The Udylite Corp.

THE UDYLITE CORP. 163 The Udylite Corporation and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America , (UAW). Cases 7-CA-6878 and 7-CA-6878(3) orders that the Respondent, The Udylite Corpora- tion, Warren, Michigan, its officers, agents, succes- sors , and assigns , shall take the action set forth in the Trial Examiner's Recommended Order. June 10, 1970 DECISION AND ORDER By MEMBERS FANNING, BROWN , AND JENKINS On December 31, 1969, Trial Examiner Benjamin B. Lipton issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor prac- tices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affir- mative action, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief.' The Charging Party filed cross- exceptions and a brief in support thereof, and in opposition to the Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. I 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, cross-ex- ceptions, and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby t Inasmuch as the record and briefs adequately reflect the positions of the parties , Respondent 's request for oral argument is hereby denied Also denied , as without merit, is Respondent 's motion to strike the Trial Ex- aminer 's Decision S The Trial Examiner inadvertently referred to October 14, rather than December 4, as the date on which Freda Kurzhals was "reinstated " This inadvertance is hereby corrected 3 Member Brown would not find a violation of the Act in Respondent's discontinuance of the merit increase program upon the Union 's certifica- tion, and he would modify the Order accordingly The awards made under this merit review program were of the discretionary rather than automatic variety and the entire matter became a subject for bargaining with the Union when it was certified N L R B v Katz, dlbla Williamsburg Steel Products Co , 369 U S 736, Armstrong Cork Co v NLRB , 211 F 2d 843 (C A 5) 183 NLRB No 21 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN B. LIPTON, Trial Examiner: This case was heard before me in Detroit, Michigan, on March 10 through 13 and April 28 through May 3, 1969, based on a complaint by the General Counsel alleging that Respondent engaged in various inde- pendent violations of Section 8(a)(1), (3), and (5) of the Act.' Respondent denies that it committed any of the alleged unfair labor practices. All parties at the hearing were afforded full opportunity to adduce relevant evidence, to examine and cross- examine witnesses, and to argue orally on the record. After the close, comprehensive briefs were filed by Respondent and Charging Party.2 Upon the entire record in the case, including the briefs and from my observation of the demeanor of the witnesses on the stand, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Udylite Corporation, herein called Respon- dent, is a wholly owned subsidiary of Hooker Chemical Corporation3 and maintains its principal office and plant in Warren, Michigan, where it is engaged in the manufacture, sale, and distribution of electroplating equipment, chemicals, foundry supplies, and related products. In the calendar year 1967, Respondent had a direct inflow and a direct outflow in interstate commerce , in each instance, valued in excess of $50,000. Respondent admits, and I find, that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, (UAW), herein variously called the Charging Party, UAW, or the Union , is a labor or- ganization within the meaning of the Act. Local 889, UAW, is principally involved herein as the representative of Respondent's office clerical em- i All dates are 1968, except as otherwise specified In Case 7-CA-6878 the original charge was filed on July 30 and served by mail on August 2 In Case 7-CA-6878( 3) the charge was filed November 5 and served by mail on November 6 The consolidated complaint herein was issued on December 18 2 After several extensions of time for filing, the briefs were received on August 18, 1969 3 It was stipulated that Hooker acquired Respondent in January 1968 427-258 O-LT - 74 - 16 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees . Local 189, UAW, represents Respondent's production and maintenance employees. III. THE UNFAIR LABOR PRACTICES A. Factual Background and General Issues On February 2, following an election on January 25, the Union was certified by the Board as ex- clusive representative in a collective-bargaining unit of Respondent's office clerical employees.4 Of 160 eligible employees, 76 voted for, and 69 against, the Union. Shortly after the election, an in- formal group of employees within the unit, some- times called the open shop committee, commenced antiunion activities, which continued during the course of Respondent's bargaining negotiations with the Union. The committee solicited signatures to two types of petitions: one urging an open shop, and the other indicating withdrawal of previously signed union authorization cards. Respondent ex- pressly relied on its assessment of these petitions it received from the open shop committee, among other reasons, to form its positions on certain bar- gaining subjects. Specifically, Respondent asserted at the bargaining table the belief that the Union did not actually represent a majority of the unit em- ployees as the basis for its proposals for an open shop and for a contract limited to 1 year from the certification date of February 2. For its part, the Union sought a union shop and a 3-year contract. In the later stages of bargaining, both sides to some extent modified their proposals in these two areas, as will be shown. Commencing on June 28, the Union on behalf of the clerical unit engaged in a strike against Respondent, ultimately abandoned about October 1. On August 14, Local 189 on be- half of the production and maintenance employees struck Respondent, assertedly for failure to settle grievances. From February 9, extending through the period of the strike, some 35 bargaining ses- sions were held until December 17, but none thereafter. In the negotiations, a considerable por- tion of the time was devoted to questions of con- tract language relating to noneconomic matters, e.g., management rights, grievance procedures, and seniority. When further negotiations ceased in December, substantial areas of disagreement remained, especially concerning the "crucial" sub- jects of union security and length of contract. Extensive documentary materials were in- troduced, including original and revised proposals on particular contract provisions throughout the course of negotiations. Each side had its own set of notes and "minutes" of the bargaining meetings which, by stipulation, were admitted in evidence, but not for the truth of the contents. For the most 4As resolved after a representation hearing (Case 7-RC-8254). the appropriate unit comprises all office clerical employees, including regular part-time employees, but excluding technicians, drafting employees, estimators, chemical operators, utility men, maintenance men, mail drivers, chauffeurs, engineering trainees, confidential, managerial, part, by mutual agreement the witnesses while testi- fying concerning the bargaining discussions were permitted to have the minutes at the witness stand. These minutes, some taken in substantially verbatim form, have been carefully reviewed in the context of the entire record, and in pertinent instances have been given weight (a) where they serve to cor- roborate testimony and provide detail and clarifica- tion; (b) where both sets of minutes are in essential agreement; and (c) where they constitute admis- sions against interests and reveal conflicts between the testimony and the minutes of the same party. The principal issues, as alleged and litigated, are whether Respondent committed violations, as fol- lows: Section 8(a)(5): (a) Encouraging and assist- ing the open shop committee in its antiunion activi- ties, for the purpose of undermining the Union's majority and its bargaining position; (b) engaging in unilateral actions by (1) discontinuing its program of merit increases immediately before entering into bargaining negotiations with the Union, (2) grant- ing increases in wages and cost -of-living allowance, (3) changing the content of certain jobs and effec- tively eliminating the availability of such jobs prior to the termination of the strike, and (4) granting further cost-of-living increases as of March 1, 1969; (c) failing to supply relevant bargaining data requested by the Union; (d) requiring unit em- ployees to sign forms of an individual employment agreement ; ( e) refusing to meet with the Union at reasonable times ; and (f) generally engaging in bad- faith bargaining, particularly with respect to the subjects of union security and contract duration. Section 8(a)(1): (a) Interrogation concerning union activities; (b) threats of reprisal against em- ployees for participating in strike activity; (c) sol- iciting and inducing employees to abandon the strike; (d) surveillance of strike activities, including photographing and recording the names of picket- ing employees; and (e) creating among employees the impression that their union activities are under surveillance. Section 8(a)(3): (a) Denying or delay- ing merit increases to employees because they in- tended to and did participate in strike activities; (b) granting wage increases as a reward to nonstriking employees and as an inducement to strikers to return to work; (c) causing and prolonging the strike by unfair labor practices; (d) failing and refusing to reinstate nine named strikers upon their unconditional application to return to work; and (e) discharging one striker (Tuck) allegedly for misconduct on the picket line. B. Open Shop Committee Russell J. Reed testified at length as a witness for Respondent concerning the formation and func- technical, and professional employees, guards, supervisors, and all other employee. 5 Theretofore, a long history of contractual relations existed without the incidence of a strike THE UDYLITE CORP. 165 tioning of the open shop committee; e.g., he de- cided that he wanted an open shop 15 minutes after he learned the results of the election on January 25. On February 7, Reed, Jack Krause, Mildred Puckett, Carl Richter, and two others undertook to attend the scheduled union meeting (although they were clearly opposed to union representation). As a result, the next day, between 5:15 and 5:30 p.m.," Reed, Krause, Puckett, and Angie Fronimos "stormed" to the office of Personnel Director Robert F. Revitte.7 Puckett was "screaming" how unhappy she was. Krause was doing the same, say- ing, "Mr. Revitte, what do we do? What kind of a mess are we in?" And all that Revitte said was, "Why don't you go to the NLRB?" Revitte described as the reason for their visit that they were "quite upset" with the results of the election. On February 9, the Union had its first scheduled bargaining meeting with Respondent. Oswald D. McQueen, president of Local 889, testified that Revitte stated his opinion at this meeting to the ef- fect that the Union did not represent the majority of the clerical employees." Dated February 9, a petition addressed to Respondent's president, J. J. Rice, contains 63 names and recites the following: The undersigned employees have no desire to become a part of any organized union, and to this point have refused to sign union cards. We ask that Udylite management not bargain away our rights as individuals. We want to con- tinue to work as we have in the past, each able to speak for himself. We expect to continue working for the com- pany, its benefit as well as our own, trusting that we will never have to make the choice of signing with the U.A.W. or relinquishing our job. The employees who signed cards at the union meeting on February 7, 1968, now have the U.A.W. looking after their interests. We are concerned and wonder if the company will look after our interests in our desire not to become union members. Reed testified that he drafted this petition and that the signatures thereon were obtained on February 9, 12, and 13.9 On February 19, Reed and Krause retained an at- torney and thereafter received his assistance and advice.10 The open shop committee, consisting of 12 named individuals," was formed after their visit to the attorney. Existing apart from the committee was a larger open shop group. Reed and Krause alone determined the membership of the commit- tee, and their identity was not disclosed to the open shop group.12 On company premises, regular meetings were held of the "committee" and separate meetings were held of the "group." They tried to get as many as possible to attend. Notice of the meetings was spread solely by word of mouth. No minutes were kept, dues collected, nor formal structure of organization created.13 If the attorney was paid for his services, as presumably he was, the means therefor were not disclosed.14 Under the auspices of the open shop committee or "Udylite Employees For An Open Shop," circulars opposing the Union, urging their boycott of union meetings, and espousing an open shop were distributed in the plant. During the time of these activities, the Union was involved in negotiations with the Respondent. It is not disputed that the open shop committee prepared and distributed literature and engaged in solicitations on company time, and that it utilized company supplies and equipment. After the Union complained at a bargaining meeting about a par- ticular flyer, Revitte called in Reed and Krause on April 24 and advised them not to use company equipment and supplies in the future. The regular "open shop" meetings were held after 5 p.m. in plant conference rooms. Reed testified that (during the early period) meetings were arranged and con- ducted clandestinely and no attempt was made to obtain supervisory permission to use the conference rooms. In addition, it is disclosed that during work- ing hours Reed, Krause, and Richter met in the of- fice of one Church, Respondent's head of interna- tional sales, where they made phone calls and planned activities. On occasions when Church was occupying the office, he would readily leave upon request. I am unable to credit Revitte's explanations that Respondent had no rules controlling the private use of the conference rooms after hours; that he had no knowledge these rooms were being used by the open shop committee; that employees were not restricted from personal use of company equipment ° Working hours were from 8 15 a in to 5 p in ° Revitte placed this conversation as occurring shortly after the elec- tion, a week to 10 days 8 Revitte was specifically questioned by General Counsel and denied there was any discussion about the Union's majority status ° Accepting Reed's hearsay statement that Frommos passed the peti- tion around in the order department (of 15 employees), there is no evi- dence as to the circumstances under which these names were affixed to this petition, or to the later petitions 10 Reed cryptically explained that Krause got the name of this attorney, John E English Krause was not called to testify 11 Reed, Krause, Puckett, Fronimos, Dave Ogden, Ted Potter, Margaret Larkin, Pat Marnees, Martha Ertman, Terry Brown, Stan King, and Liz LaVigne 12 Without corroboration, Reed's testimony lacks plausibility Inter alia, letters dated May 31 and June 7 are signed in each instance by 12 different individuals purporting to speak for the entire group of "open shop" employees in the plant 13 To have done so might well have raised the question of the existence of tie open shop committee as a labor organization under Section 2(5) attempting to engage in bargaining with Respondent 14 Elsewhere in evidence is a letter dated August 30 from Attorney English to the Union which states that- "our office has been retained by a substantial group of employees in the 'white collar' unit at"-Udylite 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and supplies ; and that there were no rules against solicitation on working time. Revitte was surely aware of the activities of the open shop committee, as Reed admitted, and Respondent must have known these meetings were taking place on com- pany property. Logs were kept after hours for per- sons to sign in and out . While Revitte pointed out that meetings on company premises are held by other private groups, e.g., bowling, baseball, and credit union, he could not state any instances when supervisors were not present