Kellwood Co.

20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kellwood Company, Ottenheimer Division and International Ladies' Garment Workers' Union, AFL-CIO. Cases 26-CA-2313, 26-CA-2641, 26-CA-2721, and 26-CA-2952 August 13, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On January 28, 1969, Trial Examiner Alba B. Martin issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent and the Charging Party filed exceptions to the Trial Examiner's Decision and supporting briefs. The General Counsel filed cross-exceptions and a brief in support thereof. 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 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, the briefs, and the entire record in these cases, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner' as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and hereby orders that the Respondent, Kellwood Company, Ottenheimer Division, Little Rock, Arkansas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Delete subparagraphs (j) and (m) of paragraph 1 of the Trial Examiner's Recommended Order, and reletter subparagraphs (k), (1), (n), and (o) of paragraph 1 to read (j), (k), (1), and (m) 'We agree with the Trial Examiner that the Respondent violated Sec 8(a)(1) during its preelection campaign but, considering the other conduct involved and the broad Order herein, we find it unnecessary to pass upon the legality of its conduct in "denigrating" the Union or in sanctioning the circulation of antiunion literature during working time . Nor do we need to consider the Trial Examiner's views on backpay where unfair labor practices are the sole cause of a strike 'The Respondent's motion to reopen record is denied as lackmg in merit respectively. 2. Add the following as a new subparagraph (e) of paragraph 2, and reletter the existing subparagraphs (e), (f), and (g), accordingly: "(e) Notify all unfair labor practice strikers, including those named in General Counsel's Exhibit 171 and its two pages of attachments , if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces." 3. Delete the eighth and eleventh indented paragraphs in the Appendix attached to the Trial Examiner' s Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALBA B. MARTIN, Trial Examiner: With all parties represented by counsel, this consolidated proceeding was heard before Trial Examiner Alba B. Martin, in Little Rock, Arkansas, between February 5 and February 23, 1968, on complaints of the General Counsel of the National Labor Relations Board and answer of Kellwood Company, Ottenheimer Division,' herein called Respondent and the Company At my urgent request prior to the opening of the hearing, the parties were completely cooperative with each other and with me during the hearing. This greatly shortened a potentially long hearing and yielded a compact, evidence-full record.' The General Counsel and the Union contended that Respondent bargained in bad faith with the Union with no intention of entering into a final or binding collective-bargaining agreement with the Union; that Respondent unilaterally put wage increases into effect on October 25, 1966, and February 1, 1967; that Respondent refused to furnish the Union with certain information requested by the Union; that Respondent bargained directly and individually with employees in the appropriate unit-all in violation of Section 8(a)(5) and (1) of the Act;' that Respondent further violated Section 8(a)(5) by refusing to recognize the Union after December 5, 1967; and that Respondent independently violated Section 8(a)(1) by interrogations, threats, denegrating the Union and advising employees of its futility, by enforcement of a no-solicitation rule against the Union while permitting the circulation of antiunion literature and petitions on company time, and by exhibiting the movie "And Woman Must Weep" to employees. Respondent denied committing any unfair labor practices and contended that it was the Union, not Respondent, who bargained in bad faith. The General Counsel and the Union contended, and Respondent denied, that the strike from October 25, 1966, 'Respondent's name appears as amended at the hearing. 'The Union filed all the charges, the original charges being filed as follows- In Case 2313, on January 28, 1966, in Case 2641 , on December 29, 1966, in Case 2721, on March 27, 1967; in Case 2952, on December 6, 1967 The Union filed the first amended charge in Case 2952 on December 11, 1967. The Regional Director issued his second order consolidating cases, amended consolidated complaint , and notice of hearing, on December 22, 1967 'The Act refers to the National Labor Relations Act, as amended, 29 U.S.C Sec. 151, et seq. 178 NLRB No. 8 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kellwood Company, Ottenheimer Division and International Ladies' Garment Workers' Union, AFL-CIO Cases 26-CA-2313, 26-CA-2641, 26-CA-2721, and 26-CA-2952 August 13, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On January 28, 1969, Trial Examiner Alba B Martin issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision Thereafter, the Respondent and the Charging Party filed exceptions to the Trial Examiner's Decision and supporting briefs The General Counsel filed cross-exceptions and a brief in support thereof 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 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, the briefs, and the entire record in these cases, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner' as modified herein ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and hereby orders that the Respondent, Kellwood Company, Ottenheimer Division, Little Rock, Arkansas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified 1 Delete subparagraphs (1) and (m) of paragraph I of the Trial Examiner's Recommended Order, and reletter subparagraphs (k), (1), (n), and (o) of paragraph 1 to read 0), (k), (1), and (m) We agree with the Trial Examiner that the Respondent violated Sec 8(a)(1) during its preelection campaign but considering the other conduct involved and the broad Order herein, we find it unnecessary to pass upon the legality of its conduct in denigrating the Union or in sanctioning the circulation of antiunion literature during working time Nor do we need to consider the Trial Examiner' s views on backpay where unfair labor practices are the sole cause of a strike 'The Respondent s motion to reopen record is denied as lacking in merit respectively 2 Add the following as a new subparagraph (e) of paragraph 2, and reletter the existing subparagraphs (e), (f), and (g), accordingly "(e) Notify all unfair labor practice strikers, including those named in General Counsel's Exhibit 171 and its two pages of attachments, if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces " 3 Delete the eighth and eleventh indented paragraphs in the Appendix attached to the Trial Examiner's Recommended Order TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALBA B MARTIN, Trial Examiner With all parties represented by counsel, this consolidated proceeding was heard before Trial Examiner Alba B Martin, in Little Rock, Arkansas, between February 5 and February 23, 1968, on complaints of the General Counsel of the National Labor Relations Board and answer of Kellwood Company, Ottenheimer Division,' herein called Respondent and the Company At my urgent request prior to the opening of the hearing, the parties were completely cooperative with each other and with me during the hearing This greatly shortened a potentially long hearing and yielded a compact, evidence-full record ' The General Counsel and the Union contended that Respondent bargained in bad faith with the Union with no intention of entering into a final or binding collective-bargaining agreement with the Union, that Respondent unilaterally put wage increases into effect on October 25, 1966, and February 1, 1967, that Respondent refused to furnish the Union with certain information requested by the Union, that Respondent bargained directly and individually with employees in the appropriate unit-all in violation of Section 8(a)(5) and (1) of the Act,' that Respondent further violated Section 8(a)(5) by refusing to recognize the Union after December 5, 1967, and that Respondent independently violated Section 8(a)(1) by interrogations, threats, denegrating the Union and advising employees of its futility, by enforcement of a no-solicitation rule against the Union while permitting the circulation of antiunion literature and petitions or company time, and by exhibiting the movie "And Womar Must Weep" to employees Respondent denied committing any unfair labo practices and contended that it was the Union, no Respondent, who bargained in bad faith The General Counsel and the Union contended, an( Respondent denied, that the strike from October 25, 196E 'Respondent s name appears as amended at the hearing 'The Union filed all the charges the original charges being filed follows In Case 2313 on January 28, 1966 in Case 2641 on Decemb, 29, 1966 in Case 2721, on March 27 1967 in Case 2952, on December 1967 The Union filed the first amended charge in Case 2952 on Decemb 11 1967 The Regional Director issued his second order consolidati cases amended consolidated complaint, and notice of hearing, i December 22, 1967 'The Act refers to the National Labor Relations Act as amended U S C Sec 151 et seq 178 NLRBNo 8 KELLWOOD COMPANY, OTTENHEIMER 21 to November 22, 1967, was an unfair labor practice strike, that the strikers rather than the replacements are entitled to the jobs, and that Respondent violated Section 8(a)(3) by not reinstating the strikers and Section 8(a)(5) by dealing directly with the strikers concerning their return to work. The General Counsel, the Union, and Respondent filed in late April 1968 excellent briefs which have been duly considered. Copies of letters the opposing attorneys wrote each other shortly after the briefs were in are in the exhibit file as Trial Examiner's Exhibits 1 and 2. On August 7, 1968, the General Counsel filed a motion to amend the amended consolidated complaint to allege that if the strike is found to be an economic strike the strikers were improperly reinstated under the Board's recent decision in The Laidlaw Corporation, 171 NLRB No. 175. As I find below that the strike was an unfair labor practice strike, the General Counsel's motion is denied. The General Counsel's motion, the Union's letter with reference thereto, and Respondent's memorandum in opposition have been placed in the exhibit file as G.C. 1 ggg, 1 hhh, and I iii, respectively. Upon the entire record and my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Kellwood Company (herein called Kellwood), a Delaware corporation with its principal office in St. Louis, Missouri, was formed in December 1961 out of approximately 15 independent corporations having approximately 36 plants. It sells the "major portion" of its products to Sears Roebuck & Co.; in 1966 this portion was 80 percent of its output.' In the corporate organization each of the independent corporations became a division of Kellwood Company, and each former corporation president became a division president. Kellwood Company's Ottenheimer Division, principally involved herein, manufactures women's apparel and consists of three plants' and a distribution center in Little Rock, Arkansas, employing approximately 1,250 employees; and a plant at Lonoke, Arkansas, about 25 miles from Little Rock, which employs approximately 325 employees. Stanley M. Guthunz is president of the Ottenheimer Division. He is also a vice president of Kellwood Company, a member of its board of directors, and a member of the executive committee of its board of directors. He has held all of these positions since the inception of Kellwood Company. Prior to that, he had been president of Ottenheimer Brothers Manufacturing Company, Inc. for a number of years. Kellwood Company, Ottenheimer Division, referred to herein as Respondent, the Company, the Ottenheimer Division, and Ottenheimer, during the year prior to December 22, 1967, purchased and received at its Little Rock plants, directly from points outside of Arkansas, products and materials valued in excess of $50,000; and during the same period manufactured, sold, and shipped goods and products valued in excess of $50,000 from its Little Rock plants directly to points outside of Arkansas. Respondent admitted, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Ladies' Garment Workers' Union, AFL-CIO, herein called the Union and I.L.G.W.U., is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Setting: Kellwood and Ottenheimer Policies Towards Unions and for the Negotiations. The Union undertook to organize plants in at least three divisions of Kellwood in 1965 and early 1966. It began organizing the Ottenheimer Division's three plants in Little Rock, the plants principally involved herein, in about August 1965. It started organizing at the Lonoke plant of the Ottenheimer Division in February 1966,6 and in the Hawthorn Division in Missouri in late 1965.' It started organizing at the Alamo plant of the Southern Division in April 1966.8 Respondent' s wages are low. Prior to February 1, 1967, the Federal minimum wage was $1.25. On that date it became $1.40. On February 1, 1968, it became $1.60. At the beginning of the negotiations involved herein, Respondent' s minimum wage was the Federal minimum wage of $1.25. The Union's policy was to try to get at least 25 cents above the Federal minimum for inexperienced help, and at least 20 percent above contract minimum for operators, pressers, cutters, and others in the category of experienced help, many of whom were on piecework. At a crucial point in the hearings herein the Union' s president, Louis Stulberg offered 10 cents above the Federal minimum for a first raise. Stulberg credibly testified that that was the "lowest point ... we have ever tried to negotiate with any firm. We were that anxious to get an agreement." On January 26, 1966, 2 weeks after the Union won the election at Ottenheimer, President Wenzel of Kellwood reported on Kellwood's policy "regarding future negotiations and labor relations." At a meeting of the executive committee of Kellwood's board of directors, according to the minutes of the meeting, Mr. Wenzel reported that "the Company will endeavor to establish minimum benefits standards which are to apply to all Divisions." Long antedating and concurrent with this policy to endeavor to grant only minimum benefits to employees, Kellwood had another companywide policy, which included Respondent Ottenheimer Division, to "use every legal means available to us to combat organization" of its employees. These were the words of President Guthunz before me. Guthunz said this had been Kellwood's policy since its inception in 1961, and was the policy of Respondent Ottenheimer. Kellwood President Wenzel confirmed this policy in Case 170 NLRB No. 183, when he testified that it is Kellwood's policy to do whatever it can to prevent a union from coming into any of its plants, but that the policy does not include violating the law.' this finding is based upon testimony of Kellwood Company's employee relations director , William S. Keeline, in Case 26-CA-2560 (170 NLRB No. 184) of which I took official notice. 'The three plants are in one large building . They are referred to herein as the plant and the plants. 'See 170 NLRB No. 183. 'See 166 NLRB No. 20. 'See 170 NLRB No. 184. 'This testimony was included in testimony from Case 170 NLRB No. 183, of which I took official notice at the hearing. 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Prior to the Union's victory in the Little Rock election described below, Respondent had successfully warded off all unions and kept all plants unorganized, despite the efforts of several unions to organize a number of them over a period of years Thus far, Kellwood' s antiunion policy has carried it over the brink from lawfulness to unlawfulness in three of its divisions, including the Lonoke plant of the Ottenheimer Division 166 NLRB No 20, 170 NLRB No 183, 170 NLRB No 184 Neither the minutes of the executive committee of Kellwood's board of directors nor any direct testimony by Respondent herein undertook to explain why Kellwood and Respondent decided to give employees only minimum benefits standards, including minimum wages During the negotiations, Respondent assured the Union that it was not claiming inability to grant more economically than it was offering in its proposals It follows that Respondent's policy to grant only minimum benefits and wages to employees was based upon something other than inability to pay The question arises on this record as to whether, in offering little more than the minimum in the negotiations, Respondent was just bargaining hard, or whether it was carrying out its policy of trying to keep the Union out of its Ottenheimer plants even though the Union had won an election, and whether, as contended by the General Counsel and the Union, it was trying to provoke a strike so that it could defeat the Union by replacing its union employees with nonunion replacements After careful consideration I agree with the latter view 1 Guthunz' speeches During the Union's organizational campaign, which started on or about August 19, 1965, and continued until the election on January 12, 1966, President Guthunz spoke to his assembled employees on eight occasions On August 27, September 2, November 29, December 15, 17, 21, and 23, and January 11 Some were short announcements Others were talks that lasted as long as 15 minutes or more In his first announcement on August 27, Guthunz announced a wage increase of 7-1/2 cents per hour and an additional paid holiday In his first speech, on September 2, about 2 weeks after the beginning of the union campaign, Guthunz said, in pertinent part As all of you know, a union is trying to get into the plant I want you to know that we are taking a strong stand against the union I am convinced that the union would be harmful to you and to our business The union has tried to get in here at least five different times in past years, and the union has failed every time - just like it is going to fail this time During the past, there have been no strikes-no picket lines - no union trouble at Ottenheimer's because there has been no union in the plant Our employees have never lost an hour's work or a minute's sleep due to a union strike - all that could change over night if you, let the union in' the plant * B The Union Becomes the Bargaining Agent Pursuant to a petition filed by the Union on October 28, 1965 (26-RC-2533), the Board conducted an election on January 12, 1966, which the Union won 666 to 564 The minutes of a meeting of the Union's general executive board held in March 1966 referred to this as "a surprise victory" against "a ruthlessly anti-union firm " The appropriate unit consists of all production, maintenance and shipping employees at Respondent's Little Rock, Arkansas, operations, excluding office clerical employees, professional employees, engineering department employees, outlet stores employees, guards and supervisors as defined in the Act On March 3, 1966, the Union was certified as the exclusive representative of the employees in this unit This became the first unit of Kellwood Company's plants ever to be organized and represented by a Union C Respondents Antiunion Campaign Its State of Mind Just Before It Entered Negotiations The Union's victory in the election was achieved despite a vigorous, hostile, many-faceted, massive, antiunion campaign by Respondent 10 This campaign utilized, inter alia speeches and letters by President Guthunz, talks by supervisors, leaflets, posters, interrogations, threats, solicitations, messages as to the futility of selecting the Union as bargaining agent, and the showing of the movie, "And Women Must Weep " "This subject matter was the subject of a settlement in Case 26 CA 2313 which the Regional Director set aside on the ground that it had been breached and that unfair labor practices continued This testimony is considered a^ background evidence for whatever light it casts upon Respondents motive or object during the negotiations and other postsettlement activities Cf Local Lodge No 1424 IA M (Bryan Mfg Co ) v N L R B 362 US 411, Northern California Dist Council of even if the union won an election here-the Company still would not have to sign the union's contract and fulfill the promises the union made to you There is nothing automatic about the signing of a union contract The Company has the right to say NO to the union's contract proposals Union pressure on this Company could lead to a strike and all the trouble that goes along with a strike * * * * * You would be the loser in a strike You would not get your pay during a strike And most important of all-you could lose your job in a strike If the union calls you out on a strike over the things it has been promising, the Company is perfectly free under the law to hire permanent replacements for you Once this happens, the Company is under no obligation to give you your job back-even after the strike is over I want to repeat that, because it is so important If the union calls you out on an economic strike, the Company is free to hire permanent replacements for you If you are replaced during a strike, your job is lost * * * * * When I became President of this Company 11 years ago, we had about 600 employees and Tuf-Nut had about 600 employees During the past 11 years, Tuf-Nut has operated with a union We have operated without a union During that 11 year period, the Hodcarriers & Common Laborers of America AFL CIO (Josephs Landscaping Service) 154 NLRB 1384 enfd 389 F 2d 721 (C A 9 1968) Shurienda Steaks Inc 161 NLRB 957 959 Cloverleaf Cold Storage Co 160 NLRB 1484 1486 Steve Sash & Door Company v N L R B 401 F 2d 676 (C A 5) The use of this testimony does not violate Sec 10(b) of the Act N L R B v Ritchie Manufacturing Company 354 F 2d 90 (C A 8 December 1965) Local Lodge No 1424 I A M AFL-CIO v N L R B supra at 416 417 45 LRRM 3212 This testimony is set forth at this point so that readers will know the prologue before they read the play KELLWOOD COMPANY, OTTENHEIMER number of jobs at Tuf-Nut has gone down, not up. Now they have only about 450 employees. During the same 11 year period, we have grown and expanded, and we now have over one thousand seven hundred and fifty employees, here and at Lonoke. But please remember this- there will be no continued job security without the continued success of our business. That success depends entirely upon whether or not Sears continues to buy our products. We have been in business many years without any serious labor problem. Sears knows that-and they,like todo business with a Company that has no labor trouble. . . . If our production were disrupted by a strike, Sears could lose confidence in us. If that ever happens, none of us will enjoy the job security we have enjoyed in the past. [Emphasis omitted.] On November 29 President Guthunz talked to his employees for some 18 minutes. He said, in pertinent part: The union could cause plenty of trouble for everyone at Ottenheimer's if it got in here. I am convinced that the union would be harmful to our employees and harmful to the Company. Let me give you the reasons why I feel this and why we are taking a strong stand against the union. First of all unions and strikes go together. Where you find one, you find the other. If we have a strike at this plant, both our employees and the Company, will be hurt. Everybody loses in a strike except the union... [Emphasis supplied.] r • • n r If the union should win an election here we would be required to meet with the union. . . to bargain with the union. . . . to negotiate. But please listen to this carefully even if the union should win an election, we still would not have to agree to their demands and we still would not have to sign the contract the union submitted to us. Even though we bargained with them, we still would have the right to say "No" to their demands. HOW could the union force us to agree to its demands? HOW could the union force us to sign its contract? The only thing they could do is call you out on strike and a strike would hurt you and Ottenheimer's. During a strike . . . you would run the risk of losing your job by being replaced with other workers. N N M M M Let me remind you that Ottenheimer's is a Division of Kellwood Company. Kellwood has 30 plants located all over the United States and there is not a union in any of those plants. Kellwood has 12,000 employees and no union. I want to repeat that because it -is so important. There is no union in any Kellwood plant anywhere. . . . Unions have tried time after time to get in the plants of Kellwood, but the union has always failed. When Kellwood says they don't want the union in any plant, they mean it, and I sincerely hope that none of you will take Kellwood's position on unions lightly. Please remember that Kellwood can say "NO" to the union's demands even if the union should be voted in. Kellwood is not going to agree to sign any contract which is not to the best interests of our employees and the Company. A union victory in the election and union pressure on this plant could lead to a strike and all the trouble for both you and the Company that would go 23 along with the strike. Guthunz then restated and expanded his position that Respondent could lose Sears as a customer because of union trouble, and that, if Respondent lost Sears as a customer, it would be "in deep trouble." He then quoted figures as to the alleged number of plants in the garment industry which had closed in the past 3 years and the alleged number of garment employees who had lost their jobs. Guthunz then related a story about another company and its alleged plant closings because of labor trouble. Guthunz then made the point that the employees did not have to pay union dues and fees in order to work at the plant. He said "[t]he union is nothing but a parasite. They know we have a good plant here with a good group of employees. Like a leach, they want to hang on and take part of your earnings with their dues, fees, and assessments. I am against that." In an announcement to employees on December 15, Guthunz again referred to the large number of unionized plants being closed down, and that "that is something you should think about in connection with the union issue." Guthunz again stated that Respondent did not have to agree to any union demand. He ended his announcement as follows: One other thing-ask the union what happens to employees when they vote for the union in an election and then the company and the union never reach an agreement and never sign a contract. On December 17 and 21, Guthunz made announcements as to the date for the election and urged employees to vote NO. On December 17, he concluded: We are sure that the union will be badly beaten in an election and we hope that after this is accomplished they will leave you alone and we can continue building for the future. He concluded his December 21 announcement as follows: You have only 3 more weeks of this union mess and on January 12th you can put an end to all the dissension in the plants by voting NO. On December 23, 1965, Guthunz reviewed briefly the recent progress of the Company and stated that the future would be bright except for the fact that the employees might choose the Union; in which event, "our future could be changed by events over which I would have no control." In his final talk to employees on January 11, 1966, the day before the election, Guthunz summed up his "feeling on the union issue." He said, "[y]ou know exactly where we stand. You know that we don't want the union in here and you know the reasons why we feel so strongly about the union. I speak to you from my heart when I tell you I; am firmly convinced that the union would be bad for vou- bad for thecompany-bad for all of us." He told of a plant in another town in Arkansas which had a contract with the Union and under which contract the employees had fewer benefits than Respondent's employees had without the Union. He again referred to Tuf-Nut which he said has been going downhill with a union while Respondent has been making progress and improving wages and benefits without a union. He concluded, "by your landslide vote against the union they will know that they are not wanted or needed here at Ottenheimer's. I know you are with me. I know I have your loyal support, and from the bottom of your heart I thank you. GOD BLESS YOU ALL." 