Gladwin Industries, Inc.

280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gladwin Industries, Inc. and Communications Work- ers of America , AFL-CIO. Cases 10-CA-7201, 10-CA-7231, 10-CA-7330, and 10-CA-7381 June 12, 1970 DECISION AND ORDER By MEMBERS FANNING, BROWN, AND JENKINS On January 2, 1969, Trial Examiner Max Rosen- berg issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices in violation of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent had not engaged in certain other unfair labor practices alleged in the com- plaint and recommended that such allegations be dismissed. Thereafter, the General Counsel, the Charging Party, and the Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs. In addition, the General Counsel also filed a motion moving that the Board correct the Trial Ex- aminer's Decision in certain respects described el- sewhere herein. 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 these cases to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed.' The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recom- mendations except as modified herein. 1. The Trial Examiner found and we agree that by striking on November 15, 1967, the affected em- ployees were engaged in protected, concerted ac- tivity to protest Respondent's commission of unfair labor practices, that the strikers were unfair labor practice strikers at the inception of the work stop- page, and that Respondent's action in discharging them prolonged the strike. However, we agree with the General Counsel and the Charging Party that the Trial Examiner, apparently through inadver- tence , failed to find, as alleged in the complaint, that Respondent's discharge of the strikers on November 15 constituted a violation of Section 8(a)(3) and (1) of the Act. Accordingly, on the basis of the record and particularly in view of the Trial Examiner's above findings in this regard, we find that Respondent's discharge of the strikers on November 15, 1967, constituted a violation of Sec- tion 8(a)(3) and (1) of the Act. On the other hand, although we herein find that the discharges of November 15 constituted a viola- tion of Section 8(a)(1) and (3), contrary to the contentions of the Charging Party, we see no need in the attendant circumstances to alter the Trial Ex- aminer's Recommended Order requiring the Respondent to offer the aforementioned discharged strikers full and immediate reinstatement and to make whole those strikers who suffered as the result of Respondent's refusal to offer them rein- statement by April 29, 1968, pursuant to their un- conditional offer to return to work made through the Union on April 23, 1968.2 2. We disagree with the Trial Examiner's finding that Respondent's offer of reinstatement to Jim Larry Warren was sufficient to cut off backpay lia- bility and the obligation to reinstate him. In this re- gard, on June 11, 1968, Respondent mailed Warren an offer of employment. It is clear from the record that Warren did not receive this offer inasmuch as he moved his household to another address during the strike and it would appear from the record that he failed to notify the Respondent of his new loca- tion. On the other hand, it is clear that Warren was president of the Local Union and participated in many of the bargaining meetings both before and after the strike. Moreover, the Union made an un- conditional application for reinstatement on April 23, 1968, on behalf of all of the strikers including Warren. Under settled law it is within the Union's authori- ty, as the employees' bargaining agent, to make un- conditional application for reinstatement on behalf of the strikers and impose upon the Respondent the duty to offer reinstatement to such strikers.' In these circumstances, had Respondent chosen to do ' We find without merit the Respondent's allegations of prejudice, bias, and hostility on the part of the Trial Examiner and that the Trial Examiner erred in resolving credibility in favor of the strikers rather than the Respon. dent It is established Board policy not to overrule a Trial Examiner 's credi- bility findings unless, as is not the case here, a clear preponderance of all relevant evidence convinces us that they are incorrect Standard Dry Wall Products, Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 3) Nor does the fact that the Trial Examiner credited the General Counsel's witnesses and credited none of the Respondent 's witnesses necessarily indicate any im- propriety N L R B v Pittsburgh Steamship Co , 337 U S 657 Ac- cordingly, we find no basis for disturbing the Trial Examiner 's credibility findings in this case We correct the Trial Examiner 's inadvertent misstatement in his chart of hours worked each week in the upstairs shipping department so that the date of discharge reads "8/18/67 " ' See, e g , Custom Chair Mfg Co , 170 NLRB 454 ' Trinity Valley Iron and Steel Company , 158 NLRB 890, enfd in per- tinent part 410 F 2d 1 161 (C A 5) 183 NLRB No. 36 GLADWIN INDUSTRIES, INC. so, it could have fulfilled its obligation by making its offer of reinstatement directly to the Union, as Warren's representative. Clearly, the Union would have had no difficulty in alerting Warren of Respondent's reinstatement offer. However, Respondent did not adopt this course. Indeed, Respondent never told the Union or Warren per- sonally that it was unable to contact him by mail nor did it ever request the Union for assistance in locating Warren's new address. The June 11 letter was the sum total of Respondent's effort to find Warren. In these circumstances, where the Respon- dent clearly had other available means, namely, through the Union, to communicate its offer to Warren' and where it appears that Respondent could have readily obtained Warren's address from the Union, we find, contrary to the Trial Examiner, that Respondent did not fulfill its reinstatement obligations by its letter of June 11, 1968, to Jim Larry Warren.' Accordingly, we shall order that Respondent offer reinstatement to Warren and compensate him for any backpay due him for the period from April 29, 1968, to the date of Respondent's valid offer of reinstatement. 3. As noted elsewhere herein, the General Coun- sel filed a motion to include the name of employee David Holcombe among those employees we are herein ordering to be reinstated and made whole. As no objection has been filed to this motion, and as the omission of the consideration of Holcombe appears to have been an oversight on the part of the Trial Examiner, we grant the General Counsel's motion and will now consider the evidence relative to Holcombe. In this regard the record shows that on November 18, 1967, Holcombe joined the strike and on June 11, 1968, Respondent advised Hol- combe by letter that a job was being held open for him until June 18. Holcombe received the letter about June 12 or 13 and telephoned Cobb, then the superintendent. Cobb offered Holcombe a job pay- ing $1.70 per hour. Holcombe was earning $2.25 per hour at the time he went out on strike. Hol- combe protested and refused the job on the ground that the cut in wages was too big. Respondent did not offer Holcombe any other job comparable to that which he had prior to joining the strike. In these circumstances, we find that Respondent did not meet its obligation to offer Holcombe substan- tially equivalent employment, and that Holcombe, as an unfair labor practice striker, is entitled to reinstatement and backpay running from April 29, ' Trinity Valley Iron and Steel Company, supra 'Monroe Feed Store, 122 NLRB 1479 Cf Rollash Corporation, 133 NLRB 464, 465 281 1968, and terminating at the time Respondent makes a valid offer of reinstatement to Holcombe.6 AMENDED CONCLUSIONS OF LAW Add the following as a new paragraph 10 and renumber the old paragraph 10 and the remaining paragraphs to conform with this addition. 10. By discharging the striking employees, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Gladwin Industries , Inc., Atlanta, Georgia, its of- ficers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Laying off or discharging employees or dis- criminating in any manner against employees in re- gard to their hire or tenure of employment or any term or condition of employment because of their membership in, or activities on behalf of, Commu- nications Workers of America, AFL-CIO, or any other labor organization, or because they have en- gaged in their right to self-organization or to engage in other concerted activities for the purposes of col- lective bargaining or other mutual aid or protec- tion. (b) Refusing to bargain collectively with Com- munications Workers of America, AFL-CIO, upon request, as the exclusive bargaining representative of a unit composed of all full-time and regular part- time production and maintenance employees, in- cluding shipping department employees and truckdrivers, but excluding office clerical em- ployees, professional and technical employees, casual employees, guards, and supervisors as defined in the Act. (c) Refusing to furnish the aforesaid Union with the job classifications or primary duties of all em- ployees in the certified, appropriate unit, upon request. (d) Unilaterally granting wage increases to em- ployees without notifying or bargaining with the above-mentioned Union concerning the award of such emoluments. (e) Unilaterally eliminating a department in the plant without adequate prior notification to the Union and affording it an opportunity to bargain over such abolition. ' As no specific exceptions have been filed with respect to the Trial Ex- aminer's recommended remedy for James T Cook and John Phillips, we adopt these recommendations pro forma 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) Threatening employees with discharge for engaging in protected, concerted work stoppages. (g) Coercively interrogating employees concern- ing their union activities. (h) Promulgating, maintaining, or enforcing a plant rule prohibiting solicitation on behalf of the Union on company property during nonworking time. (i) In any other manner interfering with, restraining , or coercing its employees in the exer- cise of their right to self-organization , to form labor organizations , to join or assist the Union or any other labor organization , to bargain collectively through representatives of their own choosing for the purpose of collective bargaining or other mu- tual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with Communications Workers of America , AFL-CIO, as the exclusive representative of the employees in the appropriate unit described above , with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an understanding is reached , embody such un- derstanding in a signed agreement. (b) Upon request, bargain collectively with the Union over the revitalization of the engraving de- partment. (c) Upon request, furnish the aforesaid labor or- ganization with the current job descriptions or pri- mary duties of employees in the certified, ap- propriate unit. (d) Offer full and immediate reinstatement to Jim Larry Warren, David Holcombe, Willie Anthony, Jenevelyn Avirett, Jennie L. Calhoun, David J. Gardner , Adolphus Lester, Jr., Bettye Mae Scott, James T. Cook , and John Phillips to their former jobs or, if those jobs no longer exist , to sub- stantially equivalent positions, and make them whole for any loss of pay they may have suffered as a result of Respondent's refusal to offer them rein- statement on April 29, 1968, for the periods and in the manner set forth in this Decision and Order. ( e) Make whole Johnny A. V. Fritz, Roscoe W. Mooney , Jerry A. Stephens, Herschell H. Pruitt, Dorothy L. Wilson , Eloise Goodman, David Case, Rosie Smith , Bradford Croy, William E . Pruitt, and Charles W. Loggins for any loss of pay they may have suffered as a result of Respondent's failure to offer them reinstatement as unfair labor practice strikers on April 29, 1968 , for the periods and in the manner set forth in this Decision and Order. (f) Notify the strikers who have not been rein- stated, if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (g) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (h) Post at its place of business in Atlanta, Geor- gia, copies of the attached notice marked "Appen- dix."' Copies of said notice, on forms provided by, the Regional Director for Region 10, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (i) Notify the Regional Director for Region 10, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges un- fair labor practices not found herein by the Board. ' 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 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge you, lay you off, or otherwise discriminate against you in regard to your hire, tenure of employment, or any term or condition of your employment, in order to discourage membership in, or activities on be- half of, Communications Workers of America, AFL-CIO, or any other labor organization. WE WILL NOT refuse to bargain collectively with Communications Workers of America, AFL-CIO, upon request, as the exclusive bar- GLADWIN INDUSTRIES, INC. 283 gaining representative of a unit composed of all full-time and regular part -time production and maintenance employees , including shipping department employees and truckdrivers, but excluding office clerical em- ployees, professional and technical employees, casual employees, guards, and supervisors as defined in the Act. WE WILL NOT refuse to furnish the above- named Union with the job classifications or primary duties of all employees in the aforesaid unit. WE WILL NOT unilaterally grant wage in- creases to our employees without first notifying and bargaining with the Union about the tim- ing and amount of such increases. WE WILL NOT unilaterally close down a de- partment in the plant without first notifying the Union and giving it a chance to bargain over the closing. WE WILL NOT threaten to fire our employees for assisting or supporting the Union. WE WILL NOT question our employees about their union activities. WE WILL NOT promulgate , maintain, or en- force any plant rule which prohibits our em- ployees from soliciting for the Union on com- pany property during nonworking time. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their union or other concerted ac- tivity protected by the Act. WE WILL, upon request , bargain collectively with Communications Workers of America, AFL-CIO, as the exclusive representative of the employees in the above-mentioned unit with respect to rates of pay, wages , hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed contract. WE WILL, upon request , bargain collectively with the Union over the revitalization of the engraving department. WE WILL, upon request, furnish the Union with the current job descriptions or primary duties of employees in the appropriate unit. WE WILL offer immediate and full reinstate- ment to Jim Larry Warren, David Holcombe, Willie Anthony, Jenevelyn Avirett, Jennie L. Calhoun , David J. Gardner, Adolphus Lester, Jr., Bettye Mae Scott , James T. Cook, and John Phillips to their former jobs or, if those jobs no longer exist, to substantially equivalent positions , and pay them any wages they may have lost because we did not call them back to work in time. WE WILL pay Johnny A. V. Fritz, Roscoe W. Mooney, Jerry A. Stephens, Herschell H. Pruitt, Dorothy L. Wilson, Eloise Goodman, David Cash, Rosie Smith, Bradford Croy, Wil- liam E . Pruitt, and Charles W. Loggins, any wages they may have lost because we did not call them back to work on time. 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. All our employees are free to become, remain, or refrain from becoming or remaining members of the above-named or any other labor organization. GLADWIN INDUSTRIES, INC. (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, 730 Peachtree Street, N.E., Atlanta, Georgia 30308, Telephone 404-526-5760. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MAX ROSENBERG, Trial Examiner: This proceed- ing, with all parties represented, was tried before me in Atlanta, Georgia, on July 16, 17, and 18, 1968, pursuant to an amended complaint filed by the General Counsel of the National Labor Rela- tions Board and an amended answer filed thereto by Gladwin Industries, Inc., herein called the Respondent.' The issues framed by the pleadings 'The charge in Case 10-CA-7201 was filed on December 29, 1967, and served on January 2, 1968 , while the charge and amended charge in Case 10-CA-7231 were filed on January 18, 1968 , and on February 14, 1968, respectively, and were served on January 19, 1968 , and February 14, 1968, respectively They were embodied in a complaint which issued on March 15, 1968 The charge and amended charge in Case I0-CA-7330 were filed on April 26, 1968, and May 10, 1968, respectivey, and were served on April 26, 1968, and May 13, 1968, respectively These were contained in an amended complaint which issued on May 15, 1968 . The charge in Case 10-CA-7381 was filed on May 27, 1968, and served on May 28, 1968 This charge found its way into an amended complaint which issued on July 1, 1968 On July 1, 1968, the complaint in Cases 10-CA-7201 and I0-CA-7231 was further amended in certain respects 284 DECISIONS OF NATIONAL relate to whether the Respondent violated Section 8(a)(1), (3), and (5) of the National Labor Rela- tions Act, as amended, by certain conduct to be detailed hereinafter. At the conclusion of the hear- ing, the parties waived oral argument. Briefs have been received from the General Counsel, the Union, and the Respondent, which have been duly considered.2 Upon the entire record made in this proceeding and my observation of the witnesses who testified, I hereby make the following: FINDINGS OF FACT 1. THE RESPONDENT'S BUSINESS Respondent is, and has been at all times material herein, a Georgia corporation with its principal of- fice and place of business located in Atlanta, Geor- gia, where it is engaged in the manufacture and sale of plastic products. During the pertinent annual period, Respondent sold and shipped said products valued in excess of $50,000 directly to customers located outside the State of Georgia. The complaint alleges, the answer admits, and I find that Respon- dent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Communications Workers of America, AFL-CIO, herein called the Union , is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Contentions The amended complaint alleges that Respondent violated Section 8(a)(1) of the Act by threatening employees with discharge if they joined or engaged in concerted activities on behalf of the Union; in- terrogating employees concerning their union mem- bership, activities, and desires; and promulgating, maintaining, and enforcing a plant rule prohibiting employees from soliciting for the Union during nonwork time. It further alleges that Respondent offended the provisions of Section 8(a)(3) by discharging Teddy Lee Ray on August 18, 1967,3 because of his membership in and activities on be- half of the Union, and by discharging certain other employees on November 15 for engaging in a strike to protest the Respondent's commission of unfair labor practices or for engaging in an economic strike at the plant. Finally, the complaint charges ' The Union's and Respondent's unopposed motions to correct the record in minor aspects are hereby granted ' All dates herein fall in 1967 unless otherwise indicated. ' The complaint alleges, the answer admits, and I find that the foregoing unit is appropriate for the purposes of collective bargaining within the LABOR RELATIONS BOARD that Respondent violated Section 8(a)(5) by uni- laterally abolishing its upstairs shipping department as well as its engraving department without prior consultation with the Union; by unilaterally and without consultation with the Union, and without an impasse having been reached , granting wage in- creases to employees in the unit; by refusing, upon request, to furnish the Union with information con- cerning the primary duty of each of the unit em- ployees; and by generally failing to bargain in good faith with the Union as the duly designated bargain- ing agent for Respondent's employees in the ap- propriate unit. For its part, Respondent denies the commission of any labor practices proscribed by the statute. B. The Evidence On May 26, the Union was certified by the Board as the exclusive bargaining representative for a unit of all full-time and regular part-time production and maintenance employees at Respondent's opera- tion in Atlanta, Georgia, including shipping depart- ment employees and truckdrivers, but excluding of- fice clerical employees, professional and technical employees, casual employees, guards and super- visors as defined in the Act.4 Following the certifi- cation, Earle Moye, the Union's International representative, contacted Edmund Dugan, Respon- dent's current president, to arrange for the com- mencement of negotiations and the first bargaining session between the parties was scheduled for July 12. Attorney James Fulford was designated as the chief negotiator for Respondent and Attorney Mor- gan Stanford became the principal spokesman for the Union in the ensuing negotiations. It is un- disputed and I find that, at the July 12 meeting, Stanford presented Fulford with a complete copy of the Union's contract proposals which were then reviewed by the parties. Fulford agreed to the arti- cles of recognition, a provision authorizing the Union to post notices on the plant bulletin board, and a clause precluding supervisory personnel from performing unit work. However, with respect to the inclusion of a checkoff clause, he informed Stan- ford of his policy to defer consideration of such an item until the conclusion of bargaining . Discussion then turned to wage rates and insurance benefits. In this regard, Stanford stated that, while the company had furnished him with a seniority list of the em- ployees prior to this meeting, it failed to provide their wage rates and lacked the desired insurance information. When Fulford requested time in which to consult his client on the other contract proposals before he could reach agreement on these items, the meeting was adjourned. meaning of Sec 9( b) of the Act The parties stipulated and I further find that the Union 's certification for this unit resulted from an election con- ducted by the Board on May 18, in which 34 employees cast votes for, and 3 cast votes against , the Union There were no void or challenged ballots GLADWIN INDUSTRIES, INC. By letter dated July 17, Respondent President Dugan wrote Stanford that Fulford had apprised the former of Stanford's request for the names and wage rates of employees and a specimen copy of the Company's group insurance policy. In com- pliance with the request, Dugan appended this in- formation to his letter. The next bargaining session was conducted on July 20. At the outset, I find that Fulford remarked that he would rather not discuss the subject of wage increases until the other contract proposals were laid to rest and Stanford consented to this procedure. Stanford reported that he had not as yet received a copy of the insurance program and em- ployee wage rates, whereupon Fulford telephoned the insurance carrier and assured the former that the desired information would be forthcoming.' The parties moved on to the contract provisions. Agreement was reached on the preamble and recognition clauses. A consensus was also arrived at regarding the language of a holiday clause with the exception of a provision for an eighth, paid holiday.' A provision pertaining to applicable Federal and state laws was agreed upon by the parties. Respondent also consented to a clause which proscribed the performance of unit work by supervisors. Fulford advised Stanford that Respon- dent would promptly mail its counterproposals to the Union regarding leaves of absence, overtime payment, call and reporting time, Union access to the plant, grievance and arbitration procedures, safety practices, and vacations. Before the meeting ended, the Union accepted Respondent's counter- proposal on a no-strike and no-lockout clause, and such items as Blue Cross and Blue Shield coverage, vacations, laundry and uniform services, and seniority were explored. Fulford made the parting comment that Respondent was not in favor of any arbitration clause which would require arbitration over matters other than the discharge of employees. On July 21, Stanford dispatched a letter to Ful- ford in which he embodied the employees' com- plaint that, because of overtime and Saturday work, they were unable to find time to take care of per- sonal business. Stanford recommended that Respondent reschedule the hours of work to ac- commodate the employees in this respect. On July 25, Respondent President Dugan wrote to Stanford setting forth his understanding of the agreed-upon areas of the prospective contract and transmitted eight counterproposals which Fulford had earlier promised to provide.' On July 27, Stanford wrote to Fulford protesting the discharge of an employee in the unit named Lemuel Pruitt, and asking that the parties get together to discuss the propriety of this action. The letter also suggested that Dugan be present during the discussion because Stanford planned to raise ' Fulford apparently was unaware that Dugan had mailed this informa- tion to the Union a few days earlier ' Respondent currently provided seven paid holidays The Union proposed that Christmas Eve be added to the list 285 various other issues relating to plant safety, the group insurance plan, and Union President Jim Larry Warren's representative authority. Stanford further related that he had received Respondent's counterproposals and requested that it submit addi- tional counterproposals concerning the other items encompassed in the Union's proposed labor agree- ment prior to the next bargaining session on August 8. At the August 8 meeting, the parties agreed upon provisions relating to the Union's access to the plant, safety, and vacation eligibility, and ap- proached agreement on the award of Christmas Eve as a paid holiday and call time and reporting pay. Regarding the subject of arbitration, the Respon- dent receded from its former position and con- sented to arbitrate suspensions of over 30 days as well as discharges, a concession which the Union rejected. Discussion was also had concerning hours of work, overtime, leaves of absence, seniority, and insurance, but no progress was made on these clauses and the session terminated. The parties met again on August 9 and initially embarked upon a consideration of the reinstate- ment of Pruitt and the transfer of two employees, to which Respondent would not acquiesce. Attention was thereupon focused on the matter of creating a job classification system at the plant. Fulford declined to bind Respondent to such a system, but agreed to insert a provision in the contract whereby Respondent would obligate itself to bargain with the Union over the establishment of one after a contract had been executed, a proposal which the Union rejected. However, Fulford and Stanford reached agreement on a rest and lunch period clause. Fulford then proposed a lengthy manage- ment rights provision to which Stanford objected because it was too encompassing. Before the meet- ing concluded, Stanford inquired as to why Fulford was delaying his counterproposal regarding wage increases, to which the latter replied that the only money offer which Respondent would advance at the time would be to convert the annual Christmas bonus into an across-the-board wage raise. On this note, the parties left the bargaining table. For the sake of chronology, it might be well at this juncture to interrupt the narrative concerning the bargaining colloquy in order to detail certain events which transpired prior to the next bargaining session scheduled for August 23. Teddy Lee Ray was first employed by Respon- dent in September 1965 to work in the fabrication department and he toiled in this capacity for about a year, after which he was transferred to the up- stairs shipping department to perform the duties of a shipping clerk. This job entailed the loading of plastic articles on trucks at a dock situated on that floor, after he had packed these items in boxes. ' These included call time and reporting pay, hours of work and over- time, vacations, bulletin board access, holidays, rest and lunch periods, leaves of absence, and a management rights clause 286 DECISIONS OF NATIONAL When Ray was hired, he was paid $1.70 per hour and this wage was escalated to $1.90 per hour, a sum which he was receiving when he was separated from his employment on August 18. It is uncon- troverted and I find that, on some undisclosed date prior to the election of May 18, Ray signed a union authorization card and attended all the scheduled union meetings. In addition, he wore AFL-CIO and union buttons on his apparel while at work, as well as a union card which measured 3 by 5 inches. However, by his own admission, between 75 and 90 percent of his fellow employees also wore these in- signia in the plant. Furthermore, in the course of his employment, he spoke to several employees concerning the Union. Ray testified without contradiction that, late in July, he and several other employees had a conver- sation in the plant parking lot with Dugan and the then Plant Superintendent Kruskamp concerning the discharge of employee Lemuel Pruitt who had been terminated a few days earlier for leaving work before quitting time.8 During the conversation, Ray remarked to Dugan and Kruskamp that he, Ray, "felt like that wasn't fair and if nothing could be done about that and they voted to strike I would strike because the way they let him go, it didn't seem like it was the fair thing to do." Several of the employees in attendance openly agreed with Ray on this score. I find that, about 30 minutes before the end of his shift on August 18, Ray was called into Kruskamp's office and told that Respondent was closing the upstairs shipping department in which he worked, a move which Respondent's officials had been contemplating for some time because it was not financially feasible to continue the opera- tion.' Kruskamp offered to relocate Ray in the' fabrication department where the latter had previ- ously worked, but pointed out that the only slot available for Ray in that department or elsewhere in the plant carried a pay scale of $1.70 an hour which would have entailed an hourly reduction of 20 cents. Ray demanded that he be permitted to have a union representative present, in con- sequence of which Union Vice President Robert Busbee was summoned and Kruskamp repeated his offer. Busbee reminded Kruskamp that the Respon- dent had hired some new employees in the fabrica- tion department and that Ray was a more ex- perienced employee, but Kruskamp noted that the newly hired personnel were receiving less money than Ray. The discussion terminated with Kruskamp staying any further action until the fol- lowing Monday so that Ray and the Union could mull the situation over. On Monday morning, Ray informed Kruskamp that the former could not af- ford to take a wage cut and stated that "I was not quitting and if I left he would have to fire me." 9 Kruskamp was succeeded as plant superintendent in September by Her- man Cobb 9 Respondent had another shipping department on a lower level LABOR RELATIONS BOARD Whereupon, Kruskamp drew up Ray's final paycheck which he proffered to Ray who then left the plant and Respondent's employ. In his testimony, Ray admitted that, commencing around January 1, his shipping work began to fall off to such an extent that, by April, it had decreased over 30 percent and that, on the date of his separation from employment, it had returned to only 75 percent of the 1966 volume. Ray further testified that, prior to August 18, he worked over- time on an average of 4 nights per week and that his average workweek prior to his termination totaled 60 hours. However, these figures are belied by Respondent's payroll records, a summary of which was introduced into evidence and reveals the following: Week ending Hours worked 1/7/67 40 (including holiday) 1/14/67 32 1/21/67 33-3/4 1/28/67 40 2/3/67 39-1/4 2/11/67 37-3/4 2/17/67 38-3/4 2/25/67 40 3/3/67 40 3/11/67 38-3/4 3/18/67 40 3/25/67 32-1/2 4/1/67 33 4/8/67 32-1/2 4/15/67 40 4/22/67 36-3/4 4/29/67 39-3/4 5/6/67 31-1/4 5/13/67 40 5/20/67 39-1/4 5/27/67 32 6/3/67 39-1/2 6/10/67 Vacation 6/17/67 40 6/24/67 39-3/4 6/30/67 58 7/8/67 54 (including holiday) 7/15/67 58 7/22/67 47 7/29/67 40 8/5/67 36 8/11/67 24 8/19/67 39-3/4 8/18/68 (discharged) GLADWIN INDUSTRIES, INC. 287 The General Counsel urges that Ray's job was phased out by the elimination of the upstairs shipping department in order to punish him for joining and supporting the Union, and to dissipate the Union's majority. I am not so persuaded.'° Ray's activities on behalf of the Union were no dif- ferent than countless other employees in the unit. Thus, Ray signed a union authorization card as did many others; he wore union buttons and posters on his clothing while at work, although 75 to 90 per- cent of the complement also did so; and the em- ployees who met with Dugan and Kruskamp on the parking lot to discuss the discharge of Pruitt "open- ly" supported Ray's protest over the same person- nel action. Moreover, Ray was not a union officer nor was he even a member of the bargaining com- mittee. In sum, I am unable to find that Respondent singled out Ray for discriminatory treatment because of his efforts on behalf of the Union, or that Respondent knew that Ray was a union ad- herent, but find, rather, that the upstairs' shipping department was eliminated along with Ray's job out of purely economic considerations. I also find that, on the date of his separation and the discon- tinuance of the department, Ray had the assistance of Union Vice President Busbee and, for aught that appears, Respondent and the Union fully discussed the closure of the department and Ray's retention in other capacities in the plant. Furthermore, so far as this record stands, the curtailment of the depart- ment and Ray's termination was never thereafter advanced at the bargaining table by the Union at any of the ensuing negotiating meetings, and was not again forcefully urged until the Union filed amended unfair labor practice charges against Respondent on January 18, 1968, some 5 months later. Another incident bearing on the issues arose prior to the next bargaining meeting on August 23. Rosie P. Smith was employed by Respondent on or about August 1, in the paint shop. She testified that, approximately August 15, the employees en- gaged in a strike which she joined and which was triggered by the fact that the employees "were try- ing to get a union in." During the work stoppage, she telephoned Plant Superintendent Kruskamp to inquire whether the strike was still in progress and he responded that the stoppage had ceased and in- vited her to return to work. Prior to doing so, how- ever, Smith placed a call to a Mr. George of the At- lanta Urban League, who had been instrumental in garnering employment for her with Respondent, in order to seek his advice. George instructed Smith not to return to work until he had contacted Respondent's officials. Thereafter, George in- formed her that he had arranged for a meeting in his office with President Dugan. Smith reported to George's office on or about August 23, and, in the presence of Dugan and fellow employee Eloise Goodman, George asked whether Smith and Good- man, who was also hired by Respondent due to George's efforts, were experiencing any problems. Smith replied that there had been no untoward in- cidents and that everyone at the plant had treated them well. At this point, Dugan joined the discus- sion . Smith testified that Dugan stated that "if we wanted to go back to work at Gladwin, okay that was well and good-but he was not going to stand for another work stoppage. And if they [the em- ployees] walked out again he was going to pick the people that he hired back into the plant, ones with high school educations, and the others were to be replaced." In an affidavit which Smith gave to a Board agent, Smith related that Dugan threatened at this meeting that "if the employees did go out again , he said he was going to fire them and hire people with high school educations in their places. ... Some time later, Smith abandoned the strike and returned to work. Eloise Goodman, who was hired around August 1, to work in the paint shop, also testified about this incident. Like Smith, she joined the work stoppage about the middle of August and was invited to the office of Mr. George for a discussion of the strike with Dugan. According to Goodman, Dugan re- marked during the conversation that "he had taken the last work stoppage that he was going to take, and he said that if we wanted to work at the plant he would be glad to have us, and he said that there was a lot of them in the plant that he was going to get rid of because most of them in the plant were just plain ignorant; ... and he said that he was going to get rid of all those who did not have a 12th grade education, and he was going to hire only those that had one, or keep the ones rather that had a 12th grade education." At the conclusion of the conversation, Goodman returned to her job. In his testimony, Dugan recited that Respondent rates itself as an "equal opportunity employer" and utilizes the good offices of the Atlanta Urban League to obtain the services of capable Negro em- ployees for work at the plant. Pursuant to this ar- rangement, Smith and Goodman sought and received employment with Respondent. During the course of the August strike, Dugan received a telephone call from George with reference to the fact that Smith and Goodman had left work and joined the work stoppage. Because Dugan desired to learn "what was troubling these ladies," he ac- cepted George's invitation to discuss the matter at the latter's office "in an endeavor to offer them- well, certain assurances, at least to make sure what the Company's position was in regard to their em- ployment." While unable to recall the entire con- tent of the discussion on this occasion, Dugan re- membered that he mentioned that Respondent was interested in obtaining and retaining employees who could read and write. When questioned as to 10 In this connection , I would note that the Union scored an election vic- tory of 34 to 3 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whether he asked Smith and Goodman what was causing them the concern which prompted their walkout with the other strikers , Dugan replied in the affirmative . Thereupon , Dugan requested that the women return to their jobs . Dugan testified that he "could have" brought up the topic of the cur- rent strike and confessed that he "might have" told the ladies that he would not tolerate another work stoppage at the plant . However, Dugan proclaimed that he had never told either Smith , Goodman, or anyone else that they or other employees would be discharged if they walked out again , stating that "I may have said that we would replace them." When pressed on the matter of whether he had uttered anything during this meeting about ridding himself of anyone in the plant, Dugan replied "No; not that I recall." Smith and Goodman impressed me as honest witnesses who truthfully sought to report the content of Dugan's statements as they heard them, and I credit their testimony that, during the meeting at the Urban League office, Dugan warned that he would not tolerate another work stoppage at the plant and threatened to discharge or get rid of any employee who participated in a future strike. Bargaining resumed on August 23 , but was abruptly ended by Attorney Fulford who refused to continue negotiations due to the pendency of the strike which commenced on August 15. The parties met again on September 8. At this meeting, the subject of work classifications was again broached by Attorney Stanford and the Union reminded Fulford that Respondent had per- fected a job classification system some months prior to the Board election of May 18 . Fulford commented that the classification project was in- adequately drawn," and the topic of discussion turned to wages, with the Union reducing its de- mands for closing the differential in pay for em- ployees in the same department. At this stage, Ful- ford, for the first time , stated that Respondent was willing to proffer a wage proposal of three annual wage escalations in the amount of 3-cent incre- ments provided that a 3-year contract was agreed upon. Respondent also offered to undertake a study of work classifications in the plant to determine the proper rate of pay for each . Fulford further an- nounced that Respondent 's insurance plan and holiday benefits should be retained, and that the matter of the Christmas bonus should remain within management's prerogative . On this, as in several past negotiating sessions, Fulford suggested that the Union engage in a work stoppage in the event it was dissatisfied with Respondent's counter- proposals. The meeting adjourned on this note. The next session occurred on September 15, with a representative of the Federal Mediation and Con- ciliation Service in attendance . The parties reached agreement on the grievance and arbitration clauses, " Union President Warren's testimony is uncontroverted and I find that, about 2 to 3 months prior to the Board election, he had a conversation with Respondent President Dugan in which the latter revealed that he had in- and the Union once again reduced its wage de- mands. Another meeting took place on October 9, dur- ing which Stanford proposed that the wage gap between employees performing the same work be eliminated . Fulford remarked that Stanford was wasting his time in pursuing this issue and repeated that, if the Union was unhappy with Respondent's wage proposals , it could embark upon a strike. Negotiations were undertaken again on October 26. At this session , Fulford advanced the suggestion that Respondent would agree to an across-the- board wage increase of 6 cents per hour for the first year of a 3-year agreement , with subsequent annual increments of 5 cents per hour for the remainder of the contract term . In addition , Fulford com- mitted the Company to a checkoff clause in any putative contract . However, Fulford con- ditioned these counterproposals upon the Union's acquiescence in all of the terms of Respondent's proposed labor contract other than those already agreed upon . After Fulford indicated that he would not recede from his position that overtime be paid after 40 rather than 8 hours , Stanford com- plained that a leadman named Robert Lee had received a wage increase without prior