Cartriseal Corp.

272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cartriseal Corporation and Local 310, United Automobile , Aerospace and Agricultural Implement Workers of America, AFL-CIO. Cases l3-CA-8170 and 13-CA-8375 August 29, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On October 23, 1968, Trial Examiner Lloyd Buchanan issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal as to them. Thereafter, the General Counsel and Respondent filed exceptions to the Trial Examiner's Decision, supporting briefs, and answering briefs, and, in addition, the Respondent filed a supplemental brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, 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, Cartriseal Corporation, Wheeling, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Add the following as paragraph 2(d), and reletter the following paragraphs accordingly- 'On March 5, 1969, the General Counsel filed a motion to strike certain portions of Respondent's supplemental brief, which purported to contain verbatim recitations of excerpts from certain collective-bargaining agreements between local unions of the United Auto Workers and employers not parties to this proceeding The motion is hereby granted, inasmuch as Respondent did not adduce these contracts in evidence at the hearing and none of the parties to this proceeding is a party to any of the aforesaid contracts "(d) Notify all strikers 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." 2. Add the following as the last indented paragraph of the notice. WE WILL notify all strikers 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. MEMBER BROWN, dissenting in part: Unlike my colleagues, I am convinced that Respondent was engaging in surface bargaining with no desire or intent to reach a meaningful agreement with the Union An evaluation of all of Respondent's proposals and positions, and its adamant insistence thereon, considered in light of the prior contracts and practices of the parties, shows that these proposals constituted a radical departure from past practice and would have resulted in severe restrictions on employee rights. Viewing the Respondent's proposals in their entirety, they would have left little or no area of possible Union concern, and were, therefore, predictably unacceptable I can only conclude that Respondent could not in good faith have supposed that its proposals had the slightest chance of acceptance or even that they might afford a basis of discussion. Accordingly, I would find that Respondent violated Section 8(a)(5). TRIAL EXAMINER'S DECISION BuCHANAN, Trial Examiner It is unfortunate, as we consider the employer, the employees, the union, and the desideratum of industrial peace, that a bargaining relationship which was in existence for several years as formalized by collective-bargaining agreements has been disrupted It is not our function to decide the general questions how or why the disruption developed, how it could have been avoided, and whether a reasonable settlement could thus have been effected. The issue here is whether the Company violated the Act as alleged. But wholly aside from the result (to the employees and alleged discriminatees especially as the other parties continue about their business with little modification), it is to be deplored' That the extended efforts to settle this case did not bear fruit As the GENERAL COUNSEL and the COMPANY' agreed, settlement could have been accomplished'onterms far more favorable to the UNION and the employees before us than are to be found in this Decision Such a settlement would have been eminently desirable in theinterest of industrial peace and would also have spared all,concerned the expense and loss of time in trial, briefs, andtsubsequent proceedings 'Quite a', much as an employer' s breach of a settlement agreement, as I shall soon have occasion to note in a forthcoming decision in another case These remarks are neither "gratuitous [nor] inappropriate" unless one 178 NLRB No. 47 CARTRISEAL CORP. I want to state as clearly as possible that I conceive it to be a Trial Examiner's duty to further the policies of the Act by friendly adjustment and also to limit trials to what is both relevant and necessary For this I have more than once been applauded (informally and off the record; and counsel have at times expressed appreciation on the record) Where performance of that duty is frustrated, I offer suggestion or criticism in the hope of future improvement--all in the interest of that measure of service to which all parties are entitled The complaint in 13-CA-8170 (issued March 5, 1968; charges filed December 14, 1967, and February 5, 1968), as amended, alleges that the Company has violated Section 8(a)(5) and (I) of the National Labor Relations Act, as amended, 73 Stat 519, by refusing to bargain with the Union in good faith' and by certain specific acts The answer, as amended, denies the allegations of violation During an extended recess necessary because of the serious illness of a necessary witness, there issued a second complaint, in 13-CA-8375, which was thereafter consolidated with the first for trial The second complaint (issued May 27, charge filed April 15, 1968) alleges that the Company has violated Section 8(a)(3) and (1) by refusing to reinstate strikers on whose behalf the Union had made an unconditional offer to return to work, and by offering to some of them employment as "new" employees, with loss of accrued benefits These allegations of violation have likewise been denied The case was tried before me at Chicago, Illinois, on April 9 through 18, inclusive, and June 13 and 14, 1968. Pursuant to leave granted to all parties, comprehensive and well-prepared briefs and supplemental briefs have been filed by the General Counsel and the Company, the time to do so having been extended I regret that eight intervening cases have delayed issuance of this Decision Upon the entire record in the case and from my observation of the witnesses, I make the following- FINDINGS OF FACT (WITH REASONS THEREFOR) AND CONCLUSIONS OF LAW I THE COMPANY' S BUSINESS AND THE LABOR ORGANIZATION INVOLVED The facts concerning the Company's status as an Illinois corporation, the nature and extent of its business, and its engagement in commerce within the meaning of the Act are admitted, I find and conclude accordingly I lacks concern for proper and expeditious procedure They may appear to merit such adjectives where there is a failure to become acquainted with what the Trial Examiner has in fact declared, as at this point and elsewhere It may be deemed lese majesty to refer to employment of such adjectives But they can be sloughed off I rely on my own judgment of what is appropriate for speed and economy as I have elsewhere stated it, in the light of the Board ' s concern expressed under different auspices Recognition of the policy of the Act and of the stated reasons of concerned triers of the facts will lead to better comprehension of attempts to settle cases and limit trials A conscientious trier should attempt to remove shortcomings and obstacles With all of this said, it should be noted that no reluctant party was here attrited Of course , no attempt was made to accomplish that In an early colloquy the General Counsel explained that his general allegation of lack of good faith and surface bargaining was not limited by but was in addition to the particularization thereafter set forth An amendment to that effect would in any event have been in order , and the trial proceeded without objection on the basis of an allegation of surface bargaining in addition to the particulars alleged in the complaint, with both sides exploring the details of the negotiations 273 also find and conclude that , as admitted , the Union is a labor organization within the meaning of the Act. It THE ALLEGED VIOLATION OF SECTION 8(AX5) AND (1) A Specified Acts In support of the amended allegation that Vice President W C Laser (son of W. F. Laser, the Company's president) offered inducements to employees on or about June 17, 1967, to undermine the Union, employee Frank Bambach testified that he told Foreman Goldstein that he had received a better offer elsewhere and expected to quit; that a few days later W C. called him into his office and said that he had heard of the offer; that, asked how much he wanted if he were to remain, he requested 60 cents an hour, which would cover severance pay he would lose if he went on strike, and that the increase was agreed on, to be effective July 1. Quite in agreement, W. C. told us that Bambach accepted his offer of an assistant foreman's job at $160 per week, the money equivalent after a 60-cent increase. With the plant closing for vacation on Monday, July 3, and none of the employees, including Bambach, returning to work after the strike was called on July 17, the change was not effected. We might here note an element of questionable reliability as Bambach testified that W. C., after agreeing, had suggested that they wait and see the outcome of a possible strike, to which Bambach had referred. The latter thereafter testified that he did not recall whether W. C had mentioned a strike. The inducement offered was to an employee who had warned that he would leave for a better job. I conclude that the proposed increase, requested and agreed on, and the concomitant promotion were not violative Another instance of inducement offered to undermine the Union is alleged in a question by W F to shop committeeman Wodka, coeval and a golfing companion, whether he would like to be foreman of the machine shop W F. denied that he made such an offer to Wodka during the conversation between the two at a golf club on July 11 and in which W. F referred to the negotiations, a meeting having been held on that day. That the Company had the right to make such a promotion is not questioned even if some aspects might be subject to a later grievance. It might be argued that under the agreement and the then existing relationship between the parties an offer of promotion, made during a strike, is unlike wage increases which are subject to negotiation and which would be violative as inducements to strikers to return. But in any event the employees were on vacation, and there was no strike at the time W. F. explained that Wodka had previously told him that the foreman was incompetent; W. F., without offering the job, asked whether Wodka would like to handle it, and the latter replied that he wouldn't touch it. There is no basis for finding that a violative offer was made, and I so conclude If there is any testimony that W. F. threatened employees with a strike unless they changed union leadership, it has not been pointed out. W. C, when an employee told him that she was worried that there would be a strike, replied that he hoped not Nor do I credit employee Baraniecki's testimony that W F. in the latter part of September threatened strikers by pointing out that he did not need them since he has factories in other parts of the country W F. denied that he said this and, while this itself is not probative of the issue, testified that he has no other factories. 