months before UE was certified. The Supreme Court did not issue its decision affirming the circuit court until December 14, 1964, 379 U.S. 203. During this period, commencing March 23, 1964, the Respondent had engaged in 36 of the 38 bargaining sessions. It is common knowledge that there was widespread misunderstanding of Fibreboard. Until the Board clarified it by later decisions, many overlooked the fact that the Supreme Court expressly had qualified it by saying: We are thus not expanding the scope of mandatory bargaining to hold, as we do now, that the type of "contracting out" involved in this case-the replacement of employees in the existing bargaining unit with those of an independent contractor to do the same work under similar conditions of employment-is a statutory subject of collective bargaining under §8(d). Our decision need not and does not encompass other forms of "contracting out" or "subcontracting" which arise daily in our complex economy. The misunderstanding was reflected even in several decisions by experienced Trial Examiners which the Board later saw fit to reverse. The Respondent should not be condemned for recognizing the unsettled state of the law and seeking to have agreement rather than later strife by proposing this subcontracting clause which had within it substantive elements it believed necessary to protect practices which had been a part of its pattern of existence during the time when it had a collective-bargaining agreement with IBEW, a contract which had no express provision governing subcontracting. Moreover, its practices never approached "contracting out" as found in Fibreboard resulting in that company ridding itself of an entire labor force. During the course of negotiations the Company countered UE's proposal that subcontracting be permitted only when no employee's job would be eliminated thereby with the wording that the subcontracting shall not have "the purpose and effect of causing the layoff of a substantial number of employees in the bargaining unit. " The Union objected to the use of the word "substantial." The General Counsel also is critical of and assigns as an element of bad-faith bargaining the Company's failure to submit a proposal which would serve to define the word "substantial." Here again we get into substantive terms and semantics. There is a tendency to fall into a failure to recognize that the Board itself, in clarifying Fibreboard, recognized that there could be no "hard and fast new rule to be mechanically applied regardless of the situation involved" and that the determination of whether or not, "in the absence of a contractual waiver," an employer's unilateral conduct in subcontracting may be excused or justified. In Westinghouse, supra, it used words like "significant impairment" and "demonstrable adverse impact," etc. Again, in Allied Chemical Corp., supra, it used the words, "subcontracting had no significant impact." Also in that case it said it could not find a "substantial" increase of subcontracting. Inasmuch as the question whether the purpose and effect of any layoff "of a substantial number of employees in the bargaining unit" was a matter for decision by the arbitrator, in the light of the Board's own clarifying decisions, the word "substantial" does not seem to be so indefinite as to make it objectionable per se. The arbitrator, who was to be supplied with all the information, was not restricted in his power to make a determination whether the subcontracting resulted in a "substantial" impairment, and his decision was to be final and binding. There is objection also that, while the clause authorized the arbitrator to order the Company to discontinue particular subcontracting or purchasing, it failed to provide for an additional remedy to make whole any employees hurt by it. I am not convinced that it should be so interpreted . I believe that it was implicit in the powers given to the arbitrator to direct not only a cessation but also a remedy. Counsel for the Union says that the ambiguity was noted but that relief was rejected by STAR EXPANSION INDUSTRIES 587 Respondent. I must reject this contention because, if it did happen, the record shows only an aborted stab at it with both the Union and General Counsel accepting the Examiner's ruling to strike. In any event, I am of the opinion that ultimate agreement on the clarification of the arbitrator's power was not foreclosed, particularly in view of the negotiations with respect to two alternate proposals by the Union. One of these could have resulted in a complete contracting out of all of Respondent's operations provided that the subcontractors adopted and assumed the contract ultimately to be negotiated between UE and Respondent. This I believe, at the risk of falling into the error of evaluating the substantive elements of a proposal, would have been predicatably unacceptable to any employer because its subcontracting rights would have been dependent on its becoming either a UE missionary to, or UE organizer of, plants with which it sought to contract. In addition, while it resulted in this benefit to UE, it could have been catastrophic for Star's employees because, like in Fibreboard above, every Star employee could have lost his job by reason of complete "contracting-out" to other UE shops. The Union later submitted another clause brought into the record by oral testimony. It was clearly ambiguous both as to whether it would result in the loss by some employees of their jobs and as to what might have been meant by the words, "shall not be used to impair the representative status of the Union...." There was a short exchange in which the Union's negotiator is quoted as having said some people might lose their jobs, to which Respondent's attorney agreed, followed by mutual agreement that there was still disagreement on the management clause. Both parties appear to have had great difficulty not only in coming to any agreement but also in framing any language in the first place. This could indicate that if they had worked a little harder on the language and been less at odds on form and novelty, a mutually agreeable clause could have been negotiated. It is not, however, our