Rybolt Heater Co.

RYBOLT HEATER COMPANY 551 Rybolt Heater Company and United Steelworkers of America, AFL-CIO. Case 8-CA-4574 November 4, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On December 29, 1967, Trial Examiner James F. Foley issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Charging Party filed exceptions to the Trial Examiner's Decision and supporting briefs, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that 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 this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner to the extent consistent herewith. A. Refusal To Bargain 1. The Board found, in a prior case involving the same parties,' that the Respondent had refused to bargain with the Union on September 20 and November 15, 1966, and thereafter, in violation of Section 8(a)(5) and (1) of the Act. Although the Trial Examiner took cognizance of this Decision, he nevertheless proceeded to consider de novo the issues involved in that prior proceeding, and to find that the Respondent did not unlawfully refuse to bargain with the Union on and after September 20, 1966. Under these circumstances, we find merit in the exceptions of the General Counsel and the Charging Party in this regard, and we adhere to the Board's finding made in the earlier proceeding of an unlawful refusal to bargain on September 20 and November 15, 1966, and thereafter. 2. The instant complaint alleges that the Respon- dent refused to bargain with the Union on February 9 and 17, 1967, and thereafter, in violation of Section 8(a)(5). The Trial Examiner found, and we agree, that the issues involving these refusals raise questions of compliance with the Board's order in the prior proceeding. In view of the Board's outstanding order that the Respondent bargain with the Union on request, we find it unnecessary to determine in this case whether the Respondent's alleged conduct warrants the issuance of another bargaining order at this time.' 3. The complaint also alleges an unlawful refusal to bargain based on the Respondent's unilateral promulgation of a no-solicitation rule on March 1, 1967.4 The Trial Examiner concluded that this conduct was not violative of the Act. We agree with this conclusion as the General Counsel has not established that the promulgation of the rule consti- tuted an actual change in working conditions. We do not adopt, however, the Trial Examiner's comments about managerial prerogatives in this matter. B. The Strike On August 8, 1966, the Respondent's employees went out on what the Trial Examiner found, and we agree, was an economic strike. As pointed out above, the Respondent later unlawfully refused to bargain with the Union beginning on or about September 20, 1966. As the Trial Examiner found, the Union kept the striking employees informed of these refusals during the course of the strike, and the record establishes that the employees continued their strike at least in part because of the Respondent's unlawful conduct.' We find, therefore, that the Respondent's unlawful refusal to bargain was an operative factor in the prolongation of the strike, and that, as a result, the strike, on or about September 20, 1966, was converted from an economic to an unfair labor practice strike.' 1The General Counsel and the Charging Party have excepted to the Trial Examiner's credibility findings on the ground, inter alia, that he credited certain witnesses of the Respondent who were discredited by a Trial Examiner in an earlier proceeding. It is the Board 's established policy, however , not to overrule a Trial Examiner 's resolutions with respect to credibility unless, as is not the case here, the clear preponderance of all the relevant evidence in the case before him convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). 2Rybolt Heater Company, 165 NLRB No. 36 3See Quaker Tool & Die, Inc., 169 NLRB No. 166, Fitzgerald Mills Corporation, 139 NLRB 802 4As the complaint does not allege , and the General Counsel did not contend at the hearing, that the rule on its face was invalid , we shall not pass upon the validity of the rule. 5 We find no basis in the record for the Trial Examiner 's finding that the Union "could not have passed on to employees any truthful information about bad faith bargaining by Respondent that could have caused them to strike in protest against bad faith bargaining," nor for his characterizations of the Union officials' motives or conduct during the strike. 6Erie Resistor Corporation, 132 NLRB 621, Combined Metal Mfg. Corp, 123 NLRB 895 , The Philip Carey Mfg Co., 140 NLRB 1103, enfd. as modified 331 F 2d 730 (C.A. 6). 173 NLRB No. 89 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Refusal To Reinstate On February 24, 1967, the Union sent a letter to the Respondent offering to end the strike and unconditionally requesting the reinstatement of all striking employees.' The Respondent sent no reply to the Union. In letters to its striking probationary employees, however, the Respondent referred to the Union's application and stated that "since your 30-day probationary period was not completed and you have not worked, it does not appear that there would be opportunity for your reemployment at this time." The letters which were mailed on Thursday, March 2, 1967, further stated that the employee had to make application for work by Monday, March 6, or the Respondent would assume he were not interested in employment. Respondent's vice president Smith admitted in his testimony that this letter was somewhat less than an unconditional offer of rein- statement, and therefore, in order to "clear up any misunderstanding," the Respondent sent another letter to each of the probationary employees on March 4 advising them to make application by March 9 or consider themselves as having "voluntarily quit" their jobs. On March 2, the Respondent also addressed a letter to 15 striking employees advising them to make application for reemployment by March 6 or be considered as having quit and "no longer interested in employment." This letter stated further that although the Union had also requested a resumption of negotiations in its application for reinstatement, the question of the Respondent's refusal to bargain was now in the hands of the Board, and as it was "put there by the Union leadership, it seems only fair that the NLRB should make the decision, of whether further negotiations should be had at this time." The record reveals that between March 2 and April 28, some of the strikers either resumed their employment with the Respondent or declined un- conditional offers of reinstatement made to them when they individually contacted the Respondent's officials. On April 28, after the Union had filed the unfair labor practice charges in the instant matter, the Respondent sent an additional letter to each of the striking employees in effect accepting the Union's application, offering them unconditional reinstate- ment to their former or substantially equivalent positions. Thereafter, additional strikers contacted the Respondent concerning reinstatement. 7The record shows that the striking employees , at various times, authorized the Union to commence the strike, to continue it, and finally to terminate it and seek their reinstatement . The Respondent made no response to the Union 's request , and there is no evidence that the Respondent then questioned the right of the Union to terminate the strike or to apply on behalf of the strikers for reinstatement . See Ekco It is clear that the Respondent was obligated to reinstate the unfair labor practice strikers upon their unconditional application.' It is also clear, regardless of the Respondent's legal contention concerning its duty to bargain, that the Union was the spokesman for the striking employees and that it made an unconditional application for reinstatement on their behalf.' In response, the Respondent sent individual letters to the striking employees in which it advised those on probationary status that they had forfeited their employment, and required all the strikers to make individual application for reemployment. Furthermore, after an unfair labor practice strike which had lasted for more than 6 months, the Respondent's letters of March 2 and 4 required the striking employees to make application within but a few days on penalty of forfeiting the right to reemployment. In our view, the Respondent's letters of March 2 and 4 made in response to the Union's unconditional application for reinstatement, and containing the requirement that all the striking employees make individual application for reemployment and do so within an unreasonably short period of time,' 0 were sufficient to deter some of the strikers from returning to work. Accordingly we find that the Respondent violated Section 8(a)(3) and (1) of the Act. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. As we have found that the Respondent in many cases refused to offer to reinstate its striking em- ployees as requested on their behalf until April 28, 1967, we shall accordingly order the Respondent to make each of these employees whole for any loss of pay he may have suffered by reason of the Respondent's discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned as wages from March 1, 1967, the date 5 days following the Respondent's receipt of the Union's February 24 application for reinstatement to April 28, 1967 the date of the Respondent's unconditional offer of reinstatement to these employees, less net earnings during said period. This reimbursement order shall not apply to those Products Co., 117 NLRB 137, N.L.R.B. v. Posner, Inc., 304 F.2d 773 (C.A. 2), enfg. as modified 133 NLRB 1567. 8NL.R. B v Fotochrome, Inc., 343 F.2d 631 (C.A. 2 ), cert . denied 382 U.S. 833. 9N L R. B v. Pecheur Lozenge Co., 209 F 2d 393 (C.A. 2). 10See Harrah 's Club, 158 NLRB 758, Fred E. Nelson, dlbla Nelson Industries, 102 NLRB 780, enfd . 208 F.2d 230 (C.A. 3). RYBOLT HEATER COMPANY employees who applied for reinstatement between February 24 and April 28, 1967, and who either accepted or declined unconditional offers of reinstate- ment made to them by the Respondent. Backpay shall be further computed in accordance with the formulas and methods set forth in F W Woolworth Company, 90 NLRB 289, plus interest at the rate of 6 percent per annum as prescribed by the Board in Isis Plumbing & Heating Co, 138 NLRB 716. AMENDED CONCLUSIONS OF LAW We hereby adopt the Trial Examiner's Conclusions of Law 1, 2," and 4, and substitute for his recommended Conclusion of Law 3 the following: "3. By refusing to offer reinstatement to em- ployees, the Respondent has engaged in and is engaging 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 the Respondent, Rybolt Heater Company, Ashland, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discriminating against its employees because of their membership in, or activities on behalf of United Steelworkers of America, AFL-CIO, or any other labor organization. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which the Board finds necessary to effectuate the purposes of the Act: I "'Case 8-CA-4574 " is hereby corrected to read "Case 8-CA-4401." 12 In the event that this Order is enforced by a decree of a United States Court of Appeals, the notice shall be amended by substituting for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order." 553 (a) Make whole all employees who were not offered reinstatement until April 28, 1967, as described in the Remedy section of this Decision, for any losses they may have suffered by reason of the discrimination against them, in the manner and to the extent set forth in the Remedy section. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records and reports and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its place of business in Ashland, Ohio, copies of the attached notice marked "Appendix"."2 Copies of said notice, on forms provided by the Board's Regional Director for Region 8, after being duly signed by the Respondent's representative, shall be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Board's Regional Director for Region 8, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our employees that. WE WILL NOT discriminate against our employees because of their membership in, or activities on behalf of United Steelworkers of America, AFL-CIO, or any other labor organization. WE WILL make whole all of our employees who were on strike and not unconditionally offered reinstatement until April 28, 1967, for any losses they may have suffered as a result of the discrimination against them. WE WILL NOT in any like or related manner interfere with , restrain , or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations , to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. RYBOLT HEATER COMPANY (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio 44115, Telephone 216-621-4465. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES F. FOLEY, Trial Examiner. This case, 8-CA-4574, was brought before the National Labor Relations Board (herein called the Board) under Section 10(b) of the National Labor Relations Act, as amended (herein called the Act) (61 Stat. 136, 73 Stat. 519), against Rybolt Heater Company (herein called Respondent), on a complaint issued on May 31, 1967, by the General Counsel of the Board (through the Regional Director for the Board's Eighth Region at Cleveland, Ohio), and an answer filed by Respondent on June 9, 1967. The complaint is premised on a charge filed on April 20, 1967, by United Steelworkers of America, AFL-CIO (herein called the Union). It is alleged in the complaint that Respondent, in violation of Section 8(a)(5) and (1) of the Act, refused on February 9 and 17, 1967, to meet and negotiate with the Union, certified on September 8, 1961, as bargaining representative for Respondent's production and maintenance employees, al- though it and the Union have engaged in collective bargaining for these employees since the September 1961 certification, and were parties to a collective-bargaining contract for the period from August 1, 1964, to July 31, 1966, and on March 1, 1967, and thereafter, in violation of Section 8(a)(1) and (3) of the Act, refused to reinstate or to reinstate unconditionally 20 striking employees who were either unfair labor practice strikers or employees not permanently replaced, upon an unconditional offer on February 24, 1967, by the Union for them and on their behalf, to return to work, on or about March 1, 1967, in violation of Section 8(a)(1) and (5) of the Act, it posted, promulgated and placed in effect, without prior notification to, or consultation with, the Union, the no- solicitation rule that "there shall be no soliciting for Union membership, other union activities, or any other purposes inside this factory during working hours." Respondent, in its answer, admits that as alleged in the complaint, the Union was certified as bargaining representative of its production and maintenance employees, that it and the Union have engaged in collective bargaining, and that they were parties to a collective-bargaining contract for the period from August 1, 1964, to July 31, 1966. It admits it has refused to meet and negotiate with the Union since the latter filed an unfair practice charge against it on October 28, 1966. It denies that it refused to meet and bargain with the Union prior to the Union's filing of the October 28, 1966, unfair labor charge. It also denies that its refusal to meet and bargain with the Union since October 28, 1966, is a refusal to bargain within the meaning of the Act, or is a violation of the Act. It makes the affirmative defense that it has the right to refrain from bargaining until the merits of the complaint premised on the October 28, 1966, charge are deterrruned in the complete administrative process, including proceedings before the United States Court of Appeals. It also affirmatively defends that the Union ceased to be the bargaining representative of its employees by the expiration of the outstanding collective- bargaining contract on July 31, 1966, and by the Union's loss on July 31, 1966, of the status of majority representative of its production and maintenance employees. Respondent admits that the Union informed it on February 24, 1967, that it was making an unconditional offer on behalf of the employees who had been striking since August 8, 1966, to return to work. It further admits that some employees returned to work after the Union made this statement to it. Respondent denies, however, that it violated the Act after the statement of the unconditional offer of February 24, 1967. It answers affirmatively that it has offered the striking employees unconditionally their former or substantially equivalent posi- tions. Respondent admits that it placed in effect on or about March 1, 1967, the no-solicitation rule stated in the complaint, without notice to or consultation with the Union, but denies that it violated the Act by doing so. A hearing on the complaint and answer was held before me on June 28, 29, and 30 in Ashland, Ohio. The parties were afforded an opportunity to present evidence, make oral argument, and file briefs. Briefs were filed by General Counsel and Respondent after the close of the hearing. FINDINGS AND CONCLUSIONS I. THE BUSINESS OF RESPONDENT Respondent, an Ohio corporation, with its principal office and place of business in Ashland, Ohio, is engaged in the manufacture and sale of heating and air conditioning units. Annually, in the course and conduct of its business operations, it ships goods and products valued in excess of $50,000 directly to points outside the State of Ohio. As the Board found in Rybolt Heater Company, Case 8-CA-4401, 165 NLRB No. 36, Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Assumption of jurisdiction will effectuate the purposes of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. RYBOLT HEATER COMPANY 555 111. THE UNFAIR LABOR PRACTICES A. Background Evidence This case is a sequel to the case, Rybolt Heater Company and United Steelworkers of America, AFL-CIO, 8-CA-4401, in which Trial Examiner Donovan rendered a decision on April 12, 1967, which was affirmed by the Board on June 13, 1967 (165 NLRB No. 36). The case before me involves the same dispute with the additional developments that occurred after the record was closed on January 31, 1967, in the earlier case. I hereby take official notice of the record, and evidentiary findings made by Trial Examiner Donovan and affirmed by the Board in the earlier case. I incorporate the evidentiary findings in my Decision in this proceeding. Briefly, the evidence and findings in Case 8-CA-4401 cover the following factual situation In May 1966, the Union notified the Respondent that it wished to negotiate a new contract to be effective on the expiration of the then existing contract which expired on July 31, 1966. The parties met to negotiate for the first time on June 24, although they had had a prior meeting. They met again on July 14, 28, and 30 and August 6, 13 or 14, and 22, 1966. The contract terminating on July 31, 1966, and which the parties agreed during negotia- tions to extend until August 7, 1966, was for 2 years with a 1-year reopener. From the outset of negotiations Respondent stated it could not afford a wage increase. It is clear that the major objective of the Union was substantial wage increases. Respondent offered a 2-year 4-month contract with no reopener and the same wage rates as in the prior contract with the exception of lower rates in some classifications. Along with higher wage rates, the Union was seeking the same contract term of 2 years and a 1-year wage reopener, and some fringe benefits. On July 28, 1966, the employees met at the hall of the Union on Orange Street, Ashland, Ohio, and voted to strike. The action of the employees was considered by the Union representatives as a recommendation, as a decision to strike is made by the Union, and by its district directors and staff representatives when they have been delegated this authority by the Union. In support of its position that it could not afford a wage increase, Respondent at the July 30 meeting offered a financial statement entitled "Report On Examination For the Year Ended December 31, 1965." Forrest Reeder, the Union's staff representative, and chief negotiator, refused to look at the statement. He said that the financial statement was premature as noneconomic issues were being discussed, and the Union had not requested it He also used earthy terms to convey to those at the meeting that he would not use the report for toilet paper.' The financial report was on the bargaining table at the following meetings in view of the persons present including Reeder, but the latter did not look at it. The Union at the August 6, 1966, meeting, informed the Respondent that it would strike on Monday, August 8. On August 6, Respondent offered a 5-cent-an-hour general increase and the remaining terms of the prior contract unchanged, for a term of 2 years to expire in 1968. Respondent stated that in offering the wage increase it was gambling that its earnings would improve by reason of an expanded sales force and new machinery. Respondent also stated that the foregoing proposal was contingent upon the employees continuing to work and not going on strike on August 8 as scheduled. On Monday, August 8, 1966, the production and mainte- nance employees, about 32 in number, struck. The strike did not end until February 24, 1967. At the August 14 meeting, the Respondent informed the Union that the 5-cent-an-hour offer was withdrawn, and its offer at that time was the terms of the expired contract for a period of 2 years. At the August 22 meeting, at which a Federal Mediator was present, Respondent stated it was unable to pay any increase in wages and again offered the terms of the expired