S & M Manufacturing Co.

S & M MANUFACTURING CO. S & M Manufacturing Company and Miscellaneous & Allied Division of Union, Local 80-A, Distillery, Rectifying, Wine and Allied Workers International Union of America, CLC, AFL-CIO. Case 30-CA-247. June 20, 1967 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On April 15, 1966, Trial Examiner Eugene E. Dixon 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 further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that these allegations be dismissed. Thereafter, the General Counsel and the Respondent filed exceptions to the Decision and supporting briefs. 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 no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner but only to the extent that they are consistent herewith. 1. We find, in agreement with the Trial Examiner, that the Respondent violated Section 8(a)(1) of the Act when Foreman Papp made the coercive statement to employee Kescenovitz that the Respondent would not enter into a contract with the Union. 2. We disagree with the Trial Examiner's finding that the Respondent did not refuse to bargain in good faith in violation of Section 8(a)(5) of the Act. The Respondent and the Union have enjoyed a collective-bargaining relationship for some 18 years, with its most recent contract expiring on August 31, 1964. Negotiations for a new contract began in August and reached an apparent impasse. At a meeting on January 17, 1965, the union membership voted 37 to 6 to strike, and on January 20 the employees did go out on strike. Negotiations continued during the strike although the Respondent continued to operate with replacements. In mid- April it appeared that a contract settlement had been reached, but the union membership rejected the contract proposed and the strike was resumed. 663 On June 16, the Respondent submitted another contract proposal to the Union but conditioned its offer upon acceptance that day. As found by the Trial Examiner, the terms of the proposed contract were discussed and agreed upon at a meeting that day. The union membership voted to accept on Sunday, June 20, but thereafter the Respondent notified the Union that the contract offer had expired. Harry Maim, Respondent's president, testified that when he was informed by the Company's attorney that the contract had been ratified by and was acceptable to the Union, he told him that the Company was no longer interested in signing that contract. About mid-September the Union abandoned the strike and gave notice to the Company that 12 remaining strikers intended to return to work. While concluding that the Respondent did not engage in good-faith bargaining, the Trial Examiner nevertheless dismissed the refusal to bargain charge, because he found that as of March 23, 1965, the Union no longer represented a majority of the employees and therefore the Respondent had no obligation to recognize the Union or bargain collectively with it. He based this finding on the fact that as of March 23, 1965, 15 striking union members had been replaced by the Respondent; that as of this same date 10 union members had voluntarily resigned from the Company, and 4 other strikers had returned to work and had notified the Union in writing of their withdrawal from the Union; and that since the union membership at the time the strike started on January 25, 1965, did not exceed 47, a loss of 29 members as of March 22 would leave the Union without a majority of the 47 employees in the unit. We do not agree that the "resignation" of 10 employees who were union members precludes their being counted for purposes of determining the Union's majority status. When a striker resigns to take another job, it does not automatically eliminate him as a striking employee, absent unequivocal evidence of intent to permanently sever his employment relationship; nor does it relieve an employer of his obligation to reinstate him upon application when the strike is over if he has not been replaced. In a letter to the Board's Regional Office from the Respondent's attorney, Van Horne, dated August 24, the following comment was made: . . . 10 employees who had gone on strike had voluntarily signed termination letters. These letters were required by their subsequent employers before they were hired. S & M felt that a man's livelihood and family took precedence over strike problems and therefore gave the employees termination letters so they could work elsewhere. [Emphasis supplied.] The foregoing letter clearly establishes that the Employer knew that the resignations of these employees was a prerequisite to securing even 165 NLRB No. 59 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interim employment elsewhere. This does not establish, however, that these employees had necessarily made a decision permanently to terminate their employment should they subsequently be offered reemployment. In these circumstances and absent any other evidence of a permanent employment termination, we find that mere submission of their "resignations" did not constitute an unequivocal abandonment of their status as strikers or of their right to further employment with the Respondent.' The record does not indicate that these 10 employees were in fact replaced, and they should, therefore, properly be included in determining the Union's majority status. Accordingly, we find, contrary to the Trial Examiner, that the Union retained its majority and its status as bargaining representative of the employees. We further find that the strike on January 20, 1965, although economic in its inception, was converted to an unfair labor practice strike on June 16, 1965. On that day the Respondent submitted to the Union a contract, with the condition that this contract "is subject to approval and acceptance on June 16, 1965, only. The terms and provisions shall be considered rejected beyond that date." However, the Respondent knew at the time of its offer that, even if it was acceptable to the Union's chief negotiators, as it proved to be with only minor modifications, it was subject to ratification by the union membership. The ratification procedure was used by the Union earlier, when the Easter contract proposal was taken back to the union membership for ratification. As the parties were negotiating as late as 3:30 p.m. in the afternoon , it is readily apparent that Respondent could not reasonably expect the Union to notify its membership and get ratification of the contract proposal that same day. Accordingly, we find that Respondent's conditional offer in these circumstances was so unreasonable as to constitute bad-faith bargaining. Moreover, Respondent's failure and refusal to accept its own contract proposal, when it was ratified by the union membership 4 days later, indicates that Respondent was not really interested in reaching an agreement and is additional evidence of its bad faith. In view of the foregoing, and the Respondent's violation of Section 8(a)(1), we find that the Respondent as of June 16, 1965, refused to bargain in good faith in violation of Section 8(a)(5) and (1) of the Act, and i See The Fafnir Bearing Co , 73 NLRB 1008, 1017; Republic Steel Corporation , 62 NLRB 1008, 1029 2 See Getlan Iron Works, Inc., 155 NLRB 1052, Dickten & Masch Mfg Company, 129 NLRB 112 3 The employees' notice of intention to return to work was in the following form TO S & M MANUFACTURING CO. The undersigned members of the M .A D of Union Local 80A, D R W A W I U of CLC, AFL-CIO , does hereby notify the S & M Manufacturing Co, 2901 W. Mill Rd , Milwaukee, thereby also converted the strike into an unfair labor practice strike.2 On September 15, 1965, the Union sent the Respondent a letter stating that on September 12 the union membership voted to withdraw the pickets and accept the