at such times. Richter testified that he had to obtain supervisory permis- sion to use one of these conference rooms for busi- ness reasons. Reed and Krause were purportedly "reprimanded" for using company equipment and supplies, supra. Regina Guy testified that the "com- pany told us" not to use company property or time for literature pertaining to the Union. And despite the absence of any written rule, it scarcely follows that employees are generally permitted to engage in solicitation during their working time. Such a liberal attitude by Respondent does not comport with its bargaining proposals limiting the Union's use of bulletin boards and restricting union activi- ties in the plant." Reed did not "recall" being in Revitte's office ex- cept on three occasions between February 7 and April 24, and thereafter he could recall that he was once at Revitte's door.16 Only on April 24 did they speak of the open shop committee. However, Richter had observed Reed and Krause in Revitte's office on three occasions preceding an arranged meeting of the open shop committee on the same day.17 Richter, no longer an employee of Respondent, testified for General Counsel. The testimony on both sides clearly shows that he was among the principal open shop proponents. In early February, when he was approached by Reed and Krause, he became a member of the open shop committee. Among other activities, he signed the February 9 petition, passed out open shop pamphlets, and sol- icited employees to revoke their union cards. Dur- ing the strike, he continued to work and to oppose the Union. Of some significance, only in the sense that it was information being passed on to em- ployees, is Richter's testimony that Reed and Krause told him Hooker Chemical Corporation had conveyed the message to Respondent's president, Rice, that it would back the open shop committee "to the hilt." Richter is credited.18 The open shop committee continued, in the plant, its campaign to provide evidence of an ex- panding list of union dissidents . On another petition dated February 28, and bearing eight names, the form is the same as that of the February 9 petition, above . The employees were told that these petitions would be given to President Rice when he returned from an out-of-town trip. Dated April 11, a further petition19 was circulated with an urgent appeal to have it ready for presentation to Rice that day. Ten names appear on this document as employees who previously signed cards20 and "now withdraw said authorization cards and request that our names be added to the list of employees who do not desire to be represented by the Union." On April 11, a "demonstration " was staged in the corridor outside Rice's office. Word was spread by open shop committeemen to employees in the three buildings in which they were employed. Richter testified that the advance instructions were for the employees to assemble at a certain location and then to march in an orderly fashion down to Rice's office, led by Reed and Krause. However, there is no direct evidence as to what the employees were actually told and by whom. According to Reed, he issued instructions to his lieutenants to advise the employees to forgo their coffeebreak at 3 p.m., and assemble at such time. Richter stated that the meet- ing took place at 4 p.m., lasting 15-30 minutes, and that earlier, at 3:45 p.m., he personally heard Reed inviting a number of people to appear at the Rice meeting. Reed said he contacted various secretaries of company executives, but not the secretaries of Revitte and Rice. Revitte testified initially that he was sitting in Rice's office when he heard voices outside the of- fice door; he looked out and he saw Reed and a large group of employees. On cross-examination he conceded that it was not unexpected and that he was in Rice's office awaiting the visitation of such a group. That morning he had been told by his secre- tary of "rumors of a large group to meet Rice."21 Revitte estimated there were 75 to 80 employees in the corridor; he saw a-good 95 percent of them and knew who they were as office clerical employees of Respondent. Reed estimated there were 65 to 80 employees, including the members of the open shop committee. Later he testified he recognized only 25 to 30 employees and he saw some who were not in the unit, such as an engineer he knew.22 Richter said that about 50 employees were there. Rice and 15 E g , April 16 proposal on "Representation" that "No Union activity, including grievance processing, shall be carried on Company premises during scheduled working times " 16 Previously Reed testified that, about February 28, he and Krause approached Revitte for a list of the employees in the unit-which Revitte refused i] I find that there were more than the four such visits recalled by Reed, and that on each occasion the conversation concerned in some aspect the activities of the open shop committee 11 Reed's testimony appears vague , contrived , and evasive in num- erous respects 19 Reed indicated that the language was furnished by Attorney English 20 There is no showing that these employees had actually signed authorization cards or were at any time members of the Union 21 It is difficult to believe , as Reed related, that such a meeting was not cleared in advance with Rice-at least to the extent of having knowledge that Rice would be there when all these employees collected at his office Rice was not called to testify It is a reasonable assumption that some employees came along with the group or stopped in the crowded corridor at the ceremony in front of Rice's office only for reasons of curiosity THE UDYLITE CORP. 167 Revitte stood outside the office door. Reed an- nounced that he was the spokesman for these peo- ple in the unit who are interested in an open shop. He handed three petitions to Rice, stating that the people who signed are in this group . Rice read each of the petitions , and then said that Respondent is obligated to bargain with the Union and would do so. Richter testified that the main points of Rice's speech were that he would back the open shop committee, and that he was happy to know he had these loyal people standing behind him. On April 16, the next bargaining session, Respon- dent submitted its first written proposals on certain subjects. As part of a proposed article on union recognition , Respondent included a section which in effect provided for an open shop . Among the reasons it advanced in the discussion was the ex- istence of employee petitions as the source of its doubt regarding the Union's majority representa- tion. The Union charged that management had en- couraged the solicitation of antiunion petitions, and also referred to the mass meeting with Rice the previous Thursday, April 11. Revitte then remarked that that meeting was spontaneous, and "any time someone has a problem, thirty or forty people can talk to me to have a meeting." The same position of Respondent , relying on the petitions , inter alia, as proof of the Union's lack of majority, was reiterated in numerous subsequent meetings with the Union . These employee petitions or other pur- ported documentary evidence on the majority question were never brought to the bargaining meetings , as Revitte admitted. Nor, indeed, in this record was there an attempt to establish by direct probative evidence that a majority of the employees in the unit had signed the petitions . 23 There is only the testimony of Revitte that he had his secretary verify the signatures from employment records and, on cross-examination , that he checked some him- self.24 At the July 10 meeting, during the strike, the fol- lowing exchange took place , in pertinent part:25 PARKER : Union Security? REVITTE: No change. VEGA (Union ): What do you mean `no change.' I want to get your thinking ... why do you propose an open shop at Udylite? REVITTE: Because the majority of the people do want an open shop. VEGA: I want the truth. Didn't you have an election and didn't the majority vote for, rather than against? REVITTE: At the time of the election-but just shortly after the election the majority had indicated they do not want the Union. VEGA: We complied with the law. People came by their own free will-they want the Union to represent them. Now you come in here and say that the majority do not want to belong . Where is your proof? REVITTE: The majority of people are coming in to work. You can count them.... VEGA: Do you mean to tell me that what I observed-out there bidding your employees goodnight is normal procedure? REVITTE: If you are going to be out there we are going to be out there. If you are going to have so many people on the picket line .... VEGA : I still think we have the right to ask the Company for proof that we do not represent the will of the people. If you think we are unreasonable about getting this proof, I would like to hear about it. Mr. Revitte stated that it has got to be an open shop and when asked for proof he said `go out and count them ' and I 'm not about to. KELLER: We are here to negotiate a con- tract . It does not mean that we have to lock in on representation by your Union. VEGA: ... What about checkoff-what would be your objection to checkoff? REVITTE: Open shop and checkoff do not go hand in hand. VEGA: What about contract termination? REVITTE: Our position is still the same-7- month contract (i.e., from that date). VEGA: You are talking about decertifica- tion. I didn't know any employer had the guts to propose a contract of as short a duration as one year. KELLER: You know we can't decertify. All we can do is file a petition.... Maybe these people should have another chance to look at the situation. On April 22 Revitte posted a "Personnel Bul- letin" informing the employees of the "Office-Cler- ical Contract Negotiations " and indicating that Respondent will "keep you informed of future developments." In the bulletin, he stated , inter alia, that "in response to the Union's demand for a union shop" ( i.e., all employees must be Union), Respondent had submitted a "Recognition proposal " which includes "a clause stating that all employees should be free to join or refrain from joining the Union." In the ensuing period, leaflets were distributed and communications were sent on behalf of the "open shop" employees. On June 28, the date of the strike, Mildred Puckett sent a letter to the Union, with a copy to Respondent, enclosing a petition stating that the signers had withdrawn 23 The parties' stipulations to admit these petitions in evidence is construed as an agreement merely that these documents were received by Respondent and not that the names thereon are authentic signatures of employees then in the appropriate unit 24 The 3 petitions contain 81 names Revitte stated that he had deter- mined there were 155 employees in the unit at that time, i e , April I I As already noted, at the January 25 election , 160 employees were eligible to vote Revitte also testified that between January 25 and April 15 6 unit employees had quit and 7 new employees were hired, and that there were 165 employees in the unit when the Union struck on June 28 It is ap- parent that these figures do not reconcile No substantiating company records were disclosed at the hearing 25 Credited from the uncontradicted and corroborated account of the Union's minutes , taken in substantially verbatim form 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their union cards. The petition contains six pur- ported signatures, of which four are dated June 28. During the strike, supervisors, including high offi- cials, were in daily attendance at the picket line. They greeted the nonstrikers. Known leaders of the open shop committee engaged in the same conduct. On several occasions, Reed and Krause stood with Revitte receiving people through the picket line. Reed also made phone calls to strikers at their homes, e.g., to "join the winning side," to withdraw their union cards-and to tell them they would get a 5-percent increase which is "given to everyone who comes off the picket line." Revitte openly took the names and kept an account of the picketers. Puckett and LaRonde of the open shop committee were also observed taking names. In the early part of the strike, Clifford J. Parker, international representative of the UAW, had conversations at the picket line with Gerald W. Munro, Respon- dent's labor relations manager. Parker's uncon- troverted testimony is that he asked Munro why management was out there talking to the pickets, why "some of the open-shop committee were out beyond starting time waving people in," and whether "they were being docked the same as the bargaining committee were being docked for time spent in bargaining"; Munro responded that "they were receiving overtime. "26 Mildred Puckett and Theodore H. (Ted) Potter, in particular, are alleged to be supervisors under the Act, or agents of Respondent.27 Puckett is employed in the order department- which has 15 employees under the head supervision of Letha Frame. When Frame is on vacation (23 workdays a year), otherwise absent, or away from the department, Puckett acts in her place.28 Only Frame and Puckett in the department sign approval on the timecards of employees. Employees speak to Puckett when they call in sick, obtain permission from her to leave work early, and may be ad- monished by her when they come to work late. In- dependently of Frame, Puckett has authority to issue corrections in customers' invoices, make credit adjustments, and approve the return of merchandise-as to which other employees come to Puckett for authorization. Her monthly salary is $115 more than the highest paid employee in the department. I find that Puckett exercises direct su- pervisory authority for substantial periods of time and at all times responsibly directs employees within the meaning of Section 2(11) of the Act.29 Potter was promoted to foreman in the tool crib department effective April 15, and a notice of such action was posted on the bulletin board. He testified that he was advised of such promotion by Supervisor Del-Buttrey on April 11 and gave his ac- ceptance on April 12.30 Gayle Allard testified that, on a particular day in April or May, Potter spoke to her twice about signing an open shop petition. He said that he and Revitte were well aware of who was in the Union and what was going on at all times, "and so it was a lost cause." He also con- fided to her that he had let Respondent know he would take the side, Union or Company, which of- fered him the best deal.31 Allard then commented that she could see why he had done this, as he now had a foreman's job. Allard further stated she knew he was a foreman at the time of these conversations as Potter had theretofore told her of his promotion in March or April. Potter testified, viz: His discus- sions with Allard concerning the open shop petition occurred before April 12-in late March or early April. Although he was offered the foreman's job earlier that day, he attended the meeting in front of Rice's office on April 11. On April 11 he informed Krause and Ogden of the open shop committee that he was being considered for a promotion to super- visor and they told him to terminate his connection with the committee. He had replaced Kauffmann as crib for man, but the post had been vacant for a while. Buttrey did not testify, and no records were introduced. While it is apparent that Allard was un- certain as to precise dates, her testimony is credited regarding the essential timing and content of the conversations. Potter's testimony impressed me as being insincere. Whether or not Potter's promotion was made effective by April 15, or notice posted to such effect, I find that he was actually notified of his foreman's status on or before April 11, and that he informed Allard of this fact before their conver- sations in question. Thus, he was a management promotee even when he attended the Rice meeting. On April 11, as already shown, an intensive drive was conducted by the open shop committee for signatures, in order to furnish Rice with sufficient evidence on the majority question. In all these cir- cumstances, I reach the conclusion that Potter sol- icited Allard's signature on April 11, and both knew at the time that he was an appointed super- visor or member of management. As shown, Puckett and Potter were among those named by Reed as members of the select open shop 26 Reed