function to write the contract for the parties. There is great emphasis on repeated insistence by Respondent's attorney that various matters in controversy had to be "resolved" before a full agreement was reached. This word "resolve" has in it no connotation of finality or suggestion of condition precedent that any proposal to which it was directed had to be accepted in the precise form submitted. On the contrary, reference to a dictionary in common use, Webster's Seventh New Collegiate Dictionary, discloses that such language is the expression of a position that controversy with respect to any proposal is subject to clarification, additional negotiation, and ultimate agreement before a total contract is completed. For the same reason , the objections to the Respondent's utilization of language like "settlement of issues" etc. indicates only a seeking for ultimate agreement. This very interpretation of the word was brought out during cross- examination . This is the objective of Section 8(a)(5) and the objective of all negotiations looking to the making of a contract. For this the Respondent should not be condemned but commended. Not only do I find that Respondent's subcontracting proposal was not so repugnant as to be predictably unacceptable but I find affirmatively that it was a proper subject for collective bargaining, that it was consistent with legitimate business objectives, and that it was not so arbitrarily worded as not to be susceptible of being composed ultimately into a clause quite agreeable to a union sincerely intent upon working out a collective- bargaining agreement . There is no reasonable basis for pointing to any of this as evidence of had faith on the part of the Respondent. The foregoing are the major specific items, with one exception and apart from overall conduct and particular matters treated elsewhere in this Decision, which are alleged to be evidence of the Respondent's bad-faith bargaining. The Employer's specification of March 11, 1965, as the proposed termination date for any contract to be signed remains. This date coincides with the end of the certification year for UE. It came up for the first time at the 20th negotiating meeting, held June 29, 1964, when the Respondent stated its complete position on the entire contract, clause by clause. This was the third meeting following the commencement of the strike. The Respondent gave as its reason for setting that date its belief that UE no longer represented the majority of its employees in the bargaining unit. The facts show that this assertion was justified. The strike had been in effect since June 2. During that time the Employer had replaced 1 tool- and-die maker, 14 mechanics, 3 turret lathe operators, 7 mill machine operators, 8 diecasters, 7 production inspectors, 3 forklift operators, 3 storage and handling workers, 7 laborers, 1 porter, and 46 production workers, a total of 100 employees. These, added to either the 177 (claimed by the Union) or the 192 (claimed by the Respondent) employees who did not go out on strike, result in a total easily more than half of the unit employees, who were not supporting the strike and a fortiori were opposed to UE. The strike collapsed on August 28,1964. This matter of considering the termination date of any contract in relation to the termination of the certification year can be looked at in more ways than one. A frequent view, as evidenced by the General Counsel's argument here and the cases upon which he relies is that a demand for such simulataneous termination is evidence that an antiunion employer is anxious to test the certification at the earliest possible time. Another view may be that a union, particularly when it is losing or has lost the support of the employees, may be deliberately uncooperative in negotiations and stall them by arbitrary demands or stand- pat positions in the hope that it will obtain a contract for at least a year following the date when agreement is reached and thus prolong its life as certified bargaining agent. On the basis of all the evidence here I would be inclined to lean toward the latter in my appraisal of this factor involving contract termination date rather than conclude that this Employer's objective was solely to test the Union's majority at the earliest possible time with a view to ridding itself of it. In any event, the record is quite clear and I find that the Respondent did have reasonable cause for believing that the Union no longer represented a majority of the employees in the bargaining unit. In the wrap-up portion of his brief, the General Counsel, in an admirable manner, sets forth what appears to be a powerful thrust demonstrative of "other company conduct particularly noteworthy as contributing toward overall bad faith." He is to be commended for a brilliant summation because he has done as well as anyone possibly could with the materials available to him for supporting the position. There would be good reason for finding bad-faith bargaining if the facts in this case actually were, in their overall content, like those in cases such as American Aggregate Company, 125 NLRB 909; N.L.R.B. v Herman Sausage Co., Inc., 275 F.2d 229; Fitzgerald Mills Corporation, 133 NLRB 877; "M" System, Inc., 129 NLRB 527; N.L.R.B. v. Reed & Prince Manufacturing Company, 205 F.2d 131; Jacobs Manufacturing Co., 138 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NLRB 35; Mathieson Chemical Corporation, 114 NLRB 486; Fetzer Television, Inc., 131 NLRB 821; Cummer- Graham Co., 122 NLRB 1044; Capitol Aviation, Inc., 152 NLRB 745; and Berger Polishing, Inc., 147 NLRB 21. I am constrained to say , although arriving at conclusion opposite to his, what the Trial Examiner in Jacobs Manufacturing Co., said "My conclusion with respect to the Respondent's fundamental attitude is a broad one and rests on all of the record." In this wrap-up portion of the General Counsel's brief comment is made on numerous matters which, in substance , involve repetition of argument considered elsewhere in this Decision . It is proper for counsel to stress those portions of the record which support his position. It may be noted , also, that the oral testimony of the