Tempco Mfg. Co., Inc.

336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tempco Mfg. Co., Inc. and Metal Shop, Warehousemen and Helpers Union , Local 970, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case 18-CA-2666 June 30, 1969 DECISION AND ORDER By MEMBERS FANNING, BROWN, AND ZAGORIA On April 17, 1969, Trial Examiner James T. Barker 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 the Respondent had not engaged in certain other unfair labor practices. Thereafter, the Charging Party filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, Tempco Mfg. Co., Inc., St. Paul, Minnesota, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. IT IS FURTHER ORDERED that those portions of the complaint as to which no violations have been found are hereby dismissed. America, hereinafter called the Union.' The complaint, as amended at the hearing , alleges violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, hereinafter called the Act. The parties timely filed briefs with me. Upon consideration of the briefs and upon the record in this case and my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Tempco Mfg. Co., Inc., herein called Respondent, is, and has been at all times material herein, a Minnesota corporation having its principal place of business in St. Paul, Minnesota, where it is engaged in the manufacture of short run metal stampings. During the 12-month period immediately preceding the issuance of the complaint , herein, Respondent, in the course and conduct of its business operations, manufactured , sold, and shipped from its location in St. Paul, Minnesota, finished products valued in excess of $50,000, to points directly outside the State of Minnesota. During the same calendar year Respondent purchased, transferred and caused to be delivered to its St. Paul location materials valued in excess of $50 ,000, directly from points outside the State of Minnesota. Upon these admitted facts, I find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. If. THE LABOR ORGANIZATION INVOLVED Metal Shop, Warehousemen and Helpers Union, Local 970, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, is admitted to be a labor organization within the meaning of Section 2(5) of the Act, and I so find. III. THE UNFAIR LABOR PRACTICES A. The Issues The issues involved in this proceeding are whether, (1) Section 8(a)(1) of the Act was violated by reason of Respondent's alleged interrogation , threats and offers of benefits, and by its enforcement of a no-loitering rule; (2) Section 8(a)(3) of the Act was violated by the layoff of Alvin Bunk and/or his subsequent termination; (3) Section 8(a)(5) of the Act was violated by reason of the cancelation of a scheduled collective-bargaining meeting and the unilateral grant , subsequent to the certification of the Union, of selective and general wage increases to unit employees; (4) whether the September 4 strike was an unfair labor practice strike; and (5) whether Alvin Bunk and other strikers are entitled to reinstatement in light of the occurrence of certain strike misconduct. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES T. BARKER, Trial Examiner : This matter was heard at St. Paul, Minnesota, on January 6, 7, 8, 9, and 10, 1969, pursuant to a charge filed on August 27, 1968, by Metal Shop, Warehousemen and Helpers Union, Local 970, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of B. The Facts 1. Prefatory facts a. Company personnel Peter J. Cronen, Sr., is president of Respondent and his sons, Peter Cronen, Jr., and Timothy Cronen are, 'Unless otherwise specifically noted, all dates herein refer to the calendar year 1968 177 NLRB No. 12 TEMPCO MFG. CO., INC. respectively, vice president and treasurer. Peter Cronen, Jr., has the title of production manager and works in the plant with rank-and-file employees. Ed Kadlec is general superintendent and the parties stipulated his supervisory status. Respondent operates one shift and employs an average of 60 to 70 production workers. b. Certification and bargaining In the month of April some of Respondent's employees contacted the Union for the purpose of inquiring into possible representation by the Union. On April 24 several employees met with representatives of the Union and signed authorization cards. In addition, they were given blank authorization cards to distribute to fellow employees. On May 16, in a Board-conducted election the majority of Respondent's production and maintenance employees designated and selected the Union as their collective-bargaining representative. On May 23, the Regional Director certified the Union. Pursuant to the certification, unit employees met with Donald Liljedahl, president and business agent of the Union, and a negotiating committee was selected. Employees Mark Bradshaw, Robert Rolling, and Alvin Bunk, the alleged discriminatee herein , were selected as committee members. Additionally, Bunk was selected to serve as steward in the plant. Prior to commencing negotiations with the Respondent, the negotiating committee met and drew up a proposal to be submitted to the Company. The proposal was ratified by the membership of the Union and a written copy of the proposal was submitted to the Company. Representatives of the Union and Company met in collective-bargaining meetings on June 27, July 9, July 23, August 7, September 12, October 1, and November 26. All meetings, save the first, were attended by a representative of the Federal Mediation and Conciliation Service. c. The supervisory status of Alvin Bunk Alvin Bunk worked in Respondent's employ from October 20, 1959, until August 30, 1968. He Nerved successively as a pressman, press operator, setup man and working foreman in the small press section of the press department. Then, in early May, at Bunk's request and through mutual agreement of Bunk and supervision, Bunk was