testified that he came to the picket line before working hours but denied that he was "paid by the company to go out and wave pickets in " 27 Russell Reed's status was also litigated Employed in the credit department, he is responsible for handling credit questions on approxi- mately half of Respondent's accounts, within certain limits set by the department head Dale Moon On a job description form prepared by Respondent in 1967 Reed is plainly shown as the "immediate super- visor" of Diane Caton Contrary to Respondent, it does not detract from the effect of this document that, in a covering letter submitting these forms to the Union on July 16, 1968, Revitte states that "no determinations have been made that the questionaires describe each Job completely and accurately," nor by the entry on Kay Schneider's form that she is "responsible for typists" 20 percent of her time How- ever, while I find herein that Reed was an agent of Respondent in his open shop activities, I do not consider the affirmative evidence sufficient to hold that he was a supervisor under the Act The status of Jack Krause, described as a buyer, was not alleged or litigated 28 They arrange not to take vacations at the same time 21 See Ohio Power Company v N L R B, 176 F 2d 385 (C A 6), cert denied 338 U S 899 30 I do not believe, as Potter intimated, that he needed time to decide whether to accept this offer 31 Elsewhere it appears that Potter engaged in prounion activities 'during the election campaign THE UDYLITE CORP. committee and they participated in obtaining signa- tures for the open shop petitions. Puckett wrote let- ters as spokesman for the committee and was par- ticularly active in speaking to the employees in her department and in soliciting withdrawal of union cards. It appears from unopposed statements of Respondent's counsel that both of these individuals were permitted, by stipulation, to vote in the elec- tion. Respondent contends, therefore, that the issue of their supervisory status is res judicata in the representation case. However, the decisions are clear that, despite such a stipulation, Respondent is responsible for the antiunion conduct of these su- pervisors where, as I conclude on this record, it en- couraged such conduct and acted in a manner as to lead employees reasonably to believe that the su- pervisors were acting for and on behalf of manage- ment.32 Conclusions On the broader question, I find that Respondent encouraged, assisted, and supported the conduct of the open shop committee in its efforts to undermine the Union's established majority status. In disregard of the Board election decisively won by the Union, the campaign continued on without abatement to prevent the Union's representation of the clericals. Despite the "open shop" banner, it is fairly clear that the primary purpose of this dis- sident group was to provide Respondent with evidence upon which it could challenge the Union's majority position at the outset of bargaining. While Respondent was under a legal obligation to regard the majority question as conclusively settled for at least 1 year after the Union's certification'33 it acted with obvious alacrity so soon after the election in accepting the open shop petitions as evidence of the Union's loss of majority. Such evidence as Respondent possessed was highly questionable.34 If the petitions of February 9 and 28 were confined to a request by these employees not to be compelled to join the Union, it would not in this form manifest any clear indication not to be represented by the certified Union. However, the preamble in these petitions is cleverly and ambigiously worded to ap- pear to go beyond a desire for an open shop. Thus, there is the request made of Respondent not to bar- gain away their rights as individuals, and the ex- pressed desire to continue to speak for themselves, 32 E g , Montgomery Ward & Co , Inc, 115 NLRB 645, enfd 242 F 2d 497 (C A 2) 33 The exception to the rule , where "unusual circumstances" exist, does not apply here Ray Brooks v N L R B , 348 U S 96, 98 34 "A petition or a public meeting in which the influences of mass psychology are present- is not comparable to the privacy and inde- pendence of the voting booth " Ray Brooks v N L R B , supra at 99 35 Respondent could not assume the attitude , as it stated in bargaining with the Union , that it had to negotiate a contract acceptable to all em- ployees , not just part of them It could not simultaneously seek to satisfy a minority group opposed to the Union and at the same time accord the Union its statutory due as the certified majority representative and exclusive agent for all employees in the clerical unit 169 while stating that those who signed cards would have the UAW look after their interests.',' These documents nonetheless were circulated and represented to be "open shop" petitions, and it may be doubted that the employees really understood what they were asked to sign. It is significant that on April 11 an urgent effort was made to obtain further signatures, as on the petetition for withdrawal of union cards. The reason for the ur- gency is evident in the closeness of the majority count by the open shop committee that day. And the timing coincided with the planned ceremony at President Rice's office to deliver over the proof of majority sentiment opposed to the Union. There is substantial showing of Respondent's sup- port for the open shop committee, particularly in the eyes of the clerical employees,36 with the neces- sary effect that Respondent rendered as its own agents the open shop committee and its active proponents. (a) Respondent's high officials were certainly aware of the April 11 meeting with Rice well in advance of the event. It had to be known by management that the preparation, assembling, and dispersal of such a large contingent of employees from three buildings would consume an appreciable amount of employees' working time-likely in ex- cess of one-half hour for each employee. (b) Respondent promptly adopted the open shop peti- tions for its own purposes, to support the basic bar- gaining proposals it put forth in the contract negotiations, and then proceeded to announce its position to the employees. (c) On working time, the open shop committee used Respondent's premises, conference rooms, equipment, and supplies and en- gaged in soliciting and circularizing the em- ployees.37 (d) Supervisors of Respondent were ac- tive members of the committee. (e) During the strike, leaders of the committee stood side by side with top management personnel in attempting to counter the Union's activities on the picket line, thereby identifying Respondent with the open shop committee. (f) Open shop committee leaders held themselves out as being supported by management. Respondent did nothing to disabuse the employees of reasonable cause to believe that it supported the open shop committee. Accordingly, it is found, as alleged, that by the conduct described above, Respondent restrained and coerced employees in violation of Section 36 Slight suggestions as to the employer's choice between a union and an organized dissident group may have telling effect among employees who know the consequences of incurring that employer's strong dis- pleasure E g , International Association of Machinists, Tool and Die Workers Lodge No 35 [Serrick Corp ] v N L R B, 311 U S 72, 78 See also Southland Manufacturing Corp, 157 NLRB 1356, 1387 39 Nor is it plausible that Respondent was merely pursuing a neutral stance in allowing complete and unrestrained activities on company time and property to both factions, those who favored and those who were against the Union This is all too facile a defense in the circumstances revealed Unless it was clearly publicized to the employees, as it was not, that they had such freedom of the plant, as Revitte described-the employees had to assume that working time was for work 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8(a)(1) and failed to bargain in good faith in viola- tion of Section 8(a)(5).38 C. Unilateral Action Concerning Wages 1. Merit increases Respondent had an established practice of giving the clerical employees merit reviews twice in the year of hire and annually thereafter, with the merit increase generally not in excess of 8 percent of base salary in any continuous 12-month period. Follow- ing the Union's certification, Respondent discon- tinued this practice without notifying or consulting the Union. According to Respondent, at the March 27 bargaining meeting the Union indicated it "heard rumors" from employees that a "freeze" had been put on merit increases. Asked for specifics, the Union mentioned the names of certain em- ployees.39 Respondent then stated its position simply that merit increases were a proper subject for bargaining. There is plainly no validity in Respondent's argument that, because of the Union's silence at this point, that the Union in ef- fect agreed to the cessation of merit increases pending negotiations on the subject. Confronted with the accomplished fact, the Union was not obliged in subsequent sessions to drop discussion on other important subjects in order to bargain toward an immediate agreement to restore the discontinued program of merit increases. On June 7 the parties did reach an interim agreement, which provided, in essence , that Respondent would con- tinue its past procedures during the period of negotiations, would review all eligible employees for the previous months, and would advise the Union of its decisions, but that the Union reserved the right to contest any decision granting or failing to grant a merit increase, and that disagreement would not operate to prejudice any proposal ad- vanced by either party during the negotiations. Respondent's contention in its brief that it was legally obligated to halt all merit increases during negotiations is misplaced; It overlooks the critical fact that in such decision to discontinue it acted unilaterally and arbitrarily, with an undercutting ef- fect upon the Union concerning a mandatorily bar- gainable subject. Unquestionably, Respondent's merit increase program was an existing form of compensation, and a term and condition of employ- ment, regularly expected by the employees. To be sure , an element of discretion, predicted upon prior 38 Cf Fremont Newspapers, Inc, 179 NLRB 390 "It is also evident that in April Supervisor James R Kirkhoff told one employee , when she complained , that "all raises were being held pending the union 's settlement " 40 E g., A H Belo Corporation, 170 NLRB 1558, enfd 411 F 2d 959 (C A 5), Stark Ceramics, Inc, 155 NLRB 1258, enfd 375 F 2d 202 (C A 6), Exchange Parts Company, 139 NLRB 710, enfd 339 F 2d 829 (C A 5) 41 A H Belo Corporation, 170 NLRB 1558 (TXD) 42 E g , Satilla Rural Electric Membership Corporation, 137 NLRB 387, 392 merit review, was retained by Respondent with respect to particular employees, but certainly not to the entire program . In the same respect, the merit increases here are analogous to regularly paid Christmas bonuses, as to which the law has long been firm that a unilateral discontinuance manifests a refusal to bargain .40 If the employer believes it is confronted with a difficult decision as whether such merit increases may be legally continued during bargaining-a readily available recourse is for the employer, before taking any action , to consult with the union and seek a mutually agreeable means of resolving the question in the most expeditious manner. 41 However, it is apparent that other con- siderations motivated Respondent's conduct on the merit increases . In the course of bargaining on this subject as on certain others, shown infra, it is noted that Respondent insistently sought the right to act unilaterally in derogation of the statutory represen- tative of the clerical employees.42 It is also credibly evident that, despite the interim agreement with the Union on June 7, merit in- creases were withheld from employees solely because of the pendency and occurrence of the strike, and not paid until the strike's termination in October. Such withholding, I find, was coercive and discriminatory upon the employees affected, in violation of Section 8(a)(1) and (3).43 2. Wages and cost-of-living allowance On April 4, Respondent posted a bulletin ad- dressed "To All Salaried Employees (excluding of- fice-clerical employees)," in which it announced immediate wage increases and promises of future benefits. Salaries were raised 5 percent. Also, these employees were informed that, of course, they "will continue to be reviewed at their normal review time and salary increases will be granted based on per- formance and merit." In addition, they will receive a cost-of-living allowance of $8 a month, which would again be increased to $13 in March 1969 and to $19 in March 1970. "Other improvements" and benefit programs were currently being reviewed and further announcements would be made as soon as possible. A final note held forth that Respondent's future has brightened con- siderably in recent months by reason of a corporate merger. There is no doubt that this communication was calculated, in substantial part, to exert pressure on the clerical employees within the unit respecting their adherence or opposition to the Union.44 93 On June 27 Supervisor Don Giddings told Helene E Kozlowski that he was not going to release her merit increase because it would make him look foolish giving her the raise I day before she was to go out on strike On the same date Marcella J Scarborough was similarly informed by Giddings On June 24 or 25 Kay V Schneider was told by Supervisor Kirkhoff that her ment increase had slipped his mind and he would take care of it right away Not until after the strike, in October, did these employees receive their merit increases, although, when they did, it was made retroactive to a date preceding the strike 44 As earlier described, during this period the open shop committee was intensively campaigning, e g , to obtain withdrawals from the Union THE UDYLITE CORP. 171 On May 14, Respondent first made its economic proposals to the Union , inter alia , providing for a 5- percent wage increase and an $8-per -month cost- of-living allowance-at the same time that it specified a'contract term to expire with the certifi- cation . year. On May 21 , the Union submitted its counterproposals consisting of a detailed salary grade structure for wages , and a formula for cost- of-living allowances-in each instance extending over a term of 3 years. Following the strike , about July 3, Respondent announced to the working clericals and placed in effect a 5-percent wage increase and an $8 cost-of- living allowance . The Union was not notified or consulted . Respondent 's brief asserts justification for this unilateral action on the grounds that an im- passe existed on wages. However, the evidence is quite clear that relatively little bargaining took place on the subject of wages in the interval between the submission of the respective proposals and Respondent's decision to grant the raises. Although progress in the negotiations was slow, and numerous major issues were outstanding between the parties , there is entirely no basis for holding that an impasse existed on any subject at this point."' On June 11 and 26, for example, Respon- dent indicated that bargaining with respect to many of the economic issues would have to be deferred until after the length of the contract was deter- mined . During and after the strike , the parties con- tinued to meet, with proposals submitted and agree- ments progressively reached on a number of sub- stantial subjects . Economics in various aspects were certainly open and considered at several of these meetings . Admittedly on both sides , the crucial areas during the later stages of bargaining consisted of contract duration and union security . It suf- fices to refer to a portion of Respondent's state- ment at the September 26 meeting : "If we are able to work something out in these two areas it is subject to dismissal of [the pending unfair labor practice charges] . . . . I have the feeling that the economic isues are not as difficult as non- economics . We will look into economics as a pack- age. I can give you some general guidelines if we have the length of the contract nailed down . . . . We are willing to work within this wage structure [proposed by the Union] if some