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After testifying that at a meeting on June 22 it was arranged to meet again on June 26 but that O'Brien, the Company's chief negotiator, explained that he could not meet on the 28th or 29th, Audia, the Union's international representative, testified that at the close of the meeting on June 26 he told O'Brien that he understood that there had been a tentative agreement to meet on the other 2 days Audia told us further and quite uncertainly that there seemed to be a telephone call from O'Brien on the 27th or 28th, and then, while he testified, that he was becoming "convinced" that there was such a call. Omitting for the present the question of surface bargaining or bad faith generally, in connection with which several letters concerning meeting dates were received in evidence, I find and conclude that the Company did not on June 26' in bad faith or otherwise unlawfully cancel collective-bargaining meetings We have even less evidence concerning a similar alleged violation on August 28, which is based on hearsay that a Federal mediator had told Audia on the 24th that a meeting was to be held on the morning of the 28th, then, on the 27th, that it was to be at noon, and finally on the morning of the 28th that the Company had called it off O'Brien testified that no meeting was scheduled for the latter part of August but that on the 28th a date was set for September I I W C similarly told us of the arrangement made near the end of August for a meeting on September 11, his last previous conversation with the mediator had been in the beginning of August Combined with an alleged unreasonable refusal to meet with the Union is a request by Antalek, president of Local 310, about August I for information concerning insurance coverage, considered below in connection with the claim of surface bargaining; that request being followed, according to the witness and denied by W C and the Company's switchboard operator, by Antalek's question whether the parties could get together and the reply by W C , "You've got your strike now and you can have it " The reply as testified to would have been entirely out of character, and I credit W. C 's denial the relevant insurance information was provided, and the parties did meet I find and conclude that there was no violation here by refusal to meet or otherwise as alleged Recalled by the General Counsel, W C testified that late in September the Federal mediator called him and asked whether the Company was "interested" in meeting again with the Union, and when Laser said that the Company "would be pleased to meet," the mediator asked whether he would object to a meeting without his attorney W C replied that he did not object but he preferred that his attorney be there No such meeting was scheduled, W C testified that he did not know why I find here no violation by the Company Employee Burke testified that about the third week in September W F Laser said to Morimoto, not an employee of this Company but vice president of the Local, that the employees would have accepted the contract 'With respect to this and certain other allegations , the Company interposes Sec 10(b) Whether these are matters "of the same kind and related" (N L R B v Dal-Tex Optical Co. Inc. 310 F 2d 58 (C A 5), or whether such alleged earlier offences are of the same "nature" as those originally charged so that they "relate back" to the date when that charge was filed (North American Rockwell Corporation v N L R B, 389 F 2d 866 (C A 10)), need not now be decided in view of the determination herein of the factual issues (although the allegations concerning bypassing the Union on July 4 and 31 appear clearly to be covered by the original charge) These items, first charged as attempts to undermine the Union, would be relevant on the question of economic or unfair labor strike which the Company had offered the Union had they seen it, that Burke replied that they were told about it and voted it down, and that W F. then said that the Union kept refusing to meet, Burke replying that it was the Company which was refusing Although a witness, Morimoto did not testify to this (Burke's recollection had been refreshed ) W. F.'s version was even less nocuous, and exhaustive cross-examination bolstered his credibility Burke's account itself indicated that W. F had merely expressed his opinion, what W. F. said would naturally be regarded as such. he could hardly have misrepresented to the employees what their reaction was or would be, and he did not detail, represent, or misrepresent the Company's offer With respect to the same allegation of misrepresentation of the Company's last offer to induce employees to abandon the strike or the Union, Baraniecki testified that, in the latter part of September, W F told a group that the Company had offered a dollar increase, but that the Union had rejected it. Another mediator had told O'Brien and W. C on September Ii that he had "offered" the Union a dollar but that they would not settle for that; they wanted other contract changes W C reported this to his father The offer had not been authorized by the Company, and Audia denied that the mediator had mentioned it Whether or not it would have been adopted had the Union indicated willingness to accept, reference to it as emanating from the mediator and transmission of the report that the Union had rejected it do not support the allegation of unlawful misrepresentation, and I so conclude It should further be noted that Baraniecki's testimony was not corroborated by any of the five others who he testified were with him at the time W F. denied that he told the men that he had offered a dollar although he testified that his son and O'Brien had the authority and he would not have questioned it had they made such an offer (The issue, we recall, is misrepresentation by W. F.) Burke testified further that in September, at the time of the other remark testified to and addressed to Morimoto, W F said to the latter that they could have it much easier if Morimoto were handling the bargaining. The latter's verison was that W F. asked why he didn't get Antalek out and added that had could work with Morimoto W F denied that he made such a suggestion, which might be compared, although not thereby justified, with the mediator's suggestion noted above that the parties meet without the Company's attorney. Had it been made, such a suggestion by W. F. certainly was not, as alleged, a condition to meeting As a violative suggestion, it is cumulative in the light of the testimony which we shall now consider and the findings made. The next allegation is that company representatives met with employees to bypass the Union. We shall consider evidence cited in this connection even where it appears to refer to a different kind of interference Employee Eder testified without contradiction that 3 or 4 days before a meeting with the mediator on September 11, W C remarked to him that, if the local had another president than Antalek, a contract would already have been signed and the men would be working This was violative interference with an employee's conduct of concerted activities, and I so find and conclude Such proposals made to employees have a tendency to interfere, not so when made to bargaining representatives As Company counsel indicates, the issue in Borg-Warner, infra, which he cites, was whether there was insistence during negotiations, not whether there had been direct CARTRISEAL CORP. interference with employees with whom, unlike the instant case, there had been no contact I find similar violation in Eder's testimony, which I credit, that, on the picket line early one morning early in September, Grabowski, the Company's maintenance engineer, said to him that, if Morimoto and Antalek weren't the Union's representatives, the men would have had a good contract I do not credit Grabowski's somewhat uncertain denial These findings are based on evidence more substantial than several bits noted below to show what the General Counsel describes as "the positive nature of the Company's dislike of Antalek's leadership of the Union " During their July I I conversation, W. F suggested to Wodka, "Let's have our own union " Although the latter replied that there is provision for a separate local, and while the transcript is unclear at this point as it fails to indicate W F 's emphasis on the word "our," the fact remains that W F 's suggestion was an unlawful intrusion into employees' organizational activities. (It did not come to fruition in violation of Section 8(a)(2).) Frank Bambach testified that W F made a like suggestion to him about the end of June and suggested further about the middle of July that the men make Wodka their president, the idea being to have a separate local for employees of the Company. There appears to be no denial of any of this These