Creutz Plating Corp.

Creutz Plating Corporation and Metal Polishers, Buffers, Platers and Helpers International Union, Local 68, AFL-CIO. Cases 9-CA-4069 and 9-CA-4300 June 21, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On March 11, 1968, Trial Examiner George Tu- ritz issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices, and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner 's Deci- sion. He also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended dismissal of those allegations. Thereafter the Respondent filed limited exceptions to the Trial Examiner's Decision and a supporting brief; and the General Counsel filed limited cross-exceptions to the Trial Examiner's Decision , and a brief in support thereof and in answer to the Respondent 's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with 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, cross-ex- ceptions, and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein. The Trial Examiner found that the Respondent violated Section 8(a)(3), (5), and (I) of the Act. We adopt these findings, to which no exceptions were filed. The exceptions relate only to the Trial Examiner's remedy and order. 1. We adopt the Trial Examiner's finding, to which no exceptions were filed, that the Respon- dent discriminatorily discharged Thomas Smith while he was on sick leave , in violation of Section 8(a)(3) of the Act. However, the Trial Examiner also found that it would not be appropriate to require the Respondent to offer Smith reinstate- See Schil! Steel Products, Inc, 161 NLRB 939, 941 , H. W Elson Bot- tling Company, 155 NLRB 714,7 15, enfd . as modified 379 F.2d 223 (C.A. 6). 172 NLRB No. 1 ment, because the Respondent, 6 months before the hearing, made and kept open a proper offer of reinstatement which Smith was then , and at the time of the hearing, physically unable to accept. We find merit in the General Counsel's exception to this finding. The Board has a particular duty under Section 10(c) of the Act to tailor its remedies to the unfair labor practice which has oc- curred and thereby effectuate the policies of the Act. Thus, depending upon the circumstances of each case , the Board must "take measures designed to recreate the conditions and relationships that would have been had there been no unfair labor practice."' Accordingly, we shall order that the Respondent offer Smith immediate and full rein- statement to the status he would now occupy had the Respondent not discriminated against him, without prejudice to his seniority and other rights and privileges.' 2. We adopt the Trial Examiner's finding, to which no exceptions were filed, that the Respon- dent unlawfully changed the established practice of checking off dues for employees who had signed authorizations for such deductions. The Trial Ex- aminer recommended that the Respondent reim- burse the Union for all dues it failed to deduct for and transmit to, the Union plus interest at 6 percent per annum. We find merit in the Respondent's ex- ception regarding its dues reimbursement obliga- tion, as some employees who signed authorizations might have voluntarily remitted dues to the Union after the Respondent's unlawful unilaterial action. Thus the Trial Examiner's remedy in this respect could result in a windfall to the Union, which would not effectuate the policies of the Act. Accordingly, we shall order that the Respondent reimburse the Union only for those dues which the Union did not receive as a result of the Respondent's unlawful failure to deduct and transmit them to the Union, plus interest at 6 percent per annum. 3. In view of the two discriminatory discharges, which go to the heart of the Act, and the other ex- tensive unfair labor practices in which the Respon- dent engaged, we find no merit in the Respondent's exception to the Trial Examiner's recommendation of a broad cease-and-desist order, and find such an order necessary and appropriate herein to protect employee rights and make effective the policies of the Act 3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor ' See Cranston Print Works , 117 NLRB 1834, 1844, enforcement denied on other grounds 258 F.2d 206 (C.A. 4) 3 See N.L.R B v. Entwistle Mfg Co., 120 F 2d 532 , 536 (C.A. 4). I 354-126 O-LT - 73 - pt. 1 - 2 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that the Respondent , Creutz Plating Cor- poration, Cincinnati , Ohio, its officers , agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Unilaterally changing hours of work, wage rates, sick leave privileges , checkoff practices not violative of law, grievance procedures, job classifi- cations, or other conditions of employment established by contract or otherwise , or granting bonuses, wage increases , or other economic benefits to employees , without first offering Metal Polishers, Buffers, Platers and Helpers International Union , Local 68, AFL-CIO, opportunity to negotiate concerning such matters. (b) Terminating a contract with the Union, or failing to continue in full force and effect all the terms and conditions of such contract , without of- fering to meet and confer with the Union for the purpose of negotiating a new contract. (c) In any other manner refusing to bargain col- lectively with the Union as the exclusive represent- ative of its employees in the appropriate unit with respect to rates of pay, wages, hours of employ- ment, or any other terms or conditions of employ- ment. The appropriate bargaining unit is: All production employees, excluding foremen, timekeepers , salaried employees, office employees, porters, shipping clerks, maintenance men, truckdrivers , and supervisors as defined in the Act. (d) Denying sick leave or work to , or discharg- ing, or otherwise discriminating against, employees because of their membership in, or activities on be- half of, the Union or any other labor organization. (e) Interrogating employees concerning their union membership or desires in a manner or under circumstances constituting interference , restraint, or coercion within the meaning of Section 8(a)( I ) of the Act. (f) Promising employees benefits if they refrain from becoming or remaining members of the Union or any other labor organization. (g) Urging employees to cease paying dues to the Union or any other labor organization. (h) Warning employees that it intends to disre- gard its contract with the Union and will rid itself of the Union. (i) Threatening employees that it will discon- tinue operations if the employees choose, or insist on retaining , the Union as their bargaining representative. (j) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which, it is found , will effectuate the policies of the Act: (a) Upon request , bargain collectively with the Union as the collective-bargaining representative of the employees in the appropriate unit, and, if an understanding is reached , embody such understand- ing in a signed agreement. (b) Forthwith reinstitute the prior practice of deducting union dues from employees ' wages and remitting them to the Union with respect to those employees who have authorized , or hereafter authorize , such deductions , unless such prior prac- tice is changed without violation of the duty to bar- gain. (c) Reimburse the Union for all membership dues it has not received as a result of the Respon- dent's failure to deduct and transmit dues to the Union since September 21, 1966, with interest thereon at 6 percent per annum , with respect to employees who have signed and authorized such deductions in writing. (d) Make Louis Goedde whole for any loss of earnings he may have suffered by reason of the dis- crimination against him in the manner set forth in the portion of the Trial Examiner 's Decision enti- tled "The Remedy." (e) Offer to Thomas Smith immediate and full reinstatement to the status he would now occupy had the Respondent not unlawfully discriminated against him, without prejudice to his seniority and other rights and privileges. (f) Notify Thomas Smith if he is presently serv- ing in the Armed Forces of the United States of his right to full reinstatement to the status he would now occupy had the Respondent not unlawfully dis- criminated against him , upon application in ac- cordance 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 personnel and payroll records and production records and all other data necessary to analyze and compute the backpay and reimburse- ment required by this Order. (h) Post at its office and place of business, cop- ies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Re- gional Director for Region 9, after being duly signed by Respondent 's representative, shall be posted by it immediately upon receipt thereof, and ' In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforc- ing an Order - CREUTZ PLATING CORPORATION 3 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 9, 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 dismissed insofar as it alleges violations of the Act not specifically found herein. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT change hours of work, wage rates, sick leave privileges , checkoff practices not violative of law, grievance procedures, job classifications , or other established conditions of employment without first offering Metal Polishers , Buffers, Platers and Helpers Interna- tional Union , Local 68, AFL-CIO, an opportu- nity to negotiate concerning such matters. WE WILL NOT grant bonuses, wage increases, or other economic benefits to employees, without first offering the Union an opportunity to negotiate concerning such matters to the full extent required by law. WE WILL NOT modify or terminate any con- tract with the Union, or fail to continue in full force and effect all the terms and conditions of such contract, without offering to meet and confer with the Union for the purpose of negotiating such modification or a new con- tract. WE WILL NOT in any other manner refuse to bargain collectively with the Union as the ex- clusive representative of our employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment . The ap- propriate bargaining unit is: All production employees, excluding foremen, timekeepers, salaried employees, office employees, porters, shipping clerks, maintenance men, truckdrivers , and su- pervisors as defined in the Act. WE WILL NOT deny sick leave or work to, or discharge, or otherwise discriminate against, employees because of their membership in or activities on behalf of the Union or any other labor organization. WE WILL NOT interrogate employees con- cerning their union membership or desires in a way or under circumstances that would restrain or coerce them. WE WILL NOT promise employees benefits if they refrain from becoming or remaining mem- bers of the Union or any other labor organiza- tion. WE WILL NOT urge employees not to pay dues to the Union or any other labor organiza- tion. WE WILL NOT threaten to discontinue our operations if the employees choose, or insist on retaining, the Union or any other labor or- ganization as their bargaining representative. WE WILL NOT warn employees that we intend to disregard our contract with the Union or that we will rid ourselves of the Union. WE WILL NOT in any other manner interfere with, restrain , or coerce employees in the exer- cise of their rights to self-organization, to bar- gain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purposes of collec- tive bargaining or other mutual aid or protec- tion, or to refrain from any or all such activi- ties, except to the extent that such right might be affected by an agreement requiring mem- bership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the National Labor Relations Act. WE WILL, upon request, bargain collectively with the Union as the collective-bargaining representative of the employees in the ap- propriate unit, and, if an understanding is reached , embody such understanding in a signed agreement. WE WILL forthwith reinstitute the prior prac- tice of deducting union dues from employees' wages and remitting them to the Union with respect to employees who have authorized, or hereafter authorize , such deductions in writing. WE WILL reimburse the Union for all mem- bership dues which it did not receive as a result of our failure to deduct or transmit dues to the Union since September 21, 1966, with interest thereon at 6 percent per annum , with respect to those employees who have signed authoriza- tions for such deductions. WE WILL make Louis Goedde, who has refused our offer of reinstatement, whole for any loss of earnings he may have suffered as a result of the discrimination against him. WE WILL offer to Thomas Smith immediate and full reinstatement to the status he would 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD now occupy absent the discrimination against him, without prejudice to his seniority and other rights and privileges. WE WILL notify Thomas Smith if presently serving in the Armed Forces of the United States of his right to full reinstatement to the status he would now occupy absent the dis- crimination against him , 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. CREUTZ PLATING CORPORATION (Employer) Dated By (Representative ) (Title) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 2407, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 684-3686. TRIAL EXAMINER'S DECISION GEORGE TURITZ, Trial Examiner: On charges filed in Cases 9-CA-4069 and 4300 by Metal Polishers, Buffers, Platers and Helpers International Union, Local 68, AFL-CIO, herein called the Union, and respectively served on October 6, 1966, and June 7, 1967,1 upon Creutz Plating Corpora- tion, herein called Respondent and, at times, the Company, the General Counsel of the National Labor Relations Board, herein called the Board, through the Regional Director for Region 9, on September 12, 1967, issued an order consolidating cases, consolidated complaint and notice of hearing against Respondent. Respondent filed its answer in which it denied all allegations of unfair labor prac- tices. A hearing on the consolidated complaint was held before me in Cincinnati , Ohio, on November 15, 16, and 28 and December 13 and 14, 1967. The General Counsel, Respondent, and the Union were each represented by counsel at the hearing, but counsel for the Union participated to a limited ex- tent except as a witness . The General Counsel and Respondent have filed briefs with me. Upon the entire record and from my observation of the witnesses I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is an Ohio corporation having its place of business in Cincinnati , Ohio, where it operates a job shop in which it plates metal articles belonging to its customers . In the course and con- duct of its business operations Respondent annually performs services valued at in excess of $50,000 upon products which it ships from its said plant directly to customers located outside the State of Ohio. It is found that Respondent is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act, as amended, herein called the Act. II. THE LABOR ORGANIZATION INVOLVED Metal Polishers , Buffers, Platers and Helpers In- ternational Union, Local 68, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues The principal issue litigated at the hearing was whether Respondent, by granting bonuses and wage increases unilaterally and by its conduct in negotia- tions, engaged in unfair labor practices in violation of its settlement agreement in Case 9-CA-4069. Other issues litigated were whether Respondent, in derogation of the Union's status as exclusive bar- gaining representative , unilaterally changed various established terms and conditions of employment, including wage rates and progressions , job classifi- cations, grievance procedures, working hours, sick leave and checkoff privileges, whether Respondent discriminatorily discharged and refused to reinstate two employees, and whether, in connection with its termination of the most recent contract, it failed to comply with the provisions of Section 8(d) of the Act. B. Presettlement Refusal to Bargain 1. Introduction Since approximately 1930 the Union and Respondent have had consecutive collective-bar- gaining agreements covering Respondent's produc- tion employees, excluding foremen, timekeepers, salaried employees, office employees, porters, shipping clerks, maintenance men, and truckdrivers. The most recent agreement, entered into as of January 1, 1964, expired December 31, 1966.2 ' The respective filing dates were October 5, 1966, and June 2 , 1967 1 G C. Exh 6. CREUTZ PLATING CORPORATION From 1956 to 1962 Respondent employed Mau- rice Green as its general manager. At that time the Union serviced the plant through Emanuel Wil- burn, a business representative. In January 1966, Wilburn, having become International vice pre- sident, was succeeded by Robert E. McManus as business representative servicing Respondent's plant. On February 28, 1966, Green returned to Respondent as general manager , president, and principal stockholder. 2. Grievance procedures McManus visited the plant twice prior to Green's takeover. He and Green met face to face for the first time on March 16, 1966, when McManus en- tered the plant to discuss a possible grievance with employees. Green told him that the contract prohibited union business on company time and he directed McManus not to go into the plant during working hours but to go to the office. The recogni- tion clause of the contract, article I, included the following: "The Union agrees that neither the Union, nor its members or agents , will solicit em- ployees for membership, or conduct the Union's business of any kind, on Company time or during working hours." McManus replied to Green that what he was engaged in was company business also, since it involved a grievance, which he had found to be without merit. Green invited McManus and the committeemen into the office, instructing the latter to punch out, a practice they thereafter followed. Green testified that during his 1956-62 employ- ment with the Company, union representatives discussed grievances with him in the office, and that when the discussions were held during working hours, employee committeemen participating punched out. McManus testified: "The past prac- tice has been by myself and my predecessor to make contact in the plant at any time without any discretion and there was no complaint by the management up until the 16th of March, 1966." Obie Messer, who had acted as union steward at various times since 1962, testified, without con- tradiction, that before Green's advent in 1966 the committeemen attending grievance meetings had never been required to punch out. It is found that the requirement the employee committeemen punch out for discussion of grievances with management represented a change from established practice. However, McManus' limited experience with Green 's predecessors, consisting of only two visits, was insufficient to prove that there was an established procedure allowing him unlimited and unannounced access to the plant, especially since at that time the predecessors were about to give up the business. It is found that the General Counsel has failed to prove that Respondent improperly de- 3 The General Counsel also proved that Respondent ordered McManus not to enter the plant to speak to Taylor, an employee, about his union dues. As dues collecting is a matter of internal union business, Respondent 5 nied the Union access to Respondent's premises for the purpose of processing grievances.3 3. Changes in classifications and contractual wage rates On April 4, 1966, at Green's request, McManus went to the plant to discuss a dispute Green had had with employees. McManus learned that em- ployees had been receiving helpers' wages but had been performing what he regarded as platers' work. He protested to Green and told him that Respon- dent was not paying the automatic increases called for by the contract, warning that