juggling is neces- sary . . . . There can be movement on the cost of living. . . " Moreover, in view of the timing pointedly related to the inception of the strike , and in light of the en- tire record , I find these general wage raises were also designed as an inducement to employees to refrain from, or to abandon , participation in the strike. Accordingly, the alleged violations of Section 8(a)(5) and ( 1), in this instance of a flagrant nature , are fully sustained in the evidence.46 D. Individual Employment Agreements On June 27, the day before the strike, Respon- dent distributed to the clerical employees a form entitled "Employment Agreement-Form B." Each was required to sign , witness the signature of others, and return the executed form that day. Fol- lowing the strike , in October, it appears that some of the returning strikers were asked to sign the same form. Respondent contends that this agree- ment is intended purely as a commitment by the salaried nontechnical employees"' to safeguard Respondent 's "trade secrets,"48 and is not materi- ally related to the statutory formula of wages, hours , and conditions of employment. Viewing the actual language in this individual agreement, Respondent 's position must be rejected . Thus, for example , paragraph 4 bears no relation to trade secrets, e.g.: I agree to perform and carry out diligently, faithfully and to the best of my ability all duties assigned and instructions given to me by authorized personnel of the Company, to comply with the rules, regulations , policies and procedures of the Company and to act and comport myself at all times in the best interests of the Company. Nor are Revitt 's explanations acceptable as to the timing of the distribution of these forms to the cler- icals . A memorandum from Hooker dated January 17 indicates that, "effective immediately ," form B was to be signed by applicable "newly hired" em- ployees.49 Another memorandum dated June 25 from Respondent to its own department heads recites that "new forms" had been received from Hooker which all present employees will be required to sign immediately. It can only be con- cluded that this kind of evidence by Respondent is fragmentary, self-serving, and does not provide the justification it claims .50 Also on June 27 President Rice addressed the assembled clerical employees in an effort to dissuade them from participating in the scheduled strike the next day ( as further discussed, infra ). They were compelled to execute this "Em- ployment Agreement"-without advance notice, in seeming haste , and with no opportunity to seek ad- 45 See, e g , Taft Broadcasting Co, 163 NLRB 475, Northland Camps, Inc, 179 NLRB 36 46 The 8(a)(3) allegation in the complaint on the theory of conduct discriminatory against the strikers is not found , as the 8(a)(1) violation is adequate to support the recommended remedy , which does not include backpay 41 Technical and professional employees were required to sign form A, not disclosed in evidence 48 Otherwise entitled "Safeguarding Proprietary and Patent Informa- tion " 41 Revitte testified that he did not receive this document until late in May 50 These memorandums introduced by Respondent cannot be viewed in isolation, as the only internal management communications , written or oral, on the subject over the 5-month period shown 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vice as to the effect of such a complex instrument. The production and maintenance employees, represented under contract by Local 189, were not required to sign such a document. And the Union, in the very process of negotiating with Respondent, was in no manner notified or consulted. In all the circumstances, the employees could reasonably be- lieve that the Union was being bypassed, that they were bound by this individual agreement to "com- port themselves in the best interests of the Com- pany" even at the sacrifice of their representation rights, and that Respondent imposed such require- ments solely by reason of the impending strike. Such effect, I find, was the purpose of Respondent in its timing of this matter. It is unnecessary to de- cide as a general proposition whether nontechnical represented employees, as here, may be required to sign individual trade secret agreements without bar- gaining with the Union. For example, proof of reasonable necessity and relationship to routine du- ties, or access to such confidential matter, all not established here, may well be pertinent to the question. As clearly shown, the "Employment Agreement" in this record extends beyond necessa- ry language to preserve trade secrets into the broad realm of working conditions. Consequently, I con- clude on this issue that (a) Respondent acted uni- laterally in violation of Section 8(a)(5), and (b) it independently violated Section 8(a)(1) by coercing the employees with respect to their right to engage in a strike. E. Restraint and Coercion because she attended all the union meetings. On June 28 Giddings telephoned Kozlowski at home and asked if she was coming in; she responded negatively. He then said that if she came back to work Monday, she would be accepted, as Mr. Rice had extended the deadline from Friday until Mon- day. On June 27 Giddings also talked with Scar- borough. She asked if she could be fired if she did not come in the next day. He answered that "this could happen," as Rice had stated in his speech that the strikers "could be replaced." He told her that if she "didn't come in tomorrow (Friday), don't come in Monday." Giddings also said he knew she attended the union meetings.52 On June 27 Revitte approached Freda Kurzhals, a relief switchboard operator and receptionist, and offered her a full-time receptionist job to begin the following Monday at a salary increase of $25. She accepted, but did not assume the job because she joined the strike on June 28.53 Rice's speech on June 27 is not specifically al- leged as coercive. On the sparse evidence, I find that he told them essentially that as (economic) strikers they could be permanently replaced- which was not coercive in the existing circum- stances. However, Giddings interpreted and used the speech in a manner which conveyed an implied threat to Kozlowski and Scarborough that their jobs would likely or definitely be forfeited if they par- ticipated in the strike. Additionally, Giddings' com- ments to both were designed to create the impres- sion that their union activities were under Respon- dent's surveillance. Within the framework of the complaint, nu- merous alleged independent violations by Respon- dent occurring before and during the strike (June 28-October 1) were fully litigated. 1. Before the strike As earlier described, in April, Potter, as a promotee to supervision, told Allard that he and Personnel Director Revitte were well aware of who was in the Union and what was going on at all times. On June 27, President Rice spoke to the assem- bled employees concerning the strike scheduled the next day. Kozlowski testified that Rice said that it was the last opportunity to change their minds, and that if they did not come in the following day, he didn't know if there would be any work for them.51 That day she was told by Giddings, referring to Rice's speech, that he did not know if there would be a job for her if she did not report the next day. He also said he knew she was for the Union 51 Supervisor Giddings' brief version was that Rice said "There was no assurance that there would be jobs for the strikers " 52 The discussions concerning merit increases, supra, took place in these same conversations of Scarborough and Kozlowski with Giddings 53 Revitte is not credited that this offer was made and accepted in mid- 2. During the strike Admittedly, Respondent employed professional photographers who openly took pictures of the strikers at various picketing and other locations for at least 20 to 30 days after the strike commenced. Supervisor Munro was seen using a camera at the picket line. Throughout the strike, Revitte was seen at the picket line virtually every day making notes and taking names, at times even inquiring as to the identity of particular strikers.54 It has been shown that company officials and open shop leaders were in regular attendance at the picket line; e.g., in per- forming "nail duty" and in greeting nonstrikers. Especially in such a pervasive atmosphere of management scrutiny of the protected peaceful picketing of these clerical employees, I find Respondent's conspicuous taking of pictures and names of strikers was calculated to, and did, have the coercive implication that Respondent was recording such information for the purpose of visit- May and that the accompanying raise was effective May 1, Inter alia, it is documented that Kurzhals, and many others, received a merit raise as of May 1, retroactively effected 59 His testimony that the closest he got to the pickets when taking names was 200 feet is not credited THE UDYLITE CORP. 173 ing future reprisals .55 As such conduct of Respon- dent commenced the first day of the picketing, and there was no indication of a reasonable basis for an- ticipating violence and mass picketing, Respon- dent's contention that its purpose was to secure evidence of such unlawful strike activity56 is wholly without foundation.57 That Respondent engaged in numerous solicita- tions of strikers to return to work is fairly established in the evidence. Revitte told Schneider he was surprised to see her there, and instructed her to go back to the office where she belonged. He told Allard and Anna Rudzewicz that they shouldn't be there-"why don't you go back to work"? Credit Manager Moon asked Schneider to come back and try to bring the girls back. Labor Relations Manager Munro told Allard, a secretary in production and planning, that she could work for him if she came back. Kirkhoff spoke to Murtha twice on the picket line and telephoned her at home at least once-in an effort to induce her return '58 stating that "the company won't give in for quite a while." As previously described, Giddings sought to keep Kozlowski from going out on strike and telephoned her at home on the first day of the strike to come to work. He implied the threat that her job would be lost if she did not return by the extended "deadline" on Monday. Reed, of the open shop committee, made telephone calls to at least one striker to return to work, mentioning the wage increase "which was given to everybody that went back in off the line." Absent a threat or promise of benefit, the legality of an employer's solicitations of individual strikers to return to work must be determined in light of the entire background against which such solicitations were conducted.59 In all the circumstances described, I find the solicitations in question con- stituted an organized effort and a course of conduct of Respondent, rather than individual or isolated in- cidents. They were undertaken in the context of other unfair labor practices indicative of Respon- dent's animus toward the Union's representation of the clericals. In certain instances, as shown, these solicitations were accompanied by a threat or a promise. It has earlier been found that, upon the in- ception of the strike, Respondent unilaterally in- stituted wage and cost-of-living increases having a substantial purpose of influencing employees to refrain from or to abandon strike activity. I con- clude, therefore, under established criteria of the Board,60 that the solicitations were an integral part of Respondent's illegal opposition to the purposes of the Act insofar as pertains to the rights of the represented clerical employees. Accordingly, on the basis of the foregoing, the al- legations are sustained that Respondent violated Section 8(a)(1) by engaging in surveillance of em- ployees' union and protected activities; creating the impression among employees that they were under such surveillance; photographing and taking the names of strikers; threatening employees with the loss of their jobs if they participated in a strike; promising and granting benefits to induce em- ployees not to engage in or to abandon their strike activity; and soliciting strikers to return to work. F. Refusal To Bargain As already shown and as manifest in this record, the subjects of contract duration and union security were the crucial issues throughout the negotiations and presented the ultimate obstacles to any full agreement.61 1. Contract duration Formally submitted on May 14, Respondent proposed a contract term only until the expiration of the Union's certification on February 2, 1969. As reason for this limited term, Respondent in- formed the Union of its doubt that it represented a majority of the unit employees, asserting as evidence the open shop petitions it received on April 11 (but did not disclose) and statements made by (unidentified) employees. 62 In maintaining this position in subsequent sessions, Respondent also variously mentioned employee turnover, the closeness of the election, the desire to afford the employees a new election, and an alleged lack of majority support for the strike. On July 29, in a private meeting with the Federal mediator, Respon- dent informally indicated to the Union that it would accept a contract a month or two beyond February 2; i.e., a contract term of 7 or 8 months.' On Sep- tember 26, the Union proposed a 16-month con- tract from date, and Respondent then offered a 10- month contract from date. The Union's further compromise to split the difference by agreeing to a 13-month contract from date was not accepted by Respondent. ss E g, N L R B v Rybold Heater Company , 408 F 2d 888 (C A 6), Preston Feed Corporation , 134 NLRB 629, 643 , enfd 309 F 2d 346, 351 (C A 4), Flambeau Plastics Corporation, 167 NLRB 735 56 Offers of proof of such purpose simply by the testimony of Revitte were rejected 57 To be compared is Supervisor Kirkhoffs testimony emphasizing the peaceful and even friendly character of the picketing by the clerical employees se Kirkhoff indicated that , during the course of the strike , management officials had numerous conversations with the strikers , and that he might have had 50 or 100 such conversations 59 E g , The Texas Company, 93 NLRB 1358, 1360-62, King Chrysler- Plymouth, Inc, 174 NLRB 531 60 Ibid 61 As a record fact, it is noted that Respondent's contract with Local 189 of the Union, inter a/ia, provides for a 3-year contract term, union shop, and checkoff 83 Testimony of Revitte Parker, the Union's spokesman, could not recall whether any reasons were given by the Company at this time 13 As early as June 11, the Union revealed that it was "not wedded" to a 3-year contract or to a union shop 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent relies on Board cases which hold that an employer may insist on a contract term ex- piring with the certification year where it has a good-faith doubt of the union 's majority status.64 However, as indicated earlier herein , Respondent had no valid basis 'for such a good-faith doubt. It unlawfully supported the open shop committee, which supplied it with the employee petitions osten- sibly to show the Union 's lack of majority. Moreover , testing Respondent's position as of April 16 when it was first advanced,65 and especially in light of the recency of the Board certification, the evidence asserted by Respondent could not justify a reasonable doubt that the Union had lost its majori- ty. Indeed , the purposes of the Act would be sub- verted if an employer in these circumstances were permitted to establish a defense of good-faith doubt predicated upon purported results which it unlaw- fully helped to create . Having adopted this posture practically from the beginning of negotiations, Respondent accordingly shaped its proposals to the brief contract term it proposed . And indeed, as I find upon the evidence , it consciously prolonged the bargaining as to foreshorten the remainder of the certification year. 2. Union security As with the issues of contract duration, virtually no change took place in the negotiations on union security from the date the Respondent's proposal was presented, on April 16, until the private meet- ing with the mediator on July 29, during the course of the strike. At such time , Respondent generally suggested that it might agree to "maintenance of membership with some kind of safeguards." On September 26, at the meeting before the end of the strike, this proposal was placed on the table and spelled out. 66 Most of Respondent's reasons for es- pousing the open shop were substantially the same as those advanced on contract duration. These in- cluded an alleged lack of majority support for the Union and the open shop petitions . On several oc- casions, Respondent stated it was opposed to a union shop as a "matter of principle."" And on July 22, it emphasized such opposition while in- dicating that it did not ( affirmatively ) have to have an open shop . On checkoff, it stated that this issue was tied to union security. My finding is that Respondent 's position was not taken in good faith . While it was certainly under no compulsion by virtue of the Act to make a conces- sion for the adoption of any kind or degree of union security, it was required fully, fairly , and in good faith to negotiate on this issue , as well as all others, in a sincere effort to reach a collective -bargaining agreement with the Union . However, on this sub- ject as on contract duration, Respondent's proposals were squarely centered upon a purported doubt that the Union was the majority representa- tive . Again, the issue must be judged as of the time Respondent took its original stance; i .e., April 16. Thereafter, defections from the Union and converts to the open shop are properly attributable to Respondent 's unfair labor practices . A factor to be considered is the knowledge by the office clericals of the contract conditions enjoyed by the hourly employees in the plant. 