contract. Respondent also stated that its offer of a 5-percent-an-hour wage increase was contingent on there being no strike, and the strike had rendered it more unable than ever to pay the increase. The Union rejected Respondent's proposal. Except during the early morning of August 8, when the strike began, and on September 1 and 7, no more than five pickets patrolled in front of Respondent's parking lot, including the entrance. All the production and maintenance employees, approximately 32, were present on the morning of August 8. The lot is directly across the street from the entrance to the plant. There was a-shac"&one end of the lot. The pickets occasionally lou gd or rested` in a few chairs located outside the shack. OIAugust 15, William R. Buzzard, the plant superintendent, to k pictures of the pickets from a window of one of the offices on the front side of the plant. When a delivery van left the parking lot with a large crate or carton containing Respondent's products, Reeder and Hockenberry, a striking employee, followed it in Reeder's car. Buzzard followed the van and Reeder's car, and on occasion took motion pictures of the two vehicles in front of him. The van proceeded to Mansfield, a nearby town. Nothing occurred of any importance. A few employees went back to work in the plant on September 1. Stuart A. Smith, vice president of Respondent, took motion pictures of the picket line from a window of one of the offices in the front of the plant. At the close of the workday, the employees who worked entered an enclosed van in the parking lot. The van was stopped at the parking lot exit, and Hockenberry, a striking employee, asked the employees why they were working during the strike. Hockenberry lay down briefly in front of the van,' and at one point had some folded papers in his hand. Company witnesses testified he was trying to light the papers as a torch, while Hockenberry stated 'The financial report was prepared for Respondent by Frank, Seringer and Chaney , certified public accountants . Its authenticity was not questioned when it was offered in evidence, and it was received in evidence without objection . It is an informative report in depth, and prepared in accordance with generally accepted good accounting practices. The report reflects the financial condition stated in the following paragraph Respondent had a deficit in net income for the year 1965 of $104,324.18 and only a net income of $4,776.19 for 1964 It had an accumulated deficit on December 31, 1965, of $ 346,424.32, and of $242,100.14 on December 31, 1964 . Net sales were $723,475.99 for 1965 and $1 ,012,453.99 for 1964 . Net sales for 1965 were $288,978.00 less than those for 1964. Stockholder equity, which was originally $482,512 . 50, was $136 ,088.18 , on December 31, 1965, and $240,412 36 on December 31, 1964 . There was a decrease during 1965 of $104,32418 . Working capital on December 31, 1965, was $78,957.17, and on December 31, 1964, was $ 168,928.75 There was a decrease in working capital during 1965 of $89,971.58. 2Reeder gave the conclusionary testimony that Hockenberry was just fooling around. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he was trying to catch some bees in a bag. A policeman, who was at the scene told the pickets to let the van leave. The van was driven off. Then Buzzard, the plant superintendent, drove his car into the lot, and on leaving came in contact with or grazed one of the pickets. Vice President Smith took motion pictures of some of this parking lot activity. On September 7, at closing time, a number of strikers appeared and parked their cars across from the driveway where the non-striking em- ployees would emerge from the plant. Police came to the scene and nothing occurred. Motion pictures were again taken by one of Respondent's representatives. In September, one of Respondent's dealers drove up in a truck with his wife and child to pick up some of Respondent's furnaces.3 The pickets talked to the dealer, and while they were talking to him Buzzard appeared from the plant and pointed an unloaded camera at them. The pickets ceased to group. On a few other occasions, Buzzard and Smith pretended to take pictures of pickets who had grouped to converse with delivery men or dealers who were there to deliver materials to Respondent or pick up its products. On September 20, 1966, Reeder requested Respondent by letter, that it make available to the Union "for examination and study your books and records so that we might bargain intelligently on economic matters." Reeder stated in the letter that he was making the request because Respondent had withdrawn the offer of a wage increase "because of claimed inability to pay." He also stated that he did not concede that a 5-cent-an-hour increase would be adequate. Respondent did not reply to this request. At a negotiations' meeting on October 17, Respondent presented to John S. Johns, the Union's district director, the same financial report (which was for the years 1964 and 1965, and was dated May 6, 1966) that it presented on July 30. The evidence of record does not disclose what else transpired at this meeting As stated supra, the Umon filed an unfair labor practice charge on October 28, 1966. The Union charged the Respondent with violating Section 8(a)(1) and (5) of the Act by the following conduct- 1. By interfering with picketing at the premises of Respondent, including driving in and about the picket line at high and unreasonable rates of speed and striking pickets with motor vehicles. 2. By misrepresenting the nature of the strike at the premises of Respondent. 3. By soliciting strikers back to work and urging them to abandon the strike. 4. By engaging in surveillance of pickets and strikers. 5. By refusing to bargain in good faith with the Union in the following respects' a. By failing to make available its books and records to substantiate a claimed inability to pay after due demand therefor. b. By failing to furnish a negotiator with authority to bargain and consummate agreements. c. By subrruttmg a first and final proposal and then refusing to discuss the Union's proposal and maintaining a closed mind thereon. d. By withdrawing a firm offer because it was not accepted immediately and vacillating in its discussions. e. By refusing to agree to check-off union dues while providing check-off for other payroll deductions. f. By other instances of failure to engage in good faith collective bargaining. On November 10, 1966, Reeder telephoned Vice President Smith and asked him in the telephone conversation if he would sit down and negotiate that evening or at any time. Smith replied that he was unable to meet with the Union because the Union had filed charges, and the matter as far as the Respondent was concerned was in the hands of its attorney. Smith also said Respondent would not bargain until it saw what disposition was made of the charge. On the same date the Union, in a telegram, demanded resumption of negotiations, and "immediate production and availability of your books and records re inability to pay plea." Respondent, in a telegram dated November 15, replied that "upon your own application this matter is now in the hands of the National Labor Relations Board." On December 14, 1966, the Regional Director, after an investigation, disposed of the Union's October 28, 1966, charge. In his letter to the Union's attorney, who filed the charge, he stated: With respect to the following enumerated allegations of the charge, it was concluded that the evidence did not warrant issuance of complaint for the reasons set forth hereinafter: 1. The action of a supervisor of the Employer in accidentally striking two pickets while slowly exiting from the Employer's parking lot, when the exit was blocked by strikers, did not interfere with the Section 7 rights of the employees. 2. The fact that Employer's counsel inadvertantly referred to the strike in an injunction petition as illegal, and was so quoted in the newspapers, does not constitute a violation of the Act as the allegations of a pleading are privileged. 3. The solicitation of strikers to return to work, unaccompanied by threats or promises of benefit as was the situation here, is not violative of the Act. 5b. The evidence indicated that the Employer's negotia- tors did bargain from a position of no wage increase gradually upwards to a 5¢ increase and other benefits. 5c. The course of negotiations indicate that the Employ- er did submit various proposals, did not confine its proposals to a first and final offer, and did discuss and listen to the Union proposals. 5d. While the Employer did make a 5¢ wage increase offer, along with other proposals, on August 6, 1966, it was not withdrawn until August 22, 1966. The withdrawal, under the circumstances, cannot be concluded to indicate a refusal to bargain in good faith. 5e. Although the Employer originally proposed deletion of the check-off claiise, a subsequent offer to reinstate the old contract was understood to include reinstatement of the former check-off provision. You are accordingly notified that those aforementioned portions of the charge are hereby dismissed, and that complaint has been issued against Respondent alledgmg 3Respondent manufactures furnaces and air-conditioning equip- ment RYBOLT HEATER COMPANY 557 violations of Section 8(a)(1) and (5) of the Act with respect to item 4 and 5(a) and 5(f) of the charge. The Union was then apprised of its right to obtain a review of the Regional Director's disposition of the charge as provided by Section 102.19 of the Board's Rules and Regulations, Series 8, as amended. There is no evidence before me that the Union sought such a review. The complaint which was issued on December 12, 1966, alleged a refusal to bargain in violation of Section 8(a)(5) and (1) of the Act by the refusal to furnish books and records on and after September 20, 1966, and a refusal to meet and negotiate on and after November 10, 1966, unless the charge was withdrawn or otherwise disposed of. It also alleged that Respondent violated Section 8(a)(1) of the Act by the taking of still photographs, pictures and moving pictures while the employees were engaged in peaceful picketing and patrolling in and about Respondent's plant. Respondent denied in its answer that it refused to bargain, and stated affirmatively it was always available to bargain, but the striking employees refused to negotiate, and were more interested in, and spent nearly all of their time in., striking, picketing, disturbing the peace, calling Respondent's agents vile and indecent names and preferring charges before the National Labor Relations Board, and had no real desire to negotiate a contract except upon their own terms and under constant pressure. Respondent denied it refused to furnish records showing its financial condition. It affirmatively stated that it did furnish such records, but that the Union refused to look at them, and at no time