the Union was "in a position to take any steps necessary to have him fulfill the contract on automatic increases." Shortly thereafter Green approached Messer, one of the committeemen, and asked what he was doing that. was wrong. Messer replied, "You got to go by the contract if you want to get along with the Union.... You got to get some platers ... and not be work- ing plater helpers as a plater and not pay them plater wages:" Green replied, "The hell with it. I won't have it." The wage schedule in article III of the 1964-66 contract set forth rates for the three following groups or categories of employees: (1) polisher- buffer journeymen; (2) plater journeymen; and (3) platers helpers and apprentices. Apprentices were to be selected from among the helpers. As to jour- neymen, only maximum rates were set forth, and the agreement provided for 5-cent-per-hour in- creases every 90 days until the maxima for jour- neymen were reached. The schedule also established a maximum rate for platers' helpers and apprentices for each year of the contract and further provided: Section 4. a. Starting rate of apprentice, effec- tive January 1, 1964, shall be $1.50 per hour with an additional 5 cents per hour increase every ninety (90) days until he reaches jour- neymen's maximum rates. b. Plater helpers starting at $1.50 shall receive five cents additional at the end of ninety (90) days; another five cents at the end of another ninety (90) days; and thereafter every ninety (90) days until the maximum rates for the jobs have been reached. Respondent's payroll and personnel records car- ried three employee classifications; namely, plater, racker, and buffer. Of the 29 employees at the time of the hearing only 1 was classified as a racker, and that was Respondent's only woman employee. Three former employees also were so listed, all women and all hired in October 1966. So far as is disclosed by the record, no employees were clas- sified as rackers prior to October 1966. Neither the was within its rights under the portion of article I of the contract quoted above. 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union nor Respondent carried any of the em- ployees as apprentices, and the record does not show that apprentices were employed. Up to 1966 Respondent did employ helpers, who did not work alone but only together with platers. At some time prior to April 1966 this practice was discontinued, and up to October 1966 when the female rackers were hired, all employees, as they acquired ex- perience, performed all, or most, types of opera- tions, sometimes alone and sometimes with another employee. Racking and material handling were done by the employees who did plating. Smith and Poland, testifying for the General Counsel, stated that there was no distinction among the platers-all did everything even when two worked together. However, Green testified convincingly and credibly that there was a substantial difference between setting up and running a plating line, with properly strenghtened solutions for the various baths and rinses and correctly set and timed current for the plating proper, on the one hand, and, on the other, merely running a plating line which a more skilled plater had set up. As of April 4 one employee was granted a wage increase of 11-1/2 cents per hour, one an increase of 5 cents per hour, and five others increases of ap- proximately 10 cents per hour; three of the latter five employees received additional increases on May 2. Thereafter Respondent gave increases to various employees at various times, usually, although not invariably, in the amount of 10 cents per hour. Increases had been granted previously also. The contract required 5-cent-per-hour in- creases every 90 days for all employees until the established maxima were reached, but the increases granted by Respondent in general bore no resem- blance to this requirement either as to amount or as to periodicity. With the possible exception of the "night shift differential," referred to below, the largest number of increases granted at one time, six, were given on September 5, 1966.4 4. Working hours In early June 1966, Green posted a notice stating that the hours of work, until then 7 a.nt. to 4 p.m., would be changed to 8 a.m. to 5 p.m. The contract provided for a normal workday of 8 consecutive hours, except for lunchtime, but did not specify the starting or quitting time. Green explained to the employees the need for the change, which was based on the fact that Respondent, as the operator of a job shop, had to make it feasible for customers to call and give orders in the morning before work started. He did not discuss the change with the Union. Employees objected to the change and a shop committeeman requested a grievance meeting with McManus, claiming that the change of hours was a violation of the contract. Green refused, say- ing that he had nothing to talk about to McManus on that subject. These facts were reported to Mc- Manus who did nothing because of Green's refusal to discuss the matter. The management clause of the contract included the following: "the schedule of production, methods, processes, and means of manufacture, are solely and exclusively the right and responsibility of the Company." 5. Sick leave On September 21, 1966, Respondent wrote to Louis Goedde and Thomas Smith, employees who were absent with permission because of disabilities, informing each that he was not "eligible for rehire because of medical reasons" and terminating his employment as of that date.' They had been absent from work approximately 4 weeks and 3 months, respectively. The contract provided in article V, section 3, that employees were not to lose their "seniority status" by reason of sickness or injury, provided that they returned to work within a year after the inception of such sickness or injury. It is found that the termination of the employment of Goedde and of Thomas Smith represented a depar- ture from conditions of employment established by the contract. 6. Checkoff The 1964-66 contract contained a union-shop clause but did not provide for a checkoff. Nevertheless, Respondent continued the practice of many years' standing of deducting union dues from the pay of all employees and remitting them to the Union. On September 21, 1966, Respondent wrote to the Union as follows: "This is to inform you that we are no longer running a checkoff for dues. This is effective immediately. 'g Respondent had not previ- ously proposed discontinuance of the checkoff or discussed it with the Union except to the extent that in July 1966, when McManus was at the plant to discuss a grievance, Green had remarked that the dues withholding was not required by the con- tract. A committeeman had replied that there had been an oral agreement with the Company for a checkoff. On the payday following September 21 each employee received two checks, one for the amount of union dues and the other for the balance of his net pay. Stewart, the plant superintendent, said, as he handed the checks to Charles Poland, "You pay your dues down at the union hall from now on. We quit taking it out." Poland encoun- tered Green standing near three or four other em- ployees. Green asked, "What are you going to do with this check; give it to McManus?" When Po- land said that he would pay his dues Green said he should spend it on himself. Poland had joined the ' The recipients were Begley, Helton, Sharp, Martin, Kalbfell, and Carr G C Exh 3 5 G C Exh 12 and 15 CREUTZ PLATING CORPORATION Union upon his employment and had signed an au- tomatically renewable dues deduction authorization on January 9, 1965.' Stewart handed Edgar Smith two checks on that occasion, one of which, in the amount of $6, had inscribed on it, "refund of Sept. Union dues,"8 and said, "Here's the union dues check. If you want to pay your dues, then you're going to have to pay them yourself. We're going to quit checking them out." Smith, an employee and union member for 20 years, had never signed a checkoff authorization, but his dues had always been checked off by Respondent and paid over to the Union. In addition to Poland, only seven em- ployees were shown to have signed checkoff authorizations.' On September 27 counsel for the Union wrote to Respondent stating, inter alia, that the dues checkoff which Respondent had discontinued had been a practice for a great number of years, and requesting its continuance as in the past.' 7. Refusal to recognize or meet On October 3, 1966, Respondent filed a petition for an election in Case 9-RM-461, and on October 4 wrote to the Union electing not to renew the agreement." In October 1966 Stewart, the plant su- perintendent, remarked to Edgar Smith that he wished Smith were like the others, but Smith in- sisted that he was for the Union. Stewart com- mented, "Well, if the Union wins, you'll lose. You'll come to work in an empty building." On October 5, 1966, the Union filed the charge in Case 9-CA-4069 , alleging , inter alia, a refusal to bargain in violation of Section 8(a)(5) of the Act. On November 1 the Union wrote to Respondent stating, inter alia , that it was ready to begin negotia- tions for a new contract at any reasonable time and place and requesting a reply.12 Respondent replied on November 23, stating that it had "a good-faith doubt that Local 68 represents the majority of the employees in the bargaining unit," that a represen- tation petition was pending with the Board, and that it would not enter into negotiations until the question of representation was resolved. 