suggestions constituted further interference The allegation that the Company unilaterally granted wage increases will stand or fall with the issue that it failed to bargain in good faith as broadly charged and alleged, and whether increases granted were within preimpasse proposals. I find no violation in a request by W C., when Bambach telephoned in the early part of August, the strike then in progress for about a month, that he return to work Bambach replied that he would have to talk to Antalek about it We have to this point considered all of the instances of alleged interference listed in the complaint which have been cited and some not mentioned in the General Counsel's brief. Beyond this and aside from the fact that, as the General Counsel declares, an employer may inform employees of the status of negotiations ("W.F. told him the Company's last offer was 25 cents an hour"), there is no allegation covering the claim now made that W.F. in July told Wodka that the Company had made such an offer and would not agree to more fringe benefits except for an additional paid holiday One may hazard a guess that the General Counsel similarly recognized the remoteness of a January 1966 letter and the insufficiency of a specific claim now made concerning exclusion of union representatives from the plant without permission, these were not alleged ' Since the latter item is again referred to by the General Counsel under his heading of analytical 8(a)(5) evidence, or surface bargaining, I note at this point that W C.'s explanation for seeking to exclude had an element of reasonableness even if it did not persuade It is no answer to a charge of stirring up grievances to argue, as the General Counsel now does, that the management rights clause which the Company sought would severely limit possible grievances. If the Company found negotiations difficult (the converse will also be noted) and the negotiators uncongenial, its suggestions that the latter be replaced were unlawful, as found But those and the other 'Cf Central Machine & Tool Works. 171 NLRB No 139, fn I 275 suggestions found violative, as we compare their extent and the nature and extent of the negotiation sessions, do not individually or in their totality overcome the weight of the testimony concerning those sessions, and do not lead to a further finding that the Company was also guilty of bargaining in bad faith. We come now to the bargaining sessions and consideration of the detailed testimony concerning them, which occupied most of the time spent in the trial, in the light of that already noted, the record of course to be considered in its entirety. B. Surface Bargaining-The Negotiations Generally I find and conclude that, as admitted, the following is an appropriate unit within the meaning of Section 9(b) of the Act All production and maintenance employees at the Company's plant, excluding office clerical employees, professional employees, guards and supervisors, as defined in the Act. With testimony concerning arrangements for and details of bargaining meetings held on June 19, 22, and 26, July 5 and 11, and September 11, 1967, the refusal to bargain aspect of the trial extended for 8 trial days This Decision, it will be noted, is relatively brief To any who may desire a quick summary let it be said that there is little dispute concerning the salient facts, and the law is clear The Company in bargaining observed the letter and spirit of the law If failure to grant concessions be not itself violative, bad faithis,nottobe foundagamst a yielding but hard bargaining negotiator vis-a-vis an equally hard bargaining counterpart The issue has been and remains whether the Company bargained in bad faith A detailed and fragmented analysis of the testimony (necessarily received in pieces and fragments) would confirm these latter statements, but all of such details are not here necessary. To the extent that credibility findings are necessary, there being little or no issue concerning many of the facts testified to, it may be noted that Audia, the Union's principal negotiator and witness, manifested considerable unreliability. One can understand and accept his explanation that he is engaged in many negotiations. But however credible the explanation, and well-meaning he who explains, these are no substitute for a clear and definite recollection of facts in issue. We have already noted unreliable elements in Audia's testimony concerning arrangements for meetings. Similarly with respect to the Union's strike notice, an important item even if not so here, he testified that it may have been issued before one meeting but then that it may have been before an earlier one Nor did he recall whether the Company's economic proposal of June 26 was the same as that which it had submitted on June 22, certainly an important factor in the negotiations and significant for its bearing here. These will be mentioned below; they were substantially different. Without citing other instances, I would note that at one point, after Audia examined his notes and assured us that they refreshed his recollection on a certain point, it developed that the notes contained no such refresher or reference. O'Brien, by contrast, had obviously prepared notes and himself with a view to reporting accurately what had occured at the bargaining sessions. Enhancing reliability by aiding and supporting recollection, such preparation does not, by any damned-if-you-do-and-damned-if-you-don't argument, indicate bad faith. It was evident as they testified that 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD O'Brien's recollection was more detailed and apparently more accurate than Audia's. Sometimes pertinent to the question of good faith is the evidence concerning attempts to arrange bargaining meetings While considerable testimony was received on this point as we have noted, including questions of dates and hours of meeting, it does not indicate dilatory tactics or bad faith generally on the part of the Company, all of it was weighed as it was received and has been considered further on review. Some of this testimony pursuing matters which developed during the half dozen meetings and many proposals pro and con were analyzed at the trial and on the record both because, fresh in mind, they could then more readily be disposed of and also because analysis and statement of my impressions at that time provided opportunity for counsel to provide further relevant and determinative proof Because references to submission to Company counsel of a copy of a union contract with another company, Gits Bros., were complicated and, while related, were peripheral to issues directly before us, I now state as I explained at the trial that I am reluctant to find and do not find bad faith in the failure to respond in connection with a copy of the contract negotiated by the Union with Gits Bros. Aside from questions concerning receipt of the copy and obligations to communicate, we have far more substantial and reliable evidence on the issue of good faith. The testimony concerning alleged failure by the Company to respond or to arrange meetings (noted above) is no more indicative of bad faith in this case than are its early suggestions and proposals for meetings before expiration of the old contract, or Audia's unavailability, probative of good faith during the bargaining period. Certainly the long hearing allowed sufficient opportunity to prove the allegations of more directly indicated bad faith; and findings can be made on the testimony pro and con with respect thereto More immediately in point on the issue of good faith and covered in great detail were the proposals, counterproposals, and negotiations The Company had for many years recognized the Union as the collective-bargaining representative for the employees in the unit, and it was required to continue such recognition until circumstances changed Most recently, the Union and the Company had in 1964 entered into a 3 year collective-bargaining agreement which expired on June 30, 1967 Involved in the 1964 negotiations were Antalek (presumably among others) for the Union, and the Lasers, father and son, and O' Brien as counsel for the Company. The Union's proposals for a new contract were submitted at the June 19 meeting . These were then and thereafter discussed. Company proposals, including economic, were submitted at the meeting of June 22, and the Union's economic proposals on June 26. A second and "complete" economic proposal by the Company was read to the Union on June 26 and handed to it on July 5. A great deal of testimony, much of it unnecessary as indicated from time to time at the hearing, was received concerning unimportant and certainly undeterminative details. These would have been a prime example of overkill had the items been determinative. The overall impressions from the witnesses and their testimony, and the conclusions to be drawn, are clear The first item in the Company's proposal for a new contract, like the corresponding one in the Union's, referred to the Company's address. Admittedly "considerable time" was spent in discussion whether the address of the plant should be omitted or whether the new address only should be listed, the possibility of relocation, etc. The Company's explanation was valid, and the Union agreed. But even if no practical benefit attached to one proposal rather than the other, the Company's insistence on its own would no more indicate bad faith than would the Company's yielding on the point indicate good faith. Thus unimportant, such discussion occupied the time of the parties in their negotiations, time at the trial, and time here as we attempt to evaluate the bargaining and the element of good faith This testimony is not here cited (certainly not in such detail as it was received) as criticism of the conduct of the negotiations It does indicate the nature of the negotiations and of the evidence submitted at the trial. The next item in the Company's proposal of June 22 cited and relied on