transferred to the tool and die room in an admittedly rank-and-file position.' Prior to his transfer to the tool and die department, Bunk had served in the position of working foreman in the small press section for over 2 years. In the small press section there were approximately 40 employees who worked the same shift as did Bunk. However, in fulfillment of his duties, Bunk reported to work I hour earlier and worked l hour longer than did other employees in the small press division. Bunk was hourly paid. As part of his duties during the regular shift hours of small press operators, Bunk would allocate work to the small press operators drawing upon his knowledge of the 'This transfer of assignment is not alleged as constituting a violation of the Act 337 skills required to perform each assignment. In making an allocation of work to a new employee, Bunk would work at the machine with the operator instructing him in the performance of his duties. It was Bunk's duties to check the work product of each operator for conformance to quality, and if he deemed the product not to conform to proper standards he would direct the operator to take the part produced to the quality control inspector. Bunk had no authority to discharge or hire employees or to effectively recommend such action. Bunk was the recipient of complaints of small press operators concerning their assignments and other matters arising in connection with the fulfillment of their work duties but served as a mere conduit of these complaints and possessed no authority to effectively adjust them. However, it was Bunk's responsibility to maintain vigilence over the amount of work produced by each press operator and to enforce safety standards. Bunk was charged with responsibility to reprimand employees for failure to conform to safety work standards and he had the authority to affect a 1-day suspension of employees for failure to comply with safety regulations. It was also Bunk's responsibility to keep employees busy and to prevent loitering. Bunk estimated that during the normal shift hours of small press operators he devoted 60 percent of his time to checking production, 20 percent to keeping employees fully occupied with work duties and checking their use of all safety devices and the balance of his time to physically checking the operative qualities of safety devices.' Upon the foregoing, I find that at all pertinent times prior to his transfer to the tool and die department, Alvin Bunk was a supervisor within the meaning of Section 2(11) of the Act in that he possessed authority to assign, suspend, discipline and responsibly direct the work of employees.' d. Alvin Bunk requests transfer On April 26 Alvin Bunk met with Peter Cronen, Jr., and Timothy Cronen in a small office in the production portion of the plant. Bunk stated that he was dissatisfied in his job as' foreman in the small press division and indicated his interest in being transferred to a job which would provide him an opportunity to do setup work. Bunk added that he had been a leading participant in the unionization effort and suggested that he had sufficient influence upon employees to affect their decision with respect to the question of union representation. The Cronens informed Bunk that they did not wish to discuss 'These findings are based upon a composite of the credited testimony of Peter Cronen, Jr., and that of Alvin Bupk, elicited principally from Bunk on cross-examination and redirect examination on the first day of the hearing. It is noteworthy that by the second day's hearing Bunk developed a deprecative attitude concerning the scope of his authority to assign and discipline employees, which was more restrictive than his earlier testimony, even on redirect examination the first day. I am convinced that his earlier testimony was the more accurate and credible. 'In light of this determination, incidents of alleged threats and interrogation directed against Bunk by supervision during the period of time covered by his tenure as a supervisor in the small press division, form no basis for finding violations of Sec 8 (axl) of the Act, as alleged in the complaint However, scrutiny has been given to the incidents for what light they shed, if any, upon the existence of animus and discriminatory motivation in the subsequent layoff and ultimate discharge of Alvin Bunk, hereinafter considered. Specifically, I credit Bunk's testimony that on April 25 Cronen, Jr., approached him and asked him if he "was any way part of the Union." However, contrary to the General Counsel, I find that no rank-and-file employee overheard or participated in the conversation. 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the question of his union leanings but wished to limit the conversation to his request for transfer. The following day, Cronen, Jr., approached Bunk and asked Bunk his purpose in meeting with him and his brother the previous day. Bunk stated that he was uncertain of his position and was flexible in the matter of unionization . The following Monday, during the course of the workday, Bunk informed Cronen, Jr., that he was for the Union "all the way." Cronen, Jr., responded, in substance, that, although they had been friends for a long time he no longer wished to be Bunk's friend because he saw no reason for Bunk to have proceeded as he had done and to have involved him in the union interplay. Cronen added that while Bunk had his rights to be for or against the Union he did not care for the variant manner in which Bunk was "dealing with the union." Within a matter of a few days Alvin Bunk was replaced in his foreman's job by Larry Hopwood, a former full-time employee of Respondent who had been working for Respondent part time. Hopwood had been approached by Cronen, Jr., on the evening following Bunk's request for transfer. Hopwood took under advisement the