8. The Christmas bonus Shortly prior to Christmas 1966 Respondent paid a bonus to each employee amounting to 1 week's pay for employees employed 1 year or longer and proportionate amounts for those employed less than 1 year, with a minimum bonus of $20 to each employee. Respondent did not notify the Union of its intention to make the payment. At Christ- Resp Exh 6 "GCExh8 Of the eight authorizations in evidence , six were to become effective during 1965 The other two, which were undated-Rcsp Exh 4 and 7- were signed by employees hired during 1966 11 G C Exh 20 7 mastime in previous years Respondent had given employees hams, turkeys, or $5 gift certificates, ex- cept on one occasion in 1957 or 1958, when the gift certificate was $20. In view of the substantial difference in amount or value from the Christmas gifts in prior years, and of the basis on which the bonus was computed, it is found that the 1966 Christmas bonus represented wages and that the payment was an innovation. C. Promises of Benefit On April 4 , 1966, the day of McManus ' visit, Green approached Goedde, one of the stewards, and told him that at another plant he owned em- ployees had life insurance at a cost to them of only $5 per month which , he pointed out, was $1 less than the monthly dues to the Union . In the first part of June 1966 Messer told Green that he was leaving for another job where wages were higher . Green ar- gued that he furnished gloves and uniforms to the employees and he said that he was going to try to get insurance for them in the amount of $5,000 or $ 10,000 to be paid for by Respondent. Thomas Smith testified that in the spring of 1966 he overheard Green remark to Stewart "that it's the lousiest, lousiest union he had ever seen and he would pay .... more than union wages to get rid of it." Green denied the incident convincingly and it is found that the remark was not made." D. The Settlement Agreement On December 28, 1966, the Regional Director dismissed the petition in Case 9-RM-416 and is- sued a complaint in Case 9-CA-4069, alleging, inter alia, a refusal to bargain in violation of Section 8(a)(5) of the Act. On January 3, 1967, the Union wrote to Respondent calling attention to the dismis- sal of the representation petition, repeating a request for information it had made in December without success, and requesting Respondent's preference as to the time and place for negotiating a new contract. Kennedy, Respondent's attorney, contacted Hirsch, who represented the Union, about January 25, 1967, with a view to settle the unfair labor practice charge. A settlement agree- ment was signed on March 1, 1967, and approved by the Regional Director the next day.14 The settle- ment agreement provided, inter alia, that Respon- dent would: bargain collectively upon request with the above named union as the exclusive represent- ative of all employees in the bargaining unit described herein with respect to rates of pay, 'GCExh5 G C Exh 21 " In view of this finding it will be unnecessary to pass on the question of whether Green's remark to his superintendent, if made in the circum- stances described, would have been violative of the Act 11 G C Exhs 2A and 2B 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hours of employment or other conditions of employment, and with respect to changes heretofore made regarding dues checkoff for union membership dues , and hours of employ- ment , and if an understanding is reached, embody such understanding in a signed agreement. . At the time the settlement agreement was executed Kennedy acknowledged the Union 's demands for negotiations and promised to furnish the requested salary data as soon as possible, which he did on March 14.'s E. Postsettlement Refusal To Bargain 1. The negotiations a. General On March 8 the Union sent Respondent proposals1e and on March 24 , in conformity with a request by Kennedy, submitted proposals in the form of a virtually complete contract .' Kennedy in- formed the Union that he would confer with his client about the proposed contract. On April 7 Kennedy wrote to Hirsch assuring him that if any statements had been made to the effect that a Board election would be necessary or that the Company would refuse to recognize the Union, the management of the Company disavowed them. He proposed a negotiating meeting for April 18. Hirsch agreed to that date , but at Kennedy's request the first bargaining session was postponed for 2 days. On April 10, 1967, Kennedy sent Hirsch a proposed contract complete except as to term and "economic issues" other than overtime. The General Counsel has called attention to the follow- ing features of Respondent's proposed contract: (a) Whereas the settlement agreement and the prior contract had defined the unit as "all production employees of the employer ," with certain exclu- sions Respondent's proposed contract, while main- taining substantially the same exclusions, designated the included employees as, "journeymen polishers and buffers, journeymen platers, and operators . . . ." ( b) Article IV set forth a main- tenance-of-membership provision in section 1, but section 2 provided that any employee-member could be relieved of his membership obligation by giving written notice to the Union 10 days prior to the first day of any calendar quarter. (c) Article V, which established a checkoff revocable at any time, provided that the current amount of union dues was not to be changed during the term of the agree- ment. (d) Article V also provided that Respondent was not to be responsible for negligence or inadver- tence in failing to check off or remit dues . (e) Arti- cle VI was described by the General Counsel as "an unlimited management rights clause." Prior to the opening of the hearing bargaing ses- sions were held on the following nine dates, all in 1967: April 20 , May 9 and 18 , June 1 , August 2, September 14 and 22, and October 3 and 25. Four of the meetings-those of May 18 , June 1 , and Sep- tember 14 and 22-were held on the dates originally agreed to . The meetings on April 20, May 9, and October 3 and 25 were held 2 , 12, 5, and 8 days, respectively, later than originally agreed to, the postponement in each case having been requested by Respondent . Following the June 1 meeting the parties arranged to hold the fifth meet- ing on June 9 , subject to confirmation . On June 8, for apparently valid reasons , Respondent requested a postponement, which Hirsch agreed to. When it came to fixing a new date , however , difficulties arose, primarily, though not exclusively , because of the successive vacations and other absences of the union negotiators , and the fifth meeting was ulti- mately held on August 2. After the opening of the hearing discussions about the contract , mostly by Kennedy and Hirsch , were considerably more frequent. Some differences were resolved, but final agreement was not reached. b. Wages The subject of wages was first broached at the third meeting, held on May 18 , 1967, when the Union submitted a proposed wage schedule. After extensive discussion Kennedy said that "he would not be inclined to discuss wage proposals at this time in view of the fact that it did not complete the economic cycle . . ."; and after still more discussion Green commented that he felt that all time involved in negotiations with a union was wasteful and un- productive, and that he could be more profitably engaged in selling his product. When Green made the above comment, Kennedy immediately interposed that Green was not serious and that the company representatives would stay and negotiate as long as necessary . However, within I or 2 weeks Green assembled the employees and told them that he had been doing pretty well and wanted to share part of it with them . On May 31 each employee received a check designated " Fiscal year-end bonus." Employees with at least 1 year's standing received 1 week 's pay; those with less, proportionate amounts . Respondent had not previ- ously paid fiscal yearend bonuses or, except for the Christmas 1966 bonus, anything similar. In the latter part of May an employee filed a decertification petition in Case 9-RD-418. At the fourth meeting , held June 1 , the Union suggested that wages and economics be discussed at the next meeting. Kennedy objected , saying that the Com- pany must first be assured of a reasonable level of production by defining "law and order." The next day, June 2, the Union filed the charge in Case " G.C Exhs 3IAand3IB " G C Exh 32B. 16G. C Exh.29. CREUTZ PLATING CORPORATION 9-CA-4300 and also moved to dismiss the petition in Case 9-RD-418. In the latter part of June or the first part of July 1967 Respondent delivered to employees checks for various sums of money. Poland recalled that he had gone on vacation on July 15, 1967, and had received his check 2 or 3 weeks before; and the testimony of Poland and of Edgar Smith was to the effect that there was general talk in the plant about these checks and that other employees received similar checks during the same period . Poland's check stub read as follows:18 "5 percent of $1995.28 = Loan ... amount $99.76, net amount $99.76." Smith's check stub read:19 "5 percent of $4507.21 paid thru 11/2/67-Loan .. . amount $225.36, net amount, $225.36." Poland and Smith both testified that they had heard from other em- ployees that checks for "the 5 percent" were available, and that they had gone to Harrison Stewart, the plant superintendent, and asked if they could get the "5 percent." Poland testified that Stewart replied, "Why sure ... it belongs to you .. . it's just lying there waiting for you ... it will be on your next check." Smith testified that Stewart said, "Sure," and promised to tell the bookkeeper. Smith learned from the bookkeeper that Stewart had failed to tell her; but she immediately, without inquiring, offered to get Smith his check that same day. He received it, at his own request, the day be- fore payday. Smith and Poland both testified that they noticed the word, "loan," on their check stubs. However they testified further that nothing was said by Stewart or any other representative of management to the effect that the money represented a loan, nor about repayment; and they said that they had not requested loans, had made no repayment, and did not understand that the checks represented loans.20 There was no evidence that Respondent at any time made demand for repayment. At the fifth meeting, held