indicated specifically what books and records it was requesting. Respondent denied that it took pictures and photographs for the purpose of illegal surveillance of striking employees. It admitted it took pictures and photographs, but stated it did so for the purpose of showing violence and disturbance of the peace in front of its premises and for the purpose of obtaining evidence showing violence on the picket line to be used in an injunction suit it filed against the Union in the Common Pleas Court of Ashland County, Ohio. As stated supra, evidence was taken on the complaint and answer by Trial Examiner Donovan on January 31, 1967. On April 12, 1967, the Trial Examiner issued his decision. He found a refusal to bargain for refusing to meet and negotiate on and after November 15, 1966, and for refusing to furnish on and after September 20, 1966, financial books and records to adequately reflect the Respondent's financial condition in 1966. To the Examiner, the bringing up to date of the financial report for 1964 and 1965 would at least have placed the burden on the Union to indicate whether these financial data were or were not adequate. The Trial Examiner's recommended order, which is the order of the Board by reasons of the Board's decision and order of June 13, 1967, requires Respondent to meet and negotiate with the Union, upon request, and to make available to the Union its financial books and records which will reflect its financial condition for 1966 and thereafter, and to refrain from photographing or pretending to photograph protected picket line strike activity with the object of interfering with employees' rights under Section 7 of the Act. B. The Issues in Case 8-CA-4574 Tried on June 28, 29, and 30, 1967 The issues placed before me, Trial Examiner James Foley, in Case 8-CA-4574 are the following: Has the Respondent continued to refuse to meet and negotiate with the Union since on or about February 9, 1967, and if so is the refusal a compliance and enforcement matter in case 8-CA-4401, and properly before me in this proceeding, Case 8-CA-4574, only as evidence in con- nection with the alleged refusal to reinstate the strikers and the alleged promulgation of an illegal no-solicitation rule') Did the Union on February 24, 1967, make a bona fide unconditional offer on behalf of the striking employees to return to work? Was the economic strike initiated by the Union on August 8, 1966, converted into an unfair labor practice by Respondent between September 20, 1966 and the date of February 24, 1967, when the Union terminated it? Did the Respondent make an offer to the striking employees to reinstate them to their former or substantially similar employment unconditionally , and without qualifica- tion or limitation , and at the wages the jobs paid independently of the strike? Did Respondent violate Sections 8(a)(1) and (5) of the Act by placing in effect on or about March 1, 1967, the no-solicitation rule that "there shall be no soliciting for Union membership , other union activities, or any other purposes inside this factory during working hours?" C. The Evidence in Case 8-CA-45745 1. The demands and refusals to bargain On February 7, 1967, the Union's Staff Representative Reeder sent a letter to Vice President Smith of Respondent in which he asked him to meet with him to negotiate a collective-bargaining contract. Smith replied by letter on February 9, 1967, that, upon the Union's application the matter between the Union and Respondent had been placed in the hands of the Board. On February 13, 1967, Reeder again wrote to Smith requesting a meeting and bargaining for a contract. Reeder in reference to Smith's statement in his letter of February 9 that the matter was in the hands of the Board 4At the hearing before Trial Examiner Donovan , Smith testified that he did not reply to the Union 's request of September for financial books and records because the Union had the financial report that it made available on July 30. He testified that it was all that Respondent had at the time. The evidence persuaded the Examiner that Respondent could have supplemented the financial report it made available to make it meaningful at the time the Union requested the information . Reeder testified at that hearing that he wanted books and records prepared by a certified public accountant that would disclose the up to date financial position of the Respondent . He testified that financial data could be made available on a quarterly year basis He testified that he did not know what was in the financial report that Respondent made available at the July 30 meeting, and did not attempt to find out as he was not ready to discuss a financial statement . He testified that on October 17, 1966, the financial report was given to District Director Johns, not to him, and it was a different copy than the copy Respondent presented on July 30 . He testified that he did not find out what was in it on October 17, as he did not look at it . He testified that he wanted a response to his request of September 20. Two employees were members of the Union 's negotiating committee along with Reeder and Johns. They were present during the bargaining on July 30 and August 6, 13 or 14, ?nd 22, 1966, when the financial report was on the bargaining table. Credibility resolutions of conflicts in evidence have been made by me upon consideration of all relevant evidence in context including demeanor testimony. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stated that the matter could be disposed of by an agreement on a new contract, but that to reach an agreement they would have to meet. Smith replied by letter on February 17 that Respondent had been willing to meet with the Union and had met with it until the Union filed the charge on October 28, 1966. Smith stated that Respondent had met with the Union even when the Union committee failed to show.6 Smith then related that Respondent awaited the decision of the Trial Examiner in the hearing held January 31, 1967. On February 24, 1967, District Director John S. Johns wrote to the Respondent that on behalf of all the striking employees he was offering them unconditionally for employ- ment, and was advising the Respondent that the Union was terminating the current strike. Johns also stated in the letter that he was requesting Respondent's immediate resumption of negotiations with the Union, the certified bargaining represen- tative, and was advising Respondent that the excuse it had given, "the pendency of the NLRB unfair labor practice charges " was no excuse for evading its statutory duty to bargain. He concluded with the words, "I would appreciate your further advice." On March 1 or 2, 1967, Respondent informed the striking employees of the offer to return to work made by Johns on their behalf, and informed them that if they did not make "application for reemployment" by a date of 5 days from the date of the letter Respondent would assume they were no longer interested in being employed by Respondent.7 Respon- dent, in the March 2 letter, which was addressed to the strikers that had permanent status, notified these striking employees of Johns' request in the February 24 letter for renewal of negotiations. Respondent then stated in that letter that until the charge was filed with the Board by the Union, Respondent negotiated with the Union in good faith, but since the question of negotiation was placed in the hands of the Board by the Union, "it seems only fair that the NLRB should make the decision, of whether further negotiations should be had at this time." As stated supra, Trial Examiner Donovan issued his decision in the earlier case on April 12, 1967. On April 20, 1967, the Union, by its Attorney Herschel Krieger, requested Respon- dent to meet and bargain, and to make available to the Union "financial books and records" showing its financial condition for 1966, and thereafter On the same day, the Union filed the unfair labor practice charge on which the complaint in this proceeding is premised. The complaint was issued on May 31, 1967. The Board's decision affirming Donovan's decision was issued on June 13, 1967. On June 15, 1967, Krieger wrote to Respondent. In the letter he referred to the Board's June 13 decision, and then made the same requests that he made in his April 20 letter. The evidence of record does not show any replies to Krieger's two letters. It is undisputed that since the Board affirmed the decision of Trial Examiner Donovan, Respondent has refused to meet with the Union or furnish any financial data for the reason that it is awaiting a decision of the United States Court of Appeals. 6This was the meeting on the morning of October 17. District Director John Johns and Reeder represented the Union and Vice President Smith and Plant Superintendent Buzzard represented the Respondent. The employees on the Union's committee were working 'elsewhere 2. Respondent's conduct alleged to have converted the strike into an unfair labor practice strike General Counsel contends that Staff Representative Reeder's communication with the strikers regarding the negotiations with Respondent or lack of them prolonged the strike and converted it into an unfair labor practice strike. General Counsel does not rely on Respondent's photographing of pretending to photograph the Union's strike activities. General Counsel and Respondent stipulated that Respondent did not engage in any violation of Section 8(a)(5) of the Act until September 20, and then only with respect to the refusal of the Union's request for financial books and records. The refusal to meet and negotiate was added on and after November 15, 1966. As stated supra, the Regional Director dismissed the Union's charge of October 28, 1966, that Respondent refused to bargain, insofar as it alleged that it failed to furnish a negotiator with authority to bargain for and consummate agreements, by subnutting a first and final proposal and then refusing to discuss the Union's proposal and maintaining a closed mind thereon, by withdrawing a firm offer because it was not accepted immediately and vacillating in its discussions, and by refusing to agree to check-off union dues while providing check-off for other payroll deductions. In dismissing these allegations of the charge, the Regional Director found that Respondent bargained from no wage increase gradually upwards to an increase of 5 cents an hour and other benefits, that the Respondent submitted various proposals and did not confine itself to a first and final offer, and did discuss and listen to the Union proposals, that Respondent's offer of the wage increase on August 6, 1966, was not withdrawn until August 22, and the withdrawal, under the circumstances, could not be considered a refusal to bargain in good faith, and although Respondent initially proposed deletion of the check-off clause, its subsequent offer to reinstate the old contract included the offer to retain the check-off clause. The Regional Director's dismissal left only the charge of a Section 8(a)(5) violation in terms of an allegation of a refusal to furnish financial data. The refusal to meet and negotiate did not begin until November 15, about 2 weeks after the filing of the charge. So from the beginning of the strike on August 8 until the Respondent's refusal to respond to the Union's demands of September 20 to furnish financial data there was no illegal conduct by Respondent that Reeder could disclose to the strikers that converted the economic strike. From a reasonable date by which Respondent should have responded to the September 20 request, namely September 25, until November 15, the only illegal conduct of Respondent that Reeder could pass on to the strikers was the refusal to furnish the financial books and records as he had requested. From November 15 and thereafter until the strike ended on February 24, 1967, all that Reeder could tell the strikers that Respondent had perpetrated was the refusal to furnish the books and records after September 15, and the refusal on and after November 15 to meet and negotiate. 