by the General Counsel is its No 3, in which the Company sought to change the word "or" to "and" so that an employee must have worked both the day preceding and the day following to receive pay for a holiday The Union proposed additional holidays and a more liberal provision in other respects than appeared in the expiring contract. It should suffice to say that these proposals have not been overlooked. Except for economic issues raised, probably the greatest importance and emphasis was attached by both sides to the management rights clause, referred to as No. 4 of the Company's proposals to which, we were told, were closely related several other numbered proposals. Admittedly the union representatives had in mind recent Supreme Court decisions, as Audia told us, and the company representative considered the same decisions as he sought modification in the contract by addition of a provision where the old contract had been silent. Because these cases are recent and the General Counsel emphasizes the Company's position with respect to the management rights clause, I note specifically the references to the C & C Plywood and Acme Industrials cases. The unilateral right which the Company here sought to maintain was not unreasonable, much less "unacceptable," however unacceptable or distasteful to the Union Indeed, were justification necessary, the Company justified its position by citing the extent of subcontracting in the past, which the Union had accepted, and the problems which would arise were this now left to grievance and arbitration under the recent decisions. Since the Board and the Supreme Court had interpreted the law contrary to the understanding of employer's counsel, who represents the Company here, the latter now sought,' not to "evade" as the General Counsel claims, but to avoid the limitations thus lately declared. This is no violative attitude or act, whatever the Union's displeasure. Were these management proposals by the Company deemed to indicate bad faith, what could be said concerning the Union's inclusion' of laboratory technicians and quality control inspectors, who were not previously covered or in the unit, in its proposal of June l9?--or in Audia's suggestion that the Company pay the full costs of arbitration and for all time spent on 'N.L R.B v C & C Plywood Corporation , 385 US 421, N L R B v Acme Industrial Co , 385 U S. 432 `While awareness may indicate intent, counsel's experience and ability do not prove unlawful intent Recourse must still be had to the facts before us, to determine whether there was an illegal failure to bargain, as alleged Cf United Insurance Company of America, 154 NLRB 38, 43 'This was a nonmandatory subject for bargaining . While it was mentioned, it does not appear that the Union insisted on it, nor did thej negotiations founder on that point Cf Wooster Division of Borg-Warner Corporation , 113 NLRB 1288, 1325 CARTRISEAL CORP. 277 grievances'" - or to the proposal for profit sharing, broached at the penultimate meeting? Such proposals, by one side or the other, may lawfully be submitted. With respect to items 5, 6, and 7 to the extent noted, it can be said generally that the Company sought limitation of grievances and their presentation, and of the scope of arbitration, while the Union sought liberalization and that they be made more "attractive " Recognizing a stalemate' with respect to these and other items, the Union called in the Federal Mediation and Conciliation Service, and subsequent meetings, beginning with that on July 5 were scheduled by a Federal mediator. Audia next testified that after a recess in the July I1 meeting, the Company returned with a "changed position" its "final proposal" dropped approximately 10 issues, as stipulated, and made various modifications and concessions as Audia described them. While the General Counsel now minimizes some of these as minor, they were among those to which he had called attention for consideration on the issue of good-faith bargaining. The Union now submitted its "minimum position," and charged that some items in the Company's offer were regressive: While the Union could agree in some areas where the Company had modified its position, there was still dispute in areas where the Company had made no change, the Union would not agree to anything which was regressive, but it did drop or modify some of its earlier proposals Other company proposals were early specifically cited by the General Counsel as proving bad faith, but some were not thereafter stressed at the trial or in his brief. These include reference to seniority, promotions, representation (this is referred to in the brief as "particularly galling"), rate changes, etc With respect to directly economic items, the Company on June 22 submitted certain wage proposals with elimination of a cost-of-living provision. When the Union objected that there would be no "tampering" with that provision, the Company agreed to "take a look at it." At the June 26 meeting the Company submitted another proposal, in which it boosted various wage increases above those submitted on the 22nd; and this it further did subsequently As for allocation of the total monetary increase offered by the Company, whether as a cost-of-living provision or any other form of benefit, the Company had said that the Union could spend it any way it saw fit. As Audia thus admitted, the Company, despite the form of its proposals, did not take a stand against a cost-of-living provision as such, it did limit the total amount of increases below that sought by the Union When the Union asked for increases similar to those agreed upon at Gits Bros., the Company argued that certain classifications there were at a lower rate than some 'it is not clear whether the latter item "had been established as a matter of practice" in industry generally or between the parties here If the latter although "the agreement was silent ," the item was minor There is no suggestion that the Company had raised the point or had questioned continuance of the practice If established, the concession might well have been made by the Company to embody it in the agreement, but this would scarcely blunt the attack as it would certainly fall within the General Counsel's disparagement of such "moves" as minor 'The General Counsel urges bad faith in the Company 's suggestion that a Federal mediator be called into the negotiations (A refusal to resort to mediation is sometimes cited as evidence of bad faith ) O'Brien testified that it was Audia who made the suggestion Admittedly it was the latter who called the FMCS The account of the discussions indicates that there was an impasse While allegedly pointing out that many issues remained and that a mediator was usually brought in later, the Union indicated neither objection nor reluctance here, no agreement was reached despite detailed discussion of cost items. At the mediator's suggestion on July 11, the Company submitted to the Union what it now called its "final offer," economic and noneconomic This was rejected by the Union, which declared its own "minimum position," now rejected by the Company. Both sides stood adamant. To recite further details of the written communications between the Company and the Union, the bargaining sessions, other discussions, and other items suggested by the Union and apparently not questioned by the Company, would be virturally to duplicate the record It should not be necessary to identify each of the small trees and the underbrush in this copse of testimony. All was carefully noted at the hearing, as the transcript indicates, and has since been reviewed. What has herein been cited is typical. That there was disagreement is clear, and neither surprising nor unusual. The question remains whether the Company bargained in bad faith as alleged. As in the negotiator's traditional "courtship dance," each side started from an extreme position Each thereafter made some approach to the other's proposals, modifying its own. At this point it should be noted that the Company (since it is charged with " `predictably unacceptable' proposals which frustrated collective bargaining") as the bargaining continued offered terms which in some respects were more favorable than those in the expired contract. Its offers, individually or taken as a whole, were not "predictably unacceptable" or such that the Union could not reasonably accept them. Again, they need not be recited here It was, of course, the Union's privilege to reject. But that reflects the Union's desires, its estimate of relative bargaining and economic power, and its opinion with respect to tactics and probable outcome. The Union's decision to reject the Company's offers, and to maintain or revert to its original demands, even adding new items, does not establish bad faith on the part of the Company. Neither in its initial proposal nor in its later positions did the Company flaunt an inherently or provocative attitude or one which no "self-respecting union"" could accept. Certainly no more than the Union did the Company maintain a fixed position (were that unlawful) which it would not discuss and from which it would not budge. Many other phrases can be used, such as whether the Company made a sincere effort to reach a common ground." Whatever the descriptive language, bad faith in the Company has not been shown. The law in this connection is clear. There is no need to analyze the various cases cited, and many more, this having been done frequently and in detail. The facts here and the application of the authorities are also clear, taken separately or for their "total effect," and point to the conclusions to be reached Because it was several times referred to in the testimony, we apparently must not "overlook" mention of availability of company books for inspection by the Union. There was no claim of inability to pay,i" no proof that the Company unlawfully refused to permit the Union to examine its books, and no allegation in the complaint, at the hearing or since, that