on August 2, Wilburn said that the negotiations were taking too long and he suggested considering a contract like the old one, but subject to modification as to wages. Green refused, saying that he wanted to work out a con- tract "denoting the fundamental agreement . . . ." On September 14, at the sixth meeting, Respondent offered a 5-percent wage increase effective January 1, 1967. The Union accepted the increase "in prin- ciple," stating, however, that this would depend on the method of computation of the 5 percent and also that progression schedules would be required. At the seventh meeting, held September 22, Respondent stated that it would have no objection G. C. Exh. 7. G. C. Exh. 11. Smith testified that he thought it was a 5-percent wage increase; Po- land testified that men in the plant said it was a 5-percent increase that Green had offered but had not been accepted by the Union and that the money had been kept by Green in a separate account . Neither witness testified that any member of management had told him anything to this ef- fect. 9 to the progressions so long as there was a specific definition of the jobs in each of the two classifica- tions. Those matters were not finally agreed on prior to the opening of the hearing. At some time not established in the record Respondent instituted a night-shift differential of 5 cents per hour not called for by the contract.21 Eight employees were receiving it at the time of the hearing. Green testified that there had always been such a differential and he denied Hirsch's testimony that during the negotiations Green asserted that a night-shift differential was not being paid. The record does not disclose the periods when the night shift was worked, nor does it show the dates when the employees affected first received the dif- ferential, except to the extent that in each case it was subsequent to the date of his last wage in- crease. These dates range from September 1, 1966, for Colwell to October 30. 1967, for Oscar Strong.22 I credit Hirsch's testimony and, on the basis of Green's admission during the negotiations, find that the differential was instituted at some time during the 1967 negotiations. While the Union de- manded a night-shift differential, no agreement on that point was reached during the bargaining. c. Contract term The Union's contract proposal included a provi- sion that the contract be retroactive to January 1, 1967, and that the term be 2 years. Respondent withheld any provision as to term from its April 10 contract proposal. At either the August 2 or Sep- tember 14 negotiating meeting Respondent proposed that the contract be retroactive to Janua- ry 1, 1967, and that it expire on December 31, 1967. On September 22 the Union proposed as an expiration date December 31, 1968. Respondent proposed February 29, 1968, arguing that that would amount to 14 months from the effective date of the contract. On October 3 Kennedy commented that the basic problems were union security and contract duration. Stating that he was not making a commitment, he offered to consider a 1-year con- tract if offered in conjunction with a union-security provision containing an escape clause. After the opening of the hearing Kennedy and Hirsch came to agreement that the contract, if reached, would be for 1 year. F. Conclusions as to Failure To Bargain Unit and Majority: As alleged and admitted in the pleadings, it is found that all production employees 21 A note on G. C. Exh. 40, which was prepared by Respondent and set forth certain payroll information , states that the asterisk next to the rate of pay for each of the employees in question "Indicates 05 cent Rate In- crease-2nd shift- Night Differential-." " G. C. Exh. 40 also shows an asterisk next to the 10-cent increase granted Colwell at some time between February 28 and April 4, 1966. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Respondent, excluding foreman, timekeepers, salaried employees, office employees, porters, shipping clerks, maintenance man, and truckdrivers constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. Respondent has ad- mitted that since approximately 1930 the Union has negotiated consecutive bargaining agreements covering the employees in the appropriate unit, the most recent such agreement granting the Union ex- clusive recognition having been entered into on January 1, 1964, with an expiration date of December 31, 1966. These facts establish a pre- sumption of continuing majority which Respondent has failed to rebut. See Shamrock Dairy, Inc., 119 NLRB 998, 1002. It is found that at all times material and, more particularly, at all times during the years 1966 and 1967, the Union has been, and it now is, the exclusive bargaining representative of the employees in the appropriate unit. 1. Violation of the bargaining provisions of the settlement agreement By paying employees the "fiscal year-end bonus" on May 31, 1967, Respondent granted the equivalent of a wage increase of almost 2 percent. As the bonus was not even announced to the Union, the refusal to negotiate about it in violation of Section 8(a)(5) is plain, even apart from any question of whether Respondent had a good-faith intention of reaching agreement with the Union. N.L.R.B. v. Benne Katz, d/b/a Williamsburg Steel Products Co., 369 U.S. 736. However, at the negotiating session of May 18 Respondent had cut off discussion of wage proposals as premature; and at the June 1 session it rejected the Union's sug- gestion that wages be discussed at the following meeting. By doing unilaterally what it refused to consider doing through collective bargaining with the Union, Respondent, in violation of Section 8(a)(5), acted inconsistently with the principles of collective bargaining and forcefully disclosed its lack of good faith in the negotiations . N.L.R.B. v. Crompton-Highland Mills, Inc., 337 U.S. 217, 221. See also N.L.R.B. v. Katz, supra, 745. As to the 5-percent payment to the employees in June or July, it is noteworthy that no employee requested a loan; nothing was said or done about repayment, either before or after the transaction; the checks were delivered routinely and for the ask- ing, with no explanation or claim by the employees of any need; and Stewart told Poland, "It belongs to you. . . ." The legend, "loan," on the check stubs was thus sharply contradicted by the undenied evidence as to actions of Respondent of such na- ture as to cause the employees reasonably to as- "The same considerations would apply if the transactions had been loans rather than payments These were not small loans of the type that em- ployers often make to needy employees in advance of payday , but were sig- nificant in amount and would have represented a substantial benefit even if subject to repayment sume that the money would not have to be repaid, especially since the occurrence took place in a period of generally rising wages. It is therefore found that the 5-percent checks were wage pay- ments to employees and not loans. As in the case of the fiscal yearend bonuses, these wage increases were granted unilaterally and were thus made in violation of Respondent's duty to bargain, irrespec- tive of Respondent's motive or good faith; and as the payments were made at a time when Respon- dent was refusing to discuss wages with the Union, they disclosed, further, Respondent's purpose of undermining the Union and of not engaging in the negotiations with the good-faith intention of seek- ing to reach agreement, in further violation of Sec- tion 8(a)(5) of the Act." While the Union proposed a night-shift dif- ferential during the negotiations, no agreement on that subject was reached, and, more to the point, there never was any agreement, tentative or other- wise, that it be placed into effect.24 By granting the eight employees on the night shift the 5-cent-per- hour increase in pay, therefore, Respondent further violated Section 8(a)(5).25 Respondent's insistence up to the opening of the hearing that any contract entered into expire on February 29, 1968, was further evidence of its bad faith in the negotiations and violative of Section 8(a)(5) of the Act. Under the March 2 settlement agreement Respondent had been obliged to recog- nize the Union as the exclusive representative of the employees for a reasonable time. Poole Foundry and Machine Company v. N.L.R.B., 192 F.2d 740 (C.A. 4), enfg. 95 NLRB 34, cert. denied 342 U.S. 954. While the settlement agreement was set aside upon issuance of the complaint on September 12, 1967, Respondent's position in this proceeding is that the action of the Regional Director was not justified, and that at all times since the settlement agreement it has been according to the Union full recognition as statutory bargaining representative of the employees. Respondent's proposals for a contract expiring December 31, 1967, less than a year after the settlement agreement, or for a con- tract expiring February 29, 1968, were inconsistent with good-faith bargaining. Section 8(d) of the Act required Respondent to execute a written contract incorporating any agreement reached. That requirement would have little meaning if Respon- dent could insist that the written contract not run for a reasonable time after such reaching of agree- ment. See Insulating Fabricators, Inc., Southern Division, 144 NLRB 1325, 1329-30, enfd. 338 F.2d 1002 (C.A. 4). Distinguish Lloyd A. Fry Roofing Company, 123 NLRB 647, 649, where the em- ployer's position was based upon the admitted fact that a majority of the employees had signed a peti- t' The "ground rules" agreed to at the start of the negotiations provided that agreement on any proposal be tentative and conditioned upon ultimate agreement on a contract as a whole "See N L R.B. v Katz, supra, 736 CREUTZ PLATING CORPORATION 11 tion requesting decertification of the certified labor organization then representing the employees. By the above violations of Section 8(a)(1) and (5) of the Act Respondent contravened its un- dertaking in the settlement agreement to bargain with the Union as the exclusive representative of all employees in the unit. It is found that the Regional Director's setting aside of the settlement agreement was proper. 