3. Management rights On April 16 , Respondent initially submitted other written proposals , including an exhaustive management rights provision, copy of which is at- tached hereto as Appendix B. Certain of the clauses are as follows : "Nothing in this Agreement shall be construed to limit in any way the Company's sole right to"- subcontract or purchase any or all work and products , including maintenance and repair; discontinue temporarily or permanently, in whole or in part, any of the Company 's opera- tions; sell, close , or move plants; determine the size of work force and increase or decrease its size , to hire , and lay off em- ployees; " Citing Lloyd A Fry Roofing Company, 123 NLRB 647 But see also, e g , N L.R.B v My Store , Inc, 345 F 2d 494 (C A 7), cert denied 382 U S 927, N L R B v W R. Hall Distributor, et al, 341 F 2d 359 (C A 10), Solo Cup Company v N L.R B , 332 F 2d 447 (C A 4) 65 Revitte expressed his doubt of the Union's majority even at the first bargaining meeting, supra It is also noted that in a letter to the employees on July 3 , President Rice asserted that , "shortly after the election on January 25 , a majority of the employees indicated they no longer wanted representation by the Union " 6' In substance , Respondent proposed that maintenance of membership would "start from scratch," covering only present employees who are union members 30 days after contract execution , and new employees who erect to join the Union 30 days after hire , but any employee could withdraw from membership upon 60 days notice to the Company and the Union For its part, the Union proposed a modified union shop, under which all employees who previously signed cards must remain members for the life of the contract, those who had not signed cards could refrain from joining , all new hires would be required to join after 30 days, and any member could withdraw within the last 15 days of the contract 67 Respondent also mentioned at various times that valuable employees had said they would quit rather than be forced into joining a union, and that it was afraid it would experience difficulty in recruiting new em- ployees 66 Respondent did not entirely clarify the "principle" to which it ad- verted As noted , a union-shop provision was in effect in the production and maintenance contract At one point it said the union shop took away the right of employees who did not want membership in the Union How- ever, it has long been established that , under a valid union-shop contract, employees are not required to become union members, at the penalty of discharge , if they tender the equivalent of periodic dues and initiation fees See N.L R B v General Motors Corporation , 373 U S 734, 741- 744 THE UDYLITE CORP. 175 reduce the workweek or workday; hire part-time and temporary employees, or contract for services of temporary employees; transfer work out of the bargaining unit to nonunit employees; establish, change, combine, or discontinue de- partments; establish, change, combine, or discontinue job classifications; establish wage rates for any new or changed classifications; determine number of hours to be worked; transfer, promote, and demote employees from one classification, department, or shift to another; select employees for promotion or transfer to other positions outside the bargaining unit; require employees to perform work outside their assigned job classifications, regardless of availability of work in their regular classifica- tions; nothing shall limit in any way the right of su- pervisors to perform work. It is not for the Board to pass upon the desirabili- ty of substantive terms of labor agreements .69 Yet, the Board must take some cognizance of the reasonableness of the positions advanced during bargaining negotiations to determine whether a par- ty's conduct evidences a real desire to come into agreement.70 Any construction of Respondent's management rights proposal readily reveals a rejection of the collective-bargaining principle in that it demands an abdication by the Union of its meaningful representative status.71 (Indeed, the unilateral ac- tions of Respondent earlier described appear to conform with this approach on management rights.) Respondent must have been aware that the Union, or any self-respecting union, could not ac- cept such a contract provision or justify it to the employees it is statutorily required fairly to represent.72 Until after the strike of June 28 there was vir- tually no discussion on the subject of management rights. On June 26, the Union indicated it was a "waste of time" to consider Respondent's proposal, and on July 25, that this proposal "negated the con- tract." As of July 29, on its own initiative, Respon- dent submitted a greatly reduced and revised proposal. After discussions and further revisions, on September 12 the parties initialed their agreement to a clause on this subject, a copy of which is at- tached as Appendix C. The eventual agreement on such a clause does not resolve the question of good faith or render it moot. The aspect of bad faith which I find lies in Respondent's purpose in advancing its original management rights proposal. It knew that the proposal could not seriously be considered, that it stood as an affront to the Union, and that it was a roadblock to consummation of any final agreement. This proposal was also consistent with Respon- dent's efforts to curtail the Union's existence and effectiveness on the scene-as with its insistence upon a short-term contract. Such a proposal could not be excused as merely a tactic in the negotia- tions, in light of all the circumstances. At the very least it is clear that the submission of this proposal comports with Respondent's efforts generally to en- gage in bargaining delays. 4. Supplying requested bargaining data It has long been settled that, upon reasonable request, the employer is required to furnish the union with information which is relevant and neces- sary to enable the union to conduct bargaining negotiations in an intelligent and effective manner. Wage and related data, as the core of the employer- employee relationship, are presumptively rele- vant.73 By letter dated February 8, hand-delivered to Respondent at the first bargaining session, the Union requested information concerning eligible employees in the unit, inter alia: dates of hire, job titles, narrative job descriptions, job evaluation fac- tors, individual salary rates, labor grades, rate ranges, automatic progression rules, type of salary arrangement, and the names and dates of new em- ployees hired since the voting eligibility date. Revitte stated he would try to have it ready by the next meeting. On February 23, Respondent sub- mitted to the Union, as stated in the covering letter, "information which you requested." At this meet- ing, Respondent verbally informed the Union that it did not have job descriptions and, after the Union mentioned these items, that it had not had the op- portunity to assemble the information on job clas- sifications and salaries. At this time, Respondent supplied with its letter the names of employees ap- 0" N L R B v American National Insurance Co, 343 U S 395 10 N L R B v Insurance Agents ' International Union, AFL-CIO [Prudential Ins Co ], 361 U S 477, N L R B v Reed & Prince Manu- facturing Company, 205 F 2d 131 (C A 1) 11 E g., L L Majure Transport Co v NLRB , 198 F 2d 735 (C A 5), Alba-Waldensian , Inc, 167 NLRB 695 19 Ibid 13 E g , N L R B v Whiten Machine Works, 217 F 2d 593 (C A 4), cert denied 349 U S 905, Curtiss-Wright Corporation v N L R B, 347 F 2d 61 (C A 3) 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pearing on the stipulated eligible voting list, infor- mission of and in failing to supply requested rele- mation which the Union already had , but failed at vant data. this or any later time to furnish the requested names and dates of new hires . On March 27, Respondent gave the Union a purported list of job classifications with the general salary figures along- side each title ; e.g., "Secretary II . 460, 477, 455, 505."74 As was sufficiently clear in its Februa ry 8 letter ( i.e., individual salary rates ), the Union again requested the name and salary for each unit employee. Here Respondent questioned the need for such information , stating that it was confidential matter , but nevertheless agreed to supply it. On April 8 and 16 this information was furnished. In conjunction with the interim agreement on June 7 to restore Respondent 's merit increase program, supra , the Union was to be informed , and re- peatedly requested, the names of those employees who were denied such increases after review. This data was never supplied . On July 10 the Union again sought the job descriptions , indicating that it was told by employees that they, or their super- visors, had made out such descriptions the previous year. Revitte said that he had knowledge of "questionnaires " which Respondent had sent out (in 1967) and, upon the Union's specific request, agreed to supply them . He generally testified that this project by Respondent involving the "question- naires" was never completed or utilized .75 On July 16, Respondent supplied the Union with about 60 completed forms entitled "Classification Position Description " for particular employees , advising the Union in a covering letter in effect that it does not necessarily consider these "questionnaires" to be complete or accurate .76 I find Revitte 's explanations unsatisfactory . No reason appears why Respondent did not earlier reveal such data in its possession and supply it, or offer to do so , in the same manner it did on July 16 . However , in my opinion, Respon- dent could well have brought these job descriptions up to date , to the extent that any changes were necessary , or made out new descriptions for such a group of clerical employees , without any substantial expenditure of time . 7 This type of information was particularly pertinent to afford the Union an intel- ligent basis for handling grievances in the interim, such as Company changes in job content of classifi- cations. Indeed , issues are presented of such uni- lateral changes made by Respondent during the course of the strike , infra. It is my view on all the evidence that Respondent did not wish to supply or be bound by such information in dealing with the Union. Therefore, I conclude that Respondent vio- lated Section 8(a)(5) by unduly delaying the sub- 1' Such classifications also appear as clerk typist I and III, and secre- tary A, 1, 11, and III 15 On July 10 , Revitte told the Union that no effort was made to determine if all the "questionnaires " which were sent out were returned to Respondent 16 General Counsel introduced a memorandum dated June 12, 1967, from Revitte to a "Steno-Secretary " stating, e g "All positions are re- viewed and evaluated periodically to make certain you receive com- 5. The bargaining meetings and negotiations In the ultimate conclusions to be reached and the remedies recommended, it is not necessary to trace the course of bargaining on each subject or to describe all of the extensive detail contained in this record. All the evidence has been considered, as it must be, on the question presented of general bad- faith bargaining. For the Union, the chief negotiator was Interna- tional Representative Clifford J. Parker, present at all but one of the meetings. He was accompanied by a committee, usually of six or seven employees. For the Company, the chief negotiator was Fred Schwarze, who attended most of the meetings. He was usually accompanied by Revitte, one other management official, and sometimes another attor- ney. Parker and Revitte were the principal wit- nesses for each respective side. At the first meeting, on February 8, largely confined to introductory matters, the parties agreed to use the "Chrysler" formula-under which the Union would present its position verbally, and the Company then would draft the language . However, it is apparent that this approach was largely abandoned following the first few bargaining sessions. As noted, 35 formal bargaining sessions were held, commencing February 9. It does not appear that substantial progress was made in agreements on substantive terms until the latter part of June, and more especially in September. In the early months of bargaining some provisions of relatively minor importance occupied the parties at length. For example, no agreement was reached on the "witnesseth" clause until June 21, on the number of union stewards or representatives in the plant until June 27, and on bulletin boards until September 12.78 Under Section 8(d) of the Act, the duty in bar- gaining negotiations is explicitly placed upon the parties-"to meet at reasonable times and confer in good faith." The record indicates some instances of tardiness, delay, and postponement by both parties for legitimate reasons . On the total evidence, how- ever, only the Respondent is found to have breached the good-faith requirement to meet at reasonable times . Although the statutory obligation to confer is bilateral, it was the Union which con- sistently took the initiative in seeking to meet more frequently, and the Respondent resisted such over- tures. Further, as reflected elsewhere in this Deci- parable pay for comparable work Positions which are comparable in responsibility and complexity are assigned the same grade and salary range " 11 Regarding the secretaries, for example, Revitte admitted that they differ only as to the level of the individual for whom they work 71 A summary index prepared by Respondent showing dates of pro- posals and agreements on certain subjects is attached hereto as Ap- pendix D [omitted from publication] THE UDYLITE CORP. sion , Respondent consciously sought to prolong the negotiations as to run out the time of the certifica- tion year. In the following specific instances, I find the delays caused by Respondent were lacking in good faith and unjustified : (a) Accounting for the lapse in meetings between February 23 and March 27, Respondent stated that it did not have the time because it was engaged in contract bargaining for the production and maintenance employees. (b) At the end of May, Respondent's reason was that it was bargaining with a union representing em- ployees at its plant in another city. (c) Until June 25, Respondent refused to meet more than twice a week , even though it was informed on May 27 of the Union 's strike deadline of June 28 . 