there has been any such unlawful refusal-although the General Counsel does now refer to "a discussion of the Company's ability to pay a "N L R B v Reed & Prince Manfacturing Company, 205 F 2d 131, 139(CA I) "N L R B v. Montgomery Ward & Co , 133 F 2d 676, 686 (C A 9) "Cf Stanley-Artex Windows v N L R B., 401 F 2d 434 (C.A D C ) 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wage increase," after having earlier recognized that the Company "was not claiming poverty " If, as the General Counsel argues, the Company's explanation for its wage and cost-of-living proposals was fallacious and the Union may have been able to disprove the statement, the latter at the sixth meeting rejected the Company's proposals completely. It may be that error could have been shown in the Company's explanation. Whether or not that would have led to modification or would indicate bad faith, no attempt was made to show error to the company negotiators. Pointing throughout to the Company's alleged refusal to grant concessions (although concessions were made), the Union charges a failure to bargain in good faith. Aside from the error in fact and in law, the fallacy in this enthymeme lies in omission of reference to the mutual obligation and the Union's insistence on its own proposals, even to modification from lesser to greater demands, some examples noted above No single act or proposal by the Company itself indicates bad faith As the General Counsel suggests, despite his reference to "predictably unacceptable" proposals, "inferences of the employer's state of mind must be drawn from the content of his bargaining proposals." No more persuasive than the acts considered individually but directly as evidence of bad-faith bargaining is their sum total or the general attitude of the Company as displayed throughout the negotiations The company brief quotes my statement on the record that "zero and zero always equals zero " It should not be necessary to point out that this is quite different from a series of so-called slight indications which, cumulatively, may indicate bad faith or be otherwise probative If the bargaining was hard," both sides did at times yield on various items, as Audia testified But with many issues still in dispute, the Union on July 11 announced a return to its original demands except for a concession with respect to the plant address Whether the Union proceeded in bad faith is not in issue at this moment Suffice it to say that the Company was no more recalcitrant, and indeed that it did bargain reasonably and in good faith If obduracy be a test, it ill behooves the Union to point a finger at the Company. An employer is not obligated to increase a wage offer during negotiations merely because the union involved reduced its demand 14 The Company, making concessions, can hardly be charged with refusal to bargain in good faith when the Union reverted to or maintained its original demand, and even increased it Nor does alleged insubstantiality of the Company's offer indicate bad faith!' A "standard UAW approach," in Audia's words in one connection, may explain the Union's position or attitude during negotiations, an employer's refusal, with similar finality, to accept that approach is scarcely violative It is not for us to pass upon the desirability of terms offered, but their reasonableness; indeed, since we are not to set up our own ideas of what is reasonable or fair, the question is not so much one of reasonableness as whether the terms can be declared unreasonable as a matter of law in the light of all of the surrounding circumstances. not what we would do but whether what was done cannot be deemed the product, even unwise (which has its limits as "Under the cases, this is no violative maculation Nor was it shown to be such in this case "W L McKnight , d/b/a Webster Outdoor Advertising Company, 170 NLRB No 144 "Ibid defined by the status of the employer), of good faith. Whatever magic there be in the term "impasse," the parties were at their last meetings as far from agreement as they had been several months before, perhaps further apart than they had apparently been at some time, if we recognize the tentative modifications; and no further meetings were now scheduled by them or by the mediator The Union's demands in the instant case far exceeded those in the recent Taft Broadcasting case,16 where the union proposed "essentially a carry-over of the old contract, with increases in wages and fringe benefits"; and accepted the employer's wage proposal on condition that the old agreement would be continued in all other respects. The company there rejected the proposal. If no violation was committed in that case, the facts before us markedly favor the Company's position here on the issues of flexibility, concessions, and inference of good faith. As for payment to strikers' replacements of rates higher than those paid before the strike but at a level consistent with the wage offer made to the Union, noted by the General Counsel, an employer may, after a contract expires, institute a change which a union has rejected and after impasse in negotiations " The tone of the negotiations as pictured in the testimony reflected an occasional harsh word by one side or the other during the course of the negotiations This does not indicate bad faith in the light of the hard bargaining and understandable, if not justified, provocation. Epithetic episodes appear to have been relatively few, and certainly the Company's did not exceed the occasional epithet or threat by the Union Also connected with the bargaining and significant for its bearing on the allegations of discrimination considered below, is the question whether the strike was an economic or an unfair labor practice strike. Aside from the Union's July 17 strike notice to the Company, which declared that strike action would be taken on July 18 "in support of [the Union's] proposals for a new contract," that this was an economic strike appears from Antalek's testimony that at a meeting later definitely placed on June 23, the 28 employees present voted unanimously to strike if a new agreement was not entered into by June 30. Antalek explained that the vote was based on the "lack of progress that had been made in the negotiations."18 Certainly there had been no unlawful refusal or failure to bargain by June 23; the strike which was thereafter called and which began on July 17 (as stipulated at the trial, not July 18) at the end of the vacation period was an economic strike at its inception. Another question to be considered is whether the strike, if originally an economic strike, was converted by subsequent significant violations into an unfair labor practice strike or whether it was prolonged by the interference found. There is no proof of such conversion or prolongation We have seen that neither the violative acts of interference nor the Company's conduct in connection with the negotiations evidenced bad-faith bargaining My overall impression from the testimony and its presentation by the witnesses is that the union "American Federation of Television and Radio Artists , AFL-CIO [Taft Broadcasting Company/ v N L R B, 395 F 2d 622 (C A D C) "C & S Industries , Inc , 158 NLRB 454, Dallas General Drivers, Local 745 [Empire Terminal Warehouse Co / v N L R B, 355 F 2d 842 (C A 5) "The employees' committee had informed the Company in May that the employees had voted and approved "the policy of no contract , no work," and that they would not extend the contract beyond its June 30 expiration date CARTRISEAL CORP. representatives sought to impress upon the Company the Union's power and its determination and insistence on better terms in any new contract Indeed it was the Union which substituted a take-it-or-leave-it attitude with an occasional harsh word for actual readiness to engage in good-faith negotiation Even if there was no suggestion of lese majesty, vis-a-vis the Union, that the General Counsel was impressed is evident in his claim that "[i]t is reasonably stated that no Chicago area company with a long-standing relationship with a UAW local would ever imagine or even hope for this sort of an economic settlement in 1967"; and in his statement that one item in the Company's economic offer "wouldn't stand the slightest chance of acceptance by a responsible UAW local." A peremptory demand for "Trick or Treat" may be recognized at Halloween But no such privilege accrues to either side in collective bargaining, which calls for negotiation in good faith without assumed rights in recognition of some presumed and privileged status. One needs to have heard and seen the poised and airy assumptiveness of power in several finalities expressed at the trial to the point of imperiousness. A compliant disposition is not required of either side, reasonableness in attitude and expression is If absence of courtesy in bargaining discussions be minimized even in high places, attempts to throw one's weight around, as were here evidenced, prevent good-faith bargaining among knowledgeable negotiators who are able to deal on equal terms or stand on an approximately equal footing. Company representatives did not go the second mile or turn the other cheek, but this is not something of which the Union can with warrant complain Aside from any question whether the Union, clearly peccant, is in a position to impute bad faith to the Company, I am convinced that the latter declared its position and made concessions in good faith I find and conclude that the Company did not violate the Act by refusal to bargain III THE ALLEGED VIOLATION OF SECTION 8(A)(3) Not only has the burden of coming forward with the evidence concerning discrimination shifted from one side to the other and back again as charge was met by explanation offered and followed by counter, but the arguments and legal problems presented reflect blow and counterblow Thus we have considered whether these were unfair labor practice strikers and found that they were not, now will appear an offer to