2. Presettlement refusal to bargain On March 16, 1966, 2 weeks after he had taken over, Green ordered that stewards, contrary to the established practice, punch out when discussing grievances with Respondent . Section 8(d) of the Act specifically requires employers to negotiate any question arising under a collective agreement, i.e., grievances, and the procedure for such negotiation is a mandatory subject of bargaining. See Bethlehem Steel Company, 146 NLRB 1500, 1502, enfd . 320 F.2d 615, 620 (C.A. 3). Once established , whether by express agreement or by practice , such procedure may not be changed without bargaining . As the subject of pay for com- mitteemen was not dealt with in the contract, Respondent could have proposed to the Union that the practice be changed and if, after bargaining about it in good faith , an impasse was reached, it could have changed the practice without the Union 's consent. Respondent, however, did not ac- cept the orderly processes of collective bargaining and simply imposed its ideas unilaterally , thereby violating Section 8 (a)(5) of the Act. See Granite City Steel Company, 167 NLRB 310. Respondent also violated the Act by unilaterally changing the established times for beginning and quitting work, plainly a condition of employment and a mandatory subject of bargaining, and it even refused the Union 's request to discuss the matter. By waiving its right to bargain as to "the schedule of production " in the management clause of the contract the Union did not waive its right to bargain as to starting and quitting times . Respondent also unilaterally changed the established practice of checking off dues . While such change was proper and not violative of the Act insofar as it affected employees who had not signed authorizations for such deductions, it was violative of Respondent's duty to bargain with respect to the employees who had signed authorizations. The timing of the discon- tinuance of the checkoff 2 weeks before Respon- dent filed the petition in Case 9-RM-641, and the manner of the discontinuance-i.e., giving the em- ployees separate checks for the dues, urging Poland, notwithstanding the union membership requirement of the contract, to spend the dues money on himself, and the indiscriminate treatment of those who had and those who had not signed checkoff authorizations-warrant the inference that Respondent's purpose and motive were not to come into compliance with Section 302 of the Act but rather to undermine the Union's status as bargain- ing representative of the employees.211 Respondent further took it upon itself to change conditions of employment specifically dealt with in the contract. On September 21, 1966, it removed Thomas Smith and Goedde from the payroll because of illness in the face of the express contrac- tual provision requiring their retention as em- ployees with seniority for a period of 1 year after the inception of their illness . It even changed the entire wage-progression and job-classification struc- ture which was so important a part of the contract. The parties had worked out a system for the orderly training and advancement of platers to journeyman status at a pace regulated by the contract. This mu- tually agreed on scheme was completely disre- garded by Green, who unilaterally instituted a system whereby he determined the employees' rate of advancement. The record is not clear as to the manner in which the old system of having platers work with helpers was discontinued, but the only evidence available is that it took place in 1966 and prior to April. There is no evidence of waiver by the Union of the contractual requirements in this respect, nor of the requirement for periodic auto- matic wage increases in the amount of 5 cents per hour. Nor is there evidence or other indication that what Respondent did was pursuant to its good-faith interpretation of an ambiguous contract . It is there- fore unnecessary to consider the question of whether it would be better policy that this issue be treated as a mere contract violation, preferably by a court or arbitrator, rather than as a violation of Section 8(a)(5) of the Act. Respondent was not in- terpreting or misinterpreting the contract; it was simply disregarding it and changing the established conditions of employment in violation of Section 8(d) and 8(a)(5). Distinguish United Telephone Company of the West, 112 NLRB 779, 781. Respondent's outright refusal on November 23, 1966, and at all times thereafter until March 1, 1967, to meet with the Union was in further viola- tion of Respondent's duty to bargain set forth in Section 8(a)(5). Indeed , Section 8(d) makes plain that Respondent had the affirmative duty under Section 8(a)(5) to offer to meet and confer with the Union for the purpose of negotiating a new con- tract when, on October 4, 1966, it terminated the old one, a duty which Respondent made no pretense of carrying out. Emphasizing its nonrecog- nition of the Union and its purpose to induce the employees to abandon the Union, Respondent paid the employees a Christmas bonus amounting to al- most 2 percent of their wages, an unprecedented action and the equivalent of a wage increase, without discussing the matter with the Union. _" For this reason it is unnecessary to meet the question of whether, if Respondent 's purpose had been to come into compliance with Section 302, it might properly have discontinued the entire practice rather than only the unlawful part 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD These conclusions are not affected by the pendency of Respondent's petition for an election filed on October 3, 1966. It was ultimately determined that there was no valid question concerning representa- tion, and it is found elsewhere in this Decision that Respondent had previously violated its duty to bar- gain, discriminatorily discharged employees, and engaged in other coercive conduct. It is plain that in withdrawing recognition and filing its petition Respondent was not motivated by lawful considera- tions but was seeking to destroy the Union 's majori- ty status. It is well established that an employer's duty to bargain is not suspended by the filing of a representation by the labor organization represent- ing the employees. Mid-west Towel & Linen Service, Inc., 143 NLRB 744, 753, enfd. 339 F.2d 958 (C.A. 7). A fortiori Respondent's own petition gave it no immunity for failing to bargain during the time spent by the Regional Director in ascertaining the facts bearing upon the invalidity of the question concerning representation. See Flambeau Plastics Corporation, 167 NLRB 735, Trial Examiner's Decision, adopted by the Board. It is found that by the above-described conduct prior to the settlement agreement Respondent vio- lated Section 8(a)(1) and (5) of the Act. The complaint, in paragraph 10(a), alleges a threat of reprisal because an employee had filed a grievance . On April 1 Lanham and a commit- teeman told Green that Lanham 's back hurt because his work was too heavy. Green told him to rack as few pieces at one time as necessary to avoid undue strain . After trying this Lanham reported that his back still hurt and, with Green 's permission went home. Green told the committeeman that he would save the work Lanham was supposed to do for his return , and would give him all the dirty and heavy work that came in. The General Counsel contends that this was a threat of reprisal for filing a grievance . To the Trial Examiner the sequence of events indicates rather that Green objected to Lan- ham's having gone home even though told to work at his own pace . Lanham did not purport to leave pursuant to any provision of the collective contract, and there is no other basis on which it can be found that Green's threat related to any collective activity or that it represented an attempt to undermine the Union as bargaining representative of the em- ployees. Distinguish N.L.R.B. v. Interboro Contrac- tors, Inc., 388 F.2d 495 (C.A. 2), enfg. 157 NLRB 1295. The General Counsel contends that Respondent failed to notify the Federal Mediation Service and the appropriate State agency of its termination of the 1964 contract . The General Counsel proved that the Union had not been notified that such notices had been sent but he failed to prove that the agencies themselves had not been notified. The General Counsel contends that certain of the con- tract clauses proposed by Respondent evidence its bad faith in the negotiations . Respondent's attempt to have the bargaining unit defined differently from the unit description in the settlement agreement and the old contract was not improper . Respondent at no time attempted to exclude any "production employee" from the unit; it merely attempted to define the classifications of employees, a mandato- ry subject of bargaining, and, in the circumstances of this case, an especially appropriate one. The maintainance-of-membership provision proposed by Respondent would have been effectively negated by the clause allowing employees to withdraw from the Union at each calendar quarter . However, Respondent was not required to agree to a union- security clause at all . The fact that it started out with an ineffective clause which could be bargained up to one acceptable to the Union does not neces- sarily indicate bad faith. Respondent's insistence upon its proposal that dues not be increased during the term of the contract would be arguably im- proper if the proposal were to be considered only as part of the checkoff provision, where it was placed, since internal union affairs are not a man- datory subject of bargaining. However, the checkoff, as is usually the case, was to be included in the contract to implement the provision requir- ing union membership as