union representatives (particularly the remarkably and completely memorized testimony of Bloch), to which reference is made so frequently , quite naturally was confined mostly to those phases of the bargaining negotiations which they believed supported their case. The result is that the argument , to the extent that it is based on this testimony and to the selective references to the notes taken by Respondent's personnel manager, ignores completely the Union's conduct which also must be evaluated in the determination of a good -faith question. Moreover, and this is definitely not said with any thought of criticizing the General Counsel , isolated quotations from the personnel manager's notes necessarily are insulated from other portions of those same notes which may explain and justify the statements quoted. The Employer's principal representative at the negotiating meeting, as noted above , was the attorney who tried the case on its behalf . Both he and the attorney for the Union , although they did not testify, actually were on trial before me during the hearing . The Union's attorney allowed the General Counsel to present the case fully and only occasionally did he take an active part . To the extent that he participated he did so always in a constructive and proper manner. Respondent's attorney , however, conducted every bit of the trial on its behalf. Although he did not testify, he was on trial every minute of the 26 days of actual hearing , both on the record and off. I had ample opportunity to observe his conduct and his methods of defense and attack. The transcript shows affirmatively at many places not only his retiring nature but also his consistent courtesies to opposing counsel, to all the witnesses , and to me. (The same is to be said about both the General Counsel and the Union's attorney.) An attorney does not, of course, win cases by such conduct during the hearing. This is expected of him. It nevertheless is important because it must ineluctably leave its impression with me. I consider it for the single purpose of trying to recreate in my mind what happened at the bargaining table. Having so considered it, I say unqualifiedly that I just cannot believe that Respondent's attorney ever acted in an arbitrary or bad-faith manner in any of the negotiating sessions . This is further reason for my ultimate conclusion that there was no bad-faith bargaining on the part of the Respondent. I have observed above that , as an advocate , the General Counsel quite properly relied on those elements in the record which supported most strongly the charges and that he was influenced in this respect by the necessarily biased testimony of the union representatives which stressed only those views of the bargaining sessions which supported their position , only incidentally mentioned other matters, and completely disregarded such of their own conduct as might have redounded to their disadvantage. I shall attempt briefly and not exhaustively to relate some plus factors, apart from the legal considerations which justify Respondent's contract proposals, as are indicia of its good faith. Eleven days after the certification the first meeting was held. Bulletin board privileges promptly were granted, a grievance procedure was established, and payroll and seniority information was furnished. Within 3 weeks union stewards were appointed and the Company consented to an installation ceremony for them at the plant . At the third meeting, the Respondent agreed to 11 proposals made by the Union. At meetings held in April it agreed to extend from 6 months to 1 year recall rights for employees on sick leave and to extend recognition to the Union in any new factory it might build in the city where its present factory is located if that factory engaged in the same line of work. It was after these very concessions that without notice, the Union called the short strike in April. After the termination of this strike, the Company made an offer of 3 days' bereavement pay in the event of a death in an employee's immediate family and it proposed a modified but perhaps more attractive call-in pay clause. In accordance with its promise at that meeting, it offered wage increases in varying amounts and manners at the next meeting. At the May 19 meeting, it offered an improved provision for the submission of grievances by tripling the time previously proposed. Also at that meeting, it agreed to allow UE seven stewards whereas IBEW had had only six. At the May 28 meeting, its previous proposal with respect to time periods in the grievance procedure was liberalized . At the May 29 meeting , it agreed that employees be given the right to move from one shift to another and, following further agreement by the Company to additional suggestions made by the Union, complete agreement on this clause was attained . As of June 29, the Respondent made clear that it was willing, at any time, to make a contract based on its last proposal . Despite the fact that no contract had been consummated , the Respondent agreed , with the Union's concurrence , on November 9, to make effective the wage increase it had offered. The increase was made retroactive to June 2, 1964. This wage increase it should be noted was on top of a wage structure characterized by the conciliator as high not only for Mountainville but also for New York City. All this was in addition to the fact that the door always was left open to modify or amplify the contract clauses forming the major bones of contention. I have indicated from time to time that the personnel manager's notes of the meeting, General Council's Exhibit 36, present a fairly complete and apparently reliable account of the negotiations . To attempt to review them here in any great detail would lengthen unnecessarily this Decision and also would impose upon me the same handicap suffered by the General Counsel when pointing to isolated and unrelated remarks therein set forth without presenting the associated material tending to explain and rationalize quoted portions. That is better left to the advocates. In conclusion , after my reading of those notes in their entirety and considering their content along with all the