7The offer made by the Union on February 24 on behalf of the strikers , and Respondent's letters to the strikers following the Union's offer will be discussed in detail later in connection with the issue of Respondent's liability with respect to reinstatement. RYBOLT HEATER COMPANY 559 I credit Reeder's testimony that he informed the strikers during the course of the strike that the Union requested the Respondent on September 20, 1966, to furnish books and records, and that Respondent was asked to meet and bargain on November 10, 1966, and that Respondent did not furnish any financial books, records or other information in response to the request of September 20, and refused on and after November 15, 1966, to meet and bargain. I also credit Reeder's testimony the strikers were kept informed of the continuing refusal of the Respondent to meet and negotiate or furnish financial books and records, and particularly the Respondent's refusals by letters to the Union dated February 9 and 17, 1967, to meet with the Union in accordance with the Union's request in letters dated February 7 and 17, 1967, and refusals to meet stated in Respondent's letters to employees dated March 1 or 2, 1967, as requested by the Union in its letter of February 24, 1967, to Respondent. I also find from Reeder's testimony that he informed the strikers, either directly or indirectly, through Hockenberry or Hines, or other employees closely associated with him, of the Union's requests of April 20, and June 15, 1967, for financial books and records, and to meet and bargain, and that Respondent did not reply to these letters. I also find that the strikers were informed directly or indirectly by Reeder that Respondent informed the Union on February 9 and 17, 1967, it was refusing to bargain because the Union had placed the matter in the hands of the Board by the filing of the charges, and that it awaited a decision of the Trial Examiner on the charges he heard on January 31, 1967. I find from the evidence that Reeder, directly or indirectly, informed the strikers that although Respondent did not reply to the Union's letters of April 20, and June 15, 1967, it was taking the position after the Trial Examiner's decision of April 12, 1967, that it was awaiting a decision of the Board, and that after the Board rendered its decision on June 13, 1967, Respondent's position has been that it is awaiting a decision of the court of appeals.' 3. The Union's offer on February 24, 1967, of the Return of the strikers to their employment As stated supra, District Director Johns, in his February 24, 1967, letter, stated he was offering the return of the strikers to their employment. His words were as follows: On behalf of all your striking employees, I am hereby offering them and each of them for employment uncondi- tionally, and am also advising that this Union is hereby terminating the current strike. Reeder testified that he talked to strikers Butts, Daliere, Hines, Hockenberry, Hurst, Kaufman, Kircher, Markel, Spencer, Van Bremen, and Pryor. He testified that he did not talk to strikers, Lamb, Mumaw, Parker and Robinson. He testified he could not recall whether he talked to Myers, that he did not talk to Gregory but talked to his wife, and did not talk to Beasley9 or Buchanan about their backpay claims. Reeder testified that "there was nobody that said that they definitely wanted their jobs or did not want their job. They would think it over when the time came to actually go back." In response to the question whether the strikers had other jobs, Reeder testified that "There is many of them said they had jobs elsewhere, but they told me they didn't know whether they would drop that job and go back or not." In response to the question, "Did any of these men here tell you they wanted to go back to work and would go back to work," Reeder answered "Yes." In response to the question "Who," he answered "Virgil Kaufman." Then in answer to the question "Who else," he answered, "I can't say now that Henry Hurst said definitely that he would, but he implied very strongly that he would. He thought he would go back. He didn't say definitely." It is undisputed that Kaufman and Hurst returned to work on February 27, 1967, and at the time of the hearing had been working continuously since February 27. 4. Respondent's letters to employees of March 1, 2, and 4 and April 28, 1967 On Wednesday, March 1, 1967, Respondent, over the signature of Vice President Smith, sent to striking employees Clarence William Butts, Robert L. Kircher and Amos Mumaw, probationary employees with less than 30 days employment, the following letter. We are in receipt of a registered letter dated February 24, 1967, from Mr. John S. Johns, Director, United Steelworkers, of America District #27, which reads: "On behalf of all of your striking employees, I am hereby offering them and each of them for employment unconditionally, and also are advising that this Union is hereby terminating the current strike." Since your 30 day probationary period was not completed and you have not worked, it does not appear that there would be opportunity for your re-employment at this time. Furthermore, if you have not made application for work by Monday, March 6, 1967, we will assume that you are no longer interested in employment by the Rybolt Heater Company. Smith was advised by his attorney that his statement in the above letter that since the addressees had not completed the 30-day probationary period and had not worked it did not appear there would be opportunity for reemployment, the letter could be construed as not constituting an unconditional offer of reinstatement. On Saturday, March 4, 1967, he sent a letter to Butts, Kircher, and Mumaw as follows. In order to clear up any misunderstanding which could exist as a result of our letter to you dated March 1st, 1967, please note carefully the following: If you wish to be re-employed by the Rybolt Heater Company you should make application for re-employ- ment no later than Thursday, March 9, 1967, otherwise you have voluntarily quit your job here. Smith testified that he was of the opinion when he sent the first letter that Butts, Kircher, and Mumaw would not have been kept on as permanent employees after the 30-day period on the basis of their performance during the time they worked, 8Since the strike ended on February 24, 1967 , nothing that happened after that date could change it from an economic strike into an unfair labor practice strike. 9Beasley testified that Reeder instructed him to go to Respondent and discuss reinstatement. As found infra, Beasley did so on February 27, or March 1, 1967. 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and he felt he should so advise them to enable them to continue working where they were employed on receipt of the letter.' o On March 1 or 2, 1967, Respondent sent to 15 of the remaining 17 striking employees listed in the complaint,'' a letter containing the following: We are in receipt of a registered letter from Mr. John S. Johns, Director, District #27, United Steelworkers of America, dated February 24, 1967, which reads: "On behalf of all your striking employees, I am hereby offering them and each of them for employment unconditionally, and also are advising that this Union is hereby terminating the current strike." This is to advise you that if you have not made application for reemployment by Monday, March 6, 1967, we shall assume that you have quit your job, and are no longer interested in employment by the Rybolt Heater Company.' 2 Between March 1 and April 28, 1967, striking employees Hockenberry, Hoppenberg, Beasley, Gregory, Butts, and VanBremen visited Respondent's plant and had conversations with Smith and Buzzard regarding reinstatement Striking employees Hines, Pryor, and Spencer telephoned Smith and discussed reinstatement. On April 20, 1967, the Union filed the charge on which the complaint, issued on May 31, 1967, in this proceeding is premised. Oral testimony regarding the visits of employees to Respondent's plant to discuss reinstatement will be discussed. On April 28, 1967, Respondent sent to all the 20 employees allegedly denied reinstatement for discriminatory reasons the following letter On or about the 24th day of February 1967, we received a registered letter from Mr. John S. Johns, Director, District No. 27, United Steelworkers of America, which reads: On behalf of all your striking employees, I am hereby offering them and each of them for employment unconditionally and also am advising that this Union is hereby terminating the current strike. Since receiving this letter dated February 24, 1967, from Mr. Johns, a number of letters were sent out by this company to our employees including you, offering to take you back to work and re-instate you. Some of the employees came to the office to discuss the matter. Also new charges have been filed with the National Labor Relation Board by the Union claiming that illegal and unfair conditions were attached by this company to you being re-instated. It is our position that no illegal or unfair conditions were attached to our offer to you of re-instatement. In any event, we are now unequivocally offering you re-instatement with no conditions attached, to your former job or position or substantially the same job if the job has been abolished. If we do not hear from you on or before the 8th day of May 1967 we will assume that you have refused our offer to reinstate you with the Rybolt Heater Company and that you do not wish to come back to work. Striking employees Lamb and Kircher visited Respondent's plant after receipt of this April 28 letter. 5 The testimony of the personal and telephone conversations between strikers and Respondent's officials regarding reinstatement.' 