notification or consultation with the Union . Stanford protested that the Union , as the collective representative of the employees, was entitled to advance notice of the reward of these benefits so that it could ascer- tain whether they were fairly granted . Stanford also remarked that the employees should labor under a more munificient insurance program and promised to transmit a plan to Respondent President Dugan. Finally, Stanford inquired whether the Company would continue to award its unit personnel a Christ- mas bonus in addition to the proffered increase in wages, to which Fulford replied that Respondent would not guarantee the annual payment of the bonus and that the matter would remain within the sole discretion of its officers . The meeting con- cluded with another scheduled for November 17. Meanwhile , on November 1, Respondent eliminated its engraving department. Prior to that date, an employee named Scott Evans utilized Respondent 's engraving machines to fabricate such items as name plates and price tags . The parties stipulated and I find that, on November 1, Respon- dent sold its machines to Evans, which were then transported to his home . Thereafter , Respondent ceased to do engraving work in its plant and referred its former customers to Evans for service without receiving remuneration for such referrals. It is also undisputed and I find that the elimination of the engraving department was accomplished by Respondent for legitimate , economic reasons but without prior notification to or consultation with the Union. structed Plant Superintendent Kruskamp to undertake a job classification study "to get everybody classified " However, such a plan was never sub- mitted to the Union GLADWIN INDUSTRIES , INC. 289 Continuing the narrative, the parties stipulated and I find that, on November 8, Respondent posted a notice on its bulletin board, addressed to all em- ployees and signed by Plant Manager Cobb, which recited that "This is to again remind you that no solicitation of any kind is permitted on Company property at any time. Violation of this rule will sub- ject you to disciplinary action, including dismissal." Employees Jim Larry Warren and Buford Lee Cook testified without contradiction and I find that no such notice had been posted prior to this occasion, and that employees had previously been permitted to solicit freely in the plant to vend chances on au- tomobilies, shotguns, and candy during workbreaks without any disciplinary action being visited upon them. Cook further testified and I find that the aforesaid no-solicitation rule was removed by Respondent on April 29, 1968. It is uncontroverted and I also find that, on November 15, another work stoppage occurred at the plant.12 Union President Warren, who had been employed by Respondent since 1960 until the November 15 walkout and who was a leadman in the paint department, testimonially recounted the events which led to this strike. He testified without denial and I find that, a few days prior to the Board election on May 18, he visited the office of Dugan to inform the latter that Warren had been selected as the president of the Union.13 In the presence of Plant Manager Cobb and another supervisor, Dugan remarked that he had been employed in many plants which were unionized and that he never believed that his interests were advanced by joining or supporting a labor organization. Dugan added that, at one plant in which he had been em- ployed, a union had achieved exclusive representa- tive status, in consequence of which he quit his job because of this circumstance. 14 As a member of the Union's bargaining commit- tee, Warren attended several negotiating sessions, including those held on August 8 and 9, at which the discharge of employee Pruitt was discussed. Sometime thereafter, Warren broached this subject with Dugan, as well as the separation of Teddy Lee Ray on August 18, and, according to Warren's testimony, Dugan retorted that "he didn't have to discuss anything with me; that I didn't represent anybody and he didn't have to discuss anything with anybody." Warren further testified that, in the middle of October, Cobb stated that "he [Cobb] wanted to talk to me and it was mostly getting on to me about what I said about going to the foremen when I thought someone was mistreated and said something about it.... he told me it wasn't any of my business what went on, that I should keep my mouth out of it, and that I had been messing with the union now and I had messed up. That I was a good worker but if I wanted to quit, that he would sign a statement giving me a recommendation and would get the president of the company to sign it. ... he said I had a good future there but since I had messed with the union I had messed it all up."15 Warren also testified that, on or about November 6, he entered into another discussion with Cobb concerning the former's solicitation of employee membership in the Union. According to Warren, Cobb "called me into the office and wanted to know if I was giving out union cards, and I told him yes I had, that I had given some out that morning before I went to work; and he asked me didn't I know it was against the law and I told him no. So he said well, it was against the law and the union ought to notify me more about what I was doing before I jumped into something and did it. And so I asked him if I was fired and he said he didn't know at that time, that the company was still considering it. So I went back to work and worked a couple hours, and went back up there and wanted to know if I was fired, and he said no, that there would be a notice put on the bulletin board about it. So the next day there was one put on there." Warren's testimony on this issue stands uncontradicted and I therefore find the facts as he reported them from the stand. When questioned as to whether he had any discussions with Warren after Ray's separation on August 18 concerning that personnel action, Dugan initially acknowledged that Warren "could have" mentioned the subject but added, "I don't re- member whether he did or not." Dugan then stoutly proclaimed that he did not tell Warren that what the company did was none of the Union's business, and did not state to Warren that Respon- dent was under no obligation to notify the Union about anything. I credit Warren's testimony con- " This strike constituted either the second or third work stoppage since the Union's certification In this connection , I would note that Respondent does not maintain that these stoppages were statutorily unprotected by vir- tue of their frequency, and I find that they amounted to concerted, pro- tected activities within the meaning of the Act " During his examination , Dugan claimed that he first became aware that Warren had assumed the presidency of the Union when he received a letter from Attorney Stanford dated July 27, in which the latter advised that Respondent should deal with Warren in that capacity Dugan then stated that he could not recall whether he had previously been told by War- ren of his status as leader of the Union However, Dugan then acknowledged that he had discussed labor relations matters with Warren and took immediate action on them, although he could not be certain whether this was before or after receipt of the above-mentioned missile " Warren also testified and I find that, approximately 2 months prior to the Union's certification, he approached Dugan and Cobb to inquire whether Respondent would meet with members of an employee committee which had been in existence for about a year Dugan declined to do so and expressed surprise that Warren would desire union representation Dugan then outlined the existing benefits which the employees enjoyed and ob- served that employee relations would be more formally conducted in the event of unionization of the plant is Roy Lee Robertson testified credibly and I find that, on November 10, he was summoned to Cobb's office to discuss certain work being performed in the fabrication department During their conversation , Cobb noted that employee Robert Busbee , who was soon to be promoted to a supervisory position, and Robertson were fulfilling their work tasks well and appeared to be foremen material At this juncture, Warren passed by Cobb's office window and the latter commented , "You see Jim Warren) He might as well forget about making anything out of himself around Gladwin " 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cerning his version of this conversation with Dugan, not only because it was given in a sincere and forthright manner, but also because I deem Dugan's testimonial utterances in this regard implausible. For, if Dugan could not remember whether he had discussed Ray's discharge with Warren, it would seem unlikely that he would remember that he had not mentioned his disregard for dealing with the Union respecting this action . I am fortified in this conclusion by the findings , heretofore made, that Respondent unilaterally eliminated its engraving department without notifying or consulting Warren or other officials of the Union. Cobb admitted to a conversation with Warren on a date which he fixed as November 6, during which Warren complained that an employee named Cecil Anthony had lost his job with Respondent and War- ren sought more information regarding the separa- tion . Cobb also admitted that he told Warren that "I didn 't feel like that was any of his business and the sooner he learned to tend to his own business and stay in his own department and stop running around the shop during working hours the better off he would be," a remarkable statement in view of Warren 's acknowledged status as president of the collective-bargaining agent which represented the interests of Anthony as well as other employees in the unit. Initially , Cobb steadfastly denied that he discussed the Union with Warren on this occasion in November and denied that he told Warren on this or any other date that the latter had "messed up" with the Union . Cobb then conceded that War- ren initiated conversations pertaining to the Union "more than once," and specifically remembered a colloquy in October . Warren came to Cobb's office and inquired why Robert Busbee had been promoted to an assistant foremanship while Warren had not, with Warren asking Cobb, "I would just like to know where I went wrong." Cobb proceeded to advise Warren on a personal basis . Warren per- sisted in interjecting that his failure to gain a promotion was "because I have been fooling with the Union , isn't it," and, according to Cobb, the latter was equally persistent in reassuring Warren that his role in the Union played no part in the matter. However, Cobb thereupon extended the revealing advice to Warren that "As soon as you learn to keep your nose out of everybody else's business and stay in your shop and tend to what is going on back there the better off you will be, and someday you will make somebody a good super- visor." Cobb added, " I told him that he was a very intelligent boy and he had done a good job and he could make somebody a good supervisor, but he had to learn a lesson." Neither the demeanor of Cobb nor the quality of his testimony impressed me with their candor . I therefore credit Warren's testimony and find that , in mid-October, Cobb told Warren that the mistreatment of employees by Respondent "wasn't any of my business," "that I should keep my mouth out of it ," and that "I had been messing with the union now and I had messed up.,, At 10 a.m. on November 15, Warren, as union president, called a meeting of all unit employees in Respondent 's warehouse , in which Plant Superin- tendent Cobb's office was located . According to Warren's uncontroverted testimony which I accept, the assembly was summoned because of dissatisfac- tion with the progress of negotiations , the excessive amount of overtime , current rumors of a layoff, the failure of Respondent to notify and consult the Union concerning such items as the elimination of the upstairs shipping and engraving departments, the unilateral award of wage increases to em- ployees, and the Union 's failure to obtain a con- tract. Following a discussion of these grievances, Warren polled the employees to determine whether they wished concertedly to quit work in protest of their complaints . Of the approximately 37 to 40 employees in the unit, about 34 of them decided to clock out and cease work. As the strikers readied themselves to leave the plant, Cobb appeared on the scene and, according to Warren's testimony, announced "there were plenty of jobs for everybody and if we wanted to go back to work to go ahead , and if we didn 't want to go to work , to hit the clock and we were fired, and to line up next to the wall outside the building." Warren left the plant to proceed to his automobile in the parking lot and was joined by Respondent President Dugan who proclaimed that "this was the last work stop that we were going to have, that everybody that left was fired and he wasn 't having any more of it." Warren's testimony concerning Dugan's and Cobb's statements to the strikers when they walked out on November 15 was corroborated by other witnesses, some of whom struck and others of whom remained at work that day. Thus, Rosie Smith testified that Warren scheduled the meeting in the warehouse at which an affirmative vote was taken to cease work in protest of the Company's refusal to fulfill its earlier promises regarding wage increases . At the conclusion of the meeting, Cobb informed the assembled employees that they should "wait just a minute , and the ones that wanted to go back to work could go back to work and the others could go and hit the clock." When Smith proceeded to enter her car on the parking lot, Dugan demanded that she "Leave the premises im- mediately." James T. Cook averred that , after the November 15 meeting ended , Cobb approached and stated, " I would like to tell everybody something . ... there is plenty of work here for everybody to do , and everybody that wants to go back to work, to go back to work, and those that don't, hit the clock ; you are fired , and line up out- side the office." Roy Lee Robertson recounted that Cobb informed the employees that "There is plenty of work to do and if you want your jobs, go