oral testimony, the documentary evidence, and the actual events which transpired during the negotiations, it is my finding and conclusion that the Respondent, as required by Section 8(a)(5) of the Act, did bargain collectively with the Union and did satisfy, to the extent possible under the circumstances with which it was confronted both within and external to the negotiations , all its obilgations as provided in Section 8(d) of the Act. STAR EXPANSION INDUSTRIES 589 G. The Failure to Reinstate Radzikowski and Drake Radzikowski had been involved in a picket line incident during a walkout in April 1964 before the big strike. He was arrested and charged with assault and destruction of property. After the return to work from the April walkout, the Respondent reinstated him subject to the outcome of the criminal charges. The criminal charges are still pending and undetermined. He struck with the other employees on June 2, 1964, but on June 29, he presented himself to the personnel manager and asked whether he could return to work. On the following day he was told that he would not be rehired. No replacement had been hired for him. The Respondent's reason for not rehiring him is that the Company wanted the charges against him cleared up before deciding to take him back. It seems perfectly clear to me that having allowed Radzikowski to return to work following the first walkout, the permanence of such return to be resolved ultimately at the time of the disposition of the criminal charges, the Respondent's change of position after the June 2 strike, when Radzikowski's criminal case was in the same posture as it had been before, is clearly a punitive action for his having gone out on strike on June 2. The reversal of position is a reversal which can be connected only to the fact that he again had gone out on strike. It is not different from the waiver concept enunciated by the Board in Quality Limestone Products, Inc., 153 NLRB 1009, 1011. My resolution of this situation solely as a matter of law and not as an issue of fact is complicated slightly by Radzikowski's own admission that when he came back to the plant on June 29 he already had obtained another job and had come back for the purpose of getting his tools. I am unable however to say that, having obtained another job, he did not make a bona fide and sincere offer to return to work on the 29th. There are too many possibilities (for example, preference to work for Star, possibly greater pay, possibly more pleasant working conditions, possibly better transportation from or near to his home, etc.) which could have been reason for him to drop the other job and accept reinstatement with Star. Consequently, I interpret Radzikowski's offer to return to work as a sincere, bona fide, and unconditional offer. Having concluded that the Respondent's reversal of position with respect to Radzikowski's eligibility for reinstatement is attributable only to the fact that he participated in the June 2 strike, the charge of discrimination as to him must be sustained and for that reason he should be offered reemployment, be reinstated in the usual fashion, and the controlling date as to him should be June 29, 1964. Charles Drake is another employee whose denial of reinstatement is claimed to be justified because of misconduct. There are two citations of misconduct. One is concerned with alleged misconduct during the April walkout. He was resinstated following that walkout. Consequently, as far as that is concerned, the situation is the same as the Radzikowski situation and the same result follows. The other citation is based on alleged name calling and indelicate language addressed to a supervisor when he drove through the picket line. This incident, in my opinion, giving it most critical consideration, is insufficient to justify a refusal to reinstate. This does not, however, result in a reinstatement order because, not like in the case of Radzikowski, he had been replaced before his offer to return . The issue however, had to be decided because of the unfair labor practice contention in this case. Since I am holding that there was no unfair labor practice strike and that it was an economic strike both in its beginning and throughout, no remedial action can be directed on behalf of Drake. H. The Failures to Resinstate Blanchard, Secor, and Brown The less said about these the better. These three employees (treated as a group by the General Counsel and frequently linked together in the testimony) were denied reinstatement for alleged misconduct both on and off the picket line. (Consideration is being given to their situation despite the fact that replacements had been hired for them for the same reason that Drake's case was considered.) The Respondent called a number of female witnesses to testify about this misconduct. Every one of these witnesses impressed me as being ladylike, well-mannered, gentle, refined, and creditable. They testified as to numerous remarks made by these three persons, frequently as a triumvirate acting in unison. Apart from racial slurs, the usual epithets such as scab, rat, and fink, and one false accusation of larceny, several testified, obviously with a great deal of difficulty and distaste, to some of the vilest and most profane remarks and aspersions that I have ever heard during my unsheltered life, as having been made by Blanchard, Secor, and Brown. My normal reaction to allegations of this nature would be to disbelieve them because it is most difficult for me to believe that any woman would make such remarks, particularly in public. The testimony that they did make the remarks was given by witnesses who as I have said impressed me most favorably and I accord to them all credibility. On the other hand, the string of categorical denials by Blanchard, Secor, and Brown of almost every remark attributed to them presents only a hollow ring to me to say nothing of Secor's misleading testimony about having been invited to return to work after the strike. I ascribe no importance whatever to the fact that none of the complaining witnesses had written the filthy language in any written report to management. I would have been astonished if they had