return to work, the question whether the Company's response was violative because it denied accrued rights, and then the issue of good faith in the Union's offer on behalf of the strikers Valid points and applicable points have been made But some which are valid are not applicable, and some which have been applied to the facts are not valid Except that the approach to consideration of the issue of discrimination depends on the finding whether there was an unlawful refusal to bargain so as to make this an unlawful labor practice strike, the alleged discrimination is separate, and clearly so in point of time, from the alleged refusal to bargain There would be no question concerning right to reinstatement in the stead of replacements were this an unfair labor practice strike. But we begin with an economic strike in being since July 17 when, as stipulated, the 30 employees in the unit ceased work instead of returning to the job after the vacation period which had just ended. By November 6, when the Company filed an RM petition with the Board, 30 or more replacements had 279 been hired. More significant is the fact that on April 3, 1968, there were 40 employees in the unit plus one other, who had been transferred from the office. Without attempting to follow each job and each job classification, we may reasonably recognize that, with a 30-percent increase in the number of employees, and the Company operating for more than 8 months after the strike was called, all of the old positions had been filled except to the extent that operations had been lawfully changed or replacements were not available It was also stipulated that at various times the Company ran local newspaper advertisements for employees to fill these as permanent jobs. After the strike began the Company also posted notices in the plant, in which it asked employees whether they had friends who wanted jobs, and it was testified that at the employment interview applicants were told of the permanency Excluding the transferred employee referred to above and another, who had transferred from the shop to the laboratory and then back to the shop, of the 39 other replacements, 12 declared in their application that they had come to the Company as a result of newspaper advertisements, l l on notification by company employees, 1 on notification by "a friend," 3 others wrote "nobody" on the application form, and 12 did not answer the question. The latter 15 are not connected with the advertisements or the notices posted But these do not overcome the basis to the extent that it otherwise exists for finding that they were hired as permanent employees and the fact that, except for 5 whose employment was terminated in April or May, all were still in the Company's employ as late as June I It would not be necessary for the Company to discharge these replacements in favor of economic strikers. But this is not to say that economic strikers have no reinstatement rights. Without detailing all of such rights, they have been further defined in the Laidlaw decision,19 issued by the Board on June 13, the penultimate day of this trial. In Laidlaw, as the Board recited, "replaced economic strikers . made an unconditional application for reinstatement, and continued to make known their availability for employment. .." The employer there nevertheless hired new men and, as to strikers rehired, declared that those "once replaced . . . 'lose forever' their right to employment by the company"; and in thus rehiring, it declared that any such "would have to come back as a new employee " Citing Fleetwood Trailer20 and Erie Resistor," the Board in Laidlaw found that the employer violated Section 8(a)(3) of the Act when it actually hired a returning striker as a new employee. Unlike the situation in Fleetwood, the jobs here had not been abolished and then reestablished, they had been filled by new employees But the Company now had need for additional employees, and the strikers' right to jobs on application continued. We shall consider below, not as discrimination but as interference with protected concerted activities, the Board's recognition that the "offer of employment as a new employee . was inherently destructive of employee interests.. " "The Latdlaw Corporation , 171 NLRB No 175 30N L R B v Fleetwood Trailer Co , Inc , 389 U S 375 Our present concern is not with any refusal to reinstate strikers while new men were hired , all new employee hirings having preceded any request to return, and the Company being willing to rehire strikers even though they had been replaced "N L R B v Erie Resistor Corporation , 373 U S 221 Our concern is 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We continue with the facts in the instant case as we come to questions concerning termination of the strike, a request to return, and the Company's response We shall consider relevant facts noted in two joint exhibits submitted after the close of the trial and which include reference to subsequent company offers of full reinstatement for some employees and to the availability of other employees. We need not concern ourselves with those later events which are not claimed to be violative On April 3, 1968, the Union by letter informed the Company that 27 named strikers had "requested to work unconditionally"; as to one it declared, "Willing [sic] to return after birth of a child"; the Union had not been able to make contact with the other two strikers, who were now presumably not in the area, not then on strike, and certainly not offering to return although they are included among the alleged discriminatees. Although we were told shortly before the close of the trial that the picket line was still being maintained, it appears, as stipulated, that the Union has not picketed the Company since July 8. On May 3, the Company wrote to I l of the 27 strikers that it had a job opening and that it was offering each the job "as a new employee." On May 22 Antalek wrote to the Company and correctly declared the general proposition that its offer to them "as new employees" was discriminatory in the face of an unconditional and continuing offer to return. All I l replied: some said that they were interested, some that they wanted to come back but needed more time than the 5 working days which the Company had indicated, and others made "various responses." It was explained that 6 jobs were now open but that I l letters had been sent out because the Company had not expected a response to each An extension of time for reporting for work was now given to the six who were specific as to the time when they could return There is no claim of discrimination in the selection of the l l to whom the Company wrote on May 3, or in the selection of those subsequently hired, all of them union supporters and strikers To what extent the replies were affected by the limited nature of the Company's offer we do not know. But before we pass upon the validity or sufficiency of the Company's letters, referred to at the trial as the Company's "reply," we must consider the validity of the Union's offer No less than with respect to bargaining" should an offer to terminate a strike be in good faith, and presumably no less by a union than by an employer. Since we have authority on this point, we need not depend only on good sense and equity, which should themselves be evident If an employer's offer of reinstatement must be "sincere,"" no less is sincerity necessary in a union's offer to return submitted in behalf of employees. We shall return to this point with consideration of authorities. On the preliminary question of good faith and certainly before we reach any backpay problems, some of the employees certainly were not ready or willingE° to return- the Union had not been in contact with two of them, the condition of her hands prevented one from returning, and she asked for 2 additional weeks; another sought more time so that he could give notice to his new employer, two others asked for a few weeks more When the Company on June 3 sent to six other employees a letter similar to that of May 3, one replied that he would consider acceptance only if a new collective-bargaining agreement with company offers of a job "as a new employee " "S & M Manufacturing Company , 165 NLRB No 59 "Burnup & Sims, Inc, 157 NLRB 366, 368 were entered into There is no question of the Union's knowledge that all of the strikers had been replaced before the April 3 letter and that the Company's complement of employees was now larger than it had been when the strike commenced. The fact as found that the Union was itself bargaining not in good faith but with an eye to the record predicted the later acts and was in turn confirmed by those acts. Thus the picketing continued while the Company could reasonably consider the Union's letter and develop openings for return of strikers; and before it could reasonably be charged with an unwarranted failure or delay in reply Having gone on record with its offer, the Union did not follow up as the picketing continued during the month before the Company replied and for some 2 months thereafter, or inquire concerning availability of jobs or company willingness to reinstate. Neither did any of the strikers make further inquiry, present themselves for work, or "continue . to make known their availability for employment"" after the April 3 letter except for the responses noted to the Company's of May 3. Absence of good faith or earnestness may be discerned even in the claim that this was an unfair labor practice strike- While pointing out that the Company's conditional offer was violative, the Union in its letter of May 22 made no claim or reference to the unquestionable fact that as unfair labor practice strikers, if they were such, all were entitled to reinstatement and not just the few to whom the Company had written. The fact of continued strike and picketing may not generally be determinative 26 But the various elements noted herein not only speak louder than, but they belie the words We have