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 Wenzel's speech Nine days before the election, on January 3, 1966, the president of Kellwood Company, Fred W Wenzel, talked to the Ottenheimer employees He referred to union trouble hanging over the plant He said, I have been a witness to serious union trouble at other companies I have watched union strikes destroy jobs I have watched union strikes cause orders to be cancelled I have watched union strikes cause business to be lost forever As a result of union strikes, both companies and their employees are hurt Everybody loses in a strike except the union The union loses nothing because the union has nothing at stake He said that Kellwood does not want the Union at any of its 30 plants He said, "there' s no union in any of the Kellwood plants Union, have tried time after time to get in the plants of Kellwood, but the union has always failed " He observed that Kellwood had never had a union strike, that the employee, have never had to worry about the "dangers and risks and uncertainties of union trouble," and that this could change overnight if the union got in here He said, I cannot say how long a strike at Ottenheimer's might last-for a week, a month, a year, or longer But I can guarantee this-if the union gets in and there is a strike, Kellwood Company, all of Kellwood's facilities, and all of Kellwood's plants will stand behind Mr Guthunz and will fully support him and Ottenheimer's during the strike Later Wenzel added "there is no need for you to run the risk of union strikes There is no reason for you to expose yourself to the dangers of union trouble " 3 Talks by Plant Manager Short Upon instructions from President Guthunz, the plant manager of lT espondent' s loungewear plant in Little Rock, who had some 230 employees under him, talked to about 200 of them m his office in groups of 4 to 6 at a time He gave the same talks, based upon notes, about 30 or 40 times, beginning about November 3, 1966 Short credibly testified that he adhered closely to his notes because he knew that to deviate would be an unfair labor practice His notes showed that he elaborated on the theme that ran through Respondent's propaganda He told the employees that the Company did not have to sign the Union's contract or any contract that was not to the best interest of the employees or the Company, that it is one thing for the Union to make promises and another for the Union to make good on them If the Union was voted in, he asked, and the Company did not agree to sign the Union's contract, how could the Union make the Company keep the promises the union organizers had made9 He said there would be only one thing the Union could do-strike He said the union organizers would not be on strike, but only the employees, that the organizers had nothing to lose He said that employees could not collect unemployment money while on strike, that they could lose their jobs while on strike, that the Union was investing $40,000 in this campaign and that if the Company did not agree to sign the Union's contract the Union would call a strike to try to make the Company sign up He said that if the Company should lose its Sears business, he, did not know if it would ever get back These carefully contrived expressions carried over to employees as they were obviously intended to carry Thus two employees credibly testified that Short said the Company would not sign a contract and would close the plant first This is what they understood Short to say and what on the whole record I find Respondent wished them to understand 4 Activities of lower supervisors During the campaign, according to uncontradicted credible testimony, minor supervisors interrogated employees concerning their union sympathy, tried to persuade an employee to remove a "vote yes" sign and wear a "vote no" sign, said that if you get the Union in, you might be fired In addition, several employees testified concerning the passing of antiunion petitions down the work lines during working hours while supervisors were on the line One supervisor wrote on a petition "I would if I could" sign the antiunion petition Another, Hendrickson, handed out antiunion leaflets to operators at work on the line One petition passing down a line said the employees should vote against the Union because it would be impossible for 1,300 employees to find employment elsewhere One witness testified that 25 to 30 employees signed an antiunion petition while a supervisor was on the line A witness credibly testified that Supervisor Turner had said President Guthunz had said he would not sign a contract and he meant it Another witness testified Supervisor Bridges said the company lawyer said that to get the Union in the employees would have to strike Prior to the union campaign there was a no-solicitation rule posted on the company premises in one place When during the campaign Personnel Manager McClain learned there was an antiunion petition on the bulletin board, he removed it immediately 5 Letters, sample ballots, posters, film During the preelection period Respondent was also distributing letters to its employees carrying the same general message that strikes and unions went together as has been seen in the talks of Guthunz and Wenzel For example, in a letter to employees dated November 27, 1965, Guthunz said There is no need for you to run the risk and dangers of strikes and trouble You should not let the union talk you into gambling with your job by turning it over to the union You have too much at stake On December 4, 1965, after correcting a misstatement of the law in a union leaflet a few days before, Guthunz wrote the employees Ask the union HOW they could make the Company agree to their demands and sign their contract There is only one true answer to that question-the union would call YOU out on STRIKE to TRY to get the things they promised to get for you If the law made the Company sign a union contract, why do you think there are thousands of union strikes every year? If the union pulls you out on strike (3) YOU COULD LOSE YOUR JOB' Under the law the Company can permanently replace economic strikers with new workers Once a striker has been replaced, herjob is gone' On December 11, 1965, Guthunz wrote the employees a letter about job security Among other things he asked "How much security would you have if the union won an election and then called you out on strike? How much security would you have if the union closed this plant KELLWOOD COMPANY, OTTENHEIMER down with a strike?" On December 24, 1965, Guthunz wrote the employees a letter talking about union fees, dues, assessments, contributions, fines, and penalties and said that the reason the Union is trying so hard to get into Ottenheimer's is because the Union is after your money. On January 3, 1966 , Guthunz wrote the employees: "You already know you could lose your job in a union strike by being replaced with another worker. Can you afford to run the risks and dangers of a union strike?" He then asked employees to consider who was going to pay the rent, the groceries, pay the other bills, and where an employee could find another job, if he loses his job in a strike. On January 7, 5 days before the election , under a sample ballot marked "NO" Guthunz wrote the employees, "You can say NO to union strikes, picket lines, loss of work , dues, fees, and union trouble by voting NO in the election." During the campaign , Respondent also mailed to employees a leaflet contrasting what the Company had done and the Union had not done for the employees in the past, and as to the future wrote this: Ottenheimer Bros . will guarantee this: I, S.M. Guthunz, president of Ottenheimer Bros., Mfg., Co ., do hereby guarantee that if you do not have a union in our plant, you will not lose your job on account of a strike. [This was followed by the purported signature of Guthunz.] Opposite the above was the following: Will the Union guarantee this:? Mr. Guthunz has signed a guarantee that you will not lose your job on account of a strike if there is no union here . Now ask the organizers if they will sign the statement below: I hereby guarantee that if the Union wins the election no employee in the plant will lose her job because of a strike. Following this is a line for a signature and under that the statement: If any union representative , or anyone for the Union, signs this guarantee-ask him HOW the Union is going to make the Company do anything if it doesn't intend to pull a strike. During the campaign Respondent also issued to employees and posted in the plant multicolor posters, some as large as 4 feet by 3 feet , carrying out the theme that unions and strikes go together, and telling of other companies who said "NO" to the demands of other unions, strikes ensued, the plants closed down , and the employees were out of jobs. One poster purported to list the strikes called by the Union. During the campaign , Respondent showed the film "And Women Must Weep " to the employees on company time . This was the same film , the showing of which the day before an election the Board has found to be "in the nature of misrepresentation which exceeded the bounds of permissible campaign propaganda and an interference with the election the following day." In Plochman and Harrison-Cherry Lane Foods, Inc., 140 NLRB 130, the Board set the election aside . Here, as there, Respondent introduced the film with the statement , contrary to the Board's finding, that it was a "true" portrayal of what happened to people in an actual strike situation. In its introduction Respondent continued its theme that unions and strikes go together . The Board has held the showing of this film to be a violation of Section 8(a)(l) of the Act. .Southwire Company, 164 NLRB No. 135 ; 159 NLRB 394. 6. Conclusion 25 The conclusion is inescapable from the above that Respondent, in all of this, was seeking to show the employees the utter futility of their joining , supporting, and voting for the Union; was seeking to convince the employees that Respondent did not want the Union and had no intent to sign a contract with the Union ; that the Respondent would not agree to the Union 's demands and that a strike was inevitable ; and that an inevitable result of such strike would be the loss of their jobs by the employees . Throughout this propaganda runs the theme that the Company does not have to reach agreement with the Union , that it has the right to say "NO" to union demands, that the only thing the Union could do would be to call a strike . I conclude that this was the state of mind, and the intention, with which Respondent entered the bargaining negotiations. Of particular note is that during the preelection campaign, insofar as the record showed , there was no serious talk among employees or union organizers of striking the plant . In fact, referring to this period of time President Guthunz told employees on November 29, 1967; "the Union told our employees there would be no strike, no trouble, and that there was nothing for them to worry about." Thus Respondent 's propaganda was not in answer to any real threat of a strike, but was designed to frighten the employees away from the Union and to defeat the Union at the election . The Board, with court approval, has held such company activity to be in violation of Section 8(a)(1) of the Act . Hoffman-Taff, Inc., 135 NLRB 1319, 1321 ; Orkin Exterminating Company of Florida, Inc., 152 NLRB 83, enfd . 379 F.2d 972 (C.A. 5). D. Respondent's State of Mind After the Negotiations After some 30 bargaining sessions , a 13-month strike, and the replacement of all, or most, of the strikers, President Guthunz again spoke to the Little Rock employees. On November 29, 1967 , Guthunz gave the following talk to the Little Rock employees . The following day Plant Manager McKibben read the same talk to the Lonoke employees, stating that Guthunz had given the talk the day before to the Little Rock employees: The purpose of this meeting is to bring you up-to-date on the status of the union activity and the union strike here at Ottenheimer's. Most of you were not here when the union activity first began , so I will start at the beginning and trace the events that have occurred. The union organizers first showed up around here back in 1965 . They began to contact our employees, call on them at their homes, and pass out union propaganda at the plant. They made all kinds of big promises. They promised to get the employees big raises, more benefits , and better working conditions. They went on and on about what they could do for the employees . The sky was the limit and there was no end to the union's salestalk. Unfortunately, a number of our employees listened to the union's promises and became involved with the union. A number of them signed union cards. The union told our employees there would be no strike, no trouble, and that there was nothing for them to worry about. On January 12, 1966, the National Labor Relations Board conducted an election here at the plant and the 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union won a close election among our employees After the election the company and the union began to meet and bargain on the terms of a contract There was meeting after meeting between the company and the union but no agreement was ever reached on the terms of a contract The union for reasons of its own apparently didn't want to agree On October 25th, 1966, it called the employees out on strike The union continued to make big promises The union told the strikers not to worry, that the union would win the strike, and that the strike would not last long The strike began and the company continued to operate the plant during the strike by hiring new employees to replace the strikers Many of you came to work during that time I don't have to tell you that the strike lasted over a year and that it was finally called off by the union On November 21, 1967, the union called off the strike and gave up There was violence and plenty of trouble during the strike, as you know, and no contract has ever been signed You are aware that the union has asked us to reinstate strikers Several of you have asked us how this will effect you- and, if we have to rehire them You are entitled to an explanationThose of you who are doing your jobs have nothing to worry about, you won't be replaced by anyone Our company lawyers will require us to rehire some of the strikers The company could expose itself to large financial losses if it refused to rehire the strikers We simply could not afford to take that risk I want you to understand that the strikers who will be rehired will not enjoy any special privileges or benefits They will be required to do their jobs and follow the rules just like everyone else We ask that you give us your cooperation and that there be no trouble in the plant I know that some of us don't like this but there is nothing we could do about it Let us hope this union issue has come to an end Let's continue to work together to make this a good plant with a good future Thank you On December 5, 1967, Respondent wrote the Union that it no longer recognized the Union On December 22, 1967, just before making awards to employees for 20 years' continuous service with the Company, President Guthunz told the employees This is the time of year when one looks back on the past year also, likes to anticipate what the year ahead looks like When I talked to you last Christmas there were 876 total employees I would like to read you two paragraphs from that talk and I quote, "I think you know we are not going to knuckle down to such tactics We are absolutely determined Over the past 14 years, with the help of many people, I built this operation from 500 to 1,350 employees "I plan to build it back to where it was before the strike, but it is not going to take 14 years We are going to do it in 4 or 5 months " In looking over the number of people here today, I can only say we did what we set out to do-we did what we promised to do-which is more that I can say for another group Some of you have asked in the past few days what the status of the union situation is7 All I can tell you is that the union has given up the strike and it is over The union has filed a number of charges against the company We don't know when these charges are going to be tried and our lawyers tell us that it will be probably two or three years before we get any final court decision We don't feel any of the charges can stand up and they represent the union's last gasp I am sorry I cannot tell you any more than that but it looks as though it will be a long time before we get this union mess finally and completely behind us I do know, however, we have gained an awful lot in the long year just past-thanks to so many of you Now the strike is over and we have written the union that they no longer represent the majority of our employees From here on our progress can only continue to go forward The year ahead looks like a bright one for us-we feel business will be good and that we can all look forward to plenty of work We expect to complete our engineering program in all plants in Little Rock during the year and feel that this will benefit everyone [Emphasis supplied ] E Applicable Principles What is meant by good faith bargaining has been the subject of a considerable body of decisional law " "[G]oodfaith bargaining means more than `going through the motions of negotiating ' ' the essential thing is rather the serious intent to adjust differences and to reach an acceptable common ground ""' As the Act explicitly states, fulfillment of the obligation to bargain does not compel an employer to agree to a proposal or to a concession "On the other hand while the employer is assured these valuable rights , he may not use them as a cloak In approaching it from this vantage, one must recognize that bad faith is prohibited though done with sophistication and finesse Consequently, to sit at a bargaining table, or to sit almost forever, or to make concessions here and there, could be the very means by which to conceal a purposeful strategy to make bargaining futile or fail Hence, we have said in more colorful language it takes more than `surface bargaining' or `shadow boxing to a draw ' or `giving the Union a run-a-round while purporting to meet with the Union for purposes of collective bargaining ... " Whether or not an employer's bargaining conduct reveals such a strategy is a question to be determined from an assessment of the totality of his conduct 14 "The duty of management to bargain in good faith is essentially a corollary of its duty to recognize the union Performance of that duty therefore also contemplates full acceptance by management of the representative status of the union , not as a bare adviser, but as a joint participant in the establishment of wages, hours, and working conditions " General Electric Company 150 NLRB 192, 268 "See e g N L R B v American National Insurance Co 343 U S 395 N L R B v Truitt Mfg Co 351 U S 149 N L R B v Wooster Division of Borg Warner Corp 356 U S 342 N L R B v Insurance Agents International Union AFL-CIO 361 U S 477 N L R B v Benne Katz etc d/b/a Williamsburg Steel Products Co 369 U S 736 "General Electric Company 150 NLRB 192 194 quoting N L R B v Truitt Mfg Co 351 U 5 149 155 (Frankfurter J) and First Annual Report of the National Labor Relations Board p 85 See also Call Burnup and Sims Inc 159 NLRB 1661 "N L R B v Herman Sausage Company Inc 275 F 2d 229 232 (C A 5) "N L R B v Herman Sausage Co Inc supra N L R B v Texas Coca-Cola Bottling Co 365 F 2d 321 (C A 5) KELLWOOD COMPANY, OTTENHEIMER The purpose of imposing legal duties upon employers to meet and bargain with the representatives of employees is to create a structure of industrial self-government for a particular plant arrived at by consensual agreement between management and employees within the framework of the statute. By guaranteeing employee participation in decisions relating to wages, hours, terms and conditions of employment, Congress made a determination that this would create an environment conducive to industrial harmony and eliminate costly industrial strife which interrupts commerce. Fibreboard Paper Products Corporation v. N.L.R.B., 322 F.2d 411 (D.C. Cir. 1963). The issue here is whether Respondent discharged its obligation in the manner and spirit commanded by the law, or whether it did so in the manner and spirit condemned in such cases as N.L.R.B. v. Whittier Mills Company, et al., 111 F.2d 474, 478 (C.A. 5); Stonewall Cotton Mills, Inc. v. N.L.R.B., 129 F.2d 629, 631 (C.A. 5), cert. denied 317 U.S. 667; N.L.R.B. v. Athens Manufacturing Company, 161 F.2d 8 (C.A. 5); N.L.R.B. v. Herman Sausage Company, Inc., 275 F.2d 229 (C.A. 5). F. The Negotiations 1. The early meetings Some 30 meetings took place between representatives of Respondent and representatives of the Union, from March 23, 1966, to July 21, 1967. The parties met at reasonable times and places and negotiated. Each side made many proposals and counterproposals, orally and in writing. Respondent's principal negotiators were President Guthunz, its negotiating attorney Frederick A. Kullman, and Kellwood Company's employee relations director William S . Keeline . The Union's principal negotiators were its vice president and regional director for its St. Louis region, Frederick E. Siems, and its negotiating attorney, James E. Youngdahl. They, with others, were accompanied at "formal" bargaining sessions by an employees' negotiating committee" of up to about 20 employees from the Little Rock plant. All the sessions were held in Little Rock, Arkansas, except for two in St. Louis (Clayton), Missouri and one in New York City, New York. The St. Louis meeting on September 22, 1966, and the New York meeting on September 29, 1966, were arranged in order to bring the top officers of the contending forces together, Kellwood Company's president, Fred W. Wenzel, and the Union's president, Louis Stulberg. The "formal" bargaining sessions occurred in 1966, on March 23; April 4, 5, 12, 13, 21, 22; May 3, 4, 16, 17, 31; June 1, 6, 7, 20, 21, 29; July 19; and October 24. A mediator was present on October 24. The strike began October 25. During the strike meetings were held with mediators on January 24, 1967, and July 21, 1967. On December 5, 1967, Respondent notified the Union by telegram that it no longer recognized the Union as the collective-bargaining agent of the employees. In addition to the formal negotiating sessions, there were several "informal" meetings of company and union representatives in the absence of the employees' committee. These occurred on June 25 and 28, July 18, August 29, September 22 and 29, and October 6 and 10. "This committee is sometimes referred to herein as the employees committee . It is the only employees ' committee involved herein. 