back to work , and if you don't , go hit the clock; that you GLADWIN INDUSTRIES, INC. are fired." David Ray Cash attributed to Cobb the remark that "There is plenty of work in the plant for everyone; the ones that want to go to work, to go to work, and the ones that don't are fired and to punch out and line up in front of the office." Roger Lee Kelley, who did not initially join the strike on November 15, testified that, when he returned to his work station following the meeting , Respondent President Dugan delivered a speech to the nonstrik- ing employees in which he remarked that he "ap- preciated us all staying; all staying in there and that this was the third walkout and he said he was not going to put up with it no more, and said that all the employees that had left were fired and they wasn 't coming back; and he said they had hired a bunch of colored people, which they didn't have to hire, and he was hired to run the company in the best interests of it, and that was what he was going to do." Johnny A. V. Fritz, who did not join the strike until November 18, recounted that, when the employees walked out on November 15, Dugan an- nounced that "the ones that walked out, you know, like today they were fired and wasn't coming back" and that "when we started a union he was not going to be pushed into anything...." On November 18, the Union commenced to picket Respondent's plant. The parties stipulated and I find that, in furtherance of its picketing, the strikers shouldered signs which bore the legends "On Strike Because of Unfair La'-)or Practices by Gladwin Industries , Inc.," and "On Strike Because of Refusal to Bargain in Good Faith by Gladwin In- dustries , Inc."16 The version of Dugan and Cobb surrounding the events which transpired on November 15 was recorded as follows. Dugan testified that, prior to the strike on November 15, he instructed Cobb that, if the employees precipitated another work stoppage, Cobb should replace them, but that "There were no instructions given in connection with firing them at any time." According to Cobb, "We were told that we could not fire anybody for union activities ; we were told that we could replace them provided they walked out and did not return to their jobs, but we could not fire anybody that had anything to do with the Union activities." Dugan stated that he first learned of the walkout from Cobb on the morning of November 15, and the only striker to whom he spoke on this date was Warren . Meeting Warren in the parking lot, Dugan could only recall asking whether the strike had been authorized by the Union. Dugan could not re- member whether he told Warren that he would not endure another strike at the plant, but did remember that he made no statement that the 1° At the hearing, it was agreed by and between the parties that, on November 15, the following employees engaged in the work stoppage Jenevelyn Avirett, Jennie L Calhoun, David Cash, Buford Cook, James T Cook, Bradford Croy, Eloise Goodman, Charles Loggins, Frances McLen- don, Roscoe W. Mooney, John Phillips, Herschell H Pruitt, William E Pruitt, Audrey Ridings, Eric Ridings , Roy Lee Robertson, Dan E Rogers, 291 strikers "would be fired or were fired." Dugan further testified that, following the walkout, he returned to the plant and addressed the nonstrikers. In his speech, he thanked the employees for remaining on the job and reminded them that Respondent was an "equal opportunity employer" and that it fully intended to protect the rights of the Negro employees who remained at work. Initially, Dugan could not recall anything else which he might have said in his address. On prompting by counsel, he then remembered that he informed the assemblage that the strikers "would be replaced" but denied that he remarked that they were discharged. Cobb related that he noticed from the window of his office in the warehouse that the employees had gathered around Warren, in consequence of which Cobb approached Warren to inquire whether the employees' actions constituted a strike and whether the cessation of work was authorized. Warren replied that it was unauthorized and requested per- mission to use Cobb's telephone. After placing the call, Warren returned to the assembled employees at which point Cobb exclaimed that "There is plen- ty of work for everybody and all those of you that want to go back to work, go back to your jobs, and the ones that have quit your jobs, punch out and leave the premises." Cobb insisted that he did not utter the words "fired or being fired," and that Dugan did not utilize them when he spoke to War- ren on the parking lot. Furthermore, Cobb stated that Dugan did not tell Warren that this was the last stoppage that he would tolerate. Following the wal- kout, and according to Cobb's further testimony, he and Dugan returned to the plant where the latter expressed his appreciation to the nonstrikers for remaining on the job, and Dugan made "a state- ment that all the people who went out on strike that did not return would be replaced as soon as we could because we had plenty of work there to do, and we had to get it out." Finally, Cobb testified that Dugan did not inform the nonstrikers that he would refuse to stand for any future strikes, and that Dugan did not state that the strikers had been discharged. Ruby Hartline, who was promoted to assistant forelady on November 15, testified that, during a break period on the morning of that day, Wat ren assembled the employees in the warehouse and a strike vote was taken. Shortly thereafter, Cobb ap- peared and "told us there was plenty of work there for people that wanted to go back to work and for them to go back to their jobs, and for the ones that didn't want to go back, to punch the clock and get on out of the building." Hartline denied in her Bettye Mae Scott, Rosie Smith , Jerry A Stephens, Elmer Stowe, R L Stowe , Jim Warren, Charles Willoughby , and Dorothy Wilson It was further stipulated and I find that the following employees joined the strike on November 18, Willie Anthony , Johnny A V Fritz, David J Gardner, David Holcombe , Aaron Johnson , Roger Kelley, Robert Lee, and Adolphus Lester, Jr. 427-258 O-LT - 74 - 20 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony that Cobb informed the employees that they would be fired if they walked out. On further examination , Hartline recalled that Cobb instructed those who refused to return to work "to clear the building." I credit Warren's testimony, as well as that of the corroborative witnesses, and find that, on November 15, Dugan informed Warren and his cohorts that Respondent would not tolerate a con- certed walkout and that all employees who quit work to engage in the strike were discharged for doing so. I do not credit the denials of Dugan, Cobb, and Hartline that neither Dugan nor Cobb told the strikers that they were "fired." Hartline, who was a belligerent and evasive witness, acknowledged that Cobb told the strikers to "punch the clock and get on out of the building," and to "clear the building." Cobb revealed that he informed "the ones that have quit your jobs, punch out and leave the premises." These utterances hardly portray an admonition that the strikers would be "replaced." In sum , I find that Respon- dent discharged its employees for quitting work on November 15. There is no demonstrated dispute and I find that Respondent does not maintain a program of grant- ing wage increases to its employees on a periodic or automatic basis. It is also uncontroverted and I find that, between November 15 and July 1, 1968, Respondent awarded approximately 43 wage in- creases to approximately 31 employees in the cer- tified unit;" that these increases were afforded dur- ing times when the Union and the Respondent were bargaining over the subject of wage escalations; and, that the Union was neither notified nor con- sulted concerning their grant and was deprived of the opportunity to bargain over them. Returning to the negotiations between the parties, the next bargaining meeting was held on November 17. At this session , Fulford announced that the Respondent had decided to discontinue paying the Christmas bonus and that this benefit henceforth would be converted into an across-the- board wage increase. Fulford observed that the employees were on strike, to which Union Inter- national Representative Earle Moye commented that he had encouraged the work stoppage and that the withdrawal of the year end bonus con- stituted a threat to the employees and was im- proper. The participants turned to a discussion of the contract term, with the Union indicating that it was amenable to a 2-year rather than a 1-year agreement. At this point, Fulford remarked that some of the strikers had been replaced. Attorney Stanford responded that, according to his informa- tion, the strikers had been discharged rather than replaced and advised that, while the Company had the right to permanent replacement, it could not "Fifteen of these increases were occasioned by operation of the Federal Wage Hour Law which raised the minimum hourly rate in covered indus- tries to $1.60, effective February 1, 1968 lawfully terminate the employees who had walked out. Stanford inquired as to the names of the re- placed strikers, and Fulford mentioned Aaron Johnson, Jim Warren, and Jerry Stephens, although the names of the replacements were not provided. The session ended with Fulford withdrawing his counterproposal for a 2-year contract term and stating that the above-mentioned employees would not be returned to work. Another meeting was conducted on December 18. Attention was immediately turned to Respon- dent's previous wage offer and Fulford announced that Respondent was withdrawing its offer, that it had no pay proposal to advance at the time, and that "everything was up for grabs." Stanford in- dicated that the Union's demands on this issue remained the same, but stated that his client was agreeable to enter into a 2-year contract, whereu- pon, Fulford reversed himself and reinstated the Respondent's previous wage offer of a 6-cent-per- hour and a 5-cent hourly increase based on a 2-year agreement. Stanford then told Fulford that, if a contract was agreed upon, the Union would insist that all strikers be returned to their jobs, to which Fulford replied that there were no vacancies at the plant for any of the strikers. The conclave was ad- journed by the Federal mediator in attendance, subject to call. The parties met again on February 5, 1968. Stan- ford reviewed the areas of agreement with the com- pany representatives. Fulford noted that he was un- willing to recede from his position on vacations; namely, that Respondent would not afford 3 weeks after 12 years of service. Regarding job classifica- tions, Stanford reviewed the prior history on this proposal and reminded Fulford that a job study had been made by Respondent. Fulford rejoined that Respondent was about to fabricate a new line of products and therefore a drastic change in job du- ties would occur. As the discussion continued, Ful- ford mentioned that Respondent had not changed its stance on holidays, remarked that he did not know whether or not Respondent had awarded a Christmas bonus in 1967 or would award one in 1968, and drew attention to the fact that some em- ployees had recieved pay increases on February 1, 1968, as the result of the amended Federal Wage hour Law. Stanford again broached the subject of returning all strikers to work and Fulford once again answered that there were no openings in the plant at the time. The meeting then concluded. The next session took place on April 5, 1968. Present for the Respondent, in addition to Attorney Fulford, was Bradford Nicholson, who had replaced Dugan as corporate president on March 1, 1968. The first order of business concerned the return of the strikers. At the outset, Fulford repeated that there were no vacancies in the plant at that time, GLADWIN INDUSTRIES, INC. 293 but that the Company would be willing to create a preferential hiring list and rehire the strikers as jobs became available, provided the strikers possessed the needed skills. Stanford reiterated the Union's position that all striking employees were entitled to their former positions, whereupon Fulford stated that Respondent might have three or four job openings for the strikers with the requisite skills although he did not know what those duties would entail. Stanford expressed surprise that the Respon- dent, which all along had professed that it had no established job classifications, would desire to select strikers for reemployment based upon their work skills, and Stanford received a negative reply to his inquiry as to whether Respondent maintained job classifications. Fulford then volunteered to reemploy the first six employees who appeared on a seniority list which Respondent had provided to the Union on May 31. These included Buford Cook, Clyde Mathis, Robert Busbee, Alfred Davis, Robert Lewis Lee, and Robert Taylor. Stanford protested this selection, pointing out that neither Davis nor Busbee had gone on strike and, in fact, the latter was no longer in the unit because he had been promoted to a supervisory position before the work stoppage. Moreover, Taylor was no longer with the Company and had not joined the strike. When this was brought to his attention, Fulford announced that the Respondent could utilize the services of Buford Cook, Robert Louis Lee, Roy Lee Robert- son, Audrey Toy Ridings, Eric Ridings, and Aaron Johnson. Stanford interjected that the Union was attempting to compromise the unfair labor practice charges which it had filed against the Respondent, and had been advised that the strikers were unfair labor practice strikers who were entitled to rein- statement as a group , upon their request, but added that he had no opposition to the return of in- dividual strikers if they so desired. However, Stan- ford remonstrated that many of the six employees named by Fulford had lesser seniority than Jim Warren or David Holcombe. Fulford retorted that Respondent did not need Warren's services because his position had been filled, and the same went for Holcombe. Stanford countered that it appeared that Respondent's reluctance to reinstate Warren was due to the latter's prominence in the Union. The meeting concluded with Fulford's offer to rein- state 11 strikers if Respondent was permitted to choose them. On April 23, 1968, Stanford dispatched a tele- gram to Fulford and Respondent which recited that the Union "has called off the strike against Gladwin Industries and the Union does hereby make an un- conditional offer to return to work on behalf of all strikers. Please advise immediately when strikers can report to work." By return telegram dated April 24, 1968, Nicholson responded that "the fol- lowing strikers should report to work on Monday morning, April 29, at 7:30 a.m.: Buford Cook, Clyde Mathis, Robert Lee, Roy Lee Robertson, Roger Lee Kelley, Audrey Ridings, Charles Wil- loughby, Erick Ridings [sic], Aaron Johnson, Elmer Stowe, R. L. Stowe, Mary Frances McClendon [sic], and Dan Rogers. Other strikers will be reem- ployed as vacancies occur. 