3 On instructions received on February 24, 1967, from Reeder, the Union's staff representative and chief negotiator, striking employee Carroll Beasley went to Respondent's plant on March 1, 1967, and talked first to Plant Superintendent Buzzard and then to Vice President Smith. He asked Buzzard if he could return to the same job. He had been a spot welder. Beasley testified Buzzard said "possibly," while Buzzard testified that he said he was glad to have him, and asked him "when can you start?" He told Buzzard about an operation he had arranged to have on his nose the following week. Buzzard testified that he gave him the impression he would be in after the operation. Smith came along as they were talking, and Beasley asked him if the insurance Respondent had would cover it. Smith said he did not think so, that he had been away from employment by Respondent for 7 months, and would have had to have been working for 3 months to have coverage. Smith also told him that the insurance was canceled 30 days after the strike began, as Respondent did not pay the premiums. Beasley said he had insurance at Perfection Manufacturing Company in Mansfield, Ohio, where he was employed and wondered if he should not stay at Perfection and have that insurance take care of the operation on his nose. Smith asked him how his job was, and he said he had a good job, that it was paying about the same he made when working for Respondent, but that he was working on a different shift. Respondent had only a day shift. Beasley asked Smith for permission to go through the plant, and Smith gave it him. Both Smith and Buzzard testified that they received the impression that he would return to his former employment 10 Butts, Kircher , and Mumaw began employment on July 19, 12, and 12, 1966 , respectively . Additional probationary employees at the time the strike started were Gary Stutz , Billy Barker , Paul Gulley, Virgil Strines, Raymond Charles Myers, Thomas E. Caldwell, and William Weber, Jr. The names of these latter employees are not included in the list of 20 allegedly denied unconditional reinstatement. Stutz returned to work on March 27 and left on May 5 for other employment. Weber said he would return on May 1 but did not appear. IIThey were Buchanan , Dahere, Gregory, Hines, Hockenberry, Hoppenberg, Lamb , Markel , Myers, Parker , Pryor , Robinson, Spencer, and VanBremen. Letters were not sent to Kaufman and Hurst as they had been reinstated on February 27, 1967. 12As stated supra, Respondent also made reference in this letter to the request in Johns' February 24 letter that Respondent meet and bargain , and stated regarding it that it seemed only fair that the Board should decide if further negotiations should be held since this question had 1 een placed in the hands of the Board by the union leadership. ' Beasley, Hockenberry, and Hines testified for the General Counsel. Smith and Buzzard testified for Respondent. RYBOLT HEATER COMPANY 561 with Respondent.14 A short time later, Buzzard telephoned Beasley's home. He talked to his wife when he was told Beasley was not there. He asked her if Beasley intended to return to Respondent. She said no, that he intended to remain with Perfection Heating Company.) s On March 3, 1967, striking employee Don Alan Hockenberry went to Respondent's plant around noon and talked to Vice President Smith in his office about returning to work. He had been a press operator. Smith said he could have his old job back. Smith handed him District Director Johns' letter of February 24, 1967, in which Johns had offered the return of the striking employees to their former jobs, and in which he stated that the strike was over. Smith said to Hockenberry that the strike was over. He asked him to fill in his name, address and telephone number on a standard form used by Respondent entitled "Application For Employment." Smith said to Hockenberry that Bill Buzzard made the work assignments, and was in Virginia to watch his son receive a commission in the Army, but would be back Monday, and would give him his work assignment at that time. He told him he could begin work on Monday.16 I credit Hockenberry's testimony that after he filled in his name, address and telephone number, he glanced down at the place on the form for names and address of former employers, and asked Smith if he had given him any bad references, that Smith denied he had, and he replied that he had, and did not think that Buzzard would like him to come back to work, and rose from the chair he was sitting in, and walked out of the plant. He did not return. Neither Smith nor Buzzard saw him after this conversation.) 7 On March 6, 1967, about noon, striking employee Hines went to Respondent's plant to talk about reinstatement. He was working elsewhere at the time. Smith and Buzzard were at lunch. Hines telephoned Smith between 8 and 9 o'clock that evening. Hines testified that he said to Smith he received a letter, and March 6 was the deadline to go back, and that Smith replied that Respondent had a full complement of employees and they were not going to lay off anybody to make room for him. Hines also testified that he said to Smith that he had 9 years' seniority, and asked him if that made any difference and he said no. Smith testified that Hines asked him what the situation was at the plant, and he asked Hines if he had received a letter, and Hines answered no. Smith than said that the letter explained what they were doing at the plant; and Hines said he guessed he had better pick up the letter. Smith replied that he thought he should. Hines asked if he could come to the plant and talk to him, and Smith said he would be in the next day, and he could talk to him at any time during the day. Smith was in the office from 7 a.m. until 5 p.m., but Hines did not appear at the plant, and had not done so at the time of the hearing. Smith denied that he said anything about seniority or refusing to replace the replacements with strikers.18 I credit Smith's testimony. Smith and Buzzard testified that when the letters were sent out in March and April, Respondent had jobs available for all 14 Beasley testified that Smith had a list of employees and referred to the names of Buchanan and Hoppenberg and said he would not take them back as employees . Beasley also testified that he had a conversation with Virgil Kaufman who had returned to work on February 27. He testified that Kaufman asked him if he was coming back, and that he said he was thinking about it, and that Kaufman then said that he would have no seniority or vacation , and had a good job and should not leave it . Smith denied he made any reference to or discussed other employees with Beasley. He also denied that he said he would not take Buchanan or Hoppenberg back as employees. Buchanan never talked to Reeder , Smith or Buzzard about reinstatement . As will be found infra, Hoppenberg discussed reinstatement with Buzzard on Friday, March 3, 1967. He told Buzzard he was ready to return to work, and Buzzard replied that was fine. He said he would report for work on Monday, March 6. On Monday, Tuesday and a few days later he called in to say he was in . He never returned . Contrary to Beasley 's purported hearsay from Kaufman, Smith testified that the employees who returned to work had all the rights they had under the old contract General Counsel did not call either Kaufman or Hurst to give testimony regarding any changes, if there were any, in the wages , hours and working conditions , after February 27, 1967, when they returned to work, over what they were before the strike began on August 8 , 1966. I can only conclude that if General Counsel had called them they would have testified adversely to him and have testified there were no changes. A P Products Company v. N.L.R.B, 316 F.2d 899 (C.A. 2), enfg. 137 NLRB 25. I do not credit the testimony of Beasley set out in this footnote. 15 Respondent has an industrial insurance contract with Aetna Life Insurance Company. It pays part of the premiums and the employees pay the other part. Respondent collects the part the employees pay by deductions from their pay. The striking employees made no payments during the strike and Respondent made no payments to Aetna. The insurance coverage like wages is part of employees ' earnings. The obligation to continue the converage , like the obligation to pay wages, ceased when the employees became strikers . Respondent's obligation to renew the coverage and resume payment of the premiums began at the same time its obligation to resume paying wages began. 16 The "Application for Employment " form has spaces for the insertion of name in full, address, age, birthday , sex, citizenship, position sought, names and addresses of former employers, number of persons supported , education , physical defects , weight, height, wages desired, and signature I credit Smith 's and Buzzard's testimony that the striking employees were asked to fill in only the spaces for name, address and telephone number, and the signature. I also credit Smith's testimony that the information was necessary to provide a current record of name, address and telephone number for Respondent's records. I credit Smith's testimony that new employees are required to fill out completely the Application For Employment form. 17Hockenberry testified that he asked Smith if he was going to let the scabs go who were working in the plant and place the strikers in their jobs, and Smith answered that he would keep the scabs as they had pulled them through. Hockenberry then testified that Smith said he would keep- both the replacements and the strikers. When asked if he and Smith used the term scab in their conversation , he said no that they referred to the replacements as the workers in the plant. Hockenberry testified that while he was talking to Smith he decided he did not care to resume employment at Respondent's plant, and would not go back. He also testified that he obtained employment at Reiter and Harter All Star Dairy . He did not disclose whether he had this employment when he talked to Smith, or obtained it thereafter. Smith denied he talked to Hockenberry about replacing anybody or about seniority . He testified that Plant Superintendent Buzzard made the work assignments. Smith also testified that when written requests for references came into the plant for the striking employees the replies made were , "They are on strike" or "presently on strike." Smith and Buzzard testified that the latter was in Virginia that weekend to attend a ceremony in which Buzzard 's son was to receive a commission in the Army. Hockenberry was the striker who on September 1,, 1966, at the end of the workday, lay down in front of the van containing the employees who had returned to work that day for the first time since the strike bagan, and was the employee who appeared to be about to ignite some paper, in the vicinity of the van , about the same time as the lying down incident. Hockenberry could well have decided that Buzzard would not have been pleased at his returning in view of his conduct on September 1. 