contract proposal submitted by the Employer on June 16, 1965, thereby considering such proposal as an effective and binding contract. Enclosed with that letter were separate notices by 12 employees of their intention to return to work.3 We find it unnecessary to consider or adopt the Union's contention that their belated acceptance of the Employer's earlier contract proposal made it a binding contract. Inasmuch as the notices of intent to return to work were unequivocal on their face and indicated no reservation with respect to the Employer's acceptance of the Union's position vis-a- vis the existence of a binding contract, we find that they constituted unconditional offers to return to work. As the record shows that six of these employees had been replaced prior to June 16,' we shall order that the remaining six employees, who were not replaced prior to that date,5 be offered immediate and full reinstatement to their former or substantially equivalent positions, dismissing, if necessary, any employees hired to replace them on or after June 16, 1965. THE REMEDY As we have found that the Respondent has unlawfully refused to bargain in good faith, we shall order the Respondent to cease and desist therefrom, and to bargain in good faith, upon request, with the Union and if an understanding is reached, to embody such understanding in a signed agreement. In view of our conclusion that Respondent's refusal to bargain on June 16, 1965, converted the strike into an unfair labor practice, we shall order the Respondent to offer to Francis Cullen, Charles Papp, Roy Parket, Edwin Borden, Richard Karstaedt, and Jovan Obradovich immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them by payment to each of them of a sum of money that each would normally have earned as wages for the period beginning 5 days after September 16, Wis., of his intention to return to work Dated at Milwaukee, Wis , this 4th day of Sept. 1965 Name of Employee ' Those employees who had been replaced were Fred Rieck and Edward H Brunn, replaced on March 19; William Melved, R.A Yueuger, and Vincent Guimond, replaced on March 22, and Richard A Beyer replaced on April 29 s Francis Cullen, Charles Papp, Roy Parket , Edwin Borden, Richard Karstaedt, and Jovan Obradovich S & M MANUFACTURING CO. 1965, the date of receipt of their offer to return to work, until the date of reemployment, less their net earnings during such period, in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, and with interest in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Further, we shall order that the Respondent, upon application, offer the remaining strikers who were not replaced prior to June 16, 1965, reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any employees hired on or after June 16, 1965. We shall also order that Respondent make whole those strikers who are entitled to reinstatement for any loss of pay they may suffer by reason of the Respondent's refusal, if any, to reinstate them, upon request, by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period beginning 5 days after the date on which he applies for reinstatement and terminating on the date of the Respondent's offer of reinstatement, such loss to be computed in the manner set forth in F. W. Woolworth Company, supra. Interest at the rate of 6 percent per annum shall be added to the backpay to be computed in the manner set forth in Isis Plumbing & Heating Co., supra. CONCLUSIONS OF LAW 1. S & M Manufacturing Company at all times material herein has been an employer within the meaning of Section 2(2) of the Act. 2. Miscellaneous & Allied Division of Union, Local 80-A, Distillery, Rectifying, Wine and Allied Workers International Union of America, CLC, AFL-CIO, at all times material herein has been a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees of the Company employed at its Milwaukee, Wisconsin, plant, excluding superintendents, assistant superintendents , general foremen, nonworking foremen, clerical employees, draftsmen, technical engineers, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act, as found above, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. By refusing to bargain in good faith with the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER 665 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, S & M Manufacturing Company, Milwaukee, Wisconsin, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Telling employees that they will not enter into a collective-bargaining agreement with Miscellaneous & Allied Division of Union, Local 80-A, Distillery, Rectifying, Wine and Allied Workers International Union of America, CLC, AFL-CIO, or any other union. (b) Refusing to bargain in good faith with said Union as the exclusive bargaining representative of its employees in the above-described unit. (c) In any like or related manner, interfering with the efforts of the exclusive representative of its employees to bargain collectively in their behalf. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as the exclusive bargaining representative of its employees in the appropriate unit described above, with respect to wages, rates of pay, hours of employment, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. (b) Offer Francis Cullen, Charles Papp, Roy Parket, Edwin Borden, Richard Karstaedt, and Jovan Obradovich immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges. (c) Make whole Francis Cullen, Charles Papp, Roy Parket, Edwin Borden, Richard Karstaedt, and Jovan Obradovich for any loss of pay they may have suffered, in the manner set forth in the section of this Decision entitled "The Remedy." (d) Upon application, offer to the Respondent's striking employees 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 , in the manner set forth in the section of this Decision entitled "The Remedy." (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 due under the terms of this Order. (f) Notify the aforementioned strikers if presently serving in the Armed Forces of the United States of their right to full 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. 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (g) Post at its plant at Milwaukee, Wisconsin, copies of the attached notice marked "Appendix."s Copies of said notice, to be furnished by the Regional Director for Region 30, after being duly signed by Respondent's representative, shall be posted by 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 it to insure that said notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director for Region 30, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. MEMBER BROWN, dissenting: I dissent from my colleagues' rejection of the Trial Examiner's recomme6_da1i6ri that the complaint's 8(a)(5) allegation be dismissed. The validity of that allegation turns on the Union's representative status on June 16, 1965, when, it is found, Respondent refused to bargain in good faith. But, considering Respondent's hirings to that date, including replacements for strikers, and the withdrawal of strikers from the Union, I am not satisfied that the General Counsel has sustained his burden of proving majority status as of the critical date. This prerequisite for a finding lacking, I am compelled to conclude that Respondent did not refuse to bargain in violation of the Act. Nor do I believe that the circumstances of this case, including the absence of any allegation or finding of an 8(a)(3) violation, warrant the reinstatement-with-backpay order entered by my colleagues. 