18 On May 2, 1968, Stanford mailed a letter to Ful- ford in which he requested that the Union be furnished with the names of all employees then em- ployed in the certified unit, together with their dates of hire, job classifications, and hourly rates of pay. Stanford added that, if the Respondent still persisted in its contention that it did not maintain job classifications, he desired information on the primary duty of each employee. Finally, Stanford also requested that he be furnished with informa- tion concerning any merit or across-the-board in- creases granted to employees, along with the dates 18 Following the termination of the strike , Respondent mailed to certain striking employees a form letter which read "This is to advise you that there is work available for you in this plant . We are hodling a job open for you until ," with varying reporting dates inserted depending on the dates of the letter The parties stipulated that the following employees who participated in the November 15 strike returned to work on the following dates Buford Cook 4/29/68 Roger Lee Kelley 4/29/68 Mary Frances McLendon 4/29/68 Audrey Ridings 4/29/68 Eric Ridings 4/29/68 Roy Lee Robertson 4/29/68 R L Stowe 4/29/68 Dan Rogers 5/6/68 Robert Lee 5/6/68 Johnny A V Fritz 5/9/68 Roscoe W Mooney 7/8/68 Jerry A Stephens 7/9/68 Herschell H Pruitt 7/9/68 Dorothy L Wilson 7/9/68 Eloise Goodman 7/9/68 David Cash 7/9/68 Rosie Smith 7/9/68 on June 27 , 1968, offering him reinstatement which he received on June 29, 1968 , and that Cook failed to respond to the offer Cook testified and I find that he declined to accept the offer because "I elected to go back as a group If they would take everybody back I would go back If they didn't I wouldn't " Bradford Croy was orally offered reinstatement on June 19, 1968, which he declined because he had obtained a better paying job el- sewhere Charles W Loggins was offered a job by letter dated June 25, 1968, but did not respond to the letter or the offer Elmer Stowe was tele- graphically proffered reinstatement on April 24, 1968, but refused it because of family matters which prevented him from returning to work Charles Willoughby was also telegraphically offered reemployment on April 24, 1968, but failed to respond William E Pruitt received a letter from Respondent dated July 1, 1968, stating that a job would be held open for him until July 3 , 1968 So far as this record stands , there is nothing to indicate whether or not he responded to the letter Respondent also mailed a letter to Jim Warren on June 11, 1968, holding a job open for him until June 18, 1968 Here, again , the record is silent as to whether he received the document or responded to it The parties further stipulated that, if John Phillips had been called as a witness , he would testify that he would not have accepted the work offered him on some undisclosed date solely because, like James T Cook, he desired to return to work " as a group " Finally the parties stipulated that Respondent did not mail letters of rein- statement to the following strikers Willie Anthony, Jenevelyn Avirett, Jen- nie L Calhoun, David J Gardner, Adolphus Lester, Jr , and Bettye Mae Scott It was further agreed that James T Cook was sent a letter by Respondent 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and amounts of such increases. By letter of May 17, 1968, Nicholson provided Stanford with the names of the unit employees, the dates of their hire, their hourly rates, and the wage increases which had previously been granted. However, no job classifi- cations or primary duties of the employees were furnished. The negotiators resumed bargaining on May 17, 1968. When the meeting opened, Stanford inquired whether Respondent had collated the information which the Union requested in its letter of May 2, 1968. Thereupon, Fulford presented Respondent's letter of May 17, 1968, to Stanford. Stanford re- minded Respondent 's representatives that the Union had called off the strike and had made an unconditional offer on behalf of all strikers to aban- don the work stoppage and return to their jobs. Stanford remarked that , in its telegram of April 24, 1968, Respondent had acquiesced in the reinstate- ment of 13 strikers and that, as two of them had not reported to work, there remained two vacancies to be filled. Fulford replied that the Company did not need any additional employees. Stanford observed that, after reading the May 17, 1968, letter, it ap- peared to him that Respondent had awarded a number of wage increases on a merit basis and that this was done without notifying or consulting the Union, or giving the Union an opportunity to bar- gain over their grant. Stanford also brought up the subject of job classifications, and Nicholson stated that he had been out of town and would attempt to compile information concerning the primary duties of the employees, a task which would consume about 3 weeks. Stanford inquired whether there was any change in Respondent's group insurance proposal and Fulford replied in the negative, noting that management had not had ample time to study the Union's proposals regarding group hospitaliza- tion and a life insurance program. Stanford asked whether Respondent's economic counterproposals remained viable, and Fulford responded that he had removed these items from the bargaining table. Stanford protested this action and informed Fulford that, although a complete labor contract had not yet been consummated, the Union deemed Respon- dent bound by the clauses upon which agreement had already been reached. The matter of wage dif- ferentials arose, and Stanford agreed to permit Respondent to correct certain inequities in current wage rates. The session then terminated. The next and final bargaining dialogue occurred on May 27, 1968. When the meeting opened, Stan- ford asked Nicholson whether the latter had the primary duty classifications of the employees in hand and, upon receiving a negative reply, he requested that they be furnished as soon as possi- ble. At this juncture, I find that Fulford stated for the first time that "The Union does not now 19 Attorney Stout filed a petition in Case 10-RM-495 with the Regional Director which was docketed on June 7, 1968 On June 17, 1968, the Director dismissed the petition , pursuant to standard, legal procedures in represent the majority of the people and we are refusing any longer to meet with the Union." Stan- ford inquired whether Respondent's failure to pro- vide the additional information concerning primary duties had any bearing on Fulford's refusal to deal any further with the Union. The latter replied that it had not and that he had simply forgotten to obtain the information. Stanford asked when Respondent first learned of the Union's lack of exclusive rep- resentative status. Fulford stated, "Well, it may have been that we decided that when we walked into the room just a moment ago." Sanford ex- pressed surprise over the fact that Fulford had failed to express any doubt as to the Union's lack of majority during the earlier bargaining meetings when the strikers were still engaged in the work stoppage and had not yet returned to work. Fulford repeated, "We have a good faith doubt that the Union represents a majority." When Stanford again pressed Fulford as to the basis for Respond- ent's doubt, Fulford truned to Nicholson and said, "Let's go." Despite the intervention of the Federal mediator in attendance, negotiations were broken off, never to resume again. In his testimony, Respondent President Bradford Nicholson related that he had held a long con- ference with Attorney Fulford just prior to the May 27, 1968, bargaining session at which they reviewed the matters which had been discussed at the May 17, 1968, meeting. In the course of their conversa- tion, Nicholson suddenly mused, "You know what; it occurred to me when I was signing the payroll on [May] 25th, that the Union doesn't even have a majority in the plant, and I can't see what the dickens we are going into negotiations for." Fulford immediately replied that "There is only one thing we can do and that is to talk to Dale Stout [Respondent's trial counsel in this proceeding] to see what our position is." Fulford telephoned At- torney Stout, related the situation to him, and sol- icited his advice. Stout instructed Fulford to verify the actual date of the Union's certification by the Board. Fulford did so and apprised Stout that the certification stemmed from May 26. Upon receiv- ing this intelligence, Stout remarked that "there is good reason to believe you may have the majority in the plant," and assured Fulford that he would file a decertification petition with the Board's Regional Office in New Orleans.19 Nicholson corroborated Stanford's testimony that, when the latter asked Fulford when he first became possessed of any doubt respecting the Union's majority, Fulford replied "when we walked in through the door." On further examination, Nicholson averred that he had decided that the Union lacked a majority when he commenced counting numbers on the payroll of May 25, 1968, although he conceded that there had such cases, due to the pendency of charges filed by the Union under Sec 8(a)(5) of the Act GLADWIN INDUSTRIES, INC. been no radical change in the work complement between the May 17 and 27, 1968, sessions, and, indeed, he admitted that he had not hired any em- ployees between those dates. Moreover, Respon- dent failed to grace this record with any probative evidence which would establish that any permanent replacements had been hired during the course of the November 15 strike which would have dis- sipated the Union's majority strength. C. Conclusions 1. Interference, restraint, and coercion I have heretofore found that, at a meeting in the offices of the Atlanta Urban League on August 15, Respondent President Dugan warned employees Rosie P. Smith and Eloise Goodman that Respon- dent would not tolerate another work stoppage at its plant and that any employee who participated in a future cessation of work would be discharged. As I have found that the strikes in which the em- ployees engaged were protected activities within the purview of the Act, and as Respondent does not contend contrariwise, I conclude that Dugan's statements interfered with, restrained, and coerced Respondent's employees in the exercise of rights guaranteed under Section 7 of the Act, and thereby violated Section 8(a)(1) of the statute.20 I also con- clude that Respondent violated this section when Dugan and Cobb made similar utterances to em- ployees Warren, Fritz, Cash, Robertson, and Kelley on November 15. I have found that, on November 6, Plant Superin- tendent Cobb summoned employee Jim Warren to his office and interrogated the latter as to whether he had solicited signatures for union authorization cards in the plant, and Warren confessed that he had done so during nonworking hours. Cobb re- marked that this activity was illegal and that the Respondent was "considering" the matter of his discharge for doing so. It is undisputed, and I have also found that, on November 8, Respondent posted a notice on the plant bulletin board which recited that "no solicitation of any kind is per- mitted on Company property at any time" and that "Violation of this rule will subject you to disciplina- ry action, including dismissal." In Gale Products, Div. of Outboard Marine Corp.'21 the Board' declared that a rule which prohibits union solicita- tion during nonworking time in either work or non- work areas is presumptively invalid absent special circumstances which would rebut this presumption, such as interference with production or the crea- tion of disciplinary problems. By its breadth, Respondent's no solicitation rule incurred upon the right of employees to enlist the collective support $0 Custom Chair Mfg Co , 170 NLRB 454 142 NLRB 1246 And see Midu est Timer Service, Inc , 163 NLRB 810 22 While it is true, as Respondent urges and I have found, that the no-sol- icitation rule was removed from the plant bulletin board on April 29, 1968, 295 of their fellow employees during nonworking time in both work and nonwork areas . As no special cir- cumstances were advanced by Respondent to sup- port the all-encompassing nature of the plant rule, I conclude that, by its promulgation, maintenance, and enforcement, Respondent thereby infringed upon employees' rights in violation of Section 8(a)(1) of the Act.22 I further conclude that, in the context of this case, Respondent exceeded the bounds of legiti- mate inquiry when Cobb questioned Warren con- cerning the latter's distribution of union cards at the plant. In my opinion, such interrogation, when viewed against the backdrop of Cobb's comments that Warren "had a good future [at the plant] but since [Warren] had messed with the union [War- ren] had messed it all up," tended to inhibit War- ren's exercise of his legal prerogative to assist and support a labor organization of his choice as pro- vided in Section 7, without fear of retaliation by his employer. Accordingly, by the foregoing conduct, I conclude that Respondent also offended the provi- sions of Section 8(a)(I ). 