27 On September 22 in St. Louis and on September 29 in New York, the Union had brought along from Little Rock some members of the employees' committee to be available to sit in at the negotiations, if at any time it appeared there was possibility of consummating an agreement. The employees' committee was never called in. At the early meetings in March, April, May, and June 1966, proposals were exchanged, explained, and discussed by both sides." It was brought out that the plant minimum wage was $1.25 an hour (the then Federal minimum ), and that the base rate for piece rate workers was 27-1/2 cents an hour higher. At two meetings in April, the Union made a wage proposal which included a minimum wage of 25 cents above the legal minimum. At about this time the parties expressed their expectation that Congress would increase the minimum wage and that the new amount would be $1.40 per hour. At the suggestion of Respondent's skilled negotiator, Mr. Kullman, at Kullman's first appearance at the sessions on April 12, the parties discussed noneconomic subjects; they did so almost to the point of exhaustion prior to getting into the economic issues which both sides knew were the crucial ones. Kullman said Respondent wanted to get the noneconomic issues out of the way first and that Respondent would not bargain piecemeal. There were many proposals and counterproposals on many points, some of them small points but not necessarily unimportant to the proponents. This was the period that laid the ground work for a judgment that Union President Stulberg announced later to the Union's general executive board. Stulberg referred to "protracted, futile talks with a firm that seemed intent on negotiating the Union to death." There was evidence that the Company, also, thought the negotiations were dragging. Siems was trying to break through the Kullman "lawyer's talk" and thinking and get to the operating men, such as Guthunz, with whom Siems thought he could conclude a contract. Kullman rubbed Siems the wrong way with his emphasis on wordy specificity and his constant efforts to anticipate every question that could possibly arise under the proposed clauses and to answer them in advance. Siems was trying to get across the idea that in order for the Union and the Company to be able to work together a degree of trust would have to develop, some solutions would have to be left for later solution by their joint good sense, and every little possibility could not be anticipated and solved in advance in written words. Although Siems never in words asked that Kullman be removed from Respondent's bargaining team, Keeline volunteered that Respondent was going to keep Kullman. At the meetings from March through June, the parties adjusted many positions. Many of the adjustments "Concerning what happened during the negotiation sessions, I have relied in large part upon Youngdahl's testimony . Youngdahl appeared to me to be a truthful witness doing his best to relate the events of a long series of bargaining meetings. He was assisted by his contemporaneous notes. To a lesser extent I have relied on Keeline's testimony and notes. Sometimes the detail in his testimony suggested that Keeline 's memory or alleged memory was almost too good to be real and true. As is seen below, Keeline's testimony concerning the July 19 , 1966, meeting cast a I shadow upon his credibility. To a limited extent I have relied on Guthunz' testimony. Guthunz was strongly biased against the Union and this clearly colored his memory and his testimony . He had no contemporaneous notes to assist him. He was at times self-contradictory. On some matters I have relied upon Personnel Manager McClain 's writeup of the sessions based upon his contemporaneous notes. In general, I have resolved conflicts in the testimony on the basis of my observation of the demeanor and credibility of the witnesses and what upon the record as a whole appeared to me to be the inherent probabilities in the situation. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occurred on June 28 and 29 They reached tentative meeting of the minds concerning the wording of a number of articles, including the preamble and articles concerning mutual obligations, recognition, discharges and discipline, assignments and distribution of work, chairman-shop committee, jury duty, reporting, waiting and machine downtime pay, layoff and rehire, access to shop, fire prevention, termination of rights, management functions and rights, additional provisions, conformity to law- savings clause These related mainly to noneconomic matters Whether the tentative agreements were to become final depended on whether a meeting of the minds on all subjects was ever achieved At the conclusion of this first 4 months of bargaining, there remained on the bargaining table a number of subjects on which the parties had not reached tentative meeting of the minds There had been discussion on all or most of these subjects These included a no-discrimination clause, trial (probationary) period, checkoff, hours and overtime, wages, assignment to other work, holidays, benefit funds, escalator or cost of living adjustments, change in legal minimums, vacations, no strike-no lockout, grievance procedure including arbitration, waivers The evidence is in dispute as to whether by the end of June a number of subjects had been disposed of by tentative agreement or withdrawal by the Union Respondent contended, the General Counsel and Union disagreeing, that proposed clauses on the following subjects had been withdrawn subcontracting, layoff and rehire, related firms, crossing picket line union labor, employer entity, subsidiary or affiliated firms, struck work, agency, nonpayments Of these, only the picket line clause needs further consideration At the conclusion of the June 29 bargaining meeting, the parties adjourned until July 18 As to the Union's picket line clause, it was one of a number of clauses that Youngdahl told Kullman in New Orleans on June 25 that the Union would probably withdraw, although he told Kullman that the Union would withdraw a number of other clauses The picket line clause was one of many clauses discussed and adjusted on June 28 and 29, and the Union certainly indicated that it would probably withdraw it if a contract was reached Youngdahl did not include the picket line clause in a list of 17 "issues remaining" after the June 29 meeting At the September 22 and 29 meetings, Union President Stulberg placed importance upon this clause, as is seen below, and the testimony of Youngdahl proves that Stulberg was surprised when Kullman told him the Union had withdrawn it Stulberg turned to Stems and asked if that was so, Siems relayed the question to Youngdahl and Youngdahl's remembrance was that it had not been withdrawn In summarizing the negotiations to a mediator on November 16, Guthunz related that Siems had said the picket line clause was not important, not that Stems had withdrawn it according to Keeline's notes Although Guthunz was not present on June 29, he kept close tab on the negotiations and would have known whether Respondent considered the picket line clause withdrawn Keeline testified that on June 29 Stems withdrew the picket line clause, that he so recorded on his notes of that meeting (which notes reflect such an entry) and that he saw Kullman make a note to that effect on a list of clauses Neither Kullman nor Siems were called to testify by their respective parties, although Kullman was in the hearing room during the entire hearing and Siems was in and out of the hearing room during the hearing Keeline's credibility is under serious question because of his testimony about the July 19 meeting, which other testimony showed he did not attend Youngdahl named those at this meeting and did not include Keeline Youngdahl's contemporaneous notes of the meeting do not list Keeline as present The notes of Respondent's personnel manager, McClain, were written up 3 days after the meeting from notes made at the meeting, and do not show Keeline present Keelme kept notes at the meetings he attended, which are in the record, and the record has no notes of Keeline's for this meeting Under all the circumstances, I find that Keelme did not attend the July 19 meeting and that his testimony about this meeting was based upon something other than his recollection Under these circumstances, Keeline was less than a fully credible witness and I do not credit his testimony that Stems withdrew the picket line clause on June 29 Upon the preponderance of the evidence, I conclude that the most in Respondent's favor that can be concluded is that prior to President Stulberg's entrance into the negotiations, the Union did not give the importance or emphasis to the picket line clause that Stulberg gave to it, and that when Stulberg raised it on September 22, he was unaware that Stems had downplayed it 2 Respondent's first economic offer followed by unfair labor practices Respondent presented its first economic package of proposals to the Union at informal meetings on June 25 and 28 This package included Respondent's first wage proposal, consisting of a 5-cent raise above the minimum wage to $1 30 on the effective date of the proposed contract, a 10-cent raise to $1 40 on July 1, 1967, a 5-cent raise to $1 45 on July 1, 1968, and a 15-cent raise to $1 65 on February 1, 1969 Respondent's proposal was, further, that if the Federal minimum wage was changed by Congress, Respondent's proposals were in addition to, or on top of, the new minimum wage The base rate for pieceworkers was to be increased by the same amounts and the differential between hourly rates and piece rates held at the current 27-1/2 cents On July 18 began a change in the Union's attitude towards Respondent's bargaining practices, which was occasioned by Respondent's actions away from and at the bargaining table The record sustains the conclusion that before and after this date the Union wished to believe that Respondent was bargaining in good faith, but that beginning on this date the Union strongly suspected that it was not On July 18 Respondent announced to its Lonoke employees that it was giving them a 10-cent wage increase effective August 1, and minutes later, but not before, Respondent offered the same increase to the Union in the negotiations at Little Rock In making the offer to the Union, Respondent told the Union that Kellwood was putting the 10-cent increase into effect at all its other plants (more than 30) on August 1 This was an informal meeting with Kullman and Guthunz representing Respondent and Youngdahl and Siems representing the Union As has been seen above, the Lonoke plant is a part of the Ottenheimer Division under Guthunz and is about 25 miles from Little Rock In announcing this wage increase to the Lonoke employees on July 18, Plant Manager McKibben of the Lonoke plant read a speech written by Guthunz on July 18 After writing it, Guthunz cleared it with a lawyer in Kullman's law office The speech read as KELLWOOD COMPANY, OTTENHEIMER 29 follows Mr Guthunz has just returned from a Division Presidents Conference of all Kellwood plants and as a result of action taken at that meeting, I am pleased to announce that effective August 1, 1966, wages will be increased 10 cents per hour to all time workers and all incentive rates will be increased by 10 cents per hour In addition, the guaranteed minimum rate of pay will be increased 10 cents to $1 35 per hour for all employees with 90 days service with the company The increases are in line with Kellwood policy to continue a progressive program of providing wages and benefits to the best of its ability This increase was made possible by you and your company working together to make this plant a success You did not have to pay one cent in union dues to get this increase It was not necessary for you to call on any union outsiders to speak in your behalf in order to get this raise Our company has always followed the policy of improving wages and working conditions whenever it was able to do so and it will continue to follow that policy in the future No union can force us to do more than that This increase should be proof that a union is not needed by a company like ours that treats its employees fairly and rewards them for their good work In closing, let me say this, and I hope you will always remember-you will always receive the same rates of pay, the same benefits and the same fair treatment as the Ottenheimer employees in Little Rock, and you will receive the same rates of pay, the same benefits and the same fair treatment as those employees without having to pay union dues or union fees Again, let me say that it is with a great deal of pleasure that I announce today, this wage increase Although Guthunz had written this speech and was present with Kullman at the July 18 meeting with union representatives in Little Rock, which began at 4 p in , neither of them initially mentioned the Lonoke wage increase or its impending announcement Kullman made Respondent's 10-cent wage offer some 20 minutes after the session was under way w'th other topics, and stated that Kellwood was going to put a 10-cent raise into effect m all other plants effective August 1 Kullman stated that this decision had been made at a meeting of Kellwoou officials in California Within minutes thereafter and before the union representatives had expressed any or much reaction to the offer, the union representatives, Youngdahl and Siems, received a phone call from a union official telling them about McKibben's speech and Respondent's announcement of the raise to go into effect at Lonoke on August 1, 1966 Upon these facts, I conclude that Respondent announced the raise at Lonoke, minutes before offering it to the Union at Little Rock Siems returned from the telephone call and told Guthunz and Kullman in strong language that he thought Respondent was bargaining in extremely bad faith to give a wage increase to other plants and then offer it to the Union in negotiations Kullman replied that Respondent was not giving the fringe benefits at the other plants which it was offering in the negotiations and so it was not the same offer Siems challenged this Siems said that Respondent's wage offer was unsatisfactory to the Union because of the way it was announced in other Kellwood plants first, and also because Respondent was not offering any more than would be required by the impending change in the Federal minimum wage law Siems, showing anger, expressed himself strongly and repeatedly to the effect that in the handling of this wage increase and offer, Respondent was bargaining in bad faith with the Union For the first time, a bargaining session ended on this very unfriendly note The company decision to grant a companywide" 10-cent increase on August 1 and announce it July 18 had been made at a Los Angeles meeting of the division presidents and President Wenzel on about July 11, 1966 The Board has recently held that the granting of this wage increase was motivated in part by antiunion considerations," and that the promising, announcing, and granting of it at Lonoke and the granting of it at the Alamo plant of Kellwood's Southern Division, were in violation of Section 8(a)(1) of the Act " The division presidents and President Wenzel in California were fully aware of the pending Little Rock negotiations and were briefed concerning them by Kellwood Company's employee relations director, Keelme In Case 170 NLRB No 184, Keelme testified that the division presidents discussed the prevailing organizational efforts of the Union In Case 170 NLRB No 183, President Wenzel testified" that some time during the several-day period of the meetings in Los Angeles,` he had a discussion with Guthunz and Keeline, during which they decided to make the 10-cent offer to the Union in the Little Rock negotiations on July 18 At that time they were aware that the next Little Rock negotiations between the Company and the Union had been scheduled for July 18 Wenzel testified that July 18 was chosen because that was the first date all the division presidents would be back in their respective localities and Respondent wanted to make the announcement countrywide at the same time He and Guthunz stated that one of the reasons for granting the raise was to demonstrate to the employees that they could get a raise or benefits without a union In that case, Wenzel testified that the primary reason for the increase was to attract better help, that they were having trouble attracting qualified help, Guthunz testified before me that this was one of the reasons Neither said anything about the raise being pursuant to "a progressive program of providing wages and benefits to the best of its ability" which Guthunz wrote for McKibben to read to the Lonoke employees Guthunz testified that, "I would think that if you grant wage increases to your employees, it is evidence that the employees do not need a union in my opinion " Significantly, the Guthunz-McKibben announcement did not tell the employees that Respondent's policy was to endeavor to establish "minimum employee benefit standards " Guthunz testified before me that he did not consider giving the Union notice prior to July 18 of the companywide wage increase Respondent was going to announce that day, effective August 1 No reason appears why Respondent could not have offered the raise to the Union on July 18 and thereafter, "Two plants were excluded because they were being reengineered "Of significance is the italicized phra,e used in the minutes of a Kellwood board of directors meetings of July 26 1966 The pertinent sentences read as follow, Mr Wenzel reported on the Division Presidents Conference held in Los Angeles on July 11 12 and 13 1966 Mr Wenzel reported on the granting of a wage increase of 10 cents per hour to hourly paid employees exclusive of those represented by the I L G W U effective August 1 , 1966 [Emphasis supplied 1 "170 NLRB No 183 and 170 NLRB No 184 "See fn 9 supra "Guthunz testified before me that this discu,sion occurred after the division presidents meetings had been concluded 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD say on July 19, announced it to employees companywide, thereby giving the Union an opportunity to bargain concerning it for the Little Rock employees before announcing it companywide Under all the circumstances, it must be concluded that one of the reasons Respondent timed the announcement for July 18 instead of, say July 19, was to maximize its adverse effect upon the Union's bargaining power and bargaining position in the Little Rock negotiations Respondent's alleged primary reason for making the raise was to attract better help Assuming the truth of that statement, it would appear that the sooner the raise became effective, the sooner it would attract better help No reason was offered for the 2-week delay between the announcement on July 18 and the effective date August 1 Under all the circumstances in this record, it must be concluded that at least one of the reasons for the delay was to maximize the adverse effect upon the Union's bargaining power and bargaining position in the Little Rock negotiations Thus, the delay allowed a 2-week period of time for Little Rock employees to contemplate the futility of their situation, to withdraw from the Union, and to pressure the Union to accept Respondent's offer, even though the Company and the Union were far from consummation of a contract That the Little Rock employees would promptly hear of the announcement to the Lonoke employees, and that Respondent intended they should, is not open to question, since the same Union and the same union leadership was concurrently bargaining for the Little Rock employees and trying to organize the Lonoke employees and since both groups of employees were in the same corporate division under Guthunz In the representation case, Respondent had tried to get the Lonoke employees included in the same unit as the Little Rock employees Indeed, at a negotiation session on July 19, if not before, the Little Rock employee negotiating committee learned about Respondent's fait accompli at Lonoke and heard Stems complain in anger to Respondent's representatives about their bad faith and their effort to undercut the Union's bargaining status by offering the Union the wage increase it had already announced at Lonoke and other plants zz Respondent could have simply told the Lonoke employees it was giving them the raise, without any reference to the Union or the Little Rock employees Instead, Guthunz went out of his way to tell the Lonoke employees, contrary to the admitted fact, that the Union had nothing to do with their getting this raise And instead, Guthunz emphasized that the employees did not need a union, did not need to pay union dues and fees, and would get the same rates of pay and benefits the Little Rock employees would get, a message Guthunz surely intended for the Little Rock employees as well as the Lonoke employees If the Little Rock employees could be brought to realize, as Guthunz must have intended, that their union bargaining representative was ineffectual in getting them a raise and that it was futile for them to support the Union further, he would have undercut the Union's strength and bargaining power and would have accomplished his purpose Respondent's timing and language in announcing this increase to the Lonoke employees clearly tended to obstruct and inhibit the actual process of discussion of wages thereafter in the Little Rock negotiations Respondent's timing and language was clearly aimed at "The findings in this sentence are based upon the credited testimony of Youngdahl undercutting the authority and prestige of the bargaining representative at Little Rock and of creating the image of the employer as the protector of the employees rather than the Union Cf Waycross Sportswear, 170 NLRB No 139 The timing and manner of this act changed the course of the Union's bargaining thereafter and was one of the important factors that ultimately led to the strike The timing of this increase and this McKibben speech written by President Guthunz, viewed in the light of Respondent's massive antiunion preelection campaign, revealed Respondent's true attitude towards the Union and its rejection of the principle of collective bargaining, although it had gone through the motions of bargaining for some 4 months at some 20 meetings Upon the preponderance of the evidence, I conclude that Respondent's wage offer made to union representatives and employees on July 18 and 19 was made in bad faith and indicated that Respondent was bargaining in bad faith The July 19 session between the parties ended with Kullman urging the Union to come up with a counterproposal and Stems urging Kullman to increase the Company's offer up to what the Company's competitors were paying McClain's notes quote Kullman as uttering this limited concept of collective bargaining "Collective bargaining is the proposition of each side presenting proposals and counter-proposals " Stems said he did not think the Union had to present a counterproposal to such a low proposal as Respondent's and that Respondent should pay what its competitors pay Kullman said that `we are not going to discuss what Kellwood can or cannot pay " Earlier Kullman had said he was not saying whether Kellwood could or could not afford an increase At the end, Stems said "anytime you are ready to make another proposal we are available We are willing to meet anytime you want to " Kullman replied `That's fine, we are willing to meet anytime you feel we can accomplish anything I think it should be up to you to present us with a counter proposal at our next meeting " For the first time a negotiation session ended without the time for the next one being set It ended, as the record showed, with Stems angry over Respondent's Lonoke announcement and its effect upon his bargaining position, and also over Respondent's low economic offer which, after a discussion with the employees' committee, Stems announced was unsatisfactory to the committee It ended with both sides trying to put the responsibility for calling the next meeting upon the other The companywide wage increase went into effect on August 1 on schedule, in all plants including Lonoke, except the two being reengineered where the increase would be reflected in the reengmeered rates Respondent's effectuation of this increase at Lonoke in the face of the Union's protest of Respondent's bad faith at the July 18 and 19 sessions, Respondent knowing and intending it to undermine the Union's strength and bargaining power in the Little Rock negotiations, was a further mdicia of bad-faith bargaining at Little Rock 3 Negotiations continue While each side was waiting for the other to make the next move, the Union in its leaflets was taking note of the strike talk in the plant and counseling patience Although the bulletins, with one exception, did not mention Respondent's Lonoke maneuver, they could scarcely do so without admitting the Union's embarrassment at finding itself in the position of bargaining for a first raise at Little Rock when the employees at the related Lonoke plant KELLWOOD COMPANY, OTTENHEIMER 31 already had a raise; and in the position, therefore, of being vulnerable to the accusation that the Union was holding up a raise to the Little Rock employees. Further, as the record showed, at this point the Union wished to continue trying to get an acceptable contract in Little Rock, not to strike or process a refusal-to-bargain charge before the Board; although it also, through its leaflets, tried to keep its "troops" in line for a strike if one became necessary; and although it delayed the negotiations somewhat until Stulberg could get from the Union's general executive board authority to strike the plant if that became necessary, which permission was granted in early September. Although during several negotiation sessions in June Siems had tried to get Respondent to agree to discuss the decisive issues, primarily wages, in the absence of the employees' committee, so as to minimize the political impact of the negotiations in the plant , Respondent's Lonoke ploy made it quite evident that he did not succeed , and confirmed Respondent's testimony that there was no such agreement . In any case, if there was any such short-lived agreement , the Union ' s leaflets showed that the Union abandoned it after Lonoke. On the entire record I do not credit Youngdahl's testimony that the "agreement" lasted into October. During the period after July 19 when there were no sessions, the Union made several requests of Respondent for information, which Respondent supplied. On August 18, 1966, Siems made a new wage proposal to Keeline over the telephone and demanded higher benefits in Respondent' s hospitalization, accident and sickness, and pension proposals . Siems' wage proposal included a first increase of 20 cents an hour. On August 29, 1966, Keeline telephoned Siems and persuaded him to meet with Kullman and Keeline at the St. Louis airport . Siems' assistant accompanied him. This initiative followed immediately upon a high-level meeting in St. Louis that day of Kellwood Company President Wenzel, Ottenheimer Division President Guthunz, Kullman , and Keeline . Pursuant to instructions received at the earlier meeting from Wenzel and Guthunz, Respondent's Kullman told Siems the negotiations were "holding up" the wage increase to the Ottenheimer employees, which had been received by all other Kellwood employees, that they thought they were close to an agreement, that Respondent wanted to put the 10-cent increase into effect September 30, retroactive to August 1. Siems asked why they were telling him this and answered his own question with the observation that it was to avoid an unfair labor practice charge. Respondent's expert negotiator, Kullman, "just kind of grinned and shrugged his shoulders," but did not reply. Siems counterproposed no retroactivity but a 15-cent raise , effective October 1. Siems added, as though an afterthought, words to the effect that if the Respondent did that, it would probably raise the rest of the plants the additional 5 cents. Siems asked what Respondent was going to do February 1. Kullman replied that a raise for February l was " open for discussion [that is, negotiable]," but that Respondent was not going above a dime for the first raise. The parties then discussed Siems' earlier suggestion that they have a negotiating session in New York where they could meet with Louis Stulberg, the Union's new president. At the conclusion of the meeting, Siems told Respondent not to put the 10-cent increase into effect, that the Union did not agree with it. Pursuant to arrangements made on August 29 after the conclusion of the above session, the parties next met on September 22 in President Wenzel's office in St. Louis, with President Stulberg coming for the meeting. A week later on September 29, Respondent's negotiating team, including Wenzel and Guthunz, went to New York and met the union team including Stulberg at the Union's headquarters. The union representatives took part of the Little Rock employees' negotiating committee to St. Louis and to New York and held them in standby. Respondent was told the employees' committee was there and that the Union was prepared to call the committee in, if the negotiations reached a basis for agreement. Both sides knew that with the top men present these were the crucial meetings of the entire negotiations. The parties seemed to make bargaining progress at these meetings but the employees' committee was not called in at either meeting. 