8 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 you that: WE WILL NOT tell our employees that we will not sign a collective-bargaining contract with Miscellaneous & Allied Division of Union, Local 80-A, Distillery, Rectifying, Wine and Allied Workers International Union of America, CLC, AFL-CIO, or any other union. WE WILL NOT refuse to bargain collectively with Miscellaneous & Allied Division of Union, Local 80-A, Distillery, Rectifying, Wine and Allied Workers International Union of America, CLC, AFL-CIO, as the exclusive representative of our employees. WE WILL NOT in any like or related manner interfere with , restrain , or coerce our employees in the exercise of the right to self-organization, to form , join, or assist the aforesaid 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 and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized by the Act. WE WILL bargain collectively in good faith with Miscellaneous & Allied Division of Union, Local 80-A, Distillery , Rectifying, Wine and Allied Workers International Union of America, CLC, AFL-CIO, as the exclusive representative of our employees in the appropriate unit described below, with respect to wages, rates of pay, hours of employment, or other conditions of employment , and if an agreement is reached, we will incorporate such agreement in a signed agreement. The bargaining unit is: All production and maintenance employees of the S & M Manufacturing Company, Milwaukee , Wisconsin , plant, excluding superin_t_endents , assistant superintendents, general foremen , nonworking foremen, clerical employees , draftsmen, technical engineers, guards, and supervisors, as defined in the Act. WE WILL offer to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Francis Cullen Edwin Borden Charles Papp Richard Karstaedt Roy Parket Jovan Obradovich WE WILL offer to our striking employees, upon their application, reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any employees hired on or after June 16, 1965, to replace these employees, and we will make such employee whole for any loss of pay suffered by him as a result of our failure to reinstate him within 5 days after his application. S & M MANUFACTURING CO. All our employees are free to become or remain, or refrain from becoming or remaining, members of the aforesaid Union or any other labor organization. S& M MANUFACTURING COMPANY (Employer) Dated By (Representative) (Title) Note: We will notify the above-mentioned striking employees if presently serving in the Armed Forces of the United States of their right to full 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. 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, Room 230, 744 North Fourth Street, Milwaukee, Wisconsin 53203, Telephone 272-3866. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE E. DIXON, Trial Examiner : This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat . 136), herein called the Act, was heard at Milwaukee , Wisconsin , October 26 through 29 , 1965. The complaint dated August 27, 1965, was based upon charges filed July 2 and August 17, 1965, and was issued by the Regional Director for Region 30 (Milwaukee , Wisconsin) on behalf of the General Counsel of the National Labor Relations Board (herein called the General Counsel and the Board ). It alleged (as amended at the hearing) that Respondent had engaged in and was engaging in unfair labor practices by various specified conduct including its failure to bargain in good faith with Miscellaneous & Allied Division of Union, Local 80-A, Distillery, Rectifying , Wine and Allied International Union of America , CLC, AFL-CIO (herein called the Union) as the collective -bargaining agent of its employees in an appropriate unit. In its duly filed answer Respondent denied the commission of any unfair labor practices. Upon the entire record and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent is a Wisconsin corporation engaged in the manufacture of metal products with its office and plant ' Although Respondent denied the allegation of the complaint, admissions elsewhere in its answer clearly negate such denial 2 The appropriate unit was comprised of all production and maintenance employees of the Respondent, excluding 667 located in Milwaukee , Wisconsin. During the calendar year preceding the issuance of the complaint , which is a representative period, Respondent purchased and received goods and materials from points outside the State of Wisconsin valued in excess of $50,000. At all times material herein Respondent has been an "employer," as defined in Section 2(2) of the Act, engaged in "commerce" and in operations "affecting commerce" as defined in Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION At all times material herein the Union has been a labor organization within the meaning of Section 2(5) of the Act. I III. THE UNFAIR LABOR PRACTICES A. The Alleged Refusal to Bargain For well over a decade Respondent had recognized and entered into yearly contracts with an independent union, known as S & M Company Union, Inc., representing an appropriate unit of its employees.' In 1963 or early in 1964, the Union retained Attorney Milton S. Padway to represent it. In May 1964 on Padway's advice the Union's name was changed to "Metal & Steel Fabricators No. 16." Shortly after this the Union notified the Company of its desire to open negotiations for a new contract, the current one expiring on August 31. Apparently at this point the Company retained the law firm of Roemer and Ropella to represent it and notified the Union that the negotiations would have to await the return of Ropella from military reserve duty some 2 weeks away. Negotiations began in August. At the outset the Union submitted to the Company various provisions which it wanted in a contract, but did not submit a complete contract proposal as such. Except for a subsequent document from the Union involving research on pension plans and one contract proposal in August, all of the other submissions by the Union were counterproposals or counteroffers. In the first two negotiating meetings , Ropella appeared on behalf of the Company. According to Padway's undenied and credited testimony, he had an understanding with Ropella that any agreement reached would be retroactive to September 1. Subsequently, he received a letter from Ropella withdrawing this commitment unless agreement was reached by September 30. After meeting twice with the union bargaining committee, Ropella turned over the task of representing Respondent to an associate, Attorney R. Dirk Van Horne. According to Van Horne's testimony he was told by Ropella on taking over that as far as he was concerned there had "been no agreement on any specific point" and was instructed to "take a fresh look at it." According to Van Horne whatever may have gone on in the first two meetings meant nothing. Negotiations continued to the latter part of the year when an impasse was reached and when the Union called in Federal Mediator Sanders. On January 17, the Union held a membership meeting in which two votes were taken-(1) a vote of 37 to 6 to strike and (2) a vote of 41 to 2 to affiliate with the Charging Party, Local 80-A of the Distillery Workers. superintendents , assistant superintendents , general foremen, nonworking foremen, clerical employees , draftsmen , technical engineers, guards, and supervisors as defined in the Act 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On January 20, the employees went out on strike 100 percent strong; of 47 men who walked out only 2 or 3 did not belong to the Union. Negotiations continued during the strike and the Company continued to operate with replacements. In a March 8 meeting the Company and the Union had come to an agreement on a $25 retroactive payment to each striker. According to Van Horne the offer had been made on the basis of the mediator's assurance "that the Union would then sign the contract if the company would agree to this item of retroactive pay." No contract resulted, however, and the strike