2. The alleged discrimination against Teddy Lee Ray The complaint alleges that Respondent by eliminating the upstairs shipping department on August 18 in which Teddy Lee Ray worked thereby occasioned the discharge of Ray in violation of Sec- tion 8(a)(3) of the Act for the reason that he had joined and actively espoused the Union's cause in the plant. I have previously found that this opera- tion was discarded by Respondent because it was not economically feasible to continue it, and that Ray's activities on behalf of the Union played no persuasive role in his loss of employment. I there- fore conclude that Ray's separation was not viola- tive of Section 8(a)(3). The General Counsel also argues that, assuming arguendo that Respondent's decision to close the department was economically motivated, this deci- sion as well as its implementation was violative of Section 8(a)(5) inasmuch as Respondent took this action without notifying the Union or affording it an opportunity to bargain over the closure, and that Ray's loss of employment constituted an indepen- dent violation of Section 8(a)(1) because he was deprived of his guaranteed statutory right to bar- gain collectively through his labor organization concerning the retention of his employment. I have heretofore found that Ray was represented by Union Vice President Busbee during the former's terminal interview with Kruskamp and that the parties fully discussed the elimination of the depart- I cannot share in Respondent 's entreaty that the issue is now mooted and that no affirmative order against such posting should run against it Absent such an order, Respondent conceivably would be free to once again in- dulge in such unlawful conduct 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment and the relocation of Ray to other areas in the plant . Indeed, Kruskamp stayed this personnel ac- tion for days to provide Ray and the Union with an opportunity to consider the matter . I have also found that at no time thereafter did the Union's negotiators insist on bargaining over Ray's termina- tion or the abandonment of the upstairs shipping department , and the issue was not again raised until the filing of charges against Respondent some 5 months later. Accordingly, I am persuaded and conclude that, in this instance, Respondent satisfied its bargaining obligation vis-a-vis the Union and Ray and that it did not violate either Section 8(a)(5) or (1) of the Act. I shall therefore recom- mend dismissal of this aspect of the amended com- plaint.23 3. The refusals to bargain I have previously found that, on November 1, Respondent disposed of its engraving machines by sale to employee Scott Evans who thereafter left Respondent's employ and operated the machines for his own profit in his home. I have further found that the consequent elimination of the engraving department, nondiscriminatorily impelled , was ac- complished by Respondent without prior notifica- tion to, or bargaining with, the Union. Town & Country Manufacturing Company, Inc.,24 and re- lated cases25 teach that, even absent discriminatory, motivation, it is nevertheless a violation of Section 8(a)(5) of the statute for an employer, in disregard of the incumbent bargaining agent, to obliterate plant departments without affording the labor oganization a chance to sit down with the employer and discuss the move in the hope that an alternative may be found. As the Board observed in Town & Country, ... the duty to bargain about a decision to sub- contract work does not impose an undue or unfair burden upon the employer involved. This obligation to bargain in nowise restrains an employer from formulating or effectuating an economic decision to terminate a phase of his business operations. Nor does it obligate him to yield to a union's demand that a sub- contract not be let, or that it be let on terms in- consistent with management's business judge- ment. Experience has shown, however, that candid discussion of mutual problems by labor and management frequently results in their resolution with attendant benefits to both sides . Business operations may profitably con- tinue and jobs may be preserved. Such prior discussion with a duly designated bargaining representative is all that the Act contemplates. But it commands no less. [ 136 NLRB at 1027. ] Accordingly, I conclude that Respondent's closure of its engraving department, undertaken uni- See Dixie Ohio Express Company, 167 NLRB 573 136 NLRB 1022, enfd 316 F 2d 846 (C A 5) laterally and without prior consulation or bargain- ing with the Union, fell within the proscriptive ambit of Section 8(a)(5) of the Act. As heretofore chronicled, I have found that Respondent did not maintain any program or policy whereby it granted periodic or automatic wage in- creases to its work complement . I have further found that, following November 15, Respondent awarded wage increments to several unit employees during times when the Union and Respondent were engaged in bargaining over this subject, and that the award was made without either notifying or consulting the Union. It is now hornbook law that wages constitute a mandatory subject of collective bargaining and that their unilateral grant, without an impasse having been reached regarding this item and without bargaining with the exclusive represen- tative over them , is offensive to the general statuto- ry scheme and to Section 8(a)(5) in particular.26 In short, I conclude that Respondent failed to fulfill its bargaining obligation imposed by the latter section of the Act when it unilaterally proffered pay raises to the unit employees, and thus violated Section 8(a)(5). It has been previously found that, at the negotiat- ing session on August 9, the Union requested that Respondent furnish job classifications for the unit employees so that the former could intelligently discuss the subject of removing wage differentials in the various departments. Respondent declined to do so, but agreed to negotiate on the matter after a contract had been reached. On September 8, the Union again broached the topic, reminding Respon- dent that it had undertaken the task of perfecting a job classification system months before the election of May 18, but Respondent pleaded that the chore had been inadequately performed. On February 5, 1968, the Union once more sought a list of Respon- dent's job classifications after repeating that such a study had already been made by the company. Respondent rejoined that it was embarking upon a new line of production, that there would be a drastic change in job duties, and that such a list was unavailable. During a session on April 5, 1968, Respondent took the- position that only those strikers would be reinstated who possessed certain needed skills although it continued to maintain that it did not classify jobs. By letter of May 2, 1968, the Union demanded that Respondent furnish the names of all employees in the unit, together with their dates of hire, job classifications, and hourly rates of pay, adding that, if Respondent continued to claim that no such classifications were pro- grammed, the Union would be satisfied with infor- mation concerning the primary duty of each em- ployee. On May 17, 1968, Respondent mailed most of the desired information to the Union but again refused to submit job classifications or primary du- ties for the employees. At a bargaining session on 25 Fibreboard Paper Products Corp v N L R B 379 U S 203 T' N L R B v Katz, d/b/a Williamsburg Steel Products Co , 369 U S 736 GLADWIN INDUSTRIES, INC. that date, Respondent again promised to provide the Union with the primary duties of its personnel, but claimed that this undertaking would consume the better part of 3 weeks. So far as appears, the requested information has never been turned over to the Union. As indicated above, the Union consistently sol- icited the job classifications or primary duties of unit employees so that it could meaningfully bar- gain regarding wage inequities and other matters pertaining to terms and conditions of employment. Data of this nature was relevant to the bargaining process, and Respondent does not challenge its relevancy. Nor does Respondent contend that this information was unavailable to it, burdensome to collate, or within the easy reach of the Union's own endeavors of procurement. Accordingly, I conclude that Respondent's obdurate refusal to come forth with the requested data ran afoul of Section 8(a)(5) of the Act.27 In his complaint, the General Counsel asserts that Respondent unlawfully refused to bargain with the Union on July 12 and throughout the course of negotiations. It is his apparent contention that Respondent's total conduct, from the inception of negotiations on that date until they were broken off on May 27, 1968, does not unveil the portrait of a company bent upon fulfilling its statutory obligation to bargain with the Union in good faith. Alterna- tively, the General Counsel presses the contention that Respondent's lack of bona fides was patently demonstrated on May 27, 1968, when it abruptly departed the bargaining table without sufficient cause, and that a violation of Section 8(a)(5) should stem from that date. While it is true, as I have heretofore found, that the company displayed a willful disregard for its bargaining obligation under the Act by unilaterally abolishing its engraving department and granting wage increases without consulting the Union, and by refusing to furnish it with job classifications for unit employees, I am not persuaded that these acts cast a pall upon Respondent's bona fides in the con- duct of its bargaining relations with the Union dur- ing the July 12 to May 17, 1968, period. Following the Union's certification on May 26, Respondent met with that labor organization on each occasion when negotiations were requested and 15 sessions were held. During the early meetings, consensus was reached on a preamble and recognition clause, the language of a holiday provision, a clause per- taining to the applicability of Federal and state laws, the prohibition of unit work by supervisors, and a no-strike and no-lockout provision. At sub- sequent meetings, agreement was obtained on union access to the plant, a safety provision, vaca- tion eligibility, rest and lunch periods, the award of =r Kit Manufacturing Company, Inc, 142 NLRB 957 Ye I am not unmindful that Dugan informed Warren shortly after Ray's termination that Dugan "didn't have to discuss anything with [Warren], that [Warren ] didn 't represent anybody and he didn't have to discuss anything with anybody," and that Cobb told Warren that it "wasn't any of 297 an additional paid holiday, and call time and re- porting pay. In addition, the parties had a meeting of minds on an arbitration and grievance clause. During the course of bargaining, Respondent ad- vanced a proposed 3-cent-per-hour wage increase which it subsquently doubled in the give-and-take of trading, and was agreeable to a contract with a 2-year rather than a 3-year term. In sum, I am una- ble to conclude that Respondent approached the bargaining table with a fixed or studied intention of not coming to terms with the Union on a labor con- tract, or with an intent to gain time in which to dis- sipate the Union's majority. Indeed, when the bar- gaining colloquy ended on May 27, 1968, the only major outstanding issues seemingly left unresolved concerned the size of the wage increase (the Union had receded from its prior demands on a few occa- sions and the Respondent had countered with addi- tional wage raises), a hospitalization and insurance program (Respondent had not opposed a study of the Union's proposal regarding this benefit and was not wedded to a continuance of its own plan), and the checkoff (Respondent had not interposed any outright rejection of a checkoff clause in an agree- ment). Accordingly, I conclude that the General Counsel has not made out a case that Respondent entered into negotiations on July 12 with a deter- mination not to reach agreement with the Union, and that it therefore conducted itself in derogation of its duties and obligations under the Act. I shall therefore dismiss the complaint insofar as it alleges that Respondent unlawfully refused to bargain with the Union "On or about July 12, 1967," in viola- tion of Section 8(a)(5).28 However, Respondent's actions on and after May 27, 1968, present a different cup of tea. I have found that, at the last negotiating session held on this date, Respondent Attorney Fulford remarked at the outset that Respondent would no longer recognize the Union because it lacked majority representative status among the employees. When questioned as to the basis for this doubt, Fulford's sole response was that "it may have been that we decided that when we walked into the room just a minute ago." Respondent President Nicholson was hardly more illuminating concerning the predicate for Respondent's assertion that it possessed a good- faith doubt of the Union's continuing majority on and after May 27, 1968. I have found that, im- mediately prior to the May 27, 1968, meeting, Nicholson and Fulford reviewed the last negotiating session and Nicholson suddenly devined that, when he signed the May 25 payroll, the Union lacked a majority. However, nowhere in his testimony did Nicholson enlighten this record with any probative, specific evidence to substantiate his doubt and, in- deed, he admitted that his work force had been my [Warren 's] business what went on" with regard to Respondent 's treat- ment of its employees However, I am not convinced that these utterances were reflective of Attorney Fulford 's attitude while in the bargaining room as Respondent 's chief negotiator 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD constant for some time and that he had not previ- ously broached the subject to the Union or anyone else prior to this date. I have also found that, before meeting with the Union on May 27, 1968, Fulford telephoned Respondent's trial counsel. During the ensuing conversation, not a single word was spoken concerning the number of employees in the unit or the number of union members still in Respondent's employ. Rather, the discussion centered solely around the date of the Union's initial certification by the Board. When Fulford advised that more than a year elapsed, trial counsel's simple and agile response was that "there is good reason to believe you may have the majority in the plant."" In my opinion, proof of a good-faith doubt of majority must be made of sterner stuff. Moreover, even assuming