put such words in writing. The remarks made, by their very nature, were conducive to causing serious breaches of the peace. It is surprising indeed that extreme violence did not transpire. Employees are not protected "in using insulting and profane language calculated and intended to publicly humiliate and degrade employees who are attempting to work in an effort to prevent them from working." N.L.R.B. v. Longview Furniture Company, 206 F.2d 274. It is hardly an argument in support of an assertion that the remarks were not made to point to the fact that police officers testified that they did not hear them and that no arrests were made. These individuals would have had to be even worse than they were and in addition would have had to be most rash to engage in such conduct in the presence of police officers. Further, I regard as irrelevant the fact that, at the time it made its decision, the Respondent was not aware of some of the misconduct proven. Such additional misconduct as came to light at a later time demonstrates only that Respondent's decision on the basis of such information as it then had available was not a wrong decision. The law is clear that an employer is not protected if it develops later that his decision to discharge was based on erroneous information . Burnup & Sims, Inc., 379 U.S. 21. It should not be different if it develops later that the decision was right because of cumulative reasons not known to him at the time. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finally, although these strikers had been replaced, even if the strike were held to be an unfair labor practice strike, I regard the misconduct here as beyond the balancing possibilities under H.N. Thayer Company, 115 NLRB 1591. The reinstatement of these individuals under any conditions would be wholly incompatible with peaceful normal labor relations in this establishment. It is my finding and conclusion that the discharges of these three employees would have been and were fully justified , and that the Respondent was right in denying reinstatement. 1. The Failure to Reinstate Sal Sansone Sal Sansone presents a problem different from those involving Radzikowski and Drake and not as shocking as that involving Blanchard, Secor, and Brown. He, too, was a replaced employee and he is being considered for the same reason that Drake, Blanchard, Secor, and Brown were considered. He is a retired New York City policeman and testified in a calm and dispassionate manner. Whatever experience he might have obtained in testifying during his service as a policeman obviously stood him in good stead at this hearing. During the short time in which I had occasion to observe him I concluded that, in the absence of some definitely inexcusable misconduct, there would be nothing about him which would warrant an employer to rid itself of his services. For this reason I approach my consideration of Respondent's failure to reinstate him with the feeling that the odds were in his favor for reinstatement and that, if reinstatement was denied to him, the Employer must have considered very carefully the charges against him and not have taken precipitous or petulant action in deciding not to reinstate him. The personnel manager gave as his reason for refusal to reinstate the fact that during the strike Sansone and his brother-in-law caused one of the working employees to be discharged from a part-time job that this employee had at a gasoline service station. This employee lost that job because Sansone and his brother-in-law, on several occasions , told the gas station operator that the employee had to be discharged because Sansone and his friends would not only boycott the station but also would publicize their complaint against its owner. A second reason for refusing reinstatement was Sansone's visit to the home of an employee and his admonition to the boy's mother that if she did not want to see her son hurt that she should get him to quit his job at Star. The boy quit a few days later. Two other incidents were given for denial of reinstatement , (1) name-calling and yelling at employees who were waiting at a pick-up place to get a ride to come to work which resulted in a warning to Sansone by the police constable and (2) the utterance of profanities at female employees as they were driving through the picket line. Respondent was unable to produce the boy's mother to whom Sansone is alleged to have made the threatening remark about the possibility of injury to her son. It had issued a subpena to her but her absence was excused on the certificate of her physician giving reasons why it would be unwise for her to testify. In his testimony Sansone admitted enough to support the conclusion that all the incidents did occur. The only questions for me to decide are (1) how much of his version of the gas station incident should be believed and whether, in its totality, this conduct justified failure to reinstate and (2) whether, during the other incidents, Sansone went as far as it was alleged he did go in the remarks made. Most of Sansone's objectionable conduct was off and away from the picket line. Obviously, this creates a distinction because it means that Sansone went out of his way to do what he did. Sansone claims that on only one occasion, with no one else present, he spoke to the owner of the gas station and informed him of the strike, that the working employee was also working at the station one day a week, that the working employee was "scabbing" and that, if the gas station owner did not stop his part-time employee from working, Sansone would stop buying gas. Sansone admits that the part-time employee was discharged by the owner. Putting together both Sansone's version and the personnel manager's hearsay testimony based on contemporaneous information received by him at the time when he made his decision, I have concluded that Sansone's conduct was not protected activity during the strike. On the contrary it was a deliberate interference with the employment of the gas station's part-time operator and clearly within the classic rule of Lumley v. Gye, El. & Bl. 216, 118 Eng. Rep. 749 (QB 1853) and Hornstein v. Podwitz, 254 New York 443. This