4. The crucial St. Louis and New York sessions The September 22 session in St. Louis, and "informal" meeting, began with 17 issues remaining to be resolved and ended on a note that some of them were disposed of or able to be resolved if a contract eventuated. This was achieved through give and take by both parties. The issues disposed of or agreed as resolvable related to the following subjects: no discrimination , trial period, checkoff, hours and overtime, assignment to other work, contracting out, and possibly others. The parties agreed that cost of living adjustments, changes in legal minimum wages, and new products were economic issues and would be discussed with other economic issues. The parties continued their existing disagreement on holidays, vacations, and the timing of when a pension program and a health and welfare program should go into effect. The Union continued its objection to Respondent's holiday proposal of six holidays on the ground that that was Respondent's current practice and the Union wanted more. The parties continued their long-existing disagreement on timing, the Union wanting the health and welfare program to start with the consummation of a contract and the pension program to start the following year, and Respondent wanting the timing just reversed. The testimony is in conflict as to whether Respondent, through Kullman, made a new wage proposal at this meeting, the General Counsel and the Union contending that it did and Respondent contending that it did not. Of significance is that if Respondent did make a new offer, this offer retained Respondent's position of being willing to grant only a 10-cent wage increase the first year. It is certain, on the record, that the Union's president, Stulberg, made a new wage proposal at this meeting. Stulberg suggested "10, 10, 10" but did not spell out just when these three 10-cent increases would go into effect. This failure is not to be condoned. Stulberg testified that he meant 10 cents above the Federal minimum . At that time both parties knew that the new Federal minimum wage bill was to be signed by the President the following day and that it raised the minimum wage from $1.25 to $1.40 per hour on February 1, 1967, and to $1.60 on February 1, 1968. The General Counsel and the Union contended that Stulberg's proposal intended the first 10 cents to go into effect on the effective date of the contract, the second on February 1, 1967 (which. on top of the new minimum wage would bring Respondent's minimum wage to $1.50), the third on February 1, 1968 (which on top of the $1.60 Federal minimum wage would bring Respondent' s minimum wage to $1.70). Respondent contended that it understood Stulberg's "10, 10, 10" to mean that the first 10 cents would go into 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD effect on the effective date, the second on the first anniversary date of the contract, and the third on the second anniversary date At the meeting Respondent did not, although it had ample opportunity to, ask Stulberg what he meant by his "10, 10, 10" proposal It seems to me that it would have done so if it had been seriously bargaining with an open mind towards a contract Further, as it seems to me Kullman would have known, it was highly improbable that the Union would make a wage proposal which would permit any employee to receive only the Federal minimum during two 6-month periods of the contract In addition, Guthunz understood, as he testified, that when Stulberg proposed a 2-year contract at the New York meeting the following week, Stulberg was proposing the same wages in a 2-year contract as he had earlier proposed in a 3-year contract This would mean that under Respondent's alleged understanding, the last increase would fall at or only shortly before the expiration of the contract The improbability of a union leader's making such a proposal, or being so understood by sophisticated company negotiators, suggests to me the bad faith of Respondent's alleged understanding of Stulberg's "10, 10, 10" proposal Respondent's bad faith was further suggested by Keeline's testimony that he understood that in a 2-year contract, Stulberg's second two raises would come on February I each year, although in a 3-year contract they would fall on the anniversary date of the contract, which would be in the late summer or fall Since Respondent's negotiating team disagreed within itself as to the meaning of the `10, 10, 10" proposal, good-faith bargaining required that it resolve its doubts by ascertaining the facts, before accepting the proposal- which it did not do Upon the preponderance of the evidence, I hold that Respondent's alleged misunderstanding of Stulberg's proposal was a bad-faith misunderstanding contrived and thereafter used as a device to foul up and obstruct the bargaining process This was the Union's first expressed willingness to settle for a first raise of 10 cents As has been seen above, the Union started the negotiations with a demand for a minimum wage of 25 cents above the legal minimum On August 18, Siems asked for 20 cents On August 29, when Siems suggested 15 cents for the first raise , Kullman announced firmly that Respondent was not going above a dime for the first raise Throughout the negotiations, Respondent had sought a longer term contract, such as 3 years, so as to stabhze its employee relations Its original proposal talked of a 5-year contract The Union had sought a shorter contract, such as 1 year or 2 years, hoping no doubt to negotiate a stronger second contract when it became more entrenched in the Company On September 22, the parties understood that Stulberg's "10, 10, 10" proposal related to a 3-year contract During the St Louis meeting, President Stulberg placed considerable emphasis upon the Union's need for a picket line clause Respondent contended Stulberg said he would not sign a contract without a picket line clause According to the General Counsel's evidence, Stulberg stated it less strongly Stulberg explained that the Union needed a picket line clause so that if it had a dispute at some other plant of Kellwood, it could picket the Ottenheimer plant and the Ottenheimer employees would remain away from work, thereby giving the Union this economic strength in settling the dispute at the other plants Stulberg made it clear that the Union intended to organize allof Kellwood" At the September 22 meeting, there was a long discussion about arbitration Respondent gave the argument it had given throughout the negotiations against arbitration, that it did not believe in giving authority to a third party who had no responsibility At the end of this discussion, Respondent offered to Siems a "gentlemen's agreement" that Guthunz would agree to arbitrate any issue except piece rates that Siems requested if Siems would agree to arbitrate any issue Guthunz requested Respondent testified that Guthunz and Siems shook hands on this proposition Guthunz refused to put it in writing This unwillingress to put into writing an agreement upon a given issue was further proof of bad-faith bargaining The September 29 meeting at the Union's headquarters in New York City opened with Respondent's negotiating attorney, Kullman, stating that there remained four major issues wages, an escalator or cost-of-living clause, arbitration of piece rates, and the picket line clause He said that Respondent was willing to accept Stulberg's proposal of "10, 10, 10," but not the other three As has been noted, Stulberg's "10, 10, 10" offer of September 22 related to a 3-year contract After a break to give the union representatives time to caucus, Stulberg returned and said the Union would capitulate on the picket line clause if Respondent would agree to a 2-year contract instead of a 3-year contract Stulberg added that he would accept a "bare-bones" contract for a short time-1 or 2 years, without a picket line clause, in order to get a foothold with Kellwood in recognition of the Union's position as bargaining agent After another break to give the Company an opportunity to caucus, Kullman said "you have a contract," that the Company would take a 2-year contract without a picket line clause Up to this point, there had been no discussion as to what the money increases would be under a 2-year agreement There then followed a very confusing half hour or so when Stulberg explained what he had meant by his "10, 10, 10" proposal in St Louis and stated that he would expect the same raises in a 2-year contract as in a 3-year contract, namely 10 cents to $1 35 upon the effective date of the contract, 10 cents on top of the Federal minimum February 1, 1967, to $1 50, 10 cents on top of the Federal minimum February 1, 1968, to $1 70 Respondent's representatives told Stulberg what they allegedly understood his proposal in St Louis to be, as has been set forth above, and accused him of changing it in New York There and at the hearing herein, Stulberg credibly denied making different wage proposals in St Louis and New York Of a certainty, there was no meeting of the minds in New York, even for a split second In fact, Respondent was bargaining in bad faith on wages and a meeting of the minds requires good faith on both sides But assuming Respondent was bargaining in good faith, Kullman's acceptance of a 2-year contract without a picket line "Stulberg s use of the picket line clause was for bargaining purposes at Little Rock The record does not show as contended by Respondent that the Union s objective in the Little Rock negotiations was firstly to get a picket line clause to help it organize the rest of Kellwood Stulberg s first objective in using the picket line clause as he did was to get the best contract he could for the Little Rock employees The way for him to convince employees of other Kellwood plants that they should join the Union was to be able to show them the good wage increases and benefits the Union achieved for the Little Rock employees To be able to do this it was an absolute necessity that the Union achieve a contract at Little Rock and this I find is what Stulberg was trying to do To this effect, Stulberg credibly testified that We wanted to get an agreement with this firm We wanted to protect these people KELLWOOD COMPANY, OTTENHEIMER 33 clause did not include the wage increases intended by Stulberg Assuming good faith, the parties had two different conceptions of Stulberg's "10, 10, 10" offer and two different conceptions as to what raises would go into a 2-year contract as distinguished from a 3-year contract These different ideas never got together in a meeting of the minds Respondent contended that Stulberg changed his `10, 10, 10" offer in New York from his offer in St Louis Guthunz and Keeline quoted Stulberg as saying in substance they should forget what he said in St Louis that he was in New York now Youngdahl remembered no such testimony On credibility grounds and on the entire record, I do not credit it I do not believe Stulberg would have been ^,o indiscreet or was so lacking in good judgment as to have said that Further, I can conceive of no good to his cause that Stulberg could have hoped to gain from any such maneuver Stulberg wanted a contract covering the Ottenheimer employees, which would give hint a foothold in the Company He wanted a contract with enough economic gain for the employees to be acceptable to them But playing games about the amount of raises would not be apt to lead to a contract, as a president of an International Union would have known If there was any trickery, the entire record, including Respondent's antiunion preelection campaign, suggests that it was more apt to have come from the Company than the Union, in an effort to contrive seeming agreement on wages it knew the Union did not intend and which foreseeably would be repudiated by the Union, thus casting a shadow upon the Union's bargaining and putting itself in the clear of a bad-faith bargaining allegation The New York meeting adjourned with the understanding that Wenzel would take the situation as it then stood, including the picket line issue and Stulberg's "10, 10, 10" as he had explained it at that meeting, back to Kellwood's executive committee and that Respondent would be in touch with the Union in the near future 24 As the New York meeting was breaking up, Kullman told the Union that Respondent reserved the right to put the first 10-cent raise into effect A union attorney replied that the Union heard him, did not agree that Respondent should do it, asked Respondent not to do it, and Stulberg said, "if you do we will start from there " At their hotel, immediately after leaving this meeting at the Union's headquarters, Wenzel told Respondent's negotiating team that he was not going back to the executive committee, that he already had his instructions from them It thus appears that Wenzel indulged in a deceit with the Union on this matter Kullman suggested that if the Company went half way between what it allegedly understood as the meaning of Stulberg's "10, 10, 10" offer in St Louis and its present understanding of its meaning, this would bring Respondent's wage offer to its outside wage offer as decided by it in May 1966 The company team decided there and then to make that wage offer to the Union, but did not decide when to do it No member of the company negotiating team suggested that they get in touch with the Union and put the new proposal to it while they were still in New York, although it was then only noontime Keeline's only explanation for this failure was that Respondent preferred to make the ''Phis finding is based upon the testimony of Youngdahl although Keehn testified Wenzel said he was going back to the executive committee only concerning the picket line clause Youngdahl credibly testified that repeatedly during the St Louis meeting Wenzel pleaded lack of authority on open issues proposal face-to-face with the Union At that time, a few moments after the company team had left it, the union team, including the top man, Stulberg, was presumably available for a face-to-face confrontation with Respondent's team, as it had been all morning The fact that no one on Respondent's team even suggested to the team that they try to contact the union team they had just left and then and there try to wind up the negotiations and reach a contract, is strong evidence to me that Respondent was trying to avoid rather than achieve an agreement with the Union Also, as Respondent knew, some members of the Union's employees' committee were in New York and available on that Friday in September This failure was of added significance because, as the record suggests, at the meeting Just ended the situation was such that the parties appeared nearer to an agreement than they had ever been Although the question of holidays was not mentioned and the question of the timing of the benefit and welfare funds were not mentioned and some other issues were glossed over, Youngdahl believed that if the parties could get together on the issues they were discussing in New York, that they would somehow be able to reach agreement on the other issues not then being discussed 5 Union rejects Company's "final offer" On October 6 in his office, President Guthunz presented what he called the Company's "final offer" to the Union's representatives, Siems and Youngdahl President Guthunz testified that he read almost verbatim from a typed document prepared in advance which is in evidence as Respondent's Exhibit 7 I credit this testimony and accept the exhibit as a correct statement of the presentation by Guthunz on this occasion As stated in the exhibit, Guthunz opened the meeting by rejecting Stulberg's proffered 10-10-10 wage rate and a 2-year contract Guthunz then announced he was about to make Respondent's final offer He requested the Union to let him know its answer to the offer by Tuesday, October 11 Guthunz continued "If it is acceptable, you may want it placed before your committee as a group, and I shall be glad to do so If it is not acceptable, then we are going to ask for a prompt meeting of the negotiating committee and will make public to this committee our proposal " Guthunz' offer was for a 3-year contract without a picket line clause 25 Impliedly recognizing the large number of loose ends left dangling during the St Louis and New York meetings, Guthunz' offer went down the "17 points" which had been considered at the St Louis meeting and provided for some kind of disposition of each of them The Union was to withdraw at least 10 of its proposals, and would agree with the Company's latest proposal on the rest of them Respondent's new wage proposal, decided upon in New York immediately after the September 29 meeting and presented to Stems and Youngdahl on October 6, was for a 10-cent raise to $1 35 effective August 1, 1966, 5 cents higher than the new Federal minimum, to $1 45, on February 1, 1967, 5 cents to $1 50 on the first anniversary of the contract, 5 cents higher than the new Federal, to $165 on February 1 "Respondent contended in it, brief that on September 22 and 29 the Union bargained to an impasse on the picket line clause That at the very next meeting President Guthunz omitted this clause from his final offer is proof either that there was no impasse or that Guthunz wished to assure himself there would be no contract by omitting a clause the Union had demanded to the point of impasse 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1968, 5 cents to $1 70 on the second anniversary date of the contract Respondent would grant one more holiday during the third year of the contract Guthunz said Respondent would accept 60 days for the trial or probationary period Guthunz adhered to Respondent s unswerving position that the pension would go into effect the first year of the contract and the welfare plan on the second year After Guthunz had finished his proposal, Siems asked a number of questions in order to test the flexibility of the "last offer " To Siems' question as to whether this was his final offer, Guthunz replied that not legalistically, but realistically, it was the Company's final offer Guthunz added that of course the Company was willing to continue to bargain Siems asked if Guthunz would consider a 30-month contract Guthunz replied that the Company would consider it Siems asked if the 13 or 14 "red-circled" people could get the raises too, so that all the employees would get the raises and none be left out Guthunz replied in effect that that could be worked out Guthunz' offer was for the second and third increases to be effective on the anniversary date of the contract Siems asked if they could be on August I each year instead of the anniversary date Siems asked other questions At the end, Siems told Guthunz that he would have to get in touch with Stulberg and the full committee, but that he did not think there would be any problem as long as Guthunz and Siems knew where they were going to end up A few days later, Youngdahl overheard the Siems end of a Siems' telephone conversation with President Stulberg during which Guthunz' offer was discussed Youngdahl testified that Siems indicated something about whether or not he thought there was any additional money available and that there were other areas of possible flexibility Siems also said it was a large unit of employee„ and that a strike would be a very expensive proposition At the end, Siems said he would continue bargaining and see what more could be gotten At a very short meeting in Guthunz' office on October 10, 1966, Siems and Youngdahl, speaking for the Union, gave the Union's answer to Guthunz' offer of October 6 The Union rejected the offer on the ground that it was not enough, and asked Respondent to reconsider and come up with some more Guthunz asked for specifics as to why the offer was unacceptable as Siems did not give any When Guthunz asked where they went from here, Siems replied "back to the bargaining table " At the end, Guthunz and Siems were talking about having another collective-bargaining meeting with the employees' committee present By exchange of telegrams shortly thereafter the parties set up the next negotiating session which, after a postponement, took place on October 24, 1966 The Union then scheduled a meeting of employees for the night of October 18 Respondent learned of this meeting from union leaflets in the meantime, the Union mailed to employees or handed out to them some four leaflets in which, for the first time, Siems was quoted as taking the position that the time had come to get ready for action rather than dust words, to try to induce the Company to sign a "proper contract" with the Union Prior to this, union leaflets had counseled patience and restraint 6 Respondent undertakes again to undermine Union and collective bargaining During working hours on October 18, several hours prior to the Union's meeting with the employees that night, Respondent passed out to employees at their machines a letter over the signature of President Guthunz, addressed "to our Ottenheimer employees regarding company proposal for a contract " A Sears Roebuck man who reported to the "Sears Vice President in charge of factories" helped draft it Respondent did not send a copy of this letter to the Union, who learned about it from employees The introductory paragraphs read as follows Smc,e the election last January, I haven't written to you-I haven't attempted to communicate my feelings to you Nine months have passed Over twenty meetings have been held Now I feel I owe it to you to make certain that you have the facts In a sincere and earnest effort to settle our differences and protect you from any possibility of a strike, I made a proposal made your top Union officials on October 6 for a three-year contract which I feel is generous and fair in every respect Many of you have told me that you have never been provided with the details of this proposal To help you understand it, I ask you to read carefully my proposal's highlights which are outlined below Then followed the highlights of Guthunz' October 6 "last offer," though his letter to employees said nothing about its being a last offer Guthunz' set forth his wage proposals, pension, hospital and surgical insurance offers, sickness and accident benefits, life insurance proposal, seventh paid holiday, a statement that a 3-year contract would be in the best interest of the employees, and a statement of his plans to reengineer the plant to provide employees with "additional opportunities to earn more during this 3-year period " Guthunz' letter to the employees made no reference to Respondent's position on a grievance procedure which did not end with assured arbitration, to Respondent's position on the nonarbitrability of piece rates, or to Respondent's position that it would not agree in writing not to discriminate against employees because of age Nor did he say anything about Respondent's proposals on vacations The last paragraph of this letter read as follows I urge you not to permit a minority of employees to determine your future ATTEND ALL UNION MEETINGS-EXERT YOURSELF-SPEAK UP- SPEAK OUT-INSIST ON YOUR DEMOCRATIC RIGHT TO VOTE I hope you vote to accept this offer and end all this confusion and uncertainty' After the signature of Guthunz, the letter contained a postscript of two paragraphs reading as follows At a meeting already scheduled with your Union representatives for next Monday [October 24] this proposal will be made again Should you have any questions about it, they can be clarified at the meeting If this offer is accepted by Friday, October 28, your Company will pay you substantial back wages by making the effective date of your wage increase retroactive to August 1, 1966 Respondent attempted to justify its issuance of this letter on the ground that the Union had not given the employees the details of Respondent's "final offer" and was building up for a strike The entire bargaining history in this situation showed that the Union was pressing for more for the employees at Little Rock, and it was for the Union, not the Company, to decide how best to accomplish this It was for the Union to decide when to tell the employees about Respondent's offer There was no evidence that the employees' committee or any employee KELLWOOD COMPANY, OTTENHEIMER 35 member in any way distrusted the Union or thought it was not working in the employees' best interest, or that the Union was not, in its view, working in the employees' beat interest Although the Union was conducting itself properly towards the employees and doing its best against great odds to get them a good first contract, this letter by Guthunz was an attempt to suggest otherwise to the employees and an attempt to undercut the Union and the collective-bargaining process in the minds of the employees It suggested again that Respondent was the protector of the employees, that the Union was controlled by a minority, and that employees were being deprived of the right to vote In the postscript it sought to give the impression that the retroactivity would be the gift of the