18 The evidence shows that contrary to Hines' testimony, he did not obtain the letter sent to him on March 1 or 2 until March 7. However, he could have learned from the other letters sent on March 2 that the strikers were to contact Respondent not later than March 6. His testimony about the letter, however , does have a bearing on his credibility. 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the 20 striking employees, that they could have been employed in addition to those then working in the plant due to an increase in the volume of orders. They testified that Respondent would have taken all the strikers back with all the rights and benefits they had before the strike. Smith testified that Respondent reinstated all those who came to the plant to return to work, with prior rights and privileges. Kaufman and Hurst were reinstated on February 27, Butts on March 7, and Kircher on May 8. Kircher left without explanation on June 2, 1967. Butts quit on March 17, 1967, upon being asked by Buzzard if he did not think he ought to work as he was leaning against a post smoking a cigarette after being 22 minutes late. Smith testified that striker Kelly came back about September 1, 1966, and striker Austin about October 1, 1966, and that others no longer working for Respondent also came back during the strike. Smith also testified Gregory saw him on March 2, 1967, and asked him if he had overtime work, and he said no, and that Gregory never came back to the plant, that Spencer called on March 4 and said he was working and would like to give his employer 2 weeks' notice, and he gave him permission to do so, but he never came back to work; that he talked to Lamb 2 weeks before the hearing, and he said he would have to have at least $2.45 per hour, but Smith said Respondent could not pay more than the $2.31 it was paying; and that Pryor telephoned him on March 2, and asked him about seniority, and he replied that he did not know as the contract had expired, and Pryor said he would not be back. Buzzard testified that he talked to Hoppenberg on Friday, March 3, 1967, and gave him the form on which to insert his name, address and telephone number, and that after Hoppenberg inserted this information on the form he said he would be in Monday, but telephoned, Monday, Tuesday and a few days following Tuesday to say he was ill. He said he did not have a doctor, but was doctoring from the drugstore. He never did report for work. Buzzard testified that VanBremen came to the plant on March 8, and inserted his name, address and telephone number on the form given him, and said he would be back in a few days but never returned. He testified that on June 23, 1967, Myers asked for part time employment, but he told him Respondent did not have part time employment. He also testified that he saw Lamb on June 23 when Smith saw him, and that he said he had to have $2.45 per hour before he could return to work there. Smith and Buzzard testified that Buchanan, Daliere, Markel, Mumaw, Parker and Robinson never came to the plant looking for reinstatement. Smith testified that he saw Mumaw at the plant on May 29 talking to Kaufman, but that Mumaw merely greeted him and did not seek to talk to him. On cross- examination, Buzzard testified that Kelly was reclassified from ,Class B painter to Class A painter when he returned to work, and that Walter Austin was reclassified when he returned to work. He also testified that Hursh had been made a leadman before the strike. Smith testified that Respondent had always made reclassifications without consulting the Union. After Butts visited the plant on March 3, and stated he was ready to go to work, Smith, on March 7, sent him a letter in which he extended the last day he had to report for work from March 9 to 13. Butts, in Smith's letter of March 1, was given until March 6 to return to work, but when the letter was corrected in a letter of March 4, he was given until March 9 to report Butts reported for work on March 7, the day Smith sent the letter . After Spencer telephoned Smith on March 4, and stated he was ready to go to work, but would like to give the employer then employing him 2 weeks' notice , and Smith gave him permission to do so, Smith sent Spencer a letter extending his last day for reporting for work from March 6 to 20. Analysis, Credibility Resolutions, Findings, and Conclusions of Fact and Law I conclude and find that Respondent continued to refuse to furnish financial books and records and to meet and bargain on February 9 and thereafter notwithstanding Trial Examiner Donovan's order of April 12, 1967, adopted by the Board on June 13, 1967, requiring it to furnish the financial data and to meet and bargain with Respondent. Donovan decided, and the Board affirmed, that Respondent technically violated Section 8(a)(5) by the refusal to furnish the data and to meet and negotiate. Respondent continues to stand on the defense it made in that proceeding that it would be an exercise in futility to furnish the data and meet and bargain in view of the Union's conduct during the bargaining. The Union, according to Respondent, refused to negotiate except upon its own terms and by exercising constant pressure. Respondent further contends that this refusal to furnish data and meet and bargain are not properly before me as alleged unfair labor practices, but are confined to the proceeding which is Case 8-CA-4401, decided by the Board on June 13, 1967, and in which it seeks a review of the Board's order by a court of appeals. I find that Respondent's position has merit. The Respon- dent's refusal goes to the question of compliance with the Board's order of June 13, 1967. Any order which I would recommend and which the Board would adopt would be in the identical language of Trial Examiner Donovan's recommended order of April 12, 1967, which the Board adopted as its order on June 13, 1967. The administrative process should not be burdened by duplicates of the same thing. It is already overburdened by legitimate proceedings. I shall, therefore, recommend dismissal of the complaint insofar as it alleges a violation of Section 8(a)(5) of the Act because of these refusals." To have violated Section 8(a)(3) and (1) of the Act by refusing to reinstate unconditionally the Respondent would have to have the obligation under the Act to reinstate unconditionally. Respondent has this obligation if the strike was converted into an unfair labor practice strike, or Respondent did not permanently replace the strikers where the strike remained an economic strike. But whether an unfair labor practice strike or an economic strike without the permanent replacement of strikers, Respondent is not obli- gated to reinstate unless the strikers make unconditional offers to return to work. The Union as the agent of the employees may make the unconditional offer on their behalf. There is a presumption that the bargaining agent's offer is a bona fide one, and the offer stands as the offer of the employees unless the presumption is rebutted. It would be, for example, if evidence showed that the employees withheld from the 19See TXD in Quaker Tool & Die, Inc, 169 NLRB No 166. RYBOLT HEATER COMPANY 563 bargaining agent the authority to make the unconditional offer. Good-faith bargaining is the sincere cooperative effort of the bargaining parties to reach a mutually acceptable agree- ment. This concept does not allow for an attempt by the employees' bargaining agent to control the progress of the bargaining to prevent the employer from presenting effectively its bargaining position until the agent has failed to coerce the employer by picketing and other pressure to capitulate to its fixed and unchanging demands. In determining whether an employer has violated the Act by conduct related to conduct by a contesting union the Board and the courts have always looked at the union's conduct. A violation is not found where the employer's conduct under scrutiny has been caused by the Union's harassment or provocation.20 I find that the Union's Reeder was aware of the Respondent's financial condition before the bargaining began. Here was a small plant in a small locality with a small number of employees in the bargaining unit. These employees were known personally by Vice President Smith and Plant Superin- tendent Buzzard. From in-plant discussions and general awareness the employees, including those on the Union's negotiating committee, must have known that the Respondent return on net sales was approximately $288,980 less in 1965 than in 1964, that Respondent operated at a loss of $104,328 in 1965, and that it made up this deficit out of its capital assets. They certainly passed this information on to Reeder, the Union's chief negotiator. Reeder is an experienced negotiator who has bargained for many contracts with many companies. He would see that he had this information before the commencement of the bargaining. The issue of a wage increase was joined at the outset of the negotiations in June 1966. Respondent pleaded inability to pay any increase . The Union, however, did not request Respondent to furnish financial data to support its position of inability to pay. It was aware of Respondent's bad financial condition, but had decided to demand the wage increase anyway, and to engage in a strike and picket line activity in support of the demand. The employees voted to strike on July 28 and the vote was accepted as a recommendation by Reeder and Johns, the Union's district director. Respondent offered the revealing financial report on July 30 when it was informed of the strike action. Reeder arbitrarily refused to look at it.2 i He knew he would find it very difficult to call a strike after openly looking at the report and discussing it with Respon- dent, with the consequence of being on notice publicly of Respondent's inability to pay the increase, and the hardship it would suffer by a shutdown caused by the strike. Reeder surmised, however, what was in it, in view of the background he had of Respondent's financial condition and the latter's continuing position it could not afford an increase. So protected by his veil of innocence or lack of knowledge, and tactically expressing skepticism of Respondent's plea of inability to pay, he planned to go on with the strike. Respondent, as an inducement not to strike offered an increase 20 Republic Steel Corp., 9 NLRB 219, N.L.R.B. v. Indiana Desk Co, 149 F 2d 987, 995 (C.A. 7) enfg. and modifying 56 NLRB 76 and 58 NLRB 48, and NL.R.B. v Dadounan Export Co, 138 F.2d 891 (C.A. 2), denying enforcement of 46 NLRB 498. 