malicious and tortious interference with contract should not be condoned. While not within the express wording of Sections 8(b)(4) and 303(a) of the Act, it is clearly within the spirit of these sections. Sansone admits he visited the mother of the boy who was working and remonstrated with her about his working at Star. He says it was a friendly visit and he merely pointed out to her that her boy was working at Star while he and other employees were out on strike. He says she told him that she was "hard up for money" and that the boy needed "a job and he went to work there." Here again we must synthesize his version with the personnel manager's hearsay testimony based on the contemporary information available to him at the time he made his decision. I do not believe that the visit was as friendly or as short as that related by Sansone. It is quite likely that he took advantage of his friendly relationship with the mother by intimating that the boy might be hurt if he continued working. If he did not so intimate , why did the boy quit so quickly considering the family's need for money? Sansone admits also having called two persons, probably brothers, working at the plant "scab" and "rat" but he denies having used profanity. He admits also having accosted femal workers in an unincorporated village or area near the plant and having called them "scabs" and "rats" and that the police constable spoke to him after their complaint. Again he denied the use of more scurrilous remarks or profanity. I am not disposed to credit his limited versions of the remarks made to the brothers when they crossed the picket line or of the remarks made to employees in areas removed from the plant. It is my conclusion that the denial of reinstatement to Sansone was justified and that it should be sustained, apart from the fact that a replacement for him had been hired. This would have been my decision even if the strike had been an unfair labor practice strike. J. The Reinstatement of Returning Strikers In view of my conclusions with respect to Respondent's good-faith bargaining during the negotiations with UE and my ultimate conclusion that there had been no bad-faith bargaining, the claim that the June, July, and August strike was an unfair labor practice strike is not sustained. Nor did it become such by events during the strike. Consequently there can be no blanket order directing the' STAR EXPANSION INDUSTRIES reinstatement of the mass of 136 returning strikers set forth in schedule A of the complaint. As far as Radzikowski is concerned , he is to be reinstated in the manner provided in the section of this Decision concerned with him. Although, in paragraph 20 of the complaint , the paragraph in which reference to Radzikowski is made, there is included also, one David Coleman, he was reinstated and we need not be concerned with him. During the 22d session of the hearing it was stipulated "that in the event that there is an adjudication that the strike which commenced on June 2nd, 1964, was not an unfair labor practice strike but on the contrary, was an economic strike, claims under Section 8(a)(3) of the Act, of alleged discrimination in reemployment of strikers ... are being made only as respects" 40 of the original 136 employees listed - in the schedule attached to the complaint . Among these 40 are included Catherine Brown and Radzikowski , treated elsewhere in this Decision. The remaining employees are easily divided into skills, porter and production workers. The skills were George Radzikowski-tool-and-die maker , three mechanics-first class William Lamont , Robert Cram, and Herbert Sorton, James Nicholson-mechanic second class, for screw- machine turret lathe operators-Edwards Elejalde, Eward Dombrowski, and Frank Evans ; a male machine operator-Fred Matthews, porter-Gussie Ryerson, thus leaving 29 production workers, reduced to 28 because of the elimination of Catherine Brown . Fifty-three production employees were hired during the period beginning August 3 and ending August 27. Then, beginning August 5, 1964, and ending August 28, 1964, 21 production employees were terminated . Thus, at the time the strike ended the Respondent had working for it a net of 32 production employees who had been hired as replacements during the strike. Since only 28 production employees, exclusive of Catherine Brown , or 29 including her, remain on schedule A, the production employees for whom reinstatement is claimed , no jobs were available for them. Skilled and name job employees were hired between August 3 and 28 as follows: one first-class mechanic August 26, 1964, two second-class mechanics August 4 and 6 , 1964, three screw- machine turret lathe operators August 10 and 12, 1964, one male machine operator August 26, 1964, and a porter August 10, 1964. Since two first-class mechanics were terminated, one on August 6 and one on August 10, 1964, apart from Sorton there were openings for Lamont and Cram . It appears that both reported for work on August 31, 1964, and were rehired in that classification at the same rate of pay. One second-class mechanic was terminated on August 26, 1964, leaving open one job in that classification . Although Respondent interprets this as being a net addition of one second-class mechanic I am unable to find an explanation for this conclusion and therefore hold that the second-class mechanic's job vacated by Porcaro on August 26, 1964, should have been filled at that time by James Nicholson. However the evidence shows that he failed to report for work in accordance with the recall and the personnel record in evidence has on it, "No reply." For that reason I am unable to direct reinstatement for him . Between August 10 and 12, 1964, three screw- machine turret lathe operators were hired and there is no record of termination in this classification . Thus one screw-machine turret lathe operator job was available . Dombrowski , Buchta, and 591 Evans, having been hired originally in 1963, were junior to Elejaldi, who had been hired originally in 1961, and so Elejaldi alone was entitled to this position . According to the employment record, he reported for work on September 9, 1964, and was rehired in that job