Company rather than the fruit of collective bargaining Respondent could have presented its offer to the employees without attempting to undermine the Union in the process Nothing the Union did or did not do justified this attempt by Respondent to undermine the Union This effort to undermine the Union and the collective-bargaining process was further evidence that Respondent was bargaining in bad faith with the Union Further, by setting an implied deadline of October 28 for the Union to accept Respondent's wage offer, Respondent was clearly trying to establish in advance for its own bad-faith purposes when an impasse would be reached 7 Union takes strike vote At the Union's meeting for employees on the night of October 18, there were about 600 to 900 present The Union's vice president and regional director, Siems, spoke at length about the negotiations to date and about Respondent's unfair labor practices He protested strongly the distribution of the above letter that afternoon and he went down the letter and made numerous comments concerning its contents Siems related what bargaining there had been about the subjects mentioned in the letter He told what the Company had granted in other plants on the various subjects He told how the Company's wage proposal related to the new Federal minimum wage He said the company proposals were a mixture of the Company's present practices plus "things which [Respondent] had told the non-union employees they were going to get or had already gotten in other plants " He asked the employees if they were in favor of the Company', proposal and they rejected it unanimously He reviewed the increase at Lonoke particularly and referred to the original unfair labor practice charge the Union had filed against Respondent concerning that raise This original charge had been filed September 1, 1966 170 NLRB No 183 Siems stated that the Company was not bargaining in good faith with the Union He reviewed the bargaining, and told about the negotiation sessions in St Louis and New York when the Union had the employees' committee present and the Union was hoping an agreement could be reached After Siems spoke, Attorney Youngdahl also spoke about the negotiations and about the company letter, and read a resolution he drafted An employee moved that it be adopted Many people seconded it, and it was adopted unanimously The resolution read as follows Resolved - That because of the unfair labor practices of Ottenheimer Brothers, beginning in Little Rock and continuing to this day both here and in Lonoke, we give our committee power to call a strike against the company until Ottenheimer lives up to its legal and moral duties to treat us like human beings 8 Last session before the strike The scheduled October 24 negotiation session started at 11 am and lasted no more than an hour It's commencement was delayed somewhat while Siems talked with the employees' committee A Federal mediator was present but the record does not show which side, if either, invited him The session opened with a dispute as to which side called the meeting Early in the meeting, according to the credited testimony of Youngdahl, Kullman said the Union has indicated it wanted the Company's last proposal submitted on the committee Siems disputed this The record fails to show when, by whom and to whom, any such request was made, and the record gives every evidence that the Union was able to take care of its own relations with the employees and the employees' committee Keelme's testimony is credited to the effect that Kullman said the Company's presence at the meeting was to explain its proposal to the committee Siems bitterly protested the Company's distribution of its October 18 letter to employees quoted above He accused Respondent of bad-faith bargaining in presenting its proposal directly to the employees in this letter He objected to Respondent's failure to send a copy of this letter to the Union He objected to Respondent's urging the employee, to insist on democratic procedures in the Union, which Siems stated were completely democratic Siems told Kullman he could say what he wanted to the committee but that it might be a waste of time because the Company's last proposal had been voted on twice, that the committee knew the Company's offer and had rejected it, and that the people had taken a strike vote He repeated several times that the people will decide, the people will decide Both Youngdahl for the General Counsel and Keeline for Respondent testified that Kullman called Siems a liar first and that Siems answered that Kullman was a liar They differed on the subject that produced this exchange Youngdahl credibly testified that Kullman had incorrectly stated Stulberg's money offer in New York, that Kullman had said the "10, 10, 10" offer meant something different than all understood it meant at the conclusion of the New York meeting Presumably Kullman stated what had been Respondent's alleged understanding of the "10, 10, 10" at the beginning of the New York meeting, although Kullman knew this was an erroneous understanding by the end of the New York meeting and certainly at the October 24 meeting when he repeated the error Siems corrected him On the entire record, I find that it was at this point that Kullman called Siems a liar During the discussion, Siems asked Kullman if he was now offering ` 10, 10, 10," and Kullman replied in the negative Kullman reviewed Respondent's offer as contained in Guthunz' October 18 letter Kullman also accused the Union of deceiving the employees as to what transpired at the New York meeting, he said the Company had made a proposal which the Union had accepted, but that the Union had deceived the employees about it Kullman said the Union had not told the employees that the Union accepted all the Company's proposals except the money proposals, that the only disagreement was over the "10, 10, 10 " Kullman said the Union is about to strike over 5 cents for two 6-month periods This statement indicated 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Kullman understood the difference between Stulberg's "10, 10 10" as explained at the New York meeting and Respondent's current offer Siems told Kullman there would be no more meetings in the absence of the employees' committee, and that they were back to their original procedure of meeting with the committee Keeline incredibly testified that Siems said there isn't any offer and in the same breath, inconsistently, we are back to the original proposal In modern parlance, the record did not show Siems to be that inconsistent a negotiator To the contrary, it showed him consistently pressing towards his goal Further, neither Keeline's note, nor McClain's, recorded Siems as saying there was no offer on the table It was a turbulent meeting and it ended when the company negotiating team got up and walked out As they did so, Kullman asked "what separate[s] us9" Siems replied, "the people and a decent offer from the Company " Kullman replied "I only hope the 1400 people know what separates us A nickel for two 6-month periods Keeline testified that just before they walked out Kullman said that the Company's offer was on the table and the Company was waiting for the Union to come back with a counterproposal The meeting ended without either party stating that the negotiations were at an impasse and without Respondent saying anything about putting a wage increase into effect At this meeting, Respondent's spokesman conducted himself more as though he was intentionally trying to aggravate the situation and force the employees to strike than as though he was trying to move forward to an accord with the Union Thus, instead of moving forward Kullman went backwards, and, using figures he knew were erroneous, talked about the ` agreement" in New York and called the Union's negotiator a liar Kullman also accused the Union of deceiving employees as to what happened in New York These abrasive tactics tended to goad the Union into a strike At this meeting Respondent said nothing about putting the 10-cent raise into effect negotiations, Mr Stulberg, International President of the I L G W U , made the following proposal A two year contract, effective upon signature, with an immediate $ 10 an hour increase retroactive to August 1 as offered by the Company, $ 10 an hour increase on February 1, 1967 and $ 10 an hour increase on February 1, 1968 All other terms and conditions of the bargaining agreement to be as theretofore agreed by the parties or proposed in writing by the Company, including the Company's pension plan and revised health and welfare plan Mr Stulberg further stated that a three (3) year contract could be had if the Company would agree to put into it a clause giving the Union the right to put up a picket line here at Little Rock anytime it had a dispute with another Kellwood plant, say in West Virginia or in Arizona This Union wanted the right to take you away from your jobs and away from your paychecks to put pressure upon the Company to settle a dispute in which you had no concern Now Mr Siems will deny to you that such a proposal was made He denied it in the meeting this morning, but I assure you it was made At that time, the Company's proposal was $ 10 now with retroactivity, $ 05 one year from the contract date and $ 05 two years from the contract date on top of any change in the minimum wage law We had originally understood the Union wanted $ 10 now and $ 10 on each anniversary date for a three (3) year contract In New York, we said we would agree to this, however, Mr Stulberg explained his proposal was as I have stated above We agreed to take the Union's proposal home and consider it Our offer, then, of October 6 was a counter proposal to the Union's offer Side by side then, here is where we stood at 10 00 A M this morning 9 Unilateral wage increase of October 25 After this October 24 negotiation session, which ran from 11 am until noon , Guthunz decided to grant the employees a 10-cent increase immediately, and Respondent' s team drafted another letter to employees, dated that day, which letter was distributed to employees at work later that afternoon The same Sears Roebuck man, Kullman , Guthunz, and Keeline collaborated in drafting this letter It read as follows October 24, 1966 TO OUR OTTENHEIMER EMPLOYEES REGARDING COMPANY PROPOSAL FOR A CONTRACT This morning we met again with the Union Negotiating Committee We met to see what proposal the Union had to make as a counter to our offer of October 6 which it had rejected -a proposal which would have brought your minimum rates to $170 an hour in October, 1968 with an immediate increase of $ 10 an hour retroactive to August 1, 1966 I think you should know before you get led out on strike just where the Company and the Union stand In New York City where we met in open contract Company Union $ 10 now retroactive to $ 10 now retroactive to August 1 August I $1 45 an hour minimum on $1 50 an hour on February 1, 1967 February 1, 1967 $1 50 an hour minimum in October, 1967 $1 65 an hour minimum on $1 70 an hour on February 1, 1968 February 1, 1968 $1 TO an hour minimum in -- AT 11 00 AM THIS MORNING, THE UNION SAID IT HAD NO OFFER ON THE TABLE The Union says the Company can expect a strike We don't doubt its ability to force one We want to let you know that if a strike doe, take place, we are going to operate these plants There will be jobs here for any who want to work, and we will seek replacements to fill vacancies Because the Union has forced this impass, we are going to immediately put into effect the $ 10 an KELLWOOD COMPANY, OTTENHEIMER 37 hour increase which we offered. I hope each of you will seriously consider what you may be about to do-bearing in mind what I have said in this letter. I hope you will not continue to be misled by a union, which as I see it, is using you to further its interests throughout all of Kellwood rather than to protect your interests here at Little Rock. Sincerely yours, /s/ Respondent did not send a copy of this letter to the Union or notify it that it was going to put the 10-cent wage increase into effect. The Union learned of the letter late that afternoon when employees delivered it copies of the letter. Respondent put the raise into effect on October 25. To be noted is that there was no credible testimony, oral or written, to the effect that at the October 24 session the Union said it had no offer on the table. Youngdahl credibly testified that. at no time during that meeting did the Union say it had no offer or proposal on the table; and Youngdahl pointed out that during the meeting Siems asked Respondent if it would accept the Union's "10, 10, 10" proposal. 10. Decision to strike That evening, October 24, an employees' meeting was held, attended by some 200 to 300 employees. it had been scheduled as a meeting for the 20 member employee negotiating committee , but was opened up to others after distribution of the Guthunz letter that afternoon. I find the large attendance resulted from that letter . Siems and Youngdahl told the employees their version of the negotiating session that morning and spoke of Guthunz' letter just distributed announcing the wage increase. Siems and Youngdahl told the employees the Company was not bargaining in good faith, particularly concerning the wage increase . Siems and Youngdahl told the employees that if they decided to strike, the Union was behind them. Siems showed the employees a check from the Union for $100,000 and told them it would be deposited the following day to start a strike fund. There was a clear consensus to strike beginning the following morning. The meeting ended with a discussion about the mechanics of the strike, who would be picket captains, etc. The strike began October 25, 1966, and lasted until November 22, 1967. A report on organizational drives dated January 13, 1967, to a meeting of the Union's general executive board , January 30-February 3, 1967, read in part as follows: Since October 26 we have been chiefly concerned with the strike at the Kellwood plant in Little Rock, Arkansas . The ranks of the strikers has remained solid with only 10 having returned to work since the beginning in spite of injunctions, arrests and every kind of harassment brought against the strikers by the Company. This is the kind of determination that we rarely see. The minutes of this meeting recorded that Vice President Siems stated that the morale of the strikers is excellent. A report on organizational drives to a meeting of the Union's general executive board , July 10- 13, 1967, recorded that: The Kellwood strike in Little Rock , Arkansas, goes into its ninth month with over 600 active strikers, whose morale is as high as the day the strike was called. Their ranks are firm with only 12 of the original strikers having returned to work during this entire period. At the close of the October 24 negotiating session between the Union and Respondent, no arrangements were made for a future meeting. At 8:08 p.m. that evening, Youngdahl gave Western Union a night letter addressed to the Company, reading as follows: As attorney for International Ladies Garment Workers Union, hereby protest unilateral wage increase announced by letter of October 24 without notice to Union. Because of this and continuing violations by Ottenheimer of legal obligation to bargain, Union calls strike beginning October 25. The negotiations are not at an impasse, and we are ready to meet and bargain at any time. At about 1 p.m. October 25, Western Union reported to the Union that the night letter was "delivered 12:17 P. in. by phone because picket line and wouldn't answer phones." There was no proof that Respondent ever actually received this night letter and in any case Respondent never answered it. G. Conclusions Concerning Respondent 's Bad-Faith Bargaining up to the Strike 1. Respondent's overall design was to defeat all unions throughout Kellwood . Respondent's bargaining at Ottenheimer was not such as proved that Respondent had abandoned . or was making an exception to its overall design and had undertaken , with an open mind and a sincere desire to reach an agreement , to bargain in good faith with the Union. 2. There was a "telling coincidence" between Respondent's prenegotiation policies, utterances, predictions, and statements of intentions, and Respondent's subsequent actions, as revealed in this record . Thus Respondent' s policy was to grant only minimum benefits and to keep the Union out; in the negotiations it granted only minimum benefits and it eliminated the Union by replacing the strikers and then refusing to recognize the Union further. Thus, Respondent earlier indicated to the employees that it had no intent to sign a contract with the Union, and it never did . It earlier told the employees that Respondent did not have to and would not agree to the Union' s demands and impliedly told them it would not reach an agreement with the Union and that a strike was inevitable; Respondent did not reach an agreement with the Union and a strike occurred. Respondent earlier sought to convince employees that the inevitable result of a strike would be a loss of their jobs by the employees; during the strike Respondent replaced most of the strikers. Cf. N.L.R.B. v. May Aluminum, Inc., 398 F.2d 47 (C.A. 5, 1968), enfg . 160 NLRB 575. 3. In its preelection campaign in late 1965 and early 1966, Respondent asked the employees how the Union was going to make the Company "do anything if it doesn't intend to pull a strike." After it was all over, so to speak, on December 22, 1967, Guthunz gloated to employees that although he had kept a promise made a year before, this was "more than I can say for another group" - an obvious reference to the Union 's failure to obtain a satisfactory contact . These Company's statements disclosed Respondent' s closed mind towards the Union and the practice and procedure of collective bargaining. Thus, Respondent's state of mind from the beginning was that it would yield through negotiations not enough to satisfy the Union and employees and would push them to use their ultimate weapon . Later, the Union having achieved no contract (through Respondent's intransigence), Guthunz gloated over the Union's 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ineffectiveness and impotency 4 On the preponderance of the evidence in this entire record, I find it impossible to reconcile Respondent', vicious antiunion campaign with a simultaneous or later sincere desire to reach an accord with the Union I find it impossible to believe on this record that the Company did not bargain with the intent of bringing about the result that occurred 5 The Company's proposals and counterproposals on noneconomic subjects could have been made just as they were, and the negotiations gone just as they did, with the Company having no intent to explore in good faith the possibility of getting together with the Union on money matters and no intent to let the situation get to the point of a complete meeting of the minds on the major subject of money Respondent's bargaining concerning wages and rates, viewed against and in the light of Respondent's preelection massive antiunion campaign and its corporate policies concerning unions and the negotiations, was the touchstone in this situation and proved that Respondent was bargaining in bad faith and had no intent to reach a final agreement with the Union 6 As has been found above, the timing and manner of announcement of Respondent's wage increase to the Lonoke employees on July 18, 1966, was aimed in part at undercutting the authority and prestige of the Union in its representation of the Little Rock employees in the Little Rock negotiations, and revealed Respondent's rejection of the principle of collective bargaining and proved that Respondent was bargaining in bad faith at Little Rock 7 Once the 1966 increase of 10 cents had been set by the division presidents and Guthunz in early July 1966 for all of Kellwood, Respondent was never willing to change this amount It had a fixed purpose to carry out the corporate decision and not to bargain concerning it Its mind became hermetically sealed on this amount when it was set for all of Kellwood and thereafter it never bargained with the Union for the Little Rock employees with an open mind concerning the initial increase Bargaining in good faith requires bargaining on every issue, especially with a newly certified union on a first wage increase Respondent offered this increase to the Union on July 18 and 19 On August 18 Siems told Keeline he needed a first raise of 20 cents, and on August 29, Siems asked for a first raise of 15 cents On the latter date, Kullman announced that Respondent would not go above a dime for the first raise (although the amount of the second raise was negotiable) Respondent never did President Guthunz admitted that even if the Union had demonstrated that Respondent could have increased the amount of the first raise, he would not have raised it Respondent never offered the Union any reasons or any reasoned argument for this and its earlier lower wage offer When on July 19 the question arose, Kullman told Siems that Respondent was not claiming inability to pay more, that "we are not going to discuss what Kellwood can or cannot pay " Keelme quoted Kullman as saying at one session, "I am just telling you that this is all we're going to offer " At the St Louis meeting, President Wenzel told the Union, according to the credited testimony of Youngdahl, that he would have to check with the executive committee of Kellwood before considering higher wages Negotiating with an hermetically sealed mind on this initial wage increase, and being willing to bargain only on its own terms, was further evidence that Respondent was bargaining in bad faith 8 Once the 10-cent increase had been put into effect Keliwoodwide without credit to any union, Respondent's prime motivation thereafter was to put the same 10-cent raise into effect at Little Rock without credit to the Union, rather than to negotiate a first raise with the Union Thus, upon the high-up decision of Wenzel and Guthunz, on August 29 Kullman told Siems the negotiations were "holding up" the raise to the Ottenheimer employees which had been received by all other Kellwood employees and that Respondent wanted to put it into effect September 30 retroactive to August 1 A month later in New York, instead of trying to present its new wage offer to the Union (the one it presented October 6), Respondent through Kullman told the Union it reserved the right to put the first 10 cents into effect On the same occasion, Respondent used its alleged misunderstanding of Stulberg's wage proposal to foul up and obstruct the bargaining process On October 18, Guthunz wrote the employees that Respondent would put the 10-cent raise into effect retroactive to August 1, if the Union accepted Respondent's entire October 6 offer by October 28 In this letter, Respondent undertook to undermine the Union and to establish for its own bad-faith purposes when an impasse would occur Having in this letter impliedly given the Union until October 28 to accept its offer before an impasse would possibly arise, Respondent then reneged on its implied offer and put the raise into effect October 25 Finally, after negotiating abrasively that day, on October 24 Respondent wrote the employees that the Company was going to put the 10-cent-an-hour increase into effect immediately, and it did so without notifying the Union of its intent or its action This had the foreseeable and intended result of undermining the Union in its efforts to get an acceptable contract for the employees without a strike 9 This unilateral wage increase was announced in late afternoon prior to the evening meeting of employees on October 24 when the final decision to strike was made The employees' committee had had authority from the employees since October 18 to call a strike but had not called it The committee's evening meeting, October 24, expanded into an employees' meeting of several hundred after the Company's unilateral act It must be concluded on this record that Respondent's unilateral act contributed to the swelling of this meeting and to the final decision to strike reached at this meeting 10 As is seen below in this Decision, the Union had been building up to a strike for some weeks prior to October 24, which Guthunz knew from reading the Union's leaflets which reached his desk The record proved that Guthunz kept himself closely informed concerning the negotiations and the Union's activities Guthunz knew, and his skilled labor practitioner, Kullman, knew, that committing this unilateral act rather than continuing to bargain with the Union would be the final act that would force the employees and the Union to undertake the strike They also knew Siems would react strongly against this announcement by letter, for he had so reacted only that morning against Guthunz' October 18 letter It cannot be known for sure whether the employees would have decided to strike on the evening of October 24 but for Respondent's unilateral act and its October 24 letter, because the unilateral act and the letter mtervened prior to the meeting It follows, and I conclude, that by announcing as it did the 10-cent wage increase on October 24 and putting it into effect immediately, unilaterally without informing the Union, Respondent intentionally forced the Union and employees to strike, intentionally "place[d] the odium of rupture" upon the Union See N L R B v Remington Rand Inc 94 F 2d 862, 872 KELLWOOD COMPANY, OTTENHEIMER 39 (c A 2) cert denied 304 U S 576 NLRB v Reed & Prince Manufacturing Company 118 F 2d 874, 883 (C A 1) 11 Respondent offered no credible reason or explanation for its unilateral action or its October 24 letter Guthunz' testimony was simply that he felt the negotiations were at an impasse "and that we should put in the increase"-even though as his testimony revealed he knew it would "aggravate" the Union The preponderance of the evidence, viewed in the light of Respondent's preelection antiunion campaign, and the hostility shown therein leads to the conclusion, which I reach, that Respondent's purpose was to force the strike, to weaken the Union's position as bargaining agent by showing employees they didn't need the Union to get a raise, to induce employees not to join the strike, to increase Respondent's capacity to attract strike replacements, and ultimately to replace strikers with nonunion replacements 12 My final conclusions are that