that Respondent had replaced the strikers and had thus numerically overcome the Union's majority in the unit, Respondent can draw no solace from this happenstance for, as I have hereinafter found, the strikers who participated in the work stoppage on November 15 were unfair labor practice strikers who remained employees of Respondent and could not be replaced, per- manently or otherwise. Accordingly, I conclude that, on and after May 27, 1968, the Union con- tinued to represent a majority of Respondent's em- ployees and that Respondent was obligated to bar- gain with it concerning their terms and conditions of employment. By failing to do so, I conclude that Respondent thereby violated Section 8(a)(5) of the Act. 4. The status of the strikers There remains for consideration the status of the employees who collectively ceased work on November 15. I have found that, after they had voted to quit their jobs on that date, Respondent's officials informed them that they would be discharged if they struck. The strikers then left the plant and, on November 18, picketed Respondent's premises with signs bearing the legends "On Strike Because of Unfair Labor Practices by Gladwin In- dustries, Inc." and "On Strike Because of Refusal to Bargain in Good Faith by Gladwin Industries, Inc." Moreover, I have also previously found that the employees decided to cease work to protest Respondent's unilateral actions in eliminating the engraving department and awarding wage increases without consulting the Union. I conclude that, by sparking the strike on November 15, the affected employees thereby en- gaged in a protected, concerted activity to protest Respondent's commission of unfair labor practices, an activity for which they could not lawfully be S9 Under established precedent, a union 's continued majority is conclu- sively presumed for a period of I year following its certification, absent special circumstances not here present After the year has elapsed, the pre- sumption is rebuttable . See Ray Brooks v N L R B., 348 U S 96, 98-99 It is notable that Respondent 's rejection of the bargaining principle occurred just I day following the end of the certification year discharged. I therefore conclude that the strikers were in fact and law unfair labor practice strikers at the inception of the work stoppage, and that Respondent's action in discharging them prolonged the cessation of work.30 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectu- ate the policies of the Act. I have found that Respondent, unilaterally and without consultation with the duly designated bar- gaining representative, sold its engraving machines to employee Scott Evans and thereafter abandoned its engraving department in violation of Section 8(a)(5). The General Counsel asserts that, in fashioning a remedy for this wrong, the Trial Ex- aminer should order the reinstitution of that depart- ment and the rerun of the machines. I perceive no warrant for such drastic action in this case. So far as this record stands, the transaction between Respondent and Evans constituted a bona fide sale with legal title to the machines vesting in Evans. Following the purchase, which was entirely volunta- ry on Evans' part and which was prompted by economic considerations, he transported the machines to his home and became a private en- trepreneur. I believe it would be unduly punitive to Evans, by an affirmative order such as the General Counsel suggests, to wrest these devices from Evans' control solely to correct Respondent's wrongdoing. I shall therefore not recommend that the engraving machines be returned to Respondent, nor shall I otherwise forthwith order that the en- graving department be reestablished. However, I have found that the elimination of this department was accomplished unilaterally by Respondent and that the Union had a statutory right to prior con- sultation. Accordingly, I shall recommend that Respondent be ordered to bargain with the Union concerning the revitalization of the engraving de- partment and to refrain from any such unilateral action in the future. 30 Cactus Petroleum , Inc , 134 NLRB 1254 Even were I to find that the strike was prompted by economic considerations, I would nevertheless conclude that Respondent converted it into an unfair labor practice strike by discharging the strikers Tom Joyce Floors, Inc., 149 NLRB 869, enfd 353 F 2d 768 (C A 9) GLADWIN INDUSTRIES, INC. I have also found that Respondent violated Sec- tion 8(a)(5) by unilaterally affording wage in- creases to unit employees without permitting the Union to bargain over their grant. I shall therefore recommend that Respondent bargain with that labor organization over the award of future pay in- crements to the employees in the certified unit. I have further found that Respondent ignored the Union's request for the job classifications or prima- ry duties of employees in the unit in order that the latter might intelligently bargain over wage rates and other terms and conditions of employment, and that the Respondent thereby violated Section 8(a)(5) of the Act. As I have found that this data is both necessary and relevant to the bargaining process, I shall recommend that Respondent, upon request, timely furnish the Union with either the job classifications or the primary duties of the unit employees. Having found that Respondent refused to recog- nize and bargain with the Union as the exclusive bargaining representative in an appropriate unit of Respondent's employees on May 27, 1968, in viola- tion of Section 8(a)(5), I shall recommend that Respondent, upon request, bargain with the Union concerning wages, hours, and other terms and con- ditions of employees in the unit heretofore found appropriate and, if an understanding is reached, embody such understanding in a signed agreement. Having found that the strike, which began on November 15, 1967, was caused and prolonged by Respondent's commission of unfair labor practices and was consequently an unfair labor practice strike at its inception, I shall recommend a remedial course of action designed to fit the facts found in this case. It is established Board policy to require the rein- statement of all strikers upon their unconditional application where a work stoppage has been caused and prolonged by a Respondent's unfair labor prac- tices, dismissing, if necessary, and person hired on and after the date of the strike.31 It is also Board policy to require a Respondent to make unfair labor practice striking employees whole for any loss of pay occasioned by its failure to reinstate them within 5 days of the date of their unconditional em- ployment application.32 I have heretofore found that, on April 23, 1968, the Union made an unconditional offer on behalf of all strikers to return to work. On April 24, 1968, Respondent notified the following employees that they should report to work on April 29, 1968, 5 days later: Buford Cook, Clyde Mathis, Robert Lee, Roy Lee Robertson, Roger Lee Kelley, Audrey Ridings, Charles Willoughby, Eric Ridings, Aaron Johnson, Elmer Stowe, R. L. Stowe, Mary Frances McClendon, and Dan Rogers. By its offer of rein- statement to these individuals, I conclude that 299 Respondent satisfied Board policy in this area and that no reinstatement or backpay order is necessary respecting them. It was stipulated and I have also found that Respondent made no offers of reinstate- ment to Willie Anthony, Jenevelyn Avirett, Jennie L. Calhoun, David J. Gardner, Adolphus Lester, Jr., and Bettye Mae Scott. As unfair labor practice strikers, Respondent was under a legal duty to offer reinstatement to them, as well as all strikers, on April 24, 1968, dismissing replacements, if necessa- ry. Therefore, I shall order that Respondent offer reinstatement to these employees to their former or substantially equivalent positions and make them whole for any loss of pay they may have suffered between April 29, 1968, and the date of such offer. Johnny A. V. Fritz returned to work on May 9, 1968; Roscoe W. Mooney, Jerry A. Stephens, Herschell H. Pruitt, Dorothy L. Wilson, Eloise Goodman, and David Cash returned on July 9, 1968; and Rosie Smith returned on July 11, 1968. Again, as unfair labor practice strikers, these in- dividuals were entitled to be encompassed within Respondent's offer of reinstatement dated April 24, 1968. Accordingly, I shall order that Respondent make them whole for any loss of earnings suffered between April 29, 1968, to the dates of their reem- ployment. Bradford Croy received an offer of reem- ployment on June 19, 1968, which he declined because he had obtained a better paying job el- sewhere. I shall therefore recommend that Respon- dent compensate him for any backpay due him for the period from April 29, 1968, to June 19, 1968. William E. Pruitt received a reinstatement offer on July 1, 1968, but there is no evidence of any response on his part. I shall order that he be awarded backpay from April 29, 1968, to July 1, 1968, but shall not recommend another offer of reinstatement as to him. Jim Larry Warren was mailed an offer of employment on June 11, 1968. While there is some question whether he received this offer, inasmuch as he apparently moved his household to another address during the strike, I shall recommend that he be awarded backpay from April 29, 1968, to June 11, 1968, because I believe he was under a duty to notify Respondent of his new location. Charles W. Loggins was offered a job by Respondent on June 25, 1968, but did not reply to the offer. I shall therefore recommend that he be afforded backpay from April 29, 1968, to June 25 1968. James T. Cook was offered reinstatement on June 29, 1968, which he rejected on the ground that he would abandon the strike and return to work only if Respondent reinstated all striking em- ployees. John Phillips rejected an offer to resume work on some undisclosed date for similar reasons. Inasmuch as Respondent was legally obligated to offer reinstatement to all strikers on April 24, 1968, after an unconditional offer on their behalf had " Herman Sausage Company, Inc, 122 NLRB 168, enfd 275 F 2d 229 (CA 5) '2 Dino Boutiques, Inc., 173 NLRB 1155 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been made, it is only logical to conclude that Cook and Phillips would have accepted employment with Respondent on April 29, 1968. Accordingly, I shall order that Respondent award Cook backpay from April 29, 1968, to June 29, 1968, and that Phillips be accorded backpay from April 29, 1968, to the date of Respondent's offer to him which may be un- covered during compliance proceedings. As Cook and Phillips could lawfully condition their return to the plant by insisting that all unfair labor practice strikers be reinstated as a group, I shall order Respondent to make offers of immediate reemploy- ment to them as well as the other strikers referred to above who were not solicited by Respondent to return to work.33 The backpay provided herein shall be computed in accordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289, with in- terest thereon at the rate of 6 percent per annum computed in the manner prescribed in Isis Plumb- ing & Heating Co., 138 NLRB 716. In view of the nature and extent of the unfair labor practices found herein, I shall recommend that Respondent be ordered to cease and desist from in any other manner infringing upon rights guaranteed to employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact and conclusions, and upon the entire record in these cases, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time production and maintenance employees at Respondent's opera- tion in Atlanta, Georgia, including shipping depart- ment employees and truck drivers, but excluding office clerical employees, professional and techni- cal employees, casual employees, guards, and su- pervisors as defined in the Act, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since May 26, 1967, and all times thereafter, the Union has been the exclusive bargaining representative of the employees in the aforesaid unit within the meaning of Section 9(a) of the Act. 5. By refusing to bargain with the Union upon request, on and after May 27, 1968, concerning the wages, hours, and other terms and conditions of employment for employees in the aforementioned bargaining unit, Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) of the Act. 6. By refusing to furnish the Union with the job classifications or the primary duties of all unit em- ployees, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) of the Act. 7. By unilaterally granting wage increases to em- ployees without notification to, or bargaining with, the Union concerning their award, Respondent has engaged in and is engaging in unfair labor practices within the purview of Section 8(a)(5) of the Act. 8. By unilaterally eliminating its engraving de- partment without prior notification to, or bargain- ing with, the Union concerning its abolition, Respondent has engaged in and is engaging in un- fair labor practices within the scope of Section 8(a)(5) of the Act. 9. By abolishing its upstairs shipping department and terminating employee Teddy Lee Ray, Respon- dent has not and is not engaging in unfair labor practices within the meaning of Section 8(a)(5), (3), or (1) of the Act. 10. By threatening employees with discharge for engaging in a protected, concerted work stoppage, Respondent has engaged in and is engaging in un- fair labor practices within the ambit of Section 8(a)(1) of the Act. 11. By coercively interrogating employees con- cerning their union activities, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 12. By promulgating, maintaining, and enforcing a plant rule forbidding solicitation on behalf of the Union on company property during nonworking hours, Respondent has engaged in and is engaging in unfair labor practices within the purview of Sec- tion 8(a)(1) of the Act. 13. The work stoppage which began on November 15, 1967, was caused and prolonged by Respondent's unfair labor practices and was, there- fore, an unfair labor practice strike. 14. The aforesaid unfair labor practices are un- fair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publica- tion. ] a' See Fred Snob, et al, d/b/a Snob & Son, 134 NLRB 709, Cactus Petroleum, Inc, 134 NLRB 1254.