continued. Thereafter, in mid-April it appeared that a settlement had finally been reached. After a negotiating meeting on Good Friday morning, and a series of telephone calls between the parties the following day, Padway informed Van Horne that the members would accept the contract as explained to them, and Van Horne agreed to put it in written form. Pursuant to these preliminaries the picketing ceased and two or three strikers went back to work the following Monday. It was not until the end of that week (on April 24) that the Union received the complete written contract as promised by Van Horne. According to Padway the contract as submitted did not reflect what had been agreed to. "Certain significant changes" had been made and provisions included which had not been discussed. For example, super seniority was provided for employees who had crossed the picket line. The "no lock-out clause" was missing. A clause was included whereby the Union agreed that current employees would "not be displaced or replaced by returning strikers." A provision also reserved to the Company "the right to deny reemployment to any employee whose action ... indicated a disregard and disrespect for company property." The Company further reserved to itself the right for 90 days "to adjust the work schedules and the shifts on a reasonable basis without regard to seniority." Also pending charges by both sides before the Board were to be withdrawn. Padway also testified about conveying to Van Horne in one of their many telephone conversations that the Union "insisted on . $25 retroactivity pay to each employee," and that Van Horne had indicated that although he "agreed with it ... he still had to go to the company" about it. The membership rejected the contract as submitted by Respondent. It appears that the contract was rejected essentially for two reasons: These involved the provision regarding reinstatement of the strikers and the absence of any provision for retroactive pay. Padway's position on the witness stand was that agreement had been orally arrived at on all phases of the contract. Van Horne, while testifying that he too thought an accord had been reached, denied that any accord had been reached on the question of retroactive pay.'; At any rate no contract was signed and the strike thereupon was resumed. In mid-June another attempt to reach agreement was made. About this matter, Van Horne testified as follows: Well, the next major contact, that has been referred to many times, occurred on the 16th of June. The first actual beginnings to this thing, I think occurred somewhere around the week-about a week preceding that time, and again I had heard from Commissioner Sanders and he had asked if the Company still wanted to find the solution to the strike. The sum and substance of these conversations, was that the Union would agree to the April contract if the Company would present it. Now, I ask Commissioner Sanders if the Union had requested this meeting, and he said, "no." I then asked him if he had assurance that the Union was going to arrive ready and willing to sign the contract. He assured me on several occasions, because in every conversation I had with Mr. Sanders, this is one of the questions I asked him. He assured me that the Union had expressed a desire to sign the contract that had been rejected in April if the Company would bring it with them. I specifically asked Commissioner Sanders whether the Union was expecting a proposal. He informed me, "No." I told him then that I was very glad because the Company had no intention at all of making a proposal, and we had felt that throughout 9 months of negotiating, that the only proposal that had come in from the Union was the August proposal, and since then we had proceeded to spend a minimum of 2 hours per meeting, while Mr. Padway sat down with the committee and achieved the counter-proposal, I told him this was extremely costly to the Company and as far as I was concerned it was a total waste of time having to sit there and look at Harry Malin. Mr. Sanders assured me that the Union was ready and willing to sign that contract if the Company would bring it. He also asked me whether he could have it ready by the 16th. The contract was prepared by Van Horne, but was not ready until noon of the 16th when it was delivered to Padway's office. Padway was out to lunch at the time, however, and did not see it until he returned at about 1 o'clock. To what extent he examined the document at that time does not appear, but it is clear that members of the union negotiating committee did not see it before they appeared at the conciliator's office for the scheduled meeting that afternoon between the parties. The contract itself was essentially the same contract that had been offered by the Company in April. There were, however, some minor differences between the two. Moreover, the current contract contained the following provision: This contract has been prepared at the request of the Federal Mediation and Conciliation Service. It is subject to approval and acceptance on June 16, 1965, only. Its terms and provisions shall be considered rejected beyond that date. What happened when the parties convened appears from Van Horne's testimony as follows: About 3:30 or so we went in and one of the questions I asked initially was whether we were all ready to sign the contract. It was at that point that Mr. Padway, I believe, indicated that he had not had much time to look at it. I told him (that) in my opinion he had 2 months to look at it because this was almost word for word the identical contract that they had turned down in April. At that point, one of the other committee I In view of Padway's testimony that Van Horne "still had to go to the company" about the retroactive pay I am inclined to credit Van Horne here. S & M MANUFACTURING CO. members spoke up and said that they hadn't a chance to look at it either because it had come on such short notice. I then asked him, (Union President Cullen) did he have authority to sign the contract, and he assured me, "Oh, yes, yes I have got the authority." At that point, I believe Commissioner Sanders ushered Mr. Malm and I out of the room and proceeded to spend some time talking to the Union. He then came back and talked with us and we went back in there and discussed a few points that the Union felt about things that should be changed in the contract. Notwithstanding the foregoing testimony Van Horne further testified that he had announced at this meeting that "this contract was not a proposal" and that Respondent "Had no intention at all of discussing it." The contract, which was received in evidence, contained several handwritten notations. As to some of these notations Van Horne testified that he had no knowledge or could recall no agreement thereon. On some, however, he acknowledged that agreement had been reached. It appears from Van Horne's further testimony that just before the meeting broke up Respondent asked whether the Union was ready to sign the contract. On this basis Van Horne admitted on the stand that he assumed that agreement had been reached on the hand written notations. Van Horne also testified that in a subsequent telephone call about the meeting Padway "made a comment referring to the changes that were agreed to ... supposedly had been agreed to." Moreover, in a letter to the Union dated July 1 Van Horne stated that the Company had "carefully analyzed your proposal of June 21, 1965, wherein the Union adopted as its own the company proposal of April 24, 1965." According to the direct testimony of Harry Malm, Respondent's president, the union representatives at this meeting were sure they could sign the contract but flatly refused to do so. According to Malm, he had no recollection of Union President Cullen