after the 1966 wage increase was set at 10 cents for all of Kellwood at the division president's meeting in early July, Respondent went beyond the bounds of hard bargaining and never thereafter bargained in good faith with the Union, as shown by its July 18 announcement at Lonoke, its negotiating thereafter with an hermetically sealed mind and only on its own terms as to a first raise, its motivation and effort thereafter to put the raise into effect rather than negotiate it with the Union, its final unilateral act of granting the raise to force the strike, to weaken the Union as bargaining agent, to induce employees not to join the strike, to increase Respondent's capacity to attract strike replacements, and to replace strikers with nonunion replacements Upon these facts and conclusions, and upon the preponderance of the evidence in the entire record, I conclude that Respondent never intended to reach a contract with the Union, that Respondent has refused to bargain in good faith with the Union, that no good-faith impasse 26 was ever reached, that Respondent has violated Section 8(a)(5) of the Act, and that all of this was an important cause of the beginning and continuation of the strike 13 In addition to the above, Respondent's proposal limiting the right to strike while it refused to grant the Union arbitration was additional proof that Respondent's conduct fell short of meeting its statutory obligation The Supreme Court has said, "plainly the agreement to arbitrate grievance disputes is the quid pro quo for an agreement not to strike " Textile Workers Union of America AFL-CIO v Lincoln Mills of Alabama 353 U S 448, 455 See also M System, Inc Mobile Home Division Mid-States Corporation 129 NLRB 527, 550, United Steelworkers of America v Warrior & Gulf Navigation Co 363 U S 574, 578, Winston-Salem Printing Pressmen and Assistants Union No 318 v Piedmont Publishing Co 393 F 2d 221 (C A 4) 27 Here throughout the negotiations Respondent argued against and refused to include arbitration of grievances as a final step in the grievance procedure Guthunz was willing to enter into an oral agreement with Siems, man to man, to arbitrate any grievance but wage rate grievances providing Siems would agree to arbitrate any item requested by Guthunz This was not, of course, a written arbitration clause, but an oral arrangement between two men subject to their feelings of good faith in one another It was referred to in the evidence as arbitration by "mutual consent " The fact that Guthunz was unwilling to put even this "limited arbitration" into writing showed that Respondent was unwilling to meet his statutory obligation Cf H J Heinz Company v N L R B 311 U S 514, affg 110 F 2d 843 (C A 6) Particularly was Respondent's unwillingness to put it in writing a violation of Section 8(a)(5) because on July 28, 1966, Kullman had written the Union (with reference to another issue) that "the Company's contention is that the contract should cover all matters subject to bargaining" While unwilling to enter into a binding written arbitration clause Respondent sought throughout the negotiations to limit the Union's statutory right to strike to such an extent that its effectiveness as an economic weapon was lost Thus Respondent's final proposal on Strikes and Lockouts presented in St Louis on September 22, 1966, provided in its final section In the event a grievance should be filed by either party which the other party asserts is not subject to consideration under the grievance procedure, the refusal to arbitrate such grievance shall not be considered as permitting action in accordance with the provisions of this Section 10 [as permitting a strike] unless and until a court of competent jurisdiction has determined that the particular grievance is a grievance within the meaning of Article XXVIII hereof, and following such determination there has been a refusal to arbitrate At that time, and for most of the negotiations, in the several proposals upon grievance procedure, "grievance" was defined to mean "any dispute, complaint, or controversy, as to the interpretation or compliance with this Agreement," or "any dispute, complaint, controversy, or claim over the discipline or discharge of employees and as to the interpretation or compliance with the specific provisions of this Agreement " Thus, despite these simple definitions, not difficult of interpretation, Respondent could forestall a threatened strike over a grievance by merely asserting that the grievance was "not subject to consideration under the grievance procedure " This mere assertion would hold up the strike pending a court adjudication with all of its attendant loss of time and consequent impotency of the Union in the eyes of its members Further, although this last company proposal allowed the Union to strike over unsettled grievances, it provided that during such a strike the contract would be suspended Thus, Respondent would give the Union neither binding written arbitration nor an effective right to strike Under all the circumstances of this case, this was further proof that Respondent was not bargaining in good faith with the Union See Reel, The Duty to Bargain and the Right to Strike 29 Geo Wash L Rev, No 2, Dec 1962, National Labor Relations Board Symposium Issue H Respondents Preelection Campaign Was in Violation of the Act The settlement agreement in Case 26-CA-2313 was executed by Respondent and the Union on June 14, 1966, "Cf N L R B v Herman Sausage Co Inc 275 F 2d 229 (C A 5) N L R B v Andrew Jergens Co 175 F 2d 130 136 (C A 9) cert denied 338 U S 827 NLRB v Reed & Prince Mfg Co 205 F 2d 131 136 (C A 1) cert denied 346 U S 887 Armstrong Cork Co v N L R B 211 F 2d 843 847 (C A 5) "It is clear that the policy is generally accepted by the parties to collective bargaining relationships As of August 1965 Ninety six percent of contracts provide for arbitration of grievances not settled by the parties themselves Bureau of National Affairs Collective Bargaining Negotiations and Contracts 51 6 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and was approved by the Regional Director on behalf of the Board's General Counsel, on June 16, 1966 The settlement agreement provided, inter alia by reference to a notice Respondent was to comply with, that Respondent would not In any other manner interfere with or restrain our employees in the exercise of their rights to self-organization to bargain collectively through representatives of their own choosing Respondent violated this agreement by bargaining in bad faith, by unilateral activity, and in the other ways found above to have indicated bad faith Respondent having violated the settlement agreement and committed unfair labor practices thereafter, as found above, I find and hold that the Regional Director properly vacated and set aside the settlement agreement insofar as it related to Section 8(a)(1) conduct It therefore becomes incumbent upon me to pass upon whether that conduct violated Section 8(a)(1) of the Act Upon consideration I find that it did I Respondent's repeated efforts to frighten employees away from the Union and to defeat the Union at the election, by talk of a strike when there was no serious consideration among employees or union organizers of striking the plant, was a violation of Section 8(a)(1) of the Act Hoffman-Taff Inc 135 NLRB 1319, 1321, Orkin Exterminating Company of Florida Inc 152 NLRB 83, enfd 379 F 2d 972 (C A 5) 2 Respondent's efforts to convince employees of the futility of their joining, supporting, and voting for the Union were violations of Section 8(a)(1) 3 Respondent's repeated threats that Union and strikes go together, that a strike was inevitable if the Union won the election, and that in a strike the employees might lobe their jobs were implied threats of economic loss to employees in further violation of Section 8(a)(1) 4 By denigrating the Union with such statements as "the union is nothing but a parasite " and, "like a leach, they want to hang on and take part of your earnings with their dues, fees, and assessments," and, "this union mess," and "everybody loses in a strike except the union The union loses nothing because the union has nothing at stake," and that the Union was trying so hard to get into Ottenheimer's "because the union is after your money," Respondent farther violated the employees' Section 7 rights and Section 8(a)(1) 5 By repeatedly telling employees that Respondent did not have to reach an agreement with the Union, that it could say no to union demands, that Respondent is not going to sign a contract which is not in the best interest of the employees and the Company (it being implied that Respondent, not Respondent and the Union, would decide what was in the best interest), that the only thing the Union could do would to be call a strike, with dire consequences to the employees, Respondent impliedly threatened employees that it would not negotiate and sign a contract with the Union, thus repudiating the practice and procedure of collective bargaining in further violation of Section 8(a)(1) 6 The interrogations concerning and interference with employees' Section 7 rights by minor supervisors, the permitting of antiunion petitions on the work line during worktime, and the passing of antiunion leaflets on the work line during working time by one supervisor were further violations of Section 8(a)(1) by Respondent 7 Under all the circumstances of this proceeding, I hold that by the showing of the film "And Women Must Weep" following the introduction by which Respondent presented it, Respondent further violated Section 8(a)(1) of Act I Strike Was an Unfair Labor Practice Strike Although an important cause of the strike was the Union's desire on behalf of the employees to try to wrest greater economic concessions from Respondent, the record proves overwhelmingly that Respondent's unfair labor practices were also an important contributory cause of the beginning of and the prolongation of the strike As has been found above, during the preelection campaign there was no serious talk among employees or union organizers of striking the plant, despite Respondent's massive antiunion campaign Guthunz later told the employees, mostly replacements, that "the Union told our employees there would be no strike, no trouble, and that there was nothing for them to worry about" This was the Union's position despite Respondent's hostile campaign against it, because the Union desired a contract, not a strike Nevertheless, the Union never forgot, as Unions do not, Respondent's viciou, campaign, which unquestionably was a contributory cause of the strike Particularly in this situation, where the Union's principal organizer and principal negotiator, Siems, was also vice president of the International Union, would the Union not forget all that had gone before During the negotiations prior to July 18, the Union's bargaining and its leaflet, to employees show that it was concentrating upon trying to get a collective agreement with Respondent that would improve the wages and working conditions of the employees, and was not promoting a strike As has been found above, Respondent's July 18 effort at Lonoke to undercut the Union in Little Rock and to obstruct the process of bargaining in Little Rock was an important cause of the strike This act by Respondent had a profound effect upon Siems' assessment of what Respondent was up to and Siem,' assessment had an important effect upon the employees' committee and the employees Siems' immediate reaction was "foul play" and he never thereafter forgot it or let the employees forget it, although the Union tried to bargain with Respondent for 3 more months before permitting strike talk to gain the upper hand among employees Siems referred to this Lonoke episode in his talk to the employees prior to the strike vote on October 18, and it was referred to in the strike resolution Of note in this connection is an alleged quotation from an "old timer" which appeared in a union newsletter dated July 27, 1966 Well, at least they've offered us something I've been working there (Ottenheimer's) almost 18 years, and this is the first time I've ever known them to say they'll guarantee to pay us operators one penny more than the law made them pay 10 cents an hour isn't enough, but at least its more than they've ever done before To this was added the following (NOTE YES, 10 CENTS AN HOUR IS MORE THAN THEY'VE EVER OFFERED BEFORE' BUT, AS YOU KNOW, IT'S NO MORE THAN THEY VE ANNOUNCED THEY'RE GOING TO GIVE THE WORKERS AT THE LO',OKE SHOP- WHERE THEY'RE TRYING TO KEEP THEM FROM JOINING WITH YOU IN THE UNION ) Respondent's unfair bargaining concerning wages, generally and specifically as found above, was an important cause of the strike, as was its general lack of good-faith bargaining As a result of Respondent's hostility shown in its preelection campaign, Siems and Youngdahl were ever alert to the possibility that KELLWOOD COMPANY, OTTENHEIMER 41 Respondent would not bargain in good faith, and Stems' spontaneous reaction to Respondent's July 18 announcement at Lonoke showed what a deep impression it made on him Respondent's recurrent efforts to undermine the Union's bargaining position, shown throughout this Decision, were important causes of the strike, including not only the Gunthuz-McKibben speech of July 18, but also Guthunz' letters of October 18 and 24 to employees, the unilateral wage increase of October 25, and Respondent's bargaining tactics at the September 29 and October 24 meetings Of note in this connection was President Stulberg's remark at the end of the New York session on September 29 that if Respondent put the first 10-cent raise into effect, "we will start from there" Unilateral activity had been outlawed for many years, as both sides well knew Union leaflets prior to the strike show that Respondent's unfair labor practices were an important cause of the strike A leaflet of September 2 said No Strike Today just a demonstration Today there is only a before work demonstration by members of your Union Organizing and Negotiating Committee Today-you see us demonstrating To protect the Unfair Labor Practices the Company continues to engage in A union action bulletin of October 19, 1966, referring to the strike vote meeting the night before, stated A great throng of Ottenheimer employees overflowed a big meeting hall and adjoining rooms last night to register a resounding protest against the unfair labor practices of the Kellwood (Ottenheimer) Company and demand that the Company agree to better Union Contract terms or face a strike by its employees A union action bulletin of October 21 referred to crowds of union committee members again overflowing meeting rooms volunteering for strike service as plans moved rapidly ahead for a strike at any time The bulletin said it is clear that the Ottenheimer employees are saying We've had enough'-of Unfair Labor Practices of the Ottenheimer Company which violate U S Law A union strike report of October 28 referred to the Union's campaign underway to let the country know "the sad facts of the Company's unfair labor practices, low wages, bad treatment and the shocking affronts to human dignity which brought about the strike here " Another union strike report, dated November 4, 1966, stated that "it is only a matter of time until the Company must decide to quit committing unfair labor practices and come to proper terms with you and your Union " It also referred to handbills being issued, to tell the country "the facts about the unfair labor practices, low wages and bad treatment that made it necessary for Kellwood workers to come out on strike in Little Rock " A strike report of November 10 stated that regular strike victory meetings would be held twice a week "until the Company comes to its senses, quits committing unfair labor practices and settles the strike " The picket signs carried by the pickets from the beginning of the strike also referred to the Company's unfair labor practices Until March or April 1967 the picket signs read, "Ottenheimer employees on strike against unfair labor practices," followed by the initials of the Union, some additional signs had other legends, referring to being on strike against "years of bad treatment" and for "human dignity " The only legend on the picket signs carried from April 1, 1967, to the end of the strike was, "Kellwood employees on strike against unfair labor practices" followed by the initials of the Union Although Stems and Youngdahl were unable to spell out to employees precisely what all the unfair labor practices consisted of, they sensed that unfair labor practices were being committed by Respondent and conveyed this conviction to the employees prior to the strike vote of October 18 and the consensus to strike on October 24 Although the preelection unfair labor practices may at first blush seem remote as a cause for the strike, the Board's experience shows that unions and employees do not treat lightly or easily forget or readily forgive such a hostile massive antiunion campaign as the employees were subjected to in this instance The strike resolution passed on October 18 specifically referred to the preelection unfair labor practices in the words unfair labor practices beginning in Little Rock Since one of the reasons for the strike was to protest Respondent's unfair labor practices at Little Rock before the election and during the negotiations, and at Lonoke, the strike was an unfair labor practice strike from its inception even though other reasons were also present NLRB v West Coast Casket Company Inc 205 F 2d 902, 907 (C A 9) See also Fitzgerald Mills Corp v NLRB 313 F 2d 260, 269 (C A 2), and cases cited, NLRB v Southland Cork Co , 342 F 2d 702, 707-708 (C A 4), N L R B v Stilley Plywood Company Inc 199 F 2d 319, 320-321 (C A 4), cert denied 344 U S 933, The Little Rock Downtowner Inc 145 NLRB 1286, 1312, enfd 341 F 2d 1020 (C A 8) It is well established that Respondent is under a legal duty to reinstate unfair labor practice strikers upon their unconditional request, even if to do so requires the discharge of striker replacements, Mastro Plastics Corp v N L R B 350 US 270, 278 J Striker Replacement Issue Unilateral Wage Increase of February 1 1967 and Vote of Strikers to Continue Strike On November 30, 1966, Kullman sent Youngdahl a telegram reading as follows On behalf of Kellwood Corporation this is to inform you as attorrey and bargaining representative for the ILGWU that in any future bargaining negotiations Kellwood will have to give consideration to the changed conditions resulting from the strike called by the ILGWU Kellwood's contract proposals were made in anticipation of reaching a settlement with the Union without having to undergo the expense and disruption of its business resulting from a strike In view of the fact that a strike has occurred Kellwood will want to give reconsideration to certain of its proposals and in particular will have to reconsider the seniority provisions of any bargaining agreement to be reached in the future so as to provide adequate protection for the replacements which have been hired for striking employees Kellwood reserves the right in any future bargaining negotiations to submit such new or changed proposals as it deems advisable 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD For the first time in the negotiations this telegram raised the striker replacement issue On December 2, Guthunz had copies of this telegram posted on the company bulletin boards He testified he did so so that the replacements would know the Company would protect them By letter dated December 13, 1966, the Union made the following requests This is to request a current list of your employees, their job classifications and rates of pay, including particularly any pay increases or benefit alterations since the last information of this kind which you supplied to us, and with particular reference to the "replacement," to which Mr Kullman referred in his telegram of November 30, 1966 In answer Kullman wrote Youngdahl on December 21, 1966 The only changes in wage rates which have been made involved those arising out of putting into effect the 10 cents an hour increase which was announced on October 24, 1966 We cannot see where your request for a list of current employees has any relevancy to any bargaining issue and hence decline to furnish the same On the contrary, it would appear, obviously, that such a list is only sought for the purpose of furthering the strike activities of the ILGW Union On January 20, 1967, Kullman wrote Youngdahl as follows If you will recall, Ottenheimer has heretofore proposed a minimum guaranteed rate of $1 45 an hour effective as of February 1, 1967, and has also proposed increases in the rate ranges of various hourly employees with the exception of certain employees whose individual rates were already in excess of the maximum of the rate range of the ,r classification I am told that at the last meeting which Mr Guthunz and Mr Keeline had with you and Mr Stems, the latter wanted to know whether or not the February increase could not be effective on an across the board basis to all hourly paid employees and Mr Guthunz said that this would present no problem At the bargaining meeting presently scheduled for next Tuesday, the Company will propose that these rate increases be put into effect as of February 1, 1967 in accordance with its prior offer to the Union I am writing you this letter so that the Union may be giving consideration to the matter prior to the meeting The next negotiation session, the one referred to in Kullman's above letter, took place on January 24, 1967 Youngdahl credibly testified that he had been in regular touch with the Federal mediator in Little Rock, and also had talked with the Federal mediator in St Louis He also talked with the head of the Mediation Service of Arkansas The January 24, 1967, session was held in the conference room of the Federal Mediation and Conciliation Service in Little Rock, with two mediators present, one from Little Rock and one from St Louis The meeting opened with a mediator asking the Company to state its position about the current issues in the negotiations Kullman said any such statement would be premature because the parties disagreed on what had previously been agreed upon Kullman said there were two additional problems Firstly, Kullman said that there were 1,250 in the bargaining unit at the beginning of the strike, and that 900 had been replaced He said that a procedure would have to be worked out for filling the300-350 vacancies Secondly, according to the testimony of both Youngdahl and Keeline, Kullman said that in earlier negotiations the Company had proposed a raise on February 1, 1967, to $1 45 an hour and that on that date the Company was going to give every employee a guaranteed 10-cent-an-hour raise The Union said 5 cents above the Federal minimum for two 6-month periods was not enough During the meeting the Union asked Respondent not to put this wage increase into effect until there was an agreement with the Union covering it Youngdahl repeated that he wanted it specifically understood that the Union was asking Kullman not to put the increase into effect "until we had an agreement " A mediator and Kullman went down the list of 17 issues remaining as of the beginning of the St Loui,, meeting on September 22, 1966 This discussion brought out the lack of agreement on numerous issues that had been passed over or glossed over at the New York meeting on September 29, and that Respondent wished to make changes in some of the clauses previously tentatively agreed upon Still in dispute was whether Respondent would agree not to discriminate against employees because of "age " Respondent had long taken the position that it did not intend to discriminate but would not put it in writing Although after discussions for months the parties had in St Louis finally agreed on 60 clays for the probationary period for new employees, Kullman said the Company now wished to go back from 60 to 90 days Kullman offered no credible substantive reason for this backwards move, and I find it was to obstruct the negotiations The questior as to whether the Union could challenge present piece rates or only future ones was still in dispute Kullman said the agreed-upon language was insufficient to cover the Company's engineering program which was about to start and he wanted to add appropriate language Kullman wanted also to make some language changes in the clause relating to "assignment to other work" and in several other clauses, including arbitration Respondent had always refused arbitration as a final step in the grievance procedure but had verbally agreed to arbitrate by mutual agreement Kullman now said that Respondent wanted a method for the selection of the arbitrator and wanted to spell out limitations on the arbitrator's authority Kullman said the gentlemen's agreement between Guthunz and Siem5 to arbitrate items other than wage rates was at an end, that it had been "reached on certain assumptions which, so far as the company is concerned, no longer have any validity," and that any agreement on arbitration would have to be entirely in writing Youngdahl then stated the Union's position concerning the 17 issues Youngdahl rejected the changes suggested by Kullman in a number of them, on the ground that the changes were more restrictive then the prior tentative agreements on those item, On wages Youngdahl told Kullman the Union would settle for the cheapest wages in Arkansas in any ILGWU shop performing comparable work The Union identified "Bobbie Brooks" and "Jonathan Logan" as being such shops, and, after discussion, agreed to supply the Company with copies of the wage structures at these two companies Several times during the meeting, the Union requested of Respondent the information first requested in Youngdahl's letter to Kullman on December 13, 1966, and particularly the names of the replacements The Union KELLWOOD COMPANY, OTTENHEIMER said it needed the information in order to evaluate its positions on the replacements and that the Union needed to know the number and classifications of employees who had been replaced. Both Keeline and Respondent's personnel manager, McClain, testified that Kullman replied that Respondent refused the names and addresses because they were not relevant to any bargaining purpose or need. Kullman said nothing about refusing the information because of any violence on the picket line or violence connected with the strike. The day after this meeting, on January 25, 1967, Youngdahl wrote Kullman his resume of the meeting. In this letter, Youngdahl said concerning Respondent's proposed February 1 wage increase: . we categorically refuse to agree to such unilateral action, and ask you to withhold any wage increases in excess of the legal minimums until we have come to agreement. In this letter, Youngdahl told Kullman that "we are available for negotiations at your convenience." By letter dated January 25, 1967, from Guthunz to all nonstriking and striking Ottenheimer employees, Respondent announced it was placing into effect a 10-cent wage increase on February 1, 1967. Guthunz said: . . . at the present time, we have in excess of 900 employees at work in the plant exclusive of office, clerical and supervisory employees. On the day of the strike, we had approximately 1250 employees in similar job classifications. We are continuing with our replacement efforts so as to bring our work force up to its full quota within a relatively short period of time. There are accordingly approximately 350 vacancies available as of today for strikers or new hires. At the same time, we advised the Union that if the strike were settled, some agreement would have to be reached with respect to the taking back of striking employees, inasmuch as the Company would not, of course, let its present employees go simply to make places available for strikers. By letter dated January 26, 1967, answering Youngdahl's letter of January 25, Kullman stated, among other things: It is the company's position that the contract should contain the entire agreement between the parties and nothing should be left to any unsigned side letters which for all the company knows may never have been communicated by Mr. Siems or you to your bargaining group. On February 1, 1967, Respondent placed into effect the 10-cent wage increase for all but a handful of employees, and on or about the same date placed a 10-cent wage increase into effect Kellwoodwide at all other Kellwood plants. Five cents of this raise was required to bring Respondent's minimum up to the new Federal minimum. The additional 5 cents was voluntarily granted by the Company. On February 3, 1967, Kullman supplied the Union with a list of the rate ranges of various job classifications. Before sending this letter, Kullman informed Guthunz that the General Counsel of the Board was going to issue a complaint against Respondent for refusing the information earlier requested by Youngdahl. The General Counsel issued the complaint in Case 26-CA-2641 on February 3. By letter dated February 6, 1967, the Union supplied Respondent with appropriate excerpts from the Union's contracts in Arkansas with Bobbie Brooks and Jonathan Logan, which had been promised on January 24. 