79 The Union' requested more constant bargaining , every day if necessary, to attempt to reach agreement by June 28. (d) During the strike , the meetings were scheduled by a Federal mediator upon separate consultation with each party. On July 10, the Union urged "successive meetings." At the July 22 ses- sion, Respondent stated the position that it is "willing to meet any time progress can be made," and it cannot see any signs of progress based on the Union's current attitude .80 A scheduled meeting for August 14 was canceled by Respondent, and no meetings were held between August 9 and Sep- ; tember 3 .81 I attribute this delay to the fact that Respondent 's hourly employees had gone out on strike as of August 14. This was no valid reason to delay or cease bargaining with the Union concern- ing the clerical employees, especially during their strike. ( e) On November 21,82 the Union requested that the parties continue to meet until they arrived at an agreement . Respondent responded by asking if the Union had anything new to offer to get things going. The Union then suggested weekly meetings on Thursday, but Respondent agreed only to the next Thursday and "would see " about further meetings . (f) The next meeting was held on December 10. At the further session on December 17, among other things , Respondent agreed to prepare a new proposal on temporary and part-time help-an issue long in controversy . According to Respondent's minutes ,83 the meeting was con- cluded with Respondent 's statement : "As long as " On May 14 Respondent was admittedly aware that a stoke vote had been taken 80 Respondent could not set itself up as the arbiter of "progress" at a bargaining meeting , presumably dependent upon the success of its own objectives , and utilize such a means of control over available time for bargaining A H Belo Corporation , 170 NLRB 1558 (TXD) "' By letter to President Rice, the Union objected to Respondent's refusal to schedule meetings except on a casual basis and demanded daily meetings beginning August 8 82 Contrary to Respondent , I do not view the delay in meeting, after abandonment of the strike , from October I to November 21, as a refusal to meet, or as indicative of bad faith , by the Union 81 The Union introduced no minutes after the September 26 meeting, preceding the end of the strike The minutes of Respondent include meetings on October 1 , November 21 and December 10 and 17 Neither side adduced testimony on the meetings after October 1 177 Union is back on original position [on union shop and length of contract ] '114 Company sees no future in continuing these useless meetings . Company willing to consider Union proposal on classifica- tions if Union wants to put one together, but until then no sense continuing." No further meetings have been held.85 In consideration of the manner in which Respondent concluded the December 17 meeting , and of its general resistance to scheduling bargaining meetings as already shown, I place the responsibility on Respondent for cutting off negotiations , and the burden on it for initiation of further meetings. G. Unfair Labor Practice Strike It is found , at least as major factors , that Respon- dent's general failure to bargain in good faith and its unfair labor practices committed before and dur- ing the strike , as delineated above , clearly caused and prolonged the strike . Therefore , Respondent was obligated to reinstate the strikers to their former or substantially equivalent positions upon their unconditional application at the end of the strike , and to discharge, if necessary , all replace- ments hired during the strike."' H. Failure to Reinstate Strikers The complaint alleges that Respondent dis- criminatorily refused to reinstate 10 named em- ployees after their unconditional application follow- ing the termination of the strike . At the bargaining session on Septemebr 26, the Union advised Respondent that a union meeting would be held that evening at which it would be decided whether to abandon the strike . A consideration affecting such decision was whether Respondent would rein- state all the strikers. The question was then directly asked of Respondent whether it was willing to say at this time that all the strikers can return to work. After a company caucus, Respondent gave the fol- lowing reply: With the exception of Tuck I think the rest of the employees could come to work Monday. 84 After failure of the attempt at settlement on September 26 the Union in the few subsequent meetings , to the extent substantive terms were discussed , reverted to this position Respondent itself offered no change on union security or contract duration I cannot find that Re- spondent believed that the Union would not accept the same compromise offers it made on September 26, supra , or that an impasse was thereby created 85 During opening statements at the hearing , the Trial Examiner in- quired as to the current status of bargaining Union counsel replied that, since the last meeting, the Union has indicated its willingness to meet at reasonable times with Respondent Respondent counsel answered that if the Union had requested bargaining prior to the expiration of the certifica- tion year, Respondent would have complied , but that no such request was made 80 Mastro Plastics Corp v N L R B, 350 U S 270 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The 9 or 10 we have named here we would be willing to negotiate their status with the Union and determine what should be done upon their return and we feel something could be worked oUt.87 At the following meeting on October 1, the Union gave Respondent a letter stating that the strike was ended and that an unconditional applica- tion for immediate return to work was made on be- half of all the strikers, specified on an attached list. Respondent then handed the following: COMPANY POLICY ON REINSTATEMENT 1. All striking employees may apply for reinstatement to their former positions without discrimination and with the full benefits heretofore put into effect for non-strikers. Ap- plications will be accepted to the close of busi- ness on Monday, October 7, 1968, after which it shall be presumed that those employees who fail to apply do not desire to return and they shall be terminated. 2. The Company will place applicants in their former position or substantially equivalent positions, if available. If not availa- ble, they will be offered any open jobs which exist for which they are qualified. Those not placed will be put on a preferential hiring list. 3. Commencing on or after October 8, 1968, at the request of the Union, the Com- pany will negotiate with the Union as to em- ployees not reinstated to their former positions or positions substantially equivalent thereto. 4. This shall not apply to Gerald Tuck who will not be reinstated because of picket line misconduct. On October 2 (Wednesday), all striking employees reported at the plant ready to begin work, with the exception of Allard and Kozlowski, infra, and Gerald Tuck, who had theretofore been notified of discharge by Respondent. Regina Guy, part-time multilith operator (24 hours a week ) and Helen Giuliani, addressograph operator, were interviewed by Revitte. They were told that their jobs had been "consolidated," and they would be called if any job openings occurred in the future. Jean Lockhart, part-time multilith operator (24 hours a week) was also denied rein- statement . Revitte testified that one employee was hired on September 3, as a full-time multilith operator, and in the latter part of September a management decision was made that this employee could do all the multilith and addressograph work, replacing Guy, Giuliani, and Lockhart. Catherine Facer, a switchboard receptionist, was not rein- stated . Freda Kurzhals, receptionist and relief switchboard operator, was told by Revitte that she was replaced and that Respondent now had three switchboard operators doing the switchboard and receptionist work previously done by four em- ployees.88 After receiving such advice from Revitte, she requested and was granted leave to take her ac- crued vacation of 7 workdays. On October 14, she was reinstated to a different job, as a clerk in the order department. Gayle Allard, a secretary in production planning, reported on October 3 or 4 but was not reinstated until October 18. Marie Valice reported on October 2, and on October 8 was reinstated to a different position . Roy Fischer, a "first aid man," reported on October 2 and was denied reinstatement , allegedly on the ground that his job had been eliminated and replaced by the employment of a "registered nurse." Helene E. Kozlowski, a clerk typist, called in sick on October 2 and reported for work on October 3. Revitte told her she had been replaced during the strike. Later in October, she applied to Revitte for her equity in Respondent's profit-sharing plan, as she had a debt owning the credit union in the plant. To obtain such money, she was required under the plan to ex- ecute her resignation from employment, which she did. In late November, she told Revitte she wished to cancel her resignation, and at the same time she sought reinstatement. Revitte advised her that her resignation had been accepted and she could not be reinstated. On December 3, she received the check for profit sharing. Conclusions On September 26, Respondent agreed that all strikers, excepting Tuck, could report for work on Monday ( September 30), as tentatively offered by the Union . Before it made such commitment, it was made explicit to Respondent that reinstatement was a particular factor to be considered by the strikers at their scheduled meeting that evening on the question of whether to call off the strike. In the discussion on September 26, Respondent men- tioned , without elaboration , some reservation as to job placement for 9 or 10 returning strikers, but that some arrangement with the Union can be worked out-"in the meantime to determine what should be done when they arrive ."89 However, there is no showing that any arrangement was at- tempted to be worked out before October 1, when Respondent, upon formally being apprised that the strike was over , handed the Union its " Policy on Reinstatement." In this statement, Respondent de- parted from its commitment on September 26 that all strikers , excepting Tuck, would be given jobs when they report to work . As above indicated, " In the Respondent's minutes , it is stated "Company stresses that outside of Tuck, all else could have a job " " Revitte stated that Kurzhals was a full-time receptionist before the strike, and that she was replaced by Barbara J Waggoner, who was a re- lief switchboard operator Waggoner testified she was a full-time switch- board operator, employed since August 1967 89 From Respondent 's minutes THE UDYLITE CORP. 179 when they did report to the plant, the nine em- ployees described above were flatly denied employ- ment on the grounds that they were replaced or their jobs eliminated. Allard, Valice, and Kurzhals were given jobs on later dates. The rest were not thereafter reinstated. In the final bargaining meetings on and subsequent to October 1, the discussion mainly involved these issues of failure to reinstate. I find that such discussion took place only after the decision had been made not to reinstate the nine strikers, above. Respondent's contentions are rejected that essential and legitimate changes were made during the strike permanently affecting the regular job classifications of switchboard opera- tor, receptionist, multilith operator, addressograph operator, and first-aid man. Only the generalized testimony of Revitte and the new multilith-addres- sograph operator was introduced. These changes were not shown to have been made for true technological or effeciency purposes rather than for the expedient shifting of clerical duties during the strike to accommodate striker replacements.80 On this record, I conclude that the real reason for Respondent's position as to these nine employees was an attempt to retain the striker replacements and discriminatorily deny jobs to returning unfair labor practice strikers.91 It is found unnecessary to pass upon the further allegation that Respondent acted unlawfully during the strike in effecting changes in the job content of existing classifica- tions. Finally, because they were unfair labor prac- tice strikers, apart from other considerations, I find these nine named employees, above, were entitled to their former or equivalent jobs on the date they appropriately applied for work after the strike- with the discharge of their replacements if necessa- ry. Gerald D. Tuck, Jr., received notice from Respondent by telegram on October 1 that he was disch^rged'82 without reason given. In the discus- sions, the Union was merely informed that the reason was strike misconduct. Revitte testified that he made the decision on October 1 based on state- ments he received from individuals, and interviews with these individuals.93 The statements, in evidence, are substantially as follows: On Sep- tember 10, from Supervisor Del Buttrey (who did not testify) that he noticed Tuck "very rudely lear- ing through the windshield at the women's legs when they were stopped by traffic," and would also make a "horrible noise and expression." On August 14, from four female employees (who did not testi- fy) that Tuck and other (unidentified) men rocked and beat on their car. On July 26 and 31, from seven individuals (none of whom testified) that Tuck squirted them with a water gun. A letter dated August 20 from Attorney English informing Revitte of a complaint from his client employees that, on June 28, Tuck jumped on the hood of an automobile driven by an employee, Mary A. Baas, used "foul language" addressed to her, and that the event was witnessed by Puckett, Fronimos, Elwart, LaRonde, and King (of whom only King testified). At the hearing, Respondent's counsel stated as an affirmative defense on the discharge of Tuck the same grounds as appear in the above-described statements. Revitte made no attempt to question Tuck or obtain his version of the facts. Concerning Tuck's use of a squirt gun, Respon- dent produced George L. Morningstar, who was not among those who gave the statements above. On a day in July, at 5 p.m., Morningstar was driving his car and stopped at the picket line. Tuck squirted a liquid into the car which struck his eyeglasses. He pulled off and stopped on the road because his eyes began to "smart a bit," and he "couldn't see to judge" the handling of the car. The stinging lasted about an hour, and he had "no idea" what the liquid was. Tuck testified that, for 3 or 4 days on the picket line, he used a squirt gun with water. It was shown that strikers and nonstrikers used water guns on the picket line.94 Theresa Wosniak, a striker, squirted Supervisor Munro and was not punished. Revitte testified that he observed one in- cident when water was thrown at the pickets and he took no discharge action. It is my opinion and find- ing that Morningstar exaggerated his testimony in that he knew the substance squirted by Tuck was water. It is also clear that his car was at a standstill when the incident occurred, and that he could then have wiped his glasses before proceeding. Kathleen Tupper and Stanley A. King testified for Respondent concerning the incident on August 14 involving the small car, a Corvair, driven by Mary Baas. Tupper stated she was seated in the front of the car on the right side of Baas . They had stopped the car for "quite some time" because pickets were walking in front of the car. A large number of them95 gathered around the halted car.96 She observed Tuck (but not any of the others) lighting matches and putting them toward the gas tank (at the left front fender near the driver). She testified that Baas "stepped on the gas, and that is when he [Tuck] flew around in front of the car, 90 Particularly as to unfair labor practice strikers, it was Respondent's burden clearly to establish unavailability of jobs on such grounds "Inter alia, the evidence is noted that, immediately prior to the strike, on June 27, Revitte offered Kurzh'ls a full-time receptionist job at a salary raise, as compared with Respondent's poststrike assertion of a discovery that it could dispense with such a classification 9Revitte's testimony that the decision was not made until October 1 appears directly in conflict with the statements of Respondent concerning Tuck at the September 26 bargaining session 93 Revitte testified that this evidence "constitutes everything" on which he relied "Also admitted by Respondent at the hearing. 95 These appeared to have been mainly production and maintenance employees, then on strike 98 On a leading question, to which objection was sustained, she testified that Tuck attempted to shake the car, and on a later question, her answer was that she did not know. 