a condition of employ- ment. See Bedford Can Manufacturing Corp., 162 NLRB 133, and Penn Cork & Closures, Inc., 156 NLRB 411, enfd. 376 F.2d 52 (C.A. 2). When an employer is asked to make payment of dues a con- dition of employment, he may properly require, as a condition for his consent, that the amount of such payment not be increased during the term of the contract. Respondent, if acting in good faith, could also insist upon the further condition that it be ab- solved of liability for negligence or inadvertence in connection with the checkoff since it could reject the proposal altogether . See McLane Company, Inc., 166 NLRB 1036, fn. 2. Finally, the manage- ment-rights clause proposed by Respondent was by no means "unlimited" as contended by General Counsel. Respondent did include in its proposed contract provisions fixing various conditions of em- ployment which to a material extent placed limita- tions upon Respondent's right to manage its plant. The General Counsel also contends that Respon- dent unduly delayed the negotiations. A party to collective bargaining is not absolved from responsi- bility for delays because its opposite , after making efforts to expedite the negotiations, ultimately agrees to requested postponements. See Insulating Fabricators Inc., 144 NLRB 1325, enfd. 338 F.2d 1002 (C.A. 4). However, so far as the record shows, almost all the meetings were scheduled and postponed by mutual agreement, with the parties taking into account each other's commitments. Ex- cept with respect to the second meeting , ultimately held on May 9 but originally scheduled for April 27, the General Counsel has not established that the Union protested any of the postponements requested by Respondent. Kennedy's taking the time to draft a lengthy proposed contract before entering into discussions cannot be said to have CREUTZ PLATING CORPORATION been a dilatory method of negotiation . Indeed, to have submitted Respondent's proposals piecemeal during the negotiations might well have resulted in greater delay than occurred . It is found that the General Counsel has failed to establish that Respondent refused or failed to meet with the Union at reasonable times . Finally, I do not find evidence of bad faith in the nature of the discus- sions engaged in by Respondent considered alone, as distinguished from their consideration in con- unction with Respondent 's conduct away from the bargaining table. G. Conclusions as to Threats, Promises of Benefit, and Interrogation Green's statement to Messer , referring to the contractual requirements for classifications and wages, "The hell with it. I won't have it," disclosed to the employees that the guaranteed right to bar- gain collectively would not be respected by Respondent. The remark was therefore coercive. His interrogation of Poland at the end of September 1966 as to whether he was going to continue to pay dues to the Union was plainly not for the purpose of obtaining legitimately needed information con- cerning compliance with the union-security clause of the contract or any other matter; he urged Po- land at the same time not to pay the dues but to spend the money on himself. See Blue Flash Ex- press, Inc., 109 NLRB 591; Struksnes Construction Co., Inc., 165 NLRB 1062. Moreover, Green's urging Poland not to pay his dues , especially in the face of the contractual requirement , was similarly violative of the Act. See Capital Distributing Co., 147 NLRB 1138, 1139 . His suggestion to Goedde and then to Messer that Respondent might get the employees life insurance under advantageous terms was a scarcely disguised promise of benefit made to convince the employees that they would be better off economically if they abandoned the Union. Stewart also made an illegal threat when he urged Edgar Smith to abandon the Union "like the others" and threatened that if the employees in- sisted on having the Union , they would find that Respondent had moved away, leaving "an empty building." It is found that each of the above- described incidents constituted a violation by Respondent of Section 8(a)(1). H. The Discriminatory Discharges Thomas Smith was hired in 1963 as a helper in plating. He joined the Union and remained a member throughout his employment. In February 1965 he was injured, with the result that he could not manage as heavy loads as previously, at least on the barrel line.27 He reported this to the foreman, 47 The barrel line was a line for plating small articles which, instead of being individually hung on racks for immersion in the various baths and rin- ses, were shoveled into a barrel which was then immersed. 13 who said to him, "Anytime you need any help, call on me. Just wait till I come and I'll dump it for you." On April 9, 1966, Smith filed a grievance because another employee had been given work in preference to him , which Respondent rejected. On June 27, 1966, Smith hurt his back while working and, with permission , he went home . He was al- lowed workmen's compensation after a trial. On September 21, 1966, as already noted, Respondent wrote to Smith that he was "not eligi- ble for rehire because of medical reasons " and that as of that day he was "no longer in the employ" of Respondent. In the settlement agreement in Case 9-CA-4069 Respondent agreed to offer Smith and Goedde, discussed below, "immediate and full rein- statement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed." On March 15 , 1967, Respondent wrote to Smith making such an offer.2B Smith informed Green that he had not been released by his physi- cian but that he would report for work as soon as he was. Green agreed to wait. On April 24 Smith reported for work and presented the following letter, signed by his physician:29 April21, 1967 To Whom It May Concern: . RE: THOMAS E. SMITH This is to verify that I have been treating the above-named since 2-3-65 . On 11-19-66 he had surgery for lumbar laminectomy. He may return to work on April 24, with limited lifting and bending. Lifting should not exceed 5 pounds. Green refused to put Smith to work. He told Smith later that day that the doctor had informed him that he was not able to return at that time, and that Respondent could not take him back until he could do the same job as he had done before . He did not state that Green would not be reinstated eventually. Smith called the doctor himself and was told that he "had to take it easy" in view of the type of operation he had had, but that "within a year" he would be able to return to his former "full status." On November 16, 1967 , when he testified, Smith still wore a brace, was unable to "bend completely in half" but had to stoop; and he could not bend backwards or from side to side . He testified, "I could not run the tanks because it involves stretching and a lot of lifting up over my head with parts, that I could not do. But with racking, the racks sat there and all you had to do was rack it, and then the plater took it off the rack here for you and ran it himself." Smith's last wage rate was $1.915 per hour. G.C.Exh.16 's G. C. Exh. 18. 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Goedde worked for Respondent in the plating de- partment from April 1963 to August 1966, at which time his hourly pay was $2.215. He became union steward in March 1966 and on April 1 acted for Lanham when that employee complained that his work was too heavy. He was the steward who ob- jected to the change in working hours in June 1966, told Green that the change was a violation of the contract, and unsuccessfully attempted to arrange a meeting between McManus and Green. In August 1966 Goedde informed Green that he would need an operation for a hernia. He presented a note from his physician to the effect that he could work until arrangements could be made for the operation , but Green refused to allow that. The operation was performed in late August and 3 weeks later Goedde told Green by telephone that he could go back for light work. Green said that he wanted to speak to the doctor first . The next day Goedde received from Respondent the letter al- ready referred to dated September 21, 1966, sever- ing his employment. He called Green , who said that he had no light work for him. On Se ptember 28 Respondent wrote further to Goedde as follows:30 Doctor Mattheis has informed me that you will not be fit for work at least for a month. We feel this operation puts you in jeopardy and ef- fects [ sic] us insurance-wise since this can re- occur at any time . We feel in the best interests of all, our original letter still stands . This will enable you to get unemployment compensation and get another job more suited to your ability. Two weeks after the second letter to Goedde, on October 11 , 1966, Respondent hired Pauline Bal- lard as a racker , at $1.70 per hour . On October 24 Vona Ruth Faulkner was hired as a racker at $2 per hour, and on October 31 Gloria Carter and Ruby Woods were hired as rackers at $1.40 per hour. Woods quit at some time before Christmas 1966. Ballard was still employed as of the time of the hearing. Faulkner and Carter remained at least until Christmas , but they were laid off sometime between Christmas and the end of May 1967.31 From time to time up to the opening of the hearing Respondent also hired other employees in the plat- ing department, including the following: Johnson at $1.60 per hour on September 26; Simpson at $1.75 on October 4; Bullock at $ 1.70 on October 5; and Fletcher at $ 1.70 on October 6, all in 1966 . All but Simpson remained at least through Christmas, and Bullock remained at least through May 1967. Pursuant to the settlement agreement Respon- dent on March 15 ; 1967, offered Goedde reinstate- ment.32 He did not accept the offer. Green testified that employees in the plating de- partment were shifted from one line to another without any set pattern, depending on need and on their respective capabilities. He also stated that the physical effort involved varied considerably accord- ing to