saying that the contract had to be ratified by the membership nor did he recall Attorney Padway so indicating. On cross- examination Malm admitted that agreement had been reached on the terms of the contract that day and that Cullen had said that he would sign but wanted ratification by the membership, before doing so. It further appears from Malm's testimony that he was fully aware from past practice that this was the customary and necessary procedure. On the basis of the foregoing evidence there is no question in my mind and I find that regardless how Respondent chooses to characterize the contract it submitted to the Union on June 16, it was a contract proposal. I further find that regardless what Respondent's intent was as to negotiating or not negotiating on that occasion, the terms of its proposal were discussed and all agreed upon at that meeting. When the union officials demurred to signing the contract without the ratification of the membership they asked the company representatives what would happen if ' Van Horne testified without denial and credibly that in this conversation, he told Padway that the contract the Company had submitted "was not subject to any changes, and that if the Umor 669 the Union brought the contract back at a later date . To this Van Horne replied ". . . I don't know what is going to happen. We are here to sign this contract today ... I don't know what the union is going to do. I have no control over what you people do ... I can 't give you any assurances at all as to what is going to happen if you decide to bring this contract back." In this connection the notes that Van Horne took during this meeting revealed the following comment : "Union will vote. If they do agree to it the Company will consider signing it. Never refused to bargain." In a union meeting on Sunday, June 20 , the membership voted to accept the contract . On the following day (after failure to reach him sooner), Padway called Van Horne on the telephone to inform him of the Union 's action.4 On the following day, June 22 , confirming the telephone conversation , Padway wrote Van Horne in part as follows: The Union, Local 80-A, Miscellaneous and Allied Division , BRW & AW, AFL-CIO, has been directed as a result of a vote taken at the meeting of the members on Sunday , June 20 , 1965, to accept the agreement with the S & M manufacturing company as discussed and presented on June 16 , 1965, at the office of the United States Department of Federal Mediation. The proper officials of the Union have afixed their signatures to the copy of the contract that I have in my possession , and we await word from you as to the company's position. On the same day, Van Horne had written to Padway (their letters apparently crossing in the mail) as follows: In response to your telephone call of Monday, June 21 , 1965, . you indicated that the Union membership had indorsed as their own, the contract that the Company proposed for June 16. Even though by its own terms, the June 16 contract had expired that date. The Company feels that they must have some time to analyze the Union proposal. I am confident that we will be able to provide an answer no later than June 30. On June 24, Van Horne wrote Padway: In response to your letter dated June 22, I would appreciate your providing me with a copy of the exact' wording that exists in the contract, or any change has been made from the wording that was effective June 16, 1965. I am sure that you would prefer there be no later misinterpretations as to what was or what was not an agreement between the parties. In as much as the company's submitted contract also expired on June 16, I feel before I would authorize their signing anything they would have to see the actual document. As I indicated in my letter of June 22, the Company will need some time to determine their action. If the contract with changes is acceptable, I am sure we would all wish to get together for an actual signing of the contract as opposed to the Union signing one copy and the Company signing a different copy. had a new proposal . . . that was an entirely different matter." Padway thereupon indicated, "that as far as he was concerned this could be considered a proposal then " 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On June 25, Padway replied to Van Horne, referring to his request for "the exact wording that exists in the contract resulting from negotiations and agreed upon on June 16, 1965, before Commissioner Sanders" and setting forth the language requested. At no point after receipt of this letter did Respondent make any claim that the foregoing language brought up new matter not agreed to in that meeting. On July 1, Van Horne again wrote the Union as follows: The S & M Manufacturing Company has carefully analyzed your proposal of June 21, 1965, wherein the Union adopted as its own the Company proposal of April 24, 1965. As you know, the April 24 contract was prepared for signing on June 16 (per page 25a) at the request of Commissioner Sanders of the Federal Mediation and Conciliation Service. It expired without signature on that date. The Company at this time feels that present conditions do not warrant acceptance of this proposal. It is therefore deemed rejected. In his testimony Harry Malm stated that when he was informed by Van Horne that the contract had been ratified by and was acceptable to the Union, he told Van Horne that the Company was "no longer interested in signing that contract." He also testified that he believed that he had asked Van Horne at this time whether the Company could legally sign the contract because of an investigation Respondent claims to have made on June 17 or 18 which led it to believe the Union no longer represented a majority of the employees, a matter which will be examined in some detail below. In early August, according to Van Horne's testimony, Conciliator Sanders asked him if he thought "submitting another proposal would achieve anything." Van Horne said that he "doubted it, but at that point [was] willing to try just about anything in order to effectuate a solution to the strike.", Accordingly, he submitted another contract proposal to the Union by mail on or about August 8. This offer had an automatic time limitation of about a week. No reply to the Company's offer was made by the Union. About mid-September the Union abandoned the strike and gave written notice to the Company on behalf of the 11 remaining strikers of their "intention to return to work." Additional Findings and Conclusions Regarding the Refusal to Bargain The complaint as issued, alleged that Respondent rased to bargain in good faith "at all times material and more part icularly on June 16,__1965_,_ by submitting a proposal with a 1-day acceptance limitation ; on June 21 by refusing to sign the agreement it submitted and agreed to on June 16; and on or about August 11, when it questioned the Union's majority status and withdrew recognition of the Union. At the beginning of the hearing, the General Counsel moved to amend the complaint by adding two incidents of , It is clear that long before this date , the Union had lost the strike and that any effect it was having on Respondent's operations was no more than minimal. As of June 16, 1965, after the strike had been in progress 6 months, Respondent's work force had increased almost 40 percent over what it was when the strike started 6 There was no objection to the amendment r In this connection , the General Counsel relies on: (1) the 8(a)(1) conduct alleged to have occurred in the latter part of March 1965.6 In his brief, the General Counsel argues that from the beginning, the Respondent "engaged in negotiations with no intention of reaching agreement on a contract that any self-respecting union would settle