no evidence of modification of the strikers' or the Union's procedure after the April 3 letter Readiness to return is subjective; the evidence objectively recognizable indicates that there was no such readiness as the tactical offer declared. Whatever the sin in the Company's conditional and insufficient offers of reinstatement, a first step necessary to a finding of discrimination as distinguished from interference is a valid request to return This step was not taken. What the Company would have done after proper requests to return is not the issue here. There is no suggestion beyond the Union's letter of April 3 (which we recall required no immediate action by the Company since there were no vacancies to be filled) that the employees, off the job and working elsewhere or striking for almost 9 months, were impelled to return. There was thus, to the point of the Company's letters of May 3 no evidence of discouragement or discrimination in violation of Section 8(a)(3). In Fleetwood, the employer refused reinstatement. Here, as in the case of the girl who wasn't asked, there can be no refusal in the absence of a good-faith request Further, if there was no rejection by the Company of a valid offer, we cannot anticipate that a later offer would have been made by or on behalf of the strikers, and thus charge the Company with anticipatory discrimination, any more than in the case of a threat to discharge strikers, "Whatever the remedy in any instances where employees would have returned under the Company's unlawfully imposed conditions, it was their own earlier unavailability and the acceptance of available jobs by other strikers which prevented their return There could be no backpay "No more than the Board may have intended in Laidlaw, above, do I suggest that a striker's application must in every situation be repeated or continued to be made known But we are now considering the bona fides in the application of April 3 the earlier and subsequent events negate the existence of such bona fides "Hawaii Meat Company, Limited , 139 NLRB 966 CARTRISEAL CORP. which constitutes interference but not discrimination. We have noted, among other factors, that the picketing continued for 3 months after the April 3, letter Strikers refuse to work by going on strike; leaving for the moment the legal significance of continuance of a strike generally and under the circumstances here, work and continuance of a strike are factually imcompatible While willingness to return to work may be expressed in other ways," a stated willingness to return can be proved by termination of the strike If immediate reporting for work and the employer's reaction thereto are relevant to the questions whether the letter offering to return was unconditional and whether the employer was obliged to act thereon,28 some light (it should be clear that I have not stated that continuance of picketing is necessarily determinative regardless of the circumstances) is cast on the instant situation by the absence of evidence or claim that strikers reported for work during the month between the Union's offer and the Company's replies The Board has considered good faith in such a situation We can compare the Southern Fruit case,29 where good faith was weighed and found in the application by the strikers or their representative Unlike those here, strikers in that case had not been replaced, they were entitled to reinstatement but their offer to return was held, on the finding of' their good faith, to have been unlawfully rejected by the employer Various aspects of bad faith considered herein were not in issue in that case In Combined Metal,'" the Board reached a conclusion different from the Trial Examiner's concerning the existence of good faith on the facts there noted, but it recognized the relevance of the issue. We do not here rely on factors which the Board rejected in that case " The General Counsel here also recognizes that good faith is relevant and necessary as he "contends that the April 3 offer was a genuine one, made in good faith. There is no question in the instant case of forfeiture of the right to strike i2 The question is whether the strikers, before vacancies or need for additional help permitted their recall, were in fact willing to abandon this strike and to return, as the Union's letter declared. Their attitude was more correctly described by Wodka, president of the Local for some 10 years and active for many more We recall that he conditioned his return, despite the Union's blanket offer, on acceptance of a new bargaining agreement Nor is the right to strike minimized by the finding that, with the other factors present, continuance of the strike reflected on the bona fides of the offer to return The right to strike remains, but the continuance of the strike is in this case as inconsistent with the alleged unconditional offer to return before the Company could be charged with "failure to grant reinstatement," as is a going on strike inconsistent with willingness to work under the conditions existing "As by a good faith offer to return even though, after a wrongful refusal to reinstate, the strike is continued "Sere-Air. Inc , 161 NLRB 382, 397, 415, enfd and cited in relevant part 395 F 2d 557, 562 (C A 10) "Southern Fruit Distributors . Inc. 109 NLRB 376, 391 "Combined Metal Mfg Corp. l23 NLRB 895 "Distinction should be made between good faith and the question whether an offer is conditional Although, as noted, Wodka's response was conditional , the issue now is not any conditional aspect in the Union's offer, as argued by the Company, but its good faith See also B VD Company. Inc, 110 NLRB 1412 at 1416, where the terms are used indiscriminately "Hawaii Meat Company , Limited , supra. 971 281 Cessation of the strike after the Union, if reliably, declared a readiness to return would bring to the Company no benefit which was unwarranted or contrary to public policy. Neither would it mean to these strikers loss of any rights so long as they are not entitled to their jobs before they are in fact ready to return. Were the strikers entitled to jobs (as unfair labor practice strikers or because jobs were unavailable) on an offer to return, backpay would begin to accrue But backpay does not accrue while employees continue their strike. As we shall further note, economic loss has not been shown because of interference aside from any question of good faith on the part of the Union or discrimination by the Company An offer to return is no mere abracadabra to be separated from good faith and action Indeed, where the return of economic strikers depends on availability of jobs, a so-called successful strike may, by limiting employment needs, prevent the very return which the strikers propose Nor is there a violative aspect in the Company's delay in responding where, as we have noted, no need for additional employees appeared before it did communicate with strikers on May 3 Having said all of this on the issue of discrimination in the Company's letter of May 3, we must not overlook the actual return of six employees thereafter under the limited conditions set forth in the Company's offer of jobs as new employees. Here was actual discrimination in regard to terms and conditions of employment arising out of and discouraging union activities, in violation of Section 8(a)(3). Since under the special circumstances of this case discrimination did not occur until strikers actually returned with limited rights and privileges, I realize that there is no great practical significance whether discrimination occurred in the May 3 letter or in the hiring of the six returnees Indeed, let me be the first to declare, as the Board may, that this question need not be decided and the technical distinction not be made unless there be insistence that the time when the discrimination occurred be determined and declared. In the absence of a showing of any employee's loss of pay chargeable to company discrimination among them, with strikers rehired as needed and willing to return, we have on this record a need only to reinstate their full rights and privileges to the early returnees. There is no reason and, as we shall see, no basis for determining backpay for any of the strikers if it could be found that by the May 3 letters the Company discriminated within the meaning of the Act As to those who later returned, the posthearing stipulation of August 1 declares their "full reinstatement," presumably with all rights to which they were entitled The General Counsel has devoted a substantial portion of his brief on discrimination to the argument that some jobs have not been filled; and we have considered that. But I would point out again that there is not even a claim of unfairness or discrimination in the selection of strikers for return so that some benefitted by incorrect and discriminatory selection while others were prejudiced according to some order or sequence to be found correct and necessary but as yet undefined To attempt now to impose such a sequence, aside from the fact that it has not been claimed or shown, would be to make an employer who has neither motive nor intent to discriminate among strikers the guarantor against what might later develop as a difference of opinion and a preference for a different recall sequence There may indeed have been strikers who wanted and intended to return. "Hope conceiving from despair" (with the strikers replaced and the business continuing with an 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD expanded force) But the letter of April 3, like the strike itself, represented and purported to be a joint venture or an expression on behalf of all, and while the Union, as collective-bargaining representative, was authorized to speak for all, it could not in good faith make a representation which was contrary to the fact The offer to return, although ostensibly made for all but two of the strikers, misrepresented their capacity and desire to return It was no more than an inchoate gesture which