job. The record shows that most of the lifting that platers had to do did not involve particularly heavy loads, but that physical strain resulted from the frequency of the lifting and from the need to manipulate the loads from difficult positions. Conclusions as to Goedde and Smith Respondent 's animus towards the Union is well established by Green 's unfair labor practices al- ready found . Goedde had stood out among the em- ployees as a union supporter . He had been a shop steward and had acted as spokesman for the em- ployees in opposition to the change of hours. Green 's testimony that the plating department em- ployees were expected to be able to do all kinds of work does not bear scrutiny . Goedde's disability was not an uncommon one. Moreover , knowing that he could return to full duty in a month and perform lighter duties in the meantime, Green completely served his employment in plain viola- tion of Respondent 's contractual obligations and a short time later hired four women employees to do nothing but racking , which Goedde could have done . He also hired five male employees between September 26 and October 6 at $1.60 to $1.75 per hour, rates from which it must be inferred that the men were not experienced platers . The inference is warranted that Goedde would have been able to perform his full duties much sooner than they and that Green assumed this . The discontinuance of the checkoff the same day and the filing of a petition for an election 2 weeks later seriously affect the weight of the only evidence that the discharge was in fact for medical reasons ; namely, Respondent's self-serving letter. On the basis of all the testimony it is found that Respondent seized upon Goedde's temporary and partial disability as a pretext to con- ceal its true motive in dischargin* him, namely, his activities on behalf of the Union , and that by discharging Goedde on September 21, 1966, Respondent violated Section 8(a)(1) and (3) of the Act. Thomas Smith 's union activity was confined to membership , a status he shared with all employees except one Taylor. It cannot be inferred that the grievance he had filed in April carried over as motivation for Respondent 's action in September. On the other hand Respondent offered no evidence to explain why it was moved to act against Smith when it did . Having done nothing about his disabili- ty for 3 months, Respondent suddenly terminated his employment on the same day that it took two actions to discourage union membership-it discon- tinued the checkoff and it discharged Goedde. For ' G. C Exh 13 " The above findings as to terminations are based upon whether or not .he employees received Christmas and fiscal yearend bonuses , as disclosed by G C . Exh. 40 ,' Resp Exh 9. CREUTZ PLATING CORPORATION 15 these reasons it is inferred that Smith was ter- minated in order to lend apparent substance to the pretext offered to explain Goedde 's discharge. See Majestic Molded Products, 143 NLRB 71, enfd. 330 F.2d 603 (C.A. 2); American Bottling Co., 99 NLRB 345, 352, enfd. 205 F.2d 421 (C.A. 5), cert. denied 346 U.S. 921. After the settlement agreement Respondent un- conditionally offered Smith reinstatement but was informed that part of a vertebra next to Smith's spinal cord had been removed. This condition was considerably more disabling and serious than the disability he was under before his injury in June 1966. At the time of the hearing , almost 18 months after he had left work, Smith was still partially dis- abled and the prognosis was that his full recovery would take a substantial lengh of time . All plating work involved much bodily movement and it was not unreasonable that Respondent feared that a mishap injuring his spinal cord could have had seri- ous consequences for Smith. I therefore find that Respondent's refusal to permit Smith to return to work was not improper and that the General Coun- sel has failed to prove that it was discriminatory. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its opera- tions described in section I, above, have a close, in- timate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY As it has been found that Respondent has en- gaged in certain unfair labor practices, it is recom- mended that the Board issue the Recommended Order set forth below requiring Respondent to cease and desist from said unfair labor practices and to take certain affirmative action which will ef- fectuate the policies of the Act. As Respondent offered Goedde full reinstate- ment, which he did not accent, it will not be required to repeat the offer. However, Respondent will be required to make Goedde whole for any loss of earnings suffered by reason of the discrimination against him by payment to him of a sum of money equal to what he would have earned from Sep- tember 21, 1966, when he was discharged, to the date of Respondent's offer of reinstatement, less his net earnings during said period, computed in ac- cordance with the formula stated in F. W. Wool- worth Company, 90 NLRB 289, with interest thereon at the rate of 6 percent per annum, com- puted in the manner described in Isis Plumbing & Heating Co., 138 NLRB 716. The questions of whether Respondent would normally have reduced Goedde's pay during his partial disability and, if so, what the exact period of such partial disability was, can be resolved during the compliance stage of the case. It is recommended also that Respondent preserve and, upon request, make available to the Board and its agents, payroll, production, and other records to faciliate the computation of backpay. In Smith's case Respondent 's unconditioned offer of reinstatement was not accepted because of his inability to meet the job requirements, which I have found Respondent could properly insist upon. This inability was still extant on November 16, 1967, when Smith testified, which was over 6 months after Respondent refused to put Smith to work and more than 14 months after he left work because of his disability and it must be inferred from Smith's testimony that the disability continued for a sub- stantial time after he testified. As Respondent has made a proper offer of reinstatement, which, moreover, it left open, and as Smith has been un- able to accept it for so long a period, an order requiring renewal of the offer, or that it be kept open, would not be appropriate. Distinguish Crans- ton Print Works Company, 117 NLRB 1834, and Mook Weiss Meat Packing Company, 160 NLRB 546, involving refusals to reinstate found to be dis- criminatory. In view of the foregoing, whatever loss of earnings was suffered by Smith during the period of discrimination against him was not the result of the discrimination. For these reasons it is not recommended that Respondent take any affirma- tive steps to remedy the discrimination against Smith. Counsel for the Union stated that although the earlier negotiations had been "an exercise in futili- ty," since Respondent had not made a "valid effort at arriving at a contract," he felt that in negotia- tions subsequent to the opening of the hearing Respondent had been making an honest attempt to arrive at a solution for a contract. This change of attitude on Respondent's part did not remedy Respondent's failure to bargain. There is no as- surance that Respondent will not revert to its former attitude, particularly at such time as its able counsel leaves Green to his own devices. So far as Green was concerned, the negotiations were a waste of time. Moreover, even with Respondent's counsel in the picture Respondent violated Section 8(a)(5) by paying out the fiscal yearend bonus and the 5-percent so-called "loans" by instituting the 5- cent night-shift differential, and by insisting on a contract of unreasonably short duration. The usual remedy for violation of Section 8(a)(5) is, ac- cordingly, recommended. Respondent's many-sided violations of the Act, its action in entering into , and then violating, the settlement agreement, its distribution of bonuses and the so-called "loans" while purportedly bar- gaining with the Union, and Green's statement that bargaining was a waste of time , all indicate a disposition on Respondent's part not to abide by the law insofar as the Act is concerned. It is there- fore recommended that Respondent be required to 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pease and desist from infringing in any manner on the rights of the employees guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and of the entire record in this case, I make the fol- lowing: CONCLUSIONS OF LAW 1. Respondent, Creutz Plating Corporation, is engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Respondent is, and at all times material has been, an employer within the meaning of Section 2(2) of the Act. 3. Metal Polishers, Buffers, Platers and Helpers International Union, Local 68, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 4. By discriminatorily terminating the employ- ment of Louis Goedde and Thomas Smith Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. All production employees of Respondent, ex- cluding foremen , timekeepers, salaried employees, office employees, porters, shipping clerks, main- tenance men, and truckdrivers constitute a unit ap- propriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 6. At all times since prior to January 1, 1966, the Union has been, and it still is, the exclusive representative of all the employees in the ap- propriate unit for the purpose of collective bargain- ing in respect to rates of pay, wages, hours of em- ployment, and other terms and conditions of em- ployment, within the meaning of Section 9(a) of the Act. 7. By refusing to bargain collectively with the Union as the exclusive representative of all its em- ployees in the appropriate unit, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 8. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 9. The unfair labor practices described above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publica- tion. ]