for," and that "the negotiations were designed to undermine the Union, and by prolonging the bargaining sessions over a long period of time, sap its strength to a point where it would capitulate to a contract offering very little additional benefits to the employees, over and above what they were already receiving."7 Notwithstanding this position by the General Counsel, he makes the following contention in his brief: It is the added contention of the General Counsel that Respondent's 8(a)(1) and (5) conduct converted the economic strike of January 20 to an unfair labor practice strike, and that all employees who were not replaced as of April 1 (the approximate time of the 8(a)(1) statements) are entitled to reinstatement immediately in instances where they have unequivocally asked to be reemployed and as to others who have not made such a request, upon their unequivocal requests for reemployment. While the General Counsel's position as to when the refusal to bargain commenced is not entirely clear to me either from his brief or from his pleadings, I take it from the above contention that his claim is that the strike was an economic strike until April 1. With such assumption it would follow, of course, that the General Counsel concedes that up to that point, Respondent's bargaining was conducted in good faith and not in violation of Section 8(a)(5) of the Act. I find such to be the fact and any contention by the General Counsel to the contrary, I believe has not been proved by a preponderance of the evidence. It is apparent that not withstanding the implications in the General Counsel's brief as to the alleged overall bad- faith bargaining here, the keystone of his contention in this respect involved the contract submitted by Respondent for signing on June 16 and the surrounding circumstances thereof. I have already noted my conclusions as to Respondent's claims that the contract was not an offer or proposal and that there was no negotiation on it. As an additional defense to the charges here, the Respondent would have me believe that the reason it would not sign the contract when requested by the Union on June 21 was because between June 16 and June 21 it had developed a genuine doubt that the Union any longer represented a majority of the employees. As to this matter, Van Horne testified that on the Friday after the Union refused to sign the June 16 contract he went to the company premises where he "sat around and commiserated with" Malm, presumably about the failure to get the Union to sign the contract. Then, in a moment of "unlawyer-like ... pique" he decided to check his own and the company files to see "whether the Union did or did not represent a majority of the employees." On the basis of this investigation he and Malm developed "a strong initial delay in starting negotiations by reason of Ropella's military service, (2) the implication that any progress made prior to Van Horne's taking over from Ropella was set aside (there was, however, no evidence revealing that any progress whatsoever had been made), and (3) Van Horne 's testimony that Respondent's negotiators "never do agree to one clause at a time and later on picking up other ones We must agree to a complete agreement." S & M MANUFACTURING CO. suspicion that the Union did not represent a majority of the employees." Malm's testimony about this on direct examination was as follows: On June 17 or 18 Van Horne came to the plant and "wanted to see if ... the Union actually represented" the employees. They thereupon checked payroll records, termination letters, and replacements," and developed the feeling that the Union did not represent the employees. In addition to this, according to Malm in his contacts working with the employees "there was an indication ... that they weren't interested in that Union representing them." On cross-examination Malm testified that when Van Horne had informed him on June 21 that the Union had accepted the contract and wanted the Company to sign, he asked Van Horne (because of their majority "findings") if the Company could "legally sign the contract." When asked what his reply had been to the Union's letter of June 22 seeking the Company's signature on the contract, he answered: My response to the letter was as we had indicated before: We checked our records to see whether they truly represented, and-that did not have any response as far as this contract was concerned any longer. As for the five exhibits (R 7, 8, 9, 10, and 11) referred to 671 clear that their claim that as of June 18 or 19 they entertained a good-faith doubt that the Union represented a majority of the employees is not to be credited. Based on Van Horne's testimony alone I have no hesitancy in reaching this conclusion. At no time in the many opportunities that were presented between the parties did he raise this question." While Van Horne may have been young and inexperienced enough to have engaged in what he described as "unlawyer-like ... pique" there is no question in my mind that he was experienced enough to have raised the basic question of Respondent's obligation to bargain with the Union vis-a-vis the matter of majority representation had he realized (as he claimed he did) that there was such a question. One only has to read Malm's testimony on this point (or to have heard him testify) to preclude the slightest suggestion of doubt in this connection. Notwithstanding the foregoing finding and its obvious corollary that Respondent was not acting in good faith by refusing to sign the contract that had been agreed upon in the June 16 negotiations, it does not follow under the circumstances here that Respondent thereby violated Section 8(a)(5) of the Act. One of the essential elements in establishing such a violation is proof that at all material times10 a majority of above, Malm testified that he had requested their the employees in the bargaining unit is represented by the preparation "at about the same time" and that they were Union c aiming recognition and seeking a contract. Here " " all prepared and obtained at about the same time. When he was asked when that time was he replied that he had "asked them to get this information ... about June 16 or 18." He was then asked if it was his testimony that Respondent's Exhibits 7 through 11 were prepared about June 17 or 18 and he replied, "The information on there, yes." When pressed for a more specific answer he equivocated with inquiry of his own and finally answered, "Well, I don't know if it was a duplicate that I looked at, or what it was at the time and after the time that it was. If it was this specific piece of paper, I am not sure." Twice thereafter when asked specifically if Respondent's 7 through 11 had been prepared on June 17 or 18, Malin sat mute. When Malm was then asked by the Trial Examiner when those documents had been prepared he asked that the question be repeated; then he testified that he did not know. After considerably more probing, Malm finally admitted that he had received the exhibits in question within the previous week. On the basis of the foregoing testimony of Van Horne and Malm considered in the context of what transpired between the Union and the Company from June 16 on, it is 3 Respondent introduced into evidence through Malm five exhibits listing (a) the names and dates of employees replaced during the strike (R 7), (b) the names of employees who returned to work during the strike (R 8), (c) the names and dates of employees voluntarily terminating their employment with Respondent (R 9), (d) the number of strikers remaining (R 10), and (e) the names of employees as of June 16, 1965, and the dates they were hired. These exhibits , according to Malm, were prepared at his request by the company accountant , Ollie Desotell , and are