offer of a foreman's position and gave his answer to Cronen, Jr., the following Monday.' e. The status of Peter Cronen, Jr. As an element of his overall duties as production manager, Peter Cronen, Jr., worked in the plant in a close functional relationship with rank-and-file employees. Assisted by Ed Kadlec, general superintendent, an admitted supervisor, and other line supervisors, Cronen, Jr., worked regularly with rank-and-file employees directing their work and overseeing production. He spent approximately 85 percent of his workday in the toolroom and storage crib. The nature and continuity of this work relationship between Cronen, Jr., and employees served to 'The foregoing is based primarily upon the credited testimony of Peter Cronen, Jr., and Timothy Cronen In all respects wherein Alvin Bunk's testimony is at variance with the testimony of Timothy and Peter Cronen, I do not credit it. Specifically I do not credit the testimony of Alvin Bunk to the effect that on these occasions Cronen , Jr , inquired into Bunk's involvement in the Union and asserted that he had information that Bunk was an organizer Moreover, I reject Bunk's testimony concerning Cronen's alleged statements that he would offer employees the moon and recant upon these offers after the question of unionization had been settled; that within 2 years all union supporters would be worked out of the plant; that he would meet Bunk's wage or promotion demands as an inducement to Bunk to withdraw his support of the Union or that he , Cronen, should have replaced Bunk as foreman long ago because he was "too popular with the working men" at the Company I am convinced that Bunk approached supervision requesting a transfer from his foreman's position because he realized the restrictions upon his union activities deriving from his position as a supervisor and wished to gain alleviation from these restrictions by being transferred to a rank-and-file job. Bunk made the request for transfer realizing his deficiencies in setup work which limited his supervisory potential and with a further realization that the transfer would be essentially a lateral one in terms of compensation With respect to these series of incidents, as with regard to other matters subsequently detailed, Bunk impressed me as a witness with a strong tendency to rationalize when his interests in the litigation were served thereby. In this related regard, I do not credit the testimony of Alvin Bunk to the effect that approximately a week poor to the May 16 election Cronen, Jr., approached him and stated that if Bunk would retreat from his position of support for the Union he, Cronen, would grant Bunk full "amnesty" and would present him with baseball tickets . Not only did Cronen, Jr , deny this incident but, more significantly, in light of Cronen's earlier candid statement to Bunk concerning his distain for Bunk's two-sided approach to the issue of unionization , I am convinced that Cronen, Jr , would not attempt to approach Bunk on this score. form a close acquaintanceship between Cronen, Jr., and many of the employees. 2. The alleged unlawful conduct a. The events of April 25 On April 25 union authorization cards were distributed among the employees at the plant and many employees executed cards. In the course of the distribution of the cards and their execution the various ramifications of unionization because a widespread topic of conversation among the employees. During the workday of April 25 Peter Cronen, Jr., was a participant in many conversations with employees concerning the meaning, effect, pros and cons of unionization. Many employees solicited answers from him concerning the topic of unionization. On the morning of April 25 Cronen, Jr., engaged in a conversation with a group of employees in the crib area. David Adams was present and participated in the conversation. Adams testified concerning this conversation as follows: He was telling us how the Company was wealthy and they were individually wealthy enough to close down the shop for a year or more to withstand the strike or beat the union . He told us he could cut out overtime and put in a night shift ... Subsequently, during the afternoon of April 25, employee Mark Bradshaw and Peter Cronen, Jr., were participants in a conversation wherein Cronen informed Bradshaw that he was "through" whether or not the Union got in. Bradshaw endeavored to respond to Cronen' s statement but Cronen would not permit Bradshaw to do so. At the end of the workday on April 25, Peter Cronen, Jr., came to the toolroom where employee Robert Rolling was working, locked the door and stated to Rolling that Mark Bradshaw was definitely going to be fired. Cronen further stated that anyone that "was with the Union" would be "worked out of the shop" if it took 2 years to do so. Cronen then asked Rolling if he had joined the Union and Rolling answered in the negative. Cronen then inquired if Alvin Bunk had joined the Union and Rolling answered that he did not know. Cronen then stated that he was "thinking" of firing Bunk and instructed Rolling to so inform Bunk . However, Cronen subsequently stated during this interlude that he had changed his mind about discharging Bunk and would give him a "second chance." During the workday of April 25, Alvin Bunk overheard Cronen, Jr., speaking with employee David Klemic. Cronen stated to Klemic that it was "foolish" for a man like Klemic "to be part of the union" because with the Union he would "never get as far as he had." In the meantime , during the workday of April 25, Ed Kadlec, a supervisor, approached employee Mark Bradshaw and urged him not to turn over to the Union the authorization cards in his possession. Thereafter, later in the day, Kadlec again conversed with Bradshaw and concerning this conversation Bradshaw testified as follows: Later on he came back and talked to