at the rate of pay which he had received before the strike. Since only one male machine operator had been hired during the strike and three had been terminated a job was available for Fred Matthews. According to the personnel record, he reported for work on September 1, 1964, and was rehired at the rate of pay he recrived prior to the strike. A porter having been hired on August 10 and not having been terminated , no job was available for Gussie Ryerson. The General Counsel makes a broadside attack on the method followed for determining whether striking employees had been replaced. He describes the method as "shifting" and contends there were in fact, no actual replacements because particular strikers were not identified by particular persons hired in their places. I do not agree . The Respondent had no personalized positions. The positions were identified by particular skills or under the general term , "production workers." This is an accepted and conventional job description system and generally preferred by labor unions because the seniority basis for layoffs, promotions , etc., is best preserved thereby. I overrule this contention. On the basis of the foregoing I am unable to make any finding that any striking employee (except Radzikowski treated elsewhere) was denied reinstatement after the strike because he had participated in it. Except for those employees who, it appears affirmatively , were rehired when they reported for work, Respondent did hire replacements for those remaining in the scheduled list, as amended during the hearing. In summary the only unfair labor practice charges which I am able to sustain are those involving the failure to reinstate Radzikowski and the denial of vacation pay to employees who went out on strike. With respect to vacation pay, paragraph 19 of the complaint was amended during the trial so that 8 additional names were added to the 136 name schedule attached to the complaint. It was stipulated further, during the hearing , that it would be unnecessary, in the event the decision went against the Respondent with respect to vacation pay, to set forth in detail the names of employees so entitled . It was agreed that a blanket or general ruling would be adequate. H. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The Respondent' s unfair labor practices, to the extent found, having occurred in connection with its operations described above, have a close , intimate , and substantial relation to trade, traffic, and commerce among the several States, and could lead to labor disputes burdening and obstructing commerce. CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact and upon the entire record in this case , I make the following conclusions of law: 1. Star Expansion Industries Corporation, a Delaware corporation , is, and at all times herein involved has been, an employer within the meaning of Section 2(2) of the Act. 2. United Electrical, Radio & Machine Workers of America and International Brotherhood of Electrical Workers Local 1968, AFL-CIO, are, and at all times 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD material herein were, labor organizations within the meaning of Section 2(5) of theAct. 3. The arbitration of the discharge of Albert Dinges, although held before an arbitrator mutually agreeable to the Respondent and Local 1968 of International Brotherhood of Electrical Workers, AFL-CIO, did not afford to Dinges due process of law and the National Labor Relations Board is warranted in disregarding the resulting award and exercising its authority under Section 10(c) of the Act. 4. That portion of the complaint which alleges that Albert Dinges was discharged and thereafter denied reinstatement because he engaged in lawful , protected activities in his duties as shop steward for IBEW has not been supported by a preponderance of the credible and probative evidence submitted at the hearing herein and consequently the same should be dismissed. 5. That portion of the complaint which alleges that the Respondent interrogated unlawfully its employees concerning their membership activities in and sympathy for UE and threatened them with closing of the plant, discharge , and other reprisals if they remained or became members of UE or gave any help or assistance to it is not supported by a preponderance of the credible and probative evidence and should be dismissed. 6. That portion of the complaint which alleges that the Respondent, by its supervisors and agents acting on its behalf, caused to be circulated among its employees petitions objecting to proposals made by UE in collective- bargaining negotiations conducted with Respondent in April, May, and June 1964, and threatened employees with discharge and other reprisals in order to induce them to sign such petitions and coercively interrogated employees as to whether they had signed such petitions , all with the object to undermine UE's status as collective -bargaining agent and its position as bargaining agent with the Respondent has not been sustained by a preponderance of the credible and probative evidence and should be dismissed. 7. The efforts of the Respondent to obtain , during the course of negotiations, contract provisions such as or substantially like those contained in its proposals relating to arbitration , management rights, subcontracting, and temporary injunctive power for the arbitrator and restriction of adjudication of any award by him to the courts of the State of New York were good-faith efforts reasonably grounded on the state of the law as it then existed and as it continues to exist today and I find that they were reasonably related to the requirements of its business activities and the interests of its employees. 8. Respondent 's objection to the demand by United Electrical , Radio & Machine Workers of America for union shop, agency shop , and checkoff was not unreasonable in the light of the fact that it had genuine and reasonably based beliefs that a very large percentage of employees in the unit, in the beginning, and more than half of its employees later , were opposed to UE. For the same reason, Respondent's ultimate insistence that the termination date of any contract to be executed by the Respondent and the Union be coincidental with the termination of the certification year was reasonable. 