undated 9 In letters from Van Horne to the Regional Office dated July 13 and August 6 about the negotiations, he made no mention of a doubt regarding the Union 's majority Indeed , in the August 6 letter he gave two reasons why the Company had refused to sign the contract when requested to do so by the Union on June 21, neither of which involved any question as to the Union's representative status 10 Where recognition of a union as bargaining agent has been accorded for years without certification , the current contract can the General Counsel has failed to prove this essential element and the evidence shows that at no time material did the Union represent a majority. Thus, the evidence shows'' that as of March 23, 1965, 15 striking union members had been replaced by Respondent.12 As of this same date 10 union members had voluntarily resigned from the Company. In addition, four other strikers had returned to work by this date and had written notifying the Union of their withdrawal from it.13 Since the union membership at the time the strike started did not exceed 47, it is clear that a loss of 29 as of March 22 would leave it without a majority unless it could make up the loss by replacements-a matter which I will discuss in a moment. If the General Counsel assumes that the 10 resignations referred to above should not be counted as loss to the Union for purposes of computing the majority, I do not agree with him. The general rule is that simply because the striker takes another job it does not eliminate him as a striking employee nor does it remove an employer's obligation to reinstate him when the strike is over if he has not in the meantime been replaced. However, when a be assumed to have been lawful ; i.e , that when entered into the Union represented a majority. This majority is presumed to continue at least until the end of the contract term unless there is evidence to rebut the majority. Shamrock Dairy, Inc., 119 NLRB 998 Here , of course , the contract had expired and, as will be shown, the evidence clearly rebuts the majority 11 The evidence upon which I rely is the Resp Exhs. 7 through 9, all of which were received without objection but reserving the right to the General Counsel to check them against the company records. Since no question has been raised about them I assume that they accurately reflect those records 12 According to the exhibit from which this figure is taken 16 strikers had been replaced as of this date, but 2 were supposedly not union members. However , one of the two, Ray Jessmon, had signed the Union 's application for certification with the Charging Union and as pointed out by the General Counsel presumably was a union member 13 By the end of April four other employees had returned to work and had also withdrawn from the Union 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD striker specifically indicates to the employer that he is terminating the employment relationship14 I believe that he thereby eliminates any obligation the employer may have to him as a striker and also eliminates himself as a member of the bargaining unit. As previously indicated, Respondent continued to operate during the strike with replacements and by mid- June had 65 people working-an increase of about 40 percent over the complement of employees at the time the strike started. The General Counsel argues that when the strike began since "the Union represented 100 percent of the 47 employees, and thereafter received withdrawals from but 8 members, it is clear that the Union represented at all times material herein, no less than 83 percent of the work force." In support of this contention the General Counsel relies on Laystrom Manufacturing Co., 151 NLRB 144, which holds that in a situation involving employee turnover "new employees will be presumed to support a union in the same ratio as those whom they have replaced." The General Counsel's reliance on that case is misplaced. There the union won a Board-conducted election in March 1962, by a vote of 17 to 13. A 2-year contract was entered into running until June 2, 1964. On March 16, 1964, the union requested bargaining for a new contract. The company refused to recognize the union at that point claiming a good-faith doubt that the union any longer represented a majority. The basis of this claim was that since the election 16 employees had terminated their employment and 8 had been newly hired. No strike was involved. It was in this context that the Board held that "employee turnover standing alone, does not provide a reasonable basis for believing that the Union had lost its majority since the prior election" and reiterated its long- held rule "that new employees will be presumed to support a union in the same ratio as those whom they have replaced." Clearly the principle voiced in Laystrom does not apply to the facts at hand. Here, we have people crossing a picket line to take jobs formerly held by the picketers. One could hardly presume that these people support the Union or would join it. Indeed, the presumption would seem to be just the opposite. It follows therefore that it was the responsibility of the General Counsel as part of his burden of proof to establish the majority status of the Union to show if he could that the employees hired by Respondent during the strike supported the Union. This he did not do. Accordingly, I find that as of March 23, the Union no longer represented a majority of the employees and that at that point the Respondent no longer had an obligation to recognize the Union or bargain collectively with it. B. The Alleged Interference, Restraint, and Coercion Michael Kescenovitz was called as a witness by the General Counsel and testified as to two conversations with '" The record is not particularly clear about these terminations The exhibit listing the terminations is simply entitled "S and M Manufacturing Company Employees Voluntary Terminations " The exhibit was identified by Malm as containing a list of "the employees who requested and signed voluntary termination letters " I have no doubt, particularly in the absence of any contrary contention by the General Counsel, that these terminations completely severed the employment relationship There was testimony by several of the eight who left the strike and went back to work, that they did so because they were unable to secure interim employment elsewhere unless they severed their connection with Respondent and made commitments to stay agents or supervisors of Respondent, alleged by means of an amendment to the complaint at the hearing to have been coercive within the meaning of Section 8(a)(1) of the Act. The first of these two conversations took place with Foreman Frank Papp on a Saturday afternoon late in March or early in April, on the picket line as employees were coming out from work. According to Kescenovitz, Papp stopped to talk to him about "hunting and so forth." Then Papp said, "You know, Mike, when Duke went back to work15 you guys lost the strike." Papp went on to say, "Why don't you guys give up? Why don't you come back to work? We are not going to sign a contract with you people." The second conversation was later that same afternoon with David Malm, who was employed by Respondent as a saleman and who was the son of Everett Malm, Respondent's secretary-treasurer and who was also himself a member of Respondent's board of directors. The conversation started after an exchange between the two regarding Malm's tearing down union picket signs. At Malm's invitation, Kescenovitz got into Malm's car, where for an hour or so, they discussed the strike situation. About this conversation, Kescenovitz testified as follows: . It was a private conversation between him and I. We talked and he said that in the beginning of the strike they