43 Youngdahl concluded this letter: If there is a serious possibility of your agreeing to our proposal in this regard, we would be glad to supply you" additional details. I look forward to your response. On February 11, 1967, Kullman replied to the above letter as follows: As I read the excerpts from the schedules attached to your letter of February 6, the minimum piece workers rate at Bobbie Brooks is presently $1.75 per hour, and, after 2 months, the minimum piece workers rate in the sewing department at Jonathan Logan is now $1.80 per hour. As you point out in your letter and as Mr. Siems has heretofore informed us, the ILGWU would only be willing to negotiate a contract with the Ottenheimer Division of the Kellwood Company at rates equivalent to the minimum rates which might be found in either the Bobbie Brooks or the Jonathan Logan contracts. There exists, in my opinion, no serious possibility of my client agreeing to a present minimum for piece workers of $1.75 per hour. On February 15, 1967, Respondent filed its original answer in Case 26-CA-2641. This was a general denial, but it did not plead an affirmative defense, such as that it refused any of the requested information because of picket line violence. On the same day, Respondent sent the Union a copy of a weekly payroll report with the names of the employees removed. Respondent never sent the Union the names of the replacements. At a strikers' meeting on February 22, 1967, attended by "no less than 500," a resolution was passed reading as follows: WHEREAS, the Ottenheimer Division of Kellwood Company has continued to violate the National Labor Relations Act in Little Rock and Lonoke, Arkansas and WHEREAS, the Kellwood Company throughout the country has continued to fight the rights of its workers to organize collectively in many illegal ways," and WHEREAS, the refusal of the employer to tell the union about the details of its demand that non-strikers be kept as permanent replacements of the strikers has made it impossible for us to know what might happen when the strike is ended or to appeal to the non-strikers to join our important effort, and WHEREAS, the wage and benefit increases to non-strikers have under-cut our bargaining and amounted in many cases to more than what the employer offered the union during bargaining, and WHEREAS, the entire course of conduct of the employer during negotiations has violated the good faith required by the law, NOW THEREFORE BE IT RESOLVED, that the strike against the company continue until these violations of the law are remedied and the employer bargains in good faith for a decent contract. Prior to its passage, Youngdahl read this resolution to the strikers and explained its language. He talked about the wage increase at Lonoke, some of the things that happened at Kellwood's Alamo plant (see 170 NLRB No. 184). He said that the Union had asked for information from the Company which the Union considered vital and which the Company had refused, such as the names of replacements; he said the Union would need to know who "The Board has found violations in three divisions of Kellwood Company, based upon events occurring prior to February 22, 1967, when this resolution was passed . 166 NLRB No. 20, 170 NLRB No. 183, 170 NLRB No. 184. 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the replacements were in order to be able to contact them and to try to give them the Union's side of the story. 1. Conclusions concerning refusal of names The law is well settled that an employer is under a statutory obligation to furnish its employees' bargaining representative with information which is reasonably necessary or essential to intelligent bargaining. See N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149; J. I. Case Company v. N.L.R.B., 253 F.2d 149, 152-153 (C.A. 7), and cases cited. Here, after Respondent itself had raised the "replacement issue" and had indicated it would seek to protect the replacements, the Union reasonably needed to know whether Respondent was protecting the replacements by giving them increases or benefits which were detrimental to the strikers. The Union reasonably needed this information in order to be able to proceed with intelligent bargaining and in good faith it requested it. The Union's request for a "current list of employees, their job classifications and rates of pay, including particularly any pay increases or benefit alterations since the last information of this kind which you supplied to us [which was the previous summer] and with particular reference to the `replacements"' was certainly a request for information relevant to the bargaining issue of whether Respondent was giving special or favored treatment to the replacements to the detriment of the strikers. (See N.L.R.B. v. Erie Resistor Corp., et al., 373 U.S. 221.) Although Respondent gave the Union, piecemeal, some of the information requested, the Union's representative, Lambert, who analyzed the material, credibly testified that in the absence of the names of the current employees (which Respondent never gave the Union) he could not determine whether a wage increase had been given which the Union had not been informed of. At this stage in the bargaining, in view of all that had gone before, the Union was entitled to actual payroll information, including names, with which it could satisfy itself for future intelligent bargaining purposes, as to the accuracy of Kullman's statement in his December 21 letter that "the only changes in wage rates which have been made involve those arising out of putting into effect the 10 cents an hour increase which was announced on October 24, 1966." Of note in this regard is that the testimony of Respondent's witness, Shaddox, showed that no accurate determination could be made as to what an employee's pay included from the records furnished the Union, that wage increases could be hidden in the payroll data, and that one way of checking the accuracy of the information would be to question particular employees about the information furnished. To do this, the Union would have to have the names of the replacements.29 Respondent defended on the ground that it withheld the names of the replacements in order to protect them from intimidation, bodily harm, property damage, and "night riding" which accompanied the strike. On the record this might well have been an adequate defense if this had really been the reason for the withholding. No such reason was even given the Union, however. Guthunz testified that between October 25 and December 20, 1966, there was "night riding," which he understood to mean "terrorizing people in their homes." He admitted that he did not know "Although the Union also wanted the names for other reasons for which the record may not sustain its entitlement to them, this fact does not negate the Union's right to them for the purposes found above. whether any of the strikers had done the "night riding." In a Little Rock newspaper within a week after October 25, Respondent offered a $2,500 reward, which it later increased to $7,500, presumably for information leading to identification of "night riders." No one ever claimed the reward. No representative of the Union, no picket or striker, was ever arrested according to Guthunz' knowledge, for "night riding." On December 20, 1966, a county court enjoined the Union, Siems, two other organizers, and several employees from intimidating, molesting, mass picketing, "night riding," et cetera. The Company never gave the Union any reason connected with violence, intimidation, property damage, or "night riding," et cetera as the cause for its refusal to furnish the names of the replacements to the Union. The nearest Respondent ever came to alluding to any such reason was Kullman's statement in his December 21 letter to Youngdahl that "such a list is only sought for the purpose of furthering the strike activities of the ILGW Union." Later, on January 24, Kullman asserted as the reason for refusal that the names and addresses were not relevant to any bargaining purpose or need. If violence, et cetera, was really the reason for withholding the names of the strikers, or if Respondent really feared retaliation against the replacements if their names were disclosed, no reason appears why Respondent did not so state clearly to the Union as the reason for the withholding. To be noted in this connection is that the names of many replacements were disclosed at the injunction proceeding on December 20, 1966, and even then Respondent did not give the Union the names of those replacements. Further, there was no showing of any retaliation against those whose names were disclosed, by strikers or the Union, between December 20 when the names were revealed, and January 24 when they were withheld, or ever. Under all the circumstances of this proceeding, I hold that on December 21, 1966, Respondent withheld the names of the strike replacements, which were reasonably necessary to the Union for bargaining purposes, and then and thereafter gave the information it released to the Union in piecemeal fashion, in order further to impede the bargaining process and prolong the strike so as further to weaken the Union as the bargaining agent, its conduct being a further violation of Section 8(a)(5) and (1) of the Act, and further evidence of its overall bad-faith bargaining with the Union. 2. Conclusions concerning unilateral wage increase of February 1, 1967 When the February 1, 1967, 5-cent increase above the Federal minimum was announced on January 25, 1967, no good-faith impasse existed in the negotiations because, as I have found above, Respondent was never bargaining in good faith with the Union. Assuming, however, contrary to the fact, that a good-faith empasse occurred just before the beginning of the strike, this impasse was broken by the strike and by Respondent's change of bargaining positions at the January 24 meeting. In his telegram of November 30, Kullman stated that in view of the strike Respondent wished to give "reconsideration to certain of its proposals." At the January 24 meeting, as has been seen, Respondent changed its position on probationary period, assignment to other work, and arbitration, among others. Also, there was discussion about the Union supplying Respondent with copies of the Bobbie Brooks and Jonathan Logan contract so that Respondent could KELLWOOD COMPANY, OTTENHEIMER understand the Union's proposal. Thus, there was indication of possible movement on a new approach to money matters. Further evidence that wages were still an open subject in the negotiations was the fact that on February 3 and 15, Respondent sent the Union some information concerning rate ranges and straight time pay for use in the negotiations. Also, on January 26, Kullman wrote Youngdahl, "should you have specific language which you want to submit in connection with the issues which you have left open, I will be happy to receive the same and comment thereon. . . . You have not yet then made your specific proposal with respect to holidays, benefits funds or vacations." This language indicated that Respondent considered the negotiations to be fluid, not in a state of impasse, and that no impasse existed. Simultaneously with this fluidity in the negotiations on other matters, Respondent employed its customary rigidity on pay raises. On October 24, Kullman stated Respondent's intent to put the 10-cent raise (5 cents above the required Federal minimum) into effect February 1. There was almost no discussion of the matter. The Union said 5 cents above the Federal minimum for two 6-month periods was not enough, and adjured Respondent not to put the increases into effect until the Union and the Company achieved an overall contract on all subjects. The Union repeated this request in writing the following day. Respondent ignored the request. Respondent put the 10-cent increase into effect on February 1, prior to receiving the requested information from the Union and while negotiations on wages and other subjects were still open. At the same time, or about the same time, the same raise was given to all Kellwood plants, nationwide, including Lonoke, all 30 of them In the light of the monolithic way Kellwood planned and executed its August 1, 1966, nationwide raise, it is a fair inference, which I reach, that this time, also, Kellwood planned a nationwide raise sometime in advance and that Respondent offered it to the Union for the Little Rock plant with no open-minded intent to bargain about it but simply an intent to apprise the Union what it was going to do. Upon the above facts and considerations, and upon the preponderance of the evidence in the entire record, I hold that Respondent's February 1, 1967, wage increase of 5 cents above the Federal minimum was instituted unilaterally in violation of Section 8(a)(5) and (1) of the Act, and that by this act Respondent further showed its bad-faith bargaining with the Union. 3 Conclusions concerning continuation of the strike The resolution passed by a large meeting of strikers on February 22, 1967, after Youngdahl read it to them and explained its contents, specifically referred to Respondent's refusal of information and referred to "wage increases to non-strikers" and to Respondent's bad-faith bargaining. On this evidence and the entire record, I conclude that Respondent's refusal of the names of the replacements, its unilateral wage raise on February 1, 1967, and its continuing bad-faith bargaining with the Union, all unfair labor practices, prolonged the strike from February 22, 1967, onward, and that the strike continued thereafter until its end as an unfair labor practice strike. K. Direct, Coercive Pressure Upon Strikers to Return to Work By letter dated March 27, 1967, from Guthunz to the striketg' and nonstrikers, Respondent notified them that it 45 was going to rebuild its work force to full capacity and giving strikers until April 5 to return to their jobs. ,Immediately thereafter, the Union sent a telegram to Guthunz protesting his unilateral dealing with the strikers and the coercive nature of his letter. Putting pressure on unfair labor practice strikers to return to work by a certain date was a further coercion upon employees in the exercise of their Section 7 rights and a further violation of the Act. Dealing directly with unfair labor practice strikers concerning their return to work was a further violation of Section 8(a)(1). N.L .R.B. v. Bradley Washfountain Co., 192 F.2d 144 (C.A. 7); N.L.R.B v. Montgomery Ward & Co., 133 F.2d 676, 681-682 (C.A. 9); N.L R.B. v. DuBois Chemicals , Inc., 327 F.2d 494 (C.A. 1), enfg. 140 NLRB 103, 116. L. Respondent's Bargaining on May 15 and July 21, 1967 Thereafter, the Company and the Union had two more meetings, one on May 15 and one on July 21, 1967, the latter under the auspices of the new officials of the Arkansas Department of Labor. Respondent's dealing with the Union at these two sessions and Kullman's correspondence with Youngdahl between May 15 and August 21, 1967, showed that Respondent was making no genuine effort to reconcile its differences with the Union, to work towards an accord. Rather, it dealt in a manner designed to frustrate, rather than promote, an agreement. Thus, Respondent refused to allow a union engineer in the plant with Respondent's engineer to study each operation, in connection with Respondent's reengineering program, which on May 15 it announced it was starting soon, and which it actively commenced July 17. The information Respondent sent the Union concerning this program was unsatisfactory to the Union and Respondent refused to allow the union engineer to visit the plant to verify it. Respondent would permit its engineer to meet with the union engineer, but not in the presence of the employee committee. Later, it offered to permit its engineer to meet with Siems and Youngdahl, with the understanding it was not to be a bargaining session . Thus, on July 21 when the Union abjectly offered to "start from the bottom," offering Respondent all clauses of the lowest contract terms in a comparable industry in Arkansas, Kullman said the Union's other contracts were no basis for negotiations because past sessions had developed changes applicable to Ottenheimer's plant in Little Rock. In almost the same breath, however, Kullman said that Respondent had completely replaced the strikers and that all proposals previously discussed would have to be viewed by the Company in the light of that situation; and that he saw no value in going back to the proposals of October 1966 prior to the strike. He even objected to the Union's supplying the director of the Arkansas Mediation and Conciliation Service with proposed contract language developed during the prior negotiations. At this July 21 meeting, the Union pointed out that it was Respondent, not the Union, who was adding issues as the strike went on. Thereafter, by correspondence Kullman said "there will have to be a clear provision in the contract recognizing the Company's right to re-engineer plants or departments or craft operations within the plant without negotiating with the Union;" and also proposed a new section reading "each employee's seniority shall date from his most recent hire date." (Emphasis supplied.) 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent knew that those clauses would not possibly be acceptable to the Union Also, on July 21, Kullman agreed to give the Union in writing a list of issues added by Respondent during the strike and then to propose a further negotiation session He supplied the list, and ended "I am sure that you and the other union representatives will appreciate the fact that the Company's proposals are not available for any period of indefinite duration " To this Youngdahl replied, I am not sure exactly what you mean to do about this document Is it, for example, the proposal to put on the bargaining table that was discussed during our most recent negotiating session9 We presume that by your letter you are asking for another collective bargaining negotiating session I would appreciate your response to these questions On August 21, Kullman replied, Your letter of August 18th has me as much confused as my letter of August 12th apparently has you The Company is definitely not asking for any bargaining meeting Upon the preponderance of the evidence in the entire record, I find and hold that by negotiating on May 15 and July 21, 1967, with no genuine effort to reconcile its differences with the Union and in a manner and with new proposals designed to frustrate rather than promote an agreement, Respondent further negotiated in bad faith and in violation of Section 8(a)(5) and (1) of the Act M Termination of Strike Refusal to Reinstate Strikers and Respondent s Refusal to Recognize Union On November 22, 1967, Youngdahl, on behalf of the Union, notified Respondent that the strike was terminated the night before, November 21, and that "we hereby apply for reinstatement of all strikers to their old jobs, or, if their old jobs are unavailable, for any job This is a continuing application for employment Please inform me if you have any question about this application " In addition hundreds of strikers individually wrote Respondent as follows and Respondent received all the letters Gentlemen I hereby apply unconditionally for reinstatement to my old job, or if my old job is unavailable, for any job Please consider this a continuing application for employment On November 29, 1967, Respondent's personnel director, McClain, replied to Youngdahl In response to your telegram of November 22nd advising us of the termination of the ILGWU strike at our Little Rock plants and applying for reinstatement of all strikers, we ask that you furnish us immediately with a list of the names and addresses of all strikers who were drawing strike benefits from the ILGWU for the strike benefit period immediately preceding November 21, 1967 We also ask that you furnish us as quickly as possible with a list of the names and addresses of all others classified by you as strikers and on whose behalf you are allegedly making an application for reinstatement We also ask that you and other Union representatives inform any persons on whose behalf you have allegedly bought reinstatement by virtue of your telegram to promptly apply in person at the Personnel Office of our plants here in Little Rock On November 28, 1967, Respondent wrote ex-strikers (but did not send a copy to the Union) a letter saying The International Ladies Garment Workers Union has called off its strike at our plants here in Little Rock and on behalf of all strikers has made an application for reinstatement on any available jobs If you are one of those for whom the Union was acting, you should apply in person at our Personnel Office no later than If you should fail to appear by such date, we shall assume that the Union's application was not made with your authorization and that you do not desire to work at our plants here in Little Rock On November 30, a union attorney wired President Guthunz as follows I am telegraphing as attorney for the International Ladies Garment Workers Union, AFL-CIO Officials of the this Union have been notified your firm has been directly contacting ex-strikers On behalf of the Union, I protest this unilateral action, which flagrantly violates the National Labor Relations Act and undercuts the Unions bargaining status To facilitate the reinstatement of the ex-strikers please be advised the Union will present to you applications for reinstatement on December 1, 1967, which will contain their names and addresses To further accomplish this objective, the Union requests you transmit to it a list of all the names and addresses of the individuals whom your firm considered to be strikers when the strike commenced on October 25, 1966 On behalf of the Union, I request your firm transmit to me, as soon as possible a list containing all the names of the individual ex-strikers to whom it has been sending letters asking them, in substance, to report to your personnel office by a certain date, and copies of all these letters sent to them since the Union terminated its strike on November 21, 1967 Finally, the Union requests your firm consult with it pertaining to re-instating the ex-strikers and the mechanics necessary to accomplish this objective On December 4, Youngdahl wrote the Company as follows I am writing as attorney for International Ladies' Garment Workers' Union, AFL-CIO By this letter I wish to make clear the position of the union as to post-strike applications of the employees we represent in Little Rock On November 22, 1967, I informed you that as of November 21 the strike conducted by our organization had been terminated At that time I stated that all strikers were thereby applying for reinstatement to their old jobs, or, if their old jobs were unavailable, for any jobs I asked that my application on behalf of all strikers be considered a continuing application for employment By telegram from Mr McClain dated November 27, 1967, a kind of reply was sent to me You asked thereby for lists of names and addresses of all those receiving strike benefits during the period immediately preceding November 21, and "a list of the names and addresses of all others classified by you as strikers and on whose behalf you are allegedly making an application for reinstatement" You also asked the union to inform the employees for whom we speak to apply in person at your office Then by letter dated November 28, 1967, you wrote a large number of individual strikers saying, inter alia that "if you are one of those for whom the Union was KELLWOOD COMPANY, OTTENHEIMER acting, you should apply in person" at the plant no later than a specified