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and then he got mad. I guess he thought we hit him or something. And he jumped up on top of the car and started jumping on it, and then he jumped off and we just drove away."97 She has no knowledge whether the car was damaged. Especially when he was jumping on the car, Tuck was yelling "every, swear word you could think of "98 King testified that he had stopped his car behind the Corvair and observed the incident in question. Several of the pickets were lighting matches, including Tuck, and putting them near the gas cap. Tuck "wheeled back in front" as the car started moving. He "couldn't really see" if the car hit Tuck; it did not appear that it hit him; if it did hit him, he, Tuck, did it deliberately as he stepped right in front of the car. However, "it did knock him down. "99 Tuck then jumped up on the hood and stamped on it with his feet. Tuck denied that he lighted any matches at or near the gas tank of the Corvair or that he saw any- one else do so. He is credited, as the evidence on this type of self-endangering, and presumptively im- plausible conduct would have to be far clearer than this testimony presented by Respondent.' He testified that, as the Corvair approached, he moved to let them through. However, they stopped, rolled down the car windows, and were talking to one of the pickets. The next thing he knew was that the car hit him and threw him against the hood, lying down. He was "quite mad," jumped on the hood, and kicked it one time. Tuck's account of the in- cident is accepted. With respect to the latter incident, an important element in his favor was the intuitive reaction and natural provocation of Tuck in being struck by the car. Particularly as an unfair labor practice striker, I find that Tuck's picket line conduct, as to the water squirting and the car incident, while not con- doned, was not so flagrant as to warrant his dismis- sal.2 No testimony was adduced by Respondent con- cerning the car rocking and "learing" allegations contained in the statements given Revitte, described above. In light of all the circumstances revealed in this case, I cannot find that Revitte had a reasonable basis for a good-faith belief that Tuck, engaged in such conduct.3 Assuming arguendo that he did, in the vague circumstances of the unsworn statements, I conclude that these incidents do not 87 Then changing her testimony , she said that while Tuck was on the hood, she told Baas to go, and "she stepped on the gas and he jumped off " Again on cross-examination , she testified that after Tuck had thrown a couple of matches at the gas tank , she told Baas to go, and she stepped on the gas while Tuck was in front In a further contradiction, she indi- cated she did not actually see where the matches were being dropped but "believed" Baas who said it was near her gas tank 88 Specifying later that it was "everything everybody else was saying", e g , "bitches" and "damn it " se King's affidavit states that the car did hit Tuck Confronted with this statement , he added that- "it didn't knock him down " i Respondent did not assert reliance on lighting of matches at the gas tank as reason for the discharge 2 E.g., N L.R B v Thayer Company, 213 F.2d 748 (C.A 1), cert constitute such egregious misbehavior in the unfair labor practice strike as to justify his discharge.4 1. Further Unilateral Wage Action As of March 1, 1969, Respondent instituted a further increase of $8 per month in cost-of-living allowance without notifying or consulting with the Union.5 While no further bargaining between the parties took place since December 17, this alone does not establish that an impasse existed then or at any subsequent time. However, even assuming such an impasse, I find that it was caused by Respon- dent's failure to bargain in good faith and therefore cannot stand as justification for the unilateral con- duct in question.' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the opera- tions described in section I, above, have a close, in- timate, 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 of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the poli- cies of the Act. In my opinion, a broad cease-and- desist order is warranted in particular view of the discriminatory conduct and the serious nature of the numerous other violations committed.7 It has been found that Respondent, in violation of Section 8(a)(5), engaged in unilateral actions in disregard of the Union's statutory bargaining status by discontinuing its merit increase program and by announcing and granting increases in wages and cost-of-living allowance. It will, therefore, be recommended that Respondent cease and desist from such unlawful conduct and from unilaterally changing any other other terms or conditions of employment without notifying and consulting the Union. In violation of Section 8(a)(3), it has been denied 348 U.S 883, Local 833, International Union, United Auto- mobile, Aircraft and Agricultural implement Workers of America [Kohler Co.], 345 F 2d 748 (C A D C ), cert denied 382 U S 836 8 See Rubin Bros Footwear, Inc, 99 NLRB 610, 611, cf N L.R B v Burnup & Sims , Inc , 379 U S 21 4 Thayer and Kohler cases, supra 5 It is noted that, in Respondent's bulletin of April 4, 1968, to all unrepresented salaried employees , supra, it promised an increase of $5 a month in March 1969. On February 17, 1969, in a general bulletin to employees announcing the increase effective March 1, 1969, Respondent referred to its bulletin of April 1968 6 E.g ,Northland Camps, Inc, 179 NLRB 36 i N L R B v Express Publishing Company, 312 U S 426, N L.R B v Entwistle Mfg. Co, 120 F 2d 532 (C A 4) THE UDYLITE CORP. 181 found that Respondent discriminatorily withheld merit increases from Helene E. Kozlowski, Marcel- la J. Scarborough, and Kay V. Schneider to deter these employees from participating in protected strike activities. It will be recommended, therefore, that Respondent cease and desist from such dis- criminatory conduct and, affirmatively, to make whole the affected employees for any loss of earnings as a result of such discrimination.' In violation of Section 8(a)(5), it has been found that, in specific respects and generally, Respondent engaged in bad-faith bargaining with the Union as the certified bargaining representative of clerical employees in the appropriate unit. It will, therefore, be recommended that the initial year of the certifi- cation be extended to begin on the date Respon- dent commenced or commences to bargain in good faith with the Union, so as to insure that the unit employees be accorded the services of their selected bargaining representative for the period provided by the law.9 It has been found that Respondent, in violation of Section 8(a)(3), refused to reinstate or terminated 10 unfair labor practice strikers named in the com- plaint. It will, therefore, be recommended that Respondent offer to these individuals, except Roy Fischer, deceased, immediate and full reinstate- ment 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 earnings suffered by reason of their unlawful termination, by payment to them of a sum of money equal to that which they normally would have earned from the date of their discrimination10 to the date of Respondent's offer of reinstatement, less net earnings during such period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Com- pany, 90 NLRB 289. On all backpay recommended herein, interest shall be included at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. In order to make room for the reinstatement of these unfair labor practice strikers, as specified, Respondent shall discharge, if necessary, any replacements hired dur- ing the strike. It is evidenced that Respondent refused and failed to pay the wages of the employee-members of the Union's negotiating committee during the time they were engaged in contract bargaining with Respondent. As the circumstances are essentially the same, it is recommended that, for the reasons stated by the Board in M.F.A. Milling Company, 170 NLRB 1079, Respondent shall reimburse such employees for the wages they lost while attending negotiating sessions," with interest at 6 percent per annum. It will also be recommended that Respondent abrogate, and return to the signatory employees, the individual employment agreements they were unlawfully required to execute; to destroy all its photographs and photograph negatives taken of strikers during the strike; and to expunge from all files, and records the names of strikers taken down during the strike-as such matter in the possession of Respondent remains as a potential threat of fu- ture reprisal in the minds of the strikers. Further, it will be recommended that Respondent preserve and make available to the Board, upon request, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and useful to deter- mine the amounts of backpay due and the rights of reinstatement under the terms of these recommen- dations. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union and Local 889, UAW, are labor organizations within the meaning of Section 2(5) of the Act. 3. All office clerical employees at Respondent's place of business at Warren , Michigan, including regular part-time employees , but excluding techni- 'Although it appears generally that, after the strike, Kozlowski, Scarborough, and Schneider received merit increases retroactive to a date preceding the stoke, it does not obviate the necessity for an affirma- tive order, particularly for reasons of accurate computation, to be deter- mined in the compliance stage of this proceeding 9E g , Mississippi Wood Preserving Company, 173 NLRB 1370, Ray Brooks v N L R B, 348 U S. 96 10 For the reasons earlier indicated herein, the date of the discnmma- tion occurred when these strikers reported for work at the plant on October 2, except as to Tuck, who was discharged on October 1, Koz- lowski, who called in sick on October 2 and reported on October 3 (the particular date of discrimination left to compliance), and Allard, who reported on October 3 or 4 At Kurzhals' request, she was permitted to take her 7 days of accrued vacation On December 1, she was offered reinstatement to a different job. An appropriate amount shall be deducted from her backpay if she received regular pay for such vacation Kurzhals and Valice were reinstated to different jobs, and it shall be determined in the compliance stage whether such jobs are substantially equivalent Kozlowski's testimony supports the finding, which is made, that she suffered economic hardship as a result of the unfair labor practice strike and the discriminatory refusal of Respondent to reinstate her upon her application She later submitted her resignation solely for the purpose of obtaining her profit-sharing funds, but withdrew her resignation before receiving such funds In the circumstances, I find that Respondent has not affirmatively shown by objective evidence that Kozlowski abandoned her interest in the job, or that it was equit<rly entitled to rely on her resignation Therefore, her backpay was not tolled as a result thereof See, e.g , Guyan Machinery Company, 155 NLRB 591 11 The record, including the respective "minutes" of the Respondent and Union, discloses the names of these employee committee members at the various bargaining sessions. This recommendation is confined to the wages they lost which were deducted from their regular pay for such time spent in bargaining, and is not intended to include any compensation for time thus spent before or after their regular working hours The Union's request in its brief that Respondent be required to reimburse it for costs in attempting to negotiate an agreement and for prosecuting this case is rejected as improper or unnecessary to effectuate the purposes of the Act M.F.A Milling Company, 170 NLRB 1079 (TXD) 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cians, drafting employees, estimators, chemical operators, utility men, maintenance men, mail drivers, chauffeurs, engineering trainees, con- fidential, managerial, technical, and professional employees, guards, supervisors as defined in the Act, and all other employees, constitute an ap- propriate unit for the purpose of collective bargain- ing within the meaning of Section 9(b) of the Act. 4. The strike, in progress from June 28 to Oc- tober 1, 1968, was caused and prolonged by the un- fair labor practices of Respondent, and was there- fore an unfair labor practice strike. 5. The Union has been at all times since Februa- ry 2, 1968, the certified statutory representative of all employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 6. By discharging and failing and refusing to reinstate unfair labor practice strikers on their un- conditional requests, and by withholding merit in- creases of employees, thereby discriminating in re- gard to their hire and tenure of employment and discouraging membership in the Union, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(3) of the Act. 7. By engaging in collective-bargaining negotia- tions without a sincere desire to reach agreement with the Union; by unilaterally discontinuing its merit increase program, granting increases in wages and cost-of-living allowance, and engaging in other unilateral acts in derogation of the Union; by failing and refusing to meet and confer with the Union at reasonable times; by failing and refusing to supply the Union, upon request, with relevant wage and personnel data for the purposes of bargaining, Respondent has engaged in and is engaging in un- fair labor practices within the meaning of Section 8(a)(5) of the Act. 8. By the foregoing, and by other independent acts and conduct interfering with, restraining, and coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case , it is recommended that Respondent, The Udylite Corporation , Warren , Michigan, its of- ficers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in International Union, United Automobile , Aerospace and Agricul- tural Implement Workers of America, (UAW), and Local 889, UAW, or any other labor organization of its employees, by discharging or refusing to rein- state unfair labor practice strikers upon their un- conditional requests, or by discontinuing or failing to pay merit increases or other wage compensation, or in any other manner discriminating in regard to hire or tenure of employment or any term or condi- tion of employment. (b) Encouraging, assisting, or otherwise support- ing the "open shop committee," or any other group of employees engaged in efforts to discourage em- ployees from membership in or support of the Union, or to undermine the Union's established majority status, or directly engaging in such con- duct, or soliciting or encouraging antiunion peti- tions among the employees. (c) Dealing or bargaining directly with in- dividual employees in the appropriate unit by requiring that they execute agreements relating to their wages, hours, or other terms or conditions of employment. (d) Engaging in surveillance of the employees' union or protected activities, or creating the im- pression among employees that their union or pro- tected activities are under surveillance. (e) Photographing employees, and recording names of employees, engaged in a lawful strike. (f) Soliciting strikers to return to work, particu- larly when accompanied by reprisal threats or of- fers of benefit. (g) Threatening employees with loss of their jobs, or other reprisal, if they participate in a strike or other protected concerted activity. (h) Promising or granting benefits to induce em- ployees not to engage in or to abandon their union or strike activity or to reward employees because they refrain from such activity. (i) Refusing to bargain collectively with the above-named Union by failing to meet for contract negotiations with reasonable promptness or frequency. (j) Refusing to furnish the above-named Union, upon its request, with wage and personnel informa- tion relating to the employees in the appropriate unit, or with any other relevant data necessary and useful for the purposes of collective bargaining. (k) Discontinuing merit increases, announcing or granting increases in wages and cost-of-living al- lowance, or changing any term or condition of em- ployment of employees in the bargaining unit, without notifying, consulting, and bargaining with the above-named Union. (1) Refusing to bargain in good faith with the above-named Union as exclusive representative of its employees in the appropriate unit. (m) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be af- fected by an agreement in conformity with Section 8(a)(3) of the Act, as amended. 