9. The actions of the Respondent, during the collective- bargaining negotiations , which have been alleged as constituting bad-faith bargaining, all were reasonable and justified and it is my conclusion that the Respondent did engage in good-faith bargaining as required by Sections 8(a)(5) and 8(d) of the Act. 10. Respondent failed to grant vacation pay to those of its employees who had engaged in the June, July, and August strike whether or not they returned to work after the termination of the vacation period which had begun July 17, 1965, and, by so denying such vacation pay on the ground that they had participated in the strike , it engaged in an unfair labor practice within the meaning of Section 8(a)(1) and (3) of the Act. 11. Although in so denying vacation pay to striking employees Respondent did thereby discriminate against them in their terms and conditions of employment which tended to discourage membership in the Union and did interfere with them in the exercise of rights guaranteed to them in Section 7, it took that position because of its good faith but erroneous interpretation of its contract with International Brotherhood of Electrical Workers Local 1968, AFL-CIO, which position it had maintained for a long time prior to the time when vacation pay became payable and throughout its negotiations with the United Electrical, Radio & Machine Workers of America. Its sincere and bona fide belief that it was correct in this interpretation of the contract , although erroneous, is sufficient to justify a conclusion that this should not be regarded as an element in the determination of whether there was in fact good-faith bargaining by it with United Electrical , Radio & Machine Workers of America, and I so conclude. 12. Respondent did not refuse to bargain collectively with the representative of its employees and did not engage in unfair labor practices within the meaning of Section 8(a)(5). 13. The strike called by UE on June 2, 1964, was an economic strike and was not caused or prolonged by any unfair labor practice committed by Respondent. 14. Respondent's discharges of or refusals to reinstate Sal Sansone , Catherine Brown, Rose Secor , and Veronica Blanchard were justified by reason of the fact that said persons committed unprotected acts of misconduct during the strike and further, if such employees had been considered eligible for reemployment they would not have been so entitled by reason of the fact that they had been replaced at the time of their offer to return to work. 15. George Radzikowski was and Charles Drake might have been entitled to reinstatement when they offered to return to work and, by denying reinstatement to Radzikowski because of his conduct during the April 1964 strike, Respondent engaged in an unfair labor practice within the meaning of Section 8(a)(1) and (3) of the Act but, since a valid replacement for Drake had been hired before his offer to return to work , Respondent did not act unfairly in denying reinstatement to him. 16. To the extent that George Radzikowski was denied reinstatement and that all striking employees were denied vacation pay Respondent has interfered with and restrained them in the exercise of rights guaranteed to them by Section 7 of the Act and has violated Section 8(a)(1) and (3) of the Act. 17. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. May Department Stores, d/b/a Famous -Barr Company v. N.L.R.B., 326 U.S. 376; Bethlehem Steel Company v. N.L.R.B., 120 F.2d 641. THE REMEDY The unfair labor practices , to the extent found, are violative of Section 8(a)(1) and (3) of the Act. STAR EXPANSION INDUSTRIES 593 Consequently, the Respondent should be directed to cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. Having found that Respondent has denied reemployment discriminatorily to George Radzikowski (Charles Drake having been replaced during the strike) Respondent should be directed to offer him immediate and full reinstatement to his former or a substantially equivalent position and make him whole for any loss of earnings and benefits he may have suffered thereby, restoring him to all benefits from which he has been deprived; and paying to him a sum of money equal to the amount of wages which he would have earned from June 29, 1964, the date when he offered to return to work to the date of the offer of reinstatement, together with interest at the rate of 6 percent per annum and that the loss of pay and interest be computed in accordance with the formulas and methods prescribed by the Board in F.W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Respondent should be directed also to pay to all employees who earned vacation credits the monetary equivalent of vacations to which they became entitled, together with interest from July 17, 1964, excepting however, only those employees who actually were discharged or quit prior to June 2, 1964. Under all the facts and circumstances of this case, I am unable to infer from Respondent's totality of conduct that it maintains an attitude of opposition to the purposes of the Act with respect to the protection of employees in general. For that reason I am of the opinion that there is no necessity that there be a general provision in the order that Respondent should cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act: Nevertheless, the denial of reinstatement to Radzikowski (and Drake apart from the fact that a replacement for him had been hired) may be regarded as tending to deter employees from engaging in protected activities, and for that reason, provision will be made in the order against such conduct. The same is true for vacations. The order will provide also that Respondent, upon request, shall make available to the Board or its agents, for inspection and reproduction, all books and records necessary or helpful for the purpose of determining the identity of the employees to whom vacation pay is due as herein provided as well as for the computation of the amount thereof and also for the purpose of determining the amount to be paid to George Radzikowski.