21 While it is established that the employees' bargaining agent has a right to financial data to support the employer 's position of inability to pay a wage increase as soon as he requests it, there is no coronary to this it could not afford, as the report disclosed, but the Union was not satisfied with it and struck on August 8. The Union's picket line activity was intended to hamper production and prevent deliveries to customers. It closed the plant down until September 1, and hampered production and deliveries after that date. On August 22, at a meeting at which a Federal mediator was present, Respondent withdrew the increase. It stated that its financial condition aggravated by the strike and its consequences had made the offer impossible. Then on September 20, when the strike had failed to keep Respondent closed, Reeder sent a letter to Respondent in which he requested that it make available to the Union "for examination and study your books and records so that we might bargain intelligently on economic matters." He also stated that he was making the request because of Respondent's withdrawal of the offer of a 5-cent-an-hour increase on the ground of inability to pay, but did not concede the 5 cents offer was adequate. Now it can be argued that here was disclosure of a willingness by the Union to break the bargaining impasse that clearly existed between it and Respondent by reason of its fixed and unchanging demand for a wage increase, that the Union was revising its prior position and was ready to talk about wage increases in line with Respondent's ability to pay, and that it now wished to test the Respondent's position it could not pay, and to evaluate its financial condition with the view of making suggestions that would improve it. These are the objectives of the furnishing of financial information.22 On the other hand, Respondent's representatives could, in sincerity and truthfulness, have suspected that this request was just another device to place pressure on Respondent, and that it would be an exercise in futility to honor it. Respondent had been trying to discuss with Reeder its financial condition since the beginning of negotiations on June 24, and at the meetings of July 14, 28 and 30, and August 6, 13 or 14, and 22. On July 30, it offered an evaluation in depth of its financial condition which took considerable time, effort and expertise to prepare, and Reeder had summarily rejected it. Reeder just refused to look at it, and as he testified at the January 31, 1967, hearing, was not concerned with what was in it. On September 20, he was asking for the books and records which comprised Respondent's accounting and bookkeeping system "for examination and study," presumably to make an evaluation and study of them, and to prepare a financial report like the one Respondent was offering him.23 Was he personally to examine the books and records or was a financial consultant to handle this task? When was it to be done? How long was it to take? At the hearing on January 31, 1967, Reeder testified that in response to his September 20 request he expected an up-to-date financial report prepared by outside certified public accountants. He did not want Respondent's books and records. Moreover, at the January 31 hearing, he testified that he did not know whether the report submitted by Respondent on July 30 disclosed the information he testified on January 31 that he wanted. His only reply was that he wanted an answer to his September 20 request. Respondent could well have believed, in good faith, that Reeder did not right that the employer is estopped from offering the financial data in support of its position against the increase until it is requested by the emp2l2 yees' agent. Metlox Manufacturing Company, 153 NLRB 1388 , enfd. 378 F 2d 728 (C.A. 9). 23 Words are to be given their common and ordinary meaning absent evidence to the contrary 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD want anything, but was merely applying another form of pressure, and was not making a move to break the impasse which the Union had caused. For the reasons stated, I find that Respondent, refused in good faith to honor the September 20 request. I also find for the same reasons that Respondent in good faith decided that the request of the Union on November 10, 1966, to bargain, and the requests to bargain and furnish financial data on February 7 and 13, 1967, were merely pressure moves to continue the Union's fixed position to obtain a wage increase without regard for Respondent's ability to pay it, and that to I honor the requests would not break the impasse and lead to fruitful bargaining. I conclude and find that Respondent refused to bargain in good faith and not in bad faith. The Union, therefore, could not have passed on to employees any truthful information about bad faith bargaining by respondent that could have caused them to strike in protest against bad faith bargaining. I am of the opinion and so find that Respondent's technical refusal to meet or furnish data did not cause the employees to prolong the strike or strike in protest of this refusal. They and the Union knew Respondent's financial condition from the beginning. The employees were aware of the Union's adroit- ness in refusing to look into it by its arbitrary refusal of the financial report, and knew the Union's plan to seek a wage increase in spite of Respondent's financial condition. The employees, therefore, concluded that Reedler's request for financial books and records was just another pressure move, and could not have felt any resentment against Respondent for not responding to it. There is no evidence that the Union and the employees had decided on changing their position to seek a wage increase regardless of Respondent's financial condition, and, therefore, that the Union had a different basis for bargaining. They continued to believe that their success depended on their strike efforts to hamper Respondent's production and deliveries effectively enough to force Respon- dent to give the increase in spite of its financial condition. They continued to strike for this purpose. They recognized the futility of bargaining unless the Respondent had to capitulate to their demands. This point had not been reached. They, therefore, were not striking in protest because of the refusal to meet and bargain. I conclude and find that Respondent did not replace the strikers, and, therefore, had an obligation to reinstate them on their unconditional offers to return to work. The evidence undisputedly supports this finding, and needs no analysis. The Union's offer of February 24, 1967, to return the striking employees to work was a bona fide offer only for striking employees Kaufman and Hurst. They only told the Union's Staff Representative that they wished to return to work. They were reinstated on February 27, 1967, and were working at the time of the hearing on June 28 to 30, 1967. The others to whom Reeder talked stated to him they would make up their own minds. He had no communication with the remainder of the 20 strikers. The employees who returned to Respondent's plant to discuss reinstatement clearly disclosed they had not given the Union authority to make the unconditional offer. The presumption that the Union's unconditional offer to return to work on behalf of employees was made bona fide on behalf of the employees is rebutted,by the evidence. The one exception is the offer on behalf of Kaufman and Hurst. The offer was received by Respondent on February 25 and they were reinstated on February 27. I conclude and find that Respondent offered uncondition- ally to reinstate all employees who unconditionally applied for reinstatement. The deadlines for applying for reinstatement contained in Respondent's letters were not unreasonable. Respondent, in order to produce to meet a backlog of orders, .had to hire new employees in place of the strikers who did not wish reinstatement. Any employee who indicated he wished reinstatement, but could not report before or by the deadline date, was readily given an extension of time within which to return to work. There is no evidence that Respondent refused the em- ployees applying for reinstatement or who were reinstated any of the benefits under the prior contract. As stated supra I could not, and do not,_ credit the hearsay testimony to the contrary, when the employees (Kaufman and Hurst) were available to give direct testimony if it existed. Smith's testimony of what he said to Spencer raises some question about Respondent's retention of the seniority of the striking employees. However, Smith's categorical testimony that returning employees received the benefits they had under the old contract and the absence of any testimony to the contrary from General Counsel require me to reject the General Counsel's position that conditions were attached to reinstate- ment. I also find that the reclassification of Kelly and Austin without communication with the Union after they returned to work is not evidence of any misconduct by Respondent, in view of Smith's testimony that he never communicated with the Union in regard to reclassifications. I also find and conclude that the placing in effect of the no-solicitation rule on March 1, 1967, was not violative of Section 8(a)(1) and (5) of the Act. Respondent has a management prerogative to place a no-solicitation rule in effect if it is necessary for purposes of production or discipline and is nondiscriminatory. Respondent's rule applies to all solicita- tion, and it applies only during working hours. There had been a bitter strike lasting from August 8, 1966, to February 24, 1967. Beasley's testimony discloses that the strikers resented the retention of workers who were employed by Respondent during the strike. He referred to them as scabs. Respondent planned to keep the replacements and at the same time to reinstate the strikers. It was sound and necessary business for Respondent on March 1, 1967, to provide against disputes, disruptive of production and discipline, that might well have risen between the strikers and the replacements during working hours, on the return of the strikers, if the no-solicitation rule was not placed in effect. CONCLUSIONS OF LAW 1. Respondent Rybolt Heater Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondent's technical refusals on February 9 and 17, March 1 or 2, April 20, and June 15, 1967, to furnish financial data, and to meet and bargain, are matters not properly before me as unfair labor practices and are properly matters confined to Case 8-CA-4574 now awaiting disposition by a court of appeals. 3. Respondent has not violated Section 8(a)(3) and (1) of the Act by refusing to reinstate unconditionally the 20 striking employees named in the complaint, or by offering them reinstatement with conditions attached to its offer. RYBOLT HEATER COMPANY 565 4. Respondent did not violate Sections 8(a)(1) and (5) of the Act by placing a no-solicitation rule in effect on March 1, 1967, and maintaining it in effect thereafter. RECOMMENDED ORDER It is recommended that the Board issue an order dismissing the complaint in its entirety against Respondent Rybolt Heater Company.