2. Take the following affirmative action designee' to effectuate the policies of the Act: THE UDYLITE CORP. (a) Upon request, bargain collectively and in good faith with the above-named Union as the ex- clusive representative of its employees in the ap- propriate unit , and embody in a signed agreement any understanding reached. (b) For the purpose of determining the duration of the certification, the initial year of certification shall be deemed to begin on the date Respondent commenced or commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. (c) Notify each employee in the appropriate unit from whom an individual "Employment Agree- ment-Form B" was obtained, and all other em- ployees in the appropriate unit , that such agree- ments are abrogated; and promptly return each such agreement to the respective employee signato- rv thereof. (d) Destroy all its photographs and photograph negatives taken of strikers during the course of the strike from June 28 to October 1, 1968. (e) Expunge from all files and records the names of strikers taken by or on behalf of Respondent during the course of the strike from June 28 to Oc- tober 1, 1968. (f) Reimburse each employee member of the negotiating committee of the above-named Union for earnings lost while attending contract bargain- ing sessions on and after February 9, 1968, with in- terest thereon at 6 percent per annum. (g) Make whole Helene E . Kozlowski , Marcella J. Scarborough, and Kay V. Schneider, for any loss of earnings by reason of the unlawful withholding of merit increases, in the manner set forth in the section of the Trial Examiner 's Decision entitled "The Remedy." (h) Offer to the employees listed below im- mediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges, and make them , and the estate of Roy Fischer, whole for any loss of earnings, as set forth in the section of the Trial Examiner 's Decision entitled "The Remedy." Regina Guy Helene E. Kozlowski Jean Lockhart Marie Valice Helen Giuliani Gayle Allard Catherine Facer Gerald D. Tuck, Jr. Freda Kurzhals (i) Notify immediately the above -named in- dividuals, if presently serving in the Armed Forces of the United States , of their right to full reinstate- ment . upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (j) Preserve and, upon request, make available to the Board or its agents , for examination and copying, all payroll records, social security payment 183 records , timecards , personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (k) Post at its Warren , Michigan, place of busi- ness and facilities , copies of the attached notice marked "Appendix A."12 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (1) Notify the Regional Director for Region 7, in writing, within 20 days from the date of the receipt of this Decision , what steps the Respondent has taken to comply herewith.t3 IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations not specifically found herein. 11 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations , be adopted by the Board and become its findings , conclusions , and order , and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 13 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps Re- spondent has taken to comply herewith." APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in In- ternational Union, United Automobile, Aerospace and Agricultural Implement Wor- kers of America, (UAW), and Local 889, UAW, or any other labor organization of our employees, by discharging or refusing to rein- state unfair labor practice strikers upon their unconditional requests , or by discontinuing or failing to pay merit increases or other wage compensation , or in any other manner dis- criminating in regard to hire or tenure of em- ployment or any term or condition of employ- ment. 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT encourage, assist, or otherwise support the open shop committee, or any other group of employees engaged in efforts to discourage employees from membership in or support of the above-named Union, or to un- dermine the Union's established majority status, and WE WILL NOT directly engage in such conduct, or solicit, or encourage antiu- nion petitions among the employees. WE WILL NOT deal or bargain directly with individual employees in the appropriate unit by requiring that they execute agreements relating to their wages, hours, or other terms or condi- tions of employment. WE WILL NOT engage in surveillance of the employees' union or protected activities, or create the impression among employees that their union or protected activities are under surveillance. WE WILL NOT photograph employees, or record the names of employees, engaged in a lawful strike. WE WILL NOT solicit strikers to return to work, particularly when accompanied by threats of reprisal or offers of benefits. WE WILL NOT threaten employees with loss of their jobs, or other reprisal, if they par- ticipate in a strike or other protected con- certed activity. WE WILL NOT promise or grant benefits to in- duce employees not to engage in or to abandon their union or strike activity or to reward em- ployees because they refrain from such activi- ty. WE WILL NOT refuse to bargain collectively with the above-named Union by failing to meet for contract negotiations with reasonable promptness or frequency. WE WILL NOT refuse to furnish the above- named Union, upon its request, with wage and personnel information relating to the em- ployees in the appropriate unit, or with any other relevant data necessary and useful for the purposes of collective bargaining. WE WILL NOT discontinue merit increases, announce or grant increases in wages and cost- of-living allowance, or change any term or con- dition of employment of employees in the bar- gaining unit, without notifying, consulting, and bargaining with the above-named Union. WE WILL NOT refuse to bargain in good faith with the above-named Union as the exclusive representative of the employees in the ap- propriate bargaining unit, as follows: All office clerical employees, including regular part-time employees, but exclud- ing technicians, drafting employees, esti- mators, chemical operators, utility men, maintenance men, mail drivers, chauf- feurs, engineering trainees, confidential, managerial, technical and professional em- ployees, guards, supervisors as defined in the Act, and all other employees. 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 labor organizations , to join or assist Inter- national Union, United Automobile, Aerospace and Agricultural Implement Wor- kers of America, (UAW), and Local 889, UAW, or any other labor organization, to bar- gain collectively through representatives of their own choosing, or to engage in any other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protec- tion, or refrain from any or all such activities, except to the extent that such right is affected by an agreement requiring union membership as a condition of employment, as authorized in Section 8(a)(3) of the Act, as amended. WE WILL, upon request, bargain collectively and in good faith with the above-named Union as the exclusive representative of our em- ployees in the appropriate unit, and embody in a signed agreement any understanding reached. For the purpose of determining the duration of the certification, the initial year of certification shall be deemed to begin on the date we have commenced or will commence to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. WE WILL notify each employee in the ap- propriate unit from whom an individual "Em- ployment Agreement-Form B" was obtained and all other employees in the appropriate unit, that such agreements are abrogated, and promptly return each such agreement to the employee who signed it. WE WILL destroy all photographs and photo- graph negatives in our possession taken of strikers during the course of the strike, and ex- punge from our files and records the names of strikers taken by us or on our behalf during the course of the strike. WE WILL reimburse each employee member of the negotiating committee of the above- named Union for earnings lost while attending contract bargaining sessions, with 6 percent in- terest. WE WILL make whole Helene E. Kozlowski, Marcella J. Scarborough, and Kay V. Schneider for any loss of earnings by reason of the unlawful withholding of merit increases, in the manner provided in the Trial Examiner's Decision. WE WILL offer to the employees listed below immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them, and the estate of Roy Fischer, whole for any loss of THE UDYLITE CORP. 185 earnings they may have suffered , in the manner economically, including the right to decide the provided in the Trial Examiner's Decision . products to be produced, the quantity and Regina Guy Helene E. Kozlowski Jean Lockhart Marie Valice Helen Giuliani Gayle Allard Catherine Facer Gerald D. Tuck, Jr. Freda Kurzhals WE WILL notify the above-named employees, if presently serving in the Armed Forces of the United States, of their right to full reinstate- ment upon application, in accordance with the Selective Service Act and the Universal Milita- ry Training and Service Act, as amended, after discharge from the Armed Forces. THE UDYLITE CORPORATION (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washing- ton Boulevard, Detroit, Michigan 48226, Telephone 313-226-3200. APPENDIX B COMPANY PROPOSAL ARTICLE-MANAGEMENT RIGHTS SECTION 1. The Company retains all the rights, powers, functions, and authority which it had prior to the signing of this Agreement, including those with respect to wages, hours, and working conditions, except as those rights, powers, functions, or authority are expressly and specifically abridged, modified, or limited by this Agreement and then only to the extent so specifically and expressly abridged, modified, or limited. SECTION 2 . Except as otherwise provided in this Agreement: A. Nothing in this Agreement shall be con- strued to limit in any way the Company's sole right to manage its business efficiently and quality of work to be performed, the methods of performing the work, the scheduling and routing of work, the control of the machines, materials, tools, and equipment to be used, and the discontinuance of any product, operation, job, or method of performance; introduce new equipment, machinery, or processes, change or eliminate existing equipment, machinery, and processes, and institute technological changes, decide on the nature of materials, supplies, equipment, tools, or machinery to be bought, made, or used, and price to be paid, decide on the sales methods and prices of all products; subcontract or purchase any or all work or processes, component parts and products, maintenance and repair work, or the construc- tion of new facilities and the improvement of existing facilities; determine the number, loca- tion , and types of plants, offices, and/or buildings, discontinue temporarily or per- manently, in whole or in part, any of the Com- pany's operations, sell or close plants and/or buildings, move plants and/or buildings operated by the Company from one location to another; determine the size of the work force and increase or decrease its size , to hire, as- sign , and lay off employees, reduce the work- week or the work day or to effect reductions in hours worked by combining layoffs and reduc- tions in the workweek or the work day; hire part-time employees or hire temporary em- ployees or contract for the services of tempo- rary employees to perform temporary job as- signments; transfer work out of the bargaining unit to non-unit employees when, in the opinion of management, such transfers are necessary, permit persons in the employ of customers to perform work in the Company's plant offices and buildings as a part of their training, permit persons employed by the manufacturer of equipment used in the Com- pany's offices and buildings to set up, con- struct, and service equipment on the floor and to perform work in connection with the instal- lation or service of such equipment; direct the work force, assign work, determine the number of employees assigned to any operation and the number of operations assigned to any em- ployee, establish, change, combine, or discon- tinue departments, transfer operations from one department to another, and determine composition of the work force in any depart- ment, establish, change, combine, or discon- tinue job classifications, prescribe and assign job duties, content, and classification, and establish wage rates for any new or changed classifications for the duration of this Agree- ment; determine lunch, rest periods, and clean- up times; determine the starting and quitting time and the number of hours to be worked, 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD establish work schedules as business conditions and available work require, fix efficient work schedules, and assign employees to work over- time in excess of their usual shift schedules; discipline and discharge for cause, adopt, revise, and enforce working rules, maintain order and efficiency in the plants, fix the stan- dards of workmanship both as to quality and quantity, test, investigate, and improve in- dividual and unit productivity and initiate and carry out cost and general improvement pro- grams; transfer, promote, and demote em- ployees from one classification, department, or shift to another on a temporary or permanent basis, select employees for promotion or transfer to supervisory or other positions out- side the bargaining unit, require employees to perform work outside their assigned job clas- sifications when such assignment is, in the management's judgment, advisable regardless of the availability of work in their regular clas- sifications, require employees to perform work outside the plant to repair, maintain, or install equipment or instruct in the operation thereof, give special training to selected employees. B. Nothing in this Agreement shall limit in any way the right of supervisors to perform work. C. The listing of specific rights in this Agree- ment is not intended to be nor shall be restric- tive of or a waiver of the rights of management not listed and specifically surrendered herein whether or not such rights have been exercised in the past. it had prior to the signing of this Agreement, including those with respect to wages, hours, and working conditions, except as those rights, powers, functions, or authority are expressly and specifically abridged, modified, or limited by this Agreement and then only to the extent so specifically and expressly abridged, modified, or limited. SECTION 2. Except to the extent specifically abridged or limited by the provisions of this Collective Bargaining Agreement, the Com- pany retains the sole and exclusive right to manage its plants and offices efficiently and economically and direct the work forces, in- cluding, but not limited to, the products to be manufactured, the number and location of plants and offices and the work and job duties to be performed in the plants and offices, the schedules of work, transfer work out of unit, reduce the work week or the work day, assign employees to work overtime, the schedules of hours and shifts, determine lunch and rest periods, the methods, processes and means of performing work, to subcontract or contract any and all work and processes, establish, change or discontinue departments, or jobs, require employees to perform work outside of their assigned job classification, to lyre, assign, promote, demote, transfer, layoff; and, to establish rules of conduct, and maintain discipline and efficiency of employees. April 16, 1968 APPENDIX C ARTICLE-MANAGEMENT RIGHTS SECTION 1. The Company retains all the rights, powers, functions , and authority which SECTION 4. The listing of specific rights in this Agreement is not intended to be nor shall be restrictive of or a waiver of the rights of management not listed and specifically sur- rendered herein whether or not such rights have been exercised in the past. Agreed 9/12/69