deadline. As soon as this letter came to our attention, and in response to your telegram of November 27, on December 1, 1967, Mr . Lavey of this office protested your individual contacts with the employees we represent, but stated that in order to facilitate the return of the strikers , we would furnish you with further material on December 1. That material, individual notices of names and addresses of some of the strikers ji our possession at that time , was delivered to your office on that date . We also asked for information which might assist us to assist you in the reinstatement process, such as a list of names and addresses of those sent the November 28 letter , and copies of each letter because of possible variance among them. We have received , to date, no response to this last communication. It seems to us that you are in possession of the most accurate information about who the strikers are. You were able to identify them for purposes of insurance cancellation early in the strike , and for the mailing of November 28 and other mailings you have made to them since the strike started . In addition, we have from time to time informed you of individuals who came to our attention as possibly having been on leave when the strike began, but who later joined the strike. It is our belief that a list of those receiving strike benefits at any time would be irrelevant now to any obligation of any party to this proceeding , or at least not necessary for us to furnish for reinstatement purposes. There are many strikers who have found temporary employment other places , thus not paid strike benefits, who have applied for reinstatement through my telegram of November 22, for example. We do not believe that we are required to furnish you with information about whom we "purportedly" speak. We are the certified bargaining representative for all production and maintenance employees, and this includes all strikers . We believe, in fact, that your suggestions otherwise to individual strikers constitute improper undermining and interrogation in further violation of the National Labor Relations Act. If you could advise us of specific ways in which the records you used for your various mailings to individuals after the strike began are deficient, in an effort to cooperate we will do our best to assist you in finding, for example , correct addresses . We have gone farther, in my opinion , than our legal obligation by delivering the material we brought to your office on December 1. Please let me know if the union can do anything further within the confines of the principles I have set forth here. On December 5, the Union sent Guthunz two telegrams, the first reading as follows: I am telegraphing as attorney for the International Ladies Garment Workers Union , AFL-CIO. Again, officials of this Union have been notified your firm has been directly contacting ex-strikers and instructing them to report to your personnel office by a certain date. On behalf of the Union , I again protest this unilateral action, which is flagrantly illegal and violative of the National Labor Relations Act and undercuts the Unions bargaining and representative status . The Union would be most willing to cooperate with your firm in 47 facilitating the reinstatement of the ex-strikers. Again, the Union requests your firm consult with it pertaining to reinstating the ex-strikers and the mechanics necessary to accomplish this objective. Please be advised the Union stands ready, willing and able to cooperate with you in obtaining total reinstatement of all the ex-strikers. Additionally, this Union stands ready and willing to cooperate with you to insure the reinstated ex-strikers report to your firm on dates specified by you and given to the Union. The Union's second telegram of December 5 read as follows: I am telegraphing as attorney for the International Ladies Garment Workers Union, AFL-CIO. Please be advised the Union is filing an unfair labor practice charge today alleging your firm has violated Section 8(a)(1) and (5) of the NLRA. The Union protests your piece meal reinstatement of the ex-strikers and demands that you reinstate them as a group. Without prejudice to our unfair labor practice charge, and over the Union's vigorous protest, the Union is forced to advise the ex-strikers to reply to your personnel office if they are contacted by your firm directly for re-employment as they are today. On December 5, Kullman wired Youngdahl as follows: On behalf of Kellwood Co. Ottenheimer Division this will notify you as attorney for International Ladies Garment Workers Union that this Company does not recognize that Union as the collective bargaining representative of the employees in the Companys plants at Little Rock, Arkansas. The Unions refusal to bargain in good faith toward a collective bargaining agreement during the extensive negotiations prior to the strike the Unions complete failure to seek bargaining on a contract or settlement of the strike for more than a year, and the obvious fact that this Union is no longer the collective bargaining representative of a majority of the employees in the plants, require this action. Any further recognition of the International Ladies Garment Workers Union as the collective bargaining representative of these employees is inconsistent with the spirit and purposes of the National Labor Relations Act as amended. On December 6, 1967, Kullman wrote Youngdahl as follows: I am writing as attorney for Ottenheimer in response to your letter of December 4, 1967. 1 received a copy of your letter today. Please refer to my telegram of December 5, 1967. This telegram furnishes a reply to all of the issues raised in your letter of December 4, 1967. On December 7, a union attorney again wired Guthunz protesting the Company's reemployment of some of the ex-strikers as new employees and its piecemeal reemployment of the ex-strikers. On December 12, 1967, Respondent's personnel director sent letters to ex-strikers (but did not send a copy to the Union) reading as follows: On November 28, 1967, we wrote to you asking that you contact us by - if you desired employment. On December 1, 1967, the Union gave to us an application with your signature, dated In order to avoid any misunderstanding as to whether you intended your application of _ to be in answer to our letter of November 28, 1967, we again ask that you come to the plant by _ so that the application may be processed. 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the hearing the parties stipulated that beginning at a date in July 1967, Respondent has hired new hires as new employees, including those returning from the strike, that the Company has required each employee hired subsequent to that date to qualify as a new employee for its insurance, holiday and vacation benefits, or any other benefits requiring length of service for qualification; this is the Company practice up to the present time. Conclusions On November 22, 1967, the Union informed Respondent the strike was terminated and made an unconditional application on behalf of all strikers for reinstatement. Respondent's failure to offer the strikers immediate and full reinstatement to their former jobs was a violation of Section 8(a)(3) and (1) of the Act. Mastro Plastics Corp. v. N.L.R.B., supra; N.L.R.B. v. Southland Cork Company, supra; N.L.R.B. v. Stilley Plywood Co., Inc., supra; Solo Cup Company v. N.L.R.B., 332 F.2d 447, 449 (C.A. 4); Great Southern Trucking Co., v. N.L.R.B., 127 F.2d 180, 186 (C.A. 4). In addition, by bargaining directly with the strikers concerning their return to work, over the Union's protest, Respondent deprived the striking employees of their right to representation by the Union on this phase of their employment and tenure , and also refused to recognize the Union as the strikers' statutory representative for this purpose, Respondent thereby further violating Section 8(a)(5) and (1) of the Act. See Alba-Waldensian, Inc., 167 NLRB No. 101. Respondent canceled its recognition of the Union on December 5, 1967, on the theory that it was an economic strike, the strikers had been replaced, and the Union no longer represented a majority. In fact, they were unfair labor practice strikers who were still employees and still represented by the Union. Respondent's denial of further recognition of the Union was further violation of Section 8(a)(5) and (1) of the Act. Cf. Franks Bros. Company v. N.L.R.B., 321 U.S. 702, 64 S. Ct. 817; N.L.R.B. v. Commerce Company d/b/a Lamar Hotel, 328 F.2d 600, cert. denied 379 U.S. 817; Mar-Jac Poultry Company, Inc., 136 NLRB 785; Satilla Rural Electric Membership Corporation, 155 NLRB 747. N. Identification of the Individual Strikers There remains the question of the identification of the individual strikers who are entitled to reinstatement with full rights under this Decision. General Counsel's Exhibit 171 shows what employees were on the last payroll before the strike (October 22, 1966) and not on the first payroll following the beginning of the strike (November 5, 1966). This information was presumably obtained from the Company payrolls supplied by the Company and not challenged. General Counsel's Exhibit 171 shows also which of these employees had their insurance canceled early in the strike," which registered with the Union for strike benefits and which were paid strike benefits, which of these employees individually wrote Respondent asking for reinstatement , which were sent Respondent' s November 28 and December 12, 1967, letters concerning coming to the plant . The information on which General Counsel's Exhibit 171 is based, except for the payroll names and those who registered for strike benefits, is contained in the record in General Counsel's Exhibits 173, 174, 175, and 176. Based upon documents in evidence, the General Counsel also submitted lists, attached to General Counsel's Exhibit 171, of employees not on the October 22 and November 5 payrolls but who registered for strike benefits; but who wrote letters seeking reinstatement; but who were sent Respondent's November 28 letter; but who were sent Respondent's December 12 letter; but who were paid strike benefits. The General Counsel contends that each employee on these lists was a striker. None of the names on any of these lists was challenged as a striker by Respondent at or since the hearing . Upon due consideration I agree that the evidence in the record proved that each employee listed on General Counsel's Exhibit 171 and its attachments was a striker. The General Counsel and Union contend that they should not be foreclosed until the end of the backpay proceeding from adding the names of any additional employees concerning whom there is proof by that time that they were strikers. I agree and so hold. 0. Respondent's Principal Defense Respondent contended that it bargained in good faith, that it was the Union who bargained in bad faith, and that the Union' s actions justified Respondent's. The Union' s actions Respondent principally complained of, its conduct which may have to some extent obstructed or delayed the bargaining process, has been considered in all the above. Although the Union did not conduct itself impeccably, its actions were not in violation of the Act when measured against Respondent's hostile, provocative, unlawful acts, including its unlawful bargaining. Respondent must not have thought the Union was acting unlawfully or bargaining in bad faith prior to the hearing, for it never filed an 8(b)(3) or 8(b)(1)(A) charge against the Union. Further, I think it is clear from the record that even if the Union's conduct had been above reproach, this would not have affected Respondent's fixed determination to avoid a collective-bargaining agreement with the Union. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lend to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY I recommend the customary broad cease-and-desist order and the affirmative relief conventionally ordered in cases of this nature, where Respondent's unfair labor practices were of a character which struck at the roots of employee rights safeguarded by the Act. The Supreme Court has said a bargaining relationship once rightfully established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed." Franks Bros. Co. "On November 4, 1966, Respondent wrote all strikers that it would not continue "the payment of premiums" on the Company's existing hospitalization insurance policy, inasmuch as the policy defines an "employee" as a person actually performing services for the Company. KELLWOOD COMPANY, OTTENHEIMER 49 v N L R B supra Mar-Jac Poultry Co Inc supra Satilla Rural Electric Membership Corporation supra Here, as has been seen, during the certification year Respondent refused and failed to bargain in good faith with the Union, granted unilateral wage increases to unit employees, and extended itself to undermine the power and prestige of the Union Here, where Respondent has never bargained in good faith with the Union, the certification has never been honored and the bargaining relationship has never been given a fair chance to succeed Respondent's bad faith bargaining continued during the strike and even on the question of reinstating the strikers Under all the circumstances of this case, and in order to give the bargaining relationship a reasonable period in which it can have a fair chance to succeed, I recommend that Respondent immediately recognize the Union as the bargaining representative of the employees in the appropriate unit, bargain in good faith with the Union for at least 1 year beginning with the first bargaining session after recognizing the Union, and embody in a signed agreement any understanding reached The Union urges that backpay for the strikers should start from the beginning of the strike That would be appropriate, in my judgment, if Respondent's unfair labor practices were the sole cause of the strike Here, where the unfair labor practices were only one of the causes, I recommend as an appropriate remedy the customary remedy in cases such as this I recommend that Respondent be ordered to offer to all strikers, including those named on General Counsel's Exhibit 171 and its two pages of attachments, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, discharging, if necessary, any replacements in order to provide work for the strikers, and to make whole all strikers, including those named on General Counsel's Exhibit 171 and its two pages of attachments, for any loss of earnings they may have suffered by reason of the discrimination against them, by payment to each of a sum of money equal to that which each normally would have earned as wages from 5 days after the strikers' unconditional requests for reinstatement on November 22, 1967, to the date of his full reinstatement less the net earnings of each during such period The backpay provided herein shall be computed in accordance with the formula stated in F W Woolworth Company 90 NLRB 289 Interest shall be added at the rate of 6 percent per annum Isis Plumbing & Heating Co 138 NLRB 716 Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following CONCLUSIONS OF LAW 1 Kellwood Corporation, Ottenheimer Division, of Little Rock, Arkansas, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 International Ladies' Garment Workers' Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act 3 At all times since March 23, 1966, Respondent has violated Section 8(a)(5) and (1) of the Act by refusing and failing to bargain in good faith with the Union as the exclusive bargaining representative of the employees in the following appropriate unit All production, maintenance and shipping employees at Respondent's Little Rock, Arkansas, operations, excluding office clerical employees, professional employees, engineering department employees, outlet stores' employees , guards and supervisors as defined in the Act 4 Respondent violated Section 8 (a)(5) and ( 1) of the Act by unilaterally increasing wages on October 25, 1966, and February 1, 1967 5 Respondent violated Section 8(a)(5) and (1) on December 21, 1966, by refusing to give the Union information relevant and reasonably necessary to the Union' s intelligent bargaining concerning a bargaining issue Respondent had raised 6 The strike which began October 25 , 1966, was caused and prolonged by Respondent's unfair labor practices 7 Respondent violated Section 8(a)(3) and (1) of the Act by failing and refusing to reinstate the strikers, including those named on General Counsel ' s Exhibit 171 and its two pages of attachments , upon the termination of the strike and the Union ' s unconditional application for reinstatement on behalf of all the strikers on November 22, 1967 8 Respondent violated Section 8(a)(5) and ( 1) of the Act by bargaining directly with strikers concerning their return to work during the strike and after the strike 9 Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize the Union as the exclusive bargaining representative of the employees in the appropriate unit on and after December 5, 1967 10 Respondent violated Section 8(a)(1) of the Act by its repeated efforts to frighten its employees away from the Union and to defeat the Union at the election , by talk of a strike when there was no serious consideration among employees or union organizers of striking the plant 11 Respondent violated Section 8(a)(1) of the Act by its efforts to convince employees of the futility of their joining, supporting, and voting for the Union 12 Respondent violated Section 8(a)(1) of the Act by its repeated threats that unions and strikes go together, that a strike was inevitable if the Union won the election, and that in a strike the employees might lose their jobs, Respondent thereby impliedly threatening economic loss to employees 13 By denigrating the Union , Respondent further violated Section 8(a)(1) of the Act 14 By impliedly informing employees that it would not negotiate and sign a contract with the Union , Respondent further violated Section 8(a)(1) of the Act 15 Respondent violated Section 8(a)(1) by interrogating employees and interfering with them concerning the exercise of their Section 7 rights and by passing antiunion leaflets and permitting antiunion petitions to be passed on the work line during working time 16 Respondent violated Section 8(a)(1) of the Act by introducing as true and showing to employees the film "And Women Must Weep " 17 The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case, I recommend that Respondent, Kellwood Company, Ottenheimer Division, of Little Rock, Arkansas, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Refusing to recognize the Union as the exclusive representative of the employees in the appropriate unit 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Refusing and failing to bargain in good faith with the Union as the exclusive bargaining representative of the employees in the following appropriate unit: All production, maintenance and shipping employees at Respondent's Little Rock, Arkansas, operations, excluding office clerical employees, professional employees, engineering department employees, outlet stores' employees, guards and supervisors as defined in the Act. (c) Unilaterally granting wage increases to employees in the appropriate unit. (d) Refusing to give the Union requested information that is relevant and reasonably necessary to the Union's intelligent bargaining concerning a bargaining issue raised by Respondent or any other bargaining issue. (e) Refusing to reinstate unfair labor practice strikers upon the termination of the strike and their unconditional application for reinstatement. (f) Bargaining directly with unfair labor practice strikers concerning their return to work during the strike and after the strike. (g) Frightening employees by talk of a strike when there is no serious consideration of a strike among employees and union organizers. (h) Threatening employees that it is futile for them to join, support, and vote for a union. (i) Threatening that unions and strikes go together, that a strike is inevitable if a union wins an election, and that in a strike employees might lose their jobs. (j) Denigrating the Union by referring to it as a parasite and a leach, etc. (k) Threatening employees that it will not negotiate and sign a contract with Union, with dire consequences to the employees. (1) Interrogating employees and interfering with them concerning the exercise of their Section 7 rights. (m) Passing antiunion leaflets and permitting antiunion petitions on the work line during working time. (n) Introducing as true and showing to employees the film "And Women Must Weep." (o) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Upon request, recognize and bargain collectively and in good faith with the Union as the exclusive representative of all its employees in the appropriate unit, and embody in a signed agreement any understanding reached. (b) Bargain in good faith with the Union concerning any wage increase or any other change of any term or condition of employment, before putting it into effect. (c) Upon request give the Union requested information that is relevant and reasonably necessary to the Union's intelligent bargaining concerning any issue raised by Respondent or any other bargaining issue. (d) Offer to all strikers, including those named on General Counsel's Exhibit 171 and its two pages of attachments, immediate and full reinstatement to their former or substantially equivalent positions, discharging if necessary employees hired since the commencement of the strike, and make each striker whole for any loss of pay he may have suffered because of the discrimination against him, in the manner set forth above in the section of this Decision entitled "The Remedy." (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (f) Post at its three plants in Little Rock, Arkansas, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to all employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 26, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith." "In the event that this Recommended Order is adopted by the Board, the words"a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice . In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read. "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended 'Order of a Trial Examiner 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 refuse to, recognize and bargain collectively in good faith with International Ladies' Garment Workers' Union, AFL-CIO, as the exclusive representative of all of our employees in the appropriate unit at our Little Rock plants. WE WILL NOT grant pay raises or make any other changes in terms or conditions of work of employees in the appropriate unit without first bargaining in good faith with the Union concerning them. WE WILL NOT refuse to give the Union information which is relevant to bargaining issues and which is reasonably necessary to the Union's intelligent bargaining concerning those issues. WE WILL NOT during a strike caused by our unfair labor practices bargain directly with the strikers rather than the Union concerning their return to work. WE WILL NOT frighten employees by'talk of a, strike when there is no serious consideration of a strike among employees and union organizers. WE WILL NOT try to convince employees that their joining and assisting the Union will do them no good. WE WILL NOT threaten employees that unions, and strikes go together, that a strike is inevitable if the Union wins an election, and that in a strike employees might lose their jobs. WE WILL NOT refer to the Union as a "parasite," a "leach," or a "mess." WE WILL NOT threaten that we will not sign a contract with the Union and that as a result employees KELLWOOD COMPANY, OTTENHEIMER 51 will suffer. WE WILL NOT interrogate employees and interfere with them concerning their union sympathy and activity. WE WILL NOT pass out antiunion leaflets or permit antiunion petitions to be passed on the work lines during working time. WE WILL NOT exhibit the motion picture "And Women Must Weep" to any employees. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of the right to self-organization , to form labor organizations, to join or assist International Ladies' Garment Workers' Union , AFL-CIO, or any other labor organization , to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or any other mutual aid or protection or to refrain from any and all such activities. WE WILL, upon its request , recognize International Ladies' Garment Workers' Union, AFL-CIO, as the exclusive bargaining representative of all the employees in the appropriate unit in the Little Rock plants, bargain in good faith with said Union , and put into writing and sign any agreement reached as a result of the good-faith bargaining . The appropriate unit consists of: All production , maintenance and shipping employees at our Little Rock, Arkansas, operations, but excluding office clerical employees, professional employees, engineering department employees , outlet stores' employees, guards and supervisors as defined in the Act. WE WILL bargain in good faith with the Union concerning any wage increase or any other change of any term or condition of employment which we wish to make, before putting it into effect. WE WILL, upon request, give the Union , information which is relevant to bargaining issues and reasonably necessary to the Union's intelligent bargaining concerning those issues. WE WILL offer to all unfair labor 'practice strikers, including those named on General Counsel 's Exhibit 171 and its two pages of attachments , immediate and full reinstatement to their former or substantially equivalent positions (dismissing, if necessary, any replacements hired since the strike started October 25, 1966), and make them whole for any loss of pay each may have suffered as a result of the discrimination against them , as provided in the Trial Examiner's Decision. All our employees are free to become or refrain from becoming members of International Ladies' Garment Workers' Union , AFL-CIO. KELLWOOD COMPANY, OTTENHEIMER DIVISION (Employer) Dated By (Representative) (Title) Note. We will notify all unfair labor practice strikers, including those named in General Counsel's Exhibit 171 and its two pages of attachments, if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must, remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material. If employees have any questioniconcerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901-534-3161.