died aborning To the argument that the strike was continued because the Company failed to offer jobs, the simple reply is that it was continued with and immediately after issuance of the April 3 letter and even before the Company could conceivably respond with job offers There is no evidence of available jobs to which strikers could have been recalled prior to May 3 The tactical and bad faith nature of the Union's letters was thereby confirmed As for the Company's obligation, it is required to reinstate each economic striker unless (1) "the job which the strikers claim are occupied by workers hired as permanent replacements ," or (2) "the striker's fob has been eliminated forsubstantialandbonafide reasons "33 Since, permanent replacements having filled the strikers' places, the Company was under no duty to reinstate, its May 3 offer of jobs was gratuitous if it offered less than the full rights which the strikers would receive had they been entitled to reinstatement (and, as we shall see, thereby interfered), it was not now offering less than their entitlement . Seeking to utilize the strikers' experience in their former jobs, the Company by its offer gave them preference over others who might apply Whatever violation the Company now committed, it stemmed, as we shall see, from its own recall letters of May 3,J° not from refusal of what was in the first instance an inadequate because merely tactical request or offer to return I would point out again, since this is the basis for my finding with respect to discrimination, that the Union's request to return, amplified by and understood in the light of the contemporary and continuing acts of those for whom it spoke, reflected the same tactical maneuvering which characterized the negotiations As much as during the negotiations, or in addition to them, the total ambience reflects an emphasis on tactics which themselves belie the sincerity of suggestions offered, motions made, or steps taken To lessen the chance of misconstruction, it may help to stress at this point, as my finding of interference will indicate, that the Company's restrictions on return of the strikers were invalid. Only because there was no bona fide application to return in the April 3 letter or in any followup thereto has discrimination not been found. Whatever the attitude of the Company, so far from testing it, the Union proceeded as if the goal to be attained consisted of technical legal victory instead of industrial peace and employment of those directly involved But a technical legal victory cannot be attained when a technical but necessary element is wanting. It is with no great joy that I observe and record" such tactics, whether employed by one side, the other, or both But observe and record them I must "with reasons therefor= with the hope, but no prescription for instant paradise, that such differences will elsewhere be resolved, as they generally are, in good faith, and if not to the complete "N L R B v Fleetwood Trailer Co. Inc. 389 U S 375, 379 "Although not alleged as similarly violative, the Company's letters of June 3 may be bracketed with these satisfaction of all parties then, even if we could not accomplish it here, to a mutually fair compromise for that same industrial peace. IV THE INDEPENDENT VIOLATION OF SECTION 8(A)( 1) If, as found, the Company was under no obligation to reinstate the strikers on the basis of the Union's letter of April 3, it did however take the initiative16 and offered jobs to some, and under Laidlaw and other cases those offers could not lawfully limit the returning strikers to the status of new employees. A limited offer to reinstate, as here, is "`inherently destructive' of the protected rights of employees."" Only because the request to return was found not to have been in good faith have I concluded that Section 8(a)(3) was not violated But the Company's statement of conditions in its letters of May 3 and June 3 tended to interfere with employees' protected concerted activities in violation of Section 8(a)(1) This violation does not depend on, nor is it justified by, union acts or attitude Were the strike held to have been prolonged by this interference and thereby converted into an unfair labor practice strike, this did not occur until the May 3 letters were issued and received; and the rights of the strikers would have to be reevaluated as of that time.7' Delay in recall as employees were needed and overall loss of pay have not been shown. "In the case at bar there . have been no consequences arising from the single act of"' issuance of the letters on May 3 Although interference has been found, no more than with respect to discrimination, were that found, is there a basis for assessing backpay Except for absence of a formal finding of discrimination, the remedy here would be the same whether or not discrimination be found. There is no basis in the record for determining whether strikers other than those reinstated would have been put back to work but for the Company's May 3 letters; and, if so, which strikers. It is clear that various ones have been rehired, beginning with Frank Bambach on May 13, without claim of other discrimination. Discrimination in recalling other strikers, i.e , selecting the "wrong" union supporters, is not alleged. Nor did violation here extend the rights of other strikers, this case differing in that respect from Laidlaw, both because of the nature of the request as found and because other vacancies did not exist at the time or thereafter except as filled by strikers Ingenuity may assert itself in a claim that by its letters of May 3 the Company converted the strike into an unfair labor practice strike But unless we apply an ipso facto (or per se?) doctrine at this point, there is neither statement nor act by the strikers to indicate that their preexisting attitude or reason for striking had changed And as we have seen, there is no evidence either that any were thereafter denied employment to fill vacancies or a need for more employees, or that new and different people outside the ranks of the strikers were thereafter hired "Galatians 4 16 "We cannot have it both ways It was the Company's initiative if the Union 's letter be disregarded In any event , the conditions stated were the Company's "N L R B v Frick Company, 397 F 2d 956 (C A 3) This would be true even if discrimination were found on the basis of a bona fide offer to return and the Company 's letters of May 3 "N L R B v Frick Company, supra CARTRISEAL CORP. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Company, Cartriseal Corporation, Wheeling, Illinois, its officers, agents, successors, and assigns, shall 1 Cease and desist from- (a) Discouraging membership in Local 310, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, or any other labor organization, by terminating the employee status of strikers or failing to reinstate them to existing vacancies with full rights and privileges, or discriminating in any other manner in respect to their hire or tenure of employment, or any term or condition of employment. (b) Limiting reinstatement offers to strikers as new employees only (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2 Take the following affirmative action which is necessary to effectuate the policies of the Act (a) Restore full rights and privileges to all strikers who returned prior to June 24, 1968. (b) Upon application, offer to those strikers who have not yet returned immediate and full reinstatement to their former or substantially equivalent positions to the extent that such positions are available, and place on a preferential hiring list those striker applicants for whom such positions are not immediately available. (c) Notify all strikers who returned prior to June 24 and those who may be reinstated as jobs become available that reinstatement is or will be with full rights and privileges. (d) Post at its plant in Wheeling, Illinois, copies of the attached notice marked "Appendix "40 Copies of said notice, on forms provided by the Regional Director for Region 13, shall be posted by the Company, after being duly signed by its representatives, immediately upon receipt thereof, and bemamtainedby itfor60consecutive daysthereafter,inconspicuousplaces, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Company to insure that saidlnoticesarenotaltereddefaced,or,covered by material. (e) Notify the Regional Director for Region 13, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.41 I FURTHER RECOMMEND that the complaints be dismissed insofar as they allege violation of Section 8(a)(5) of the Act "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 " 283 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 discourage membership in Local 310, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, or any other labor organization by terminating the employee status of strikers or failing to reinstate them to existing vacancies with full rights and privileges, or discriminating in any other manner in respect to their hire or tenure of employment, or any term or condition of employment WE WILL NOT limit reinstatement offers to strikers as new employees only. 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 Local 310, United Automobile, Aerospace and Agricultural Implement Workers of America, 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 other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. WE WILL restore full rights and privileges to all strikers who returned prior to June 24, 1968. WE WILL, upon application, offer to those strikers who have not yet returned, immediate and full reinstatement to their former or substantially equivalent positions to the extent that such provisions are available; and place on a preferential hiring list those striker applicants for whom such positions are not immediately available CARTRISEAL CORPORATION (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 881 U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois 60604, Telephone 312-828-7572.