were going-they should have given us the union contract, but as of now they could not give us a union contract and will not give us the union contract because of the fact that if we came back to work under the union contract, the people that went across our picket line to work for them at that present time that their jobs would be vacant and we would fill them up again, and if we ever would decide to go on strike-the people who signed the union contract-that they could not get any more people to come back and work for them, which I said, "If I were in your place, I agree with you." There was a lot of conversation back and forth, and he told me how the company was started. I always liked working in S & M and that sort of conversation, and that was the main thing. He told me to come back to work, and I said, "I can't come back to work because I owe these men I am working with something. I can't break the picket line," and he told me I don't owe them anything. In his testimony, Foreman Papp admitted having a conversation with Kescenovitz and testified that he had asked him "why don't you come in and work?" Kescenovitz replied that he would not work with scabs. Papp then said, "Mike, we are working with those guys and we got no trouble there, and we got some other guys coming in and they all work with them. There is no hard feelings." When Kescenovitz apparently reinterated his permanently in the new employment they were seeking In a letter to the Regional Office from Van Horne dated August 24 the following comment was made 10 employees who had gone on strike had voluntarily signed termination letters These letters were required by their subsequent employers before they were hired S & M felt that a man's livelihood and family took precedence over strike problems and therefore gave the employees termination letters so they could work elsewhere is Duke was the nickname of Francis Cullen, the union president The reference to his going back to work was about his taking a lob with another employer during the course of the strike S & M MANUFACTURING CO. refusal to work with the people then working, Papp continued, "Mike, we are never going to sign a contract that they are going to get those guys in there because those guys won't save your job. You guys walked out of your job and those guys saved your job and they got very nice boys working in there right now and I don't think we are going to get rid of those guys." From his further direct testimony, elicited essentially on leading questions '16 it would appear that what he told Kescenovitz (and to some other employees also by his own admissions) was that Respondent would never sign a contract which would get rid of the people currently working in the plant. On cross- examination, he testified that Van Horne when talking to him about testifying had told him that "he was accused of things, something I did not say." He was then asked if Van Horne had not suggested that what he actually had told Kescenovitz was that Respondent would never sign a contract that would require the replacement of strikers and his answer was, "Mr. Van Horne told me that." On redirect examination, Papp denied that Van Horne had told him anything along this line and testified that Van Horne had told him to tell the truth. David Malm admitted having had a conversation with Kescenovitz about which he testified as follows: We got around to talking about the Union. At this time they had affiliated it with Local 80-A, and I asked him about the Union, and I said, "where did you dig up this Union anyway? I mean I was under the impression that it had nothing to do with the fabrication business." And he said, "Well, that was Mr. Padway's idea, and he told us in order to make the strike effective we had to obtain a Teamster's (ban) and Trucking (ban) on the Company and this was the first Union we could get into to have our charter approved." And I said, "Okay." I asked him if that was the only reason, and he said, "yes," that was the only reason he knew of at the time. He didn't know of any others. We continued to talk about a few other things. I would say the questions came up-well, he asked me a few questions. I don't remember exactly what he did say, but they were in reference to if the Company really wanted to settle a strike, and I said, "Yes they do. We are only concerned with one thing and that is getting production out, and we really didn't care about holding any grudges or anything against anybody." He said he heard that the Company didn't want to sign with that particular union. I said, well, there was no truth to that. I said I thought the Company would not sign a contract-any type of contract-with a union that demanded a union shop or closed shop. I don't know the correct legal terminology, but it would be where the employees would have to join the Union to work at S & M. I said these were my own thoughts. He asked me why, and he didn't quite agree with me at the time, and I told him, "Well, since the strike we have hired a considerable number of people, and in my opinion it wouldn't be fair to these people to have to be forced to join a union in order to continue at S & M when they joined when there was no union." 673 Well, we discussed it back and forth and by the time we left I am sure,-at least he told me he agreed with me on that point. Oh, we talked about a few other personal things , and we parted friends. Malm specifically denied flatly saying that the Company would never sign a contract with Local 80-A. On cross- examination he reiterated that he had told Kescenovitz that the Company would not sign the contract where employees would be forced to join the Union in order to work for the Company . He also testified on cross- examination that when the Union was independent they had had this kind of a contract clause. Of the foregoing, I credit Kescenovitz and find that Papp made the flat statement that Respondent would not enter into a contract with the Union and that the statement was coercive within the meaning of Section 8(a)(1) of the Act. Stafford Trucking, Inc., 150 NLRB 1036. As to whether or not Malm's statements to Kescenovitz were also violative of the Act I deem it unnecessary to decide since I would recommend an 8(a)(1) order here on Papp's comment alone. Normally in such a circumstance an order would not be recommended on the grounds that the incident is isolated and in effect de minimus. Here, however, notwithstanding that no violation of Section 8(a)(5) of the Act occurred as a result of Respondent's conduct , its bad faith in its later dealings with the Union is so apparent that I believe an 8(a)(1) order is fully justified. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire records in the case, I make the following: CONCLUSIONS OF LAW 1. S & M Manufacturing Company at all times material herein has been an employer within the meaning of Section 2(2) of the Act. 2. Miscellaneous & Allied Division of Union, Local 80-A, Distillery , Rectifying , Wine and Allied Workers International Union of America , CLC, AFL-CIO, at all times material herein has been a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with , restraining, and coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act, as found above, Respondent has 1e From his testimony it was apparent that Papp was of some foreign extraction and his command of the English language was not the best. 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaged in unfair labor practices within the meaning of 5. Respondent has not, as alleged in the complaint, Section 8(a)(1) of the Act. engaged in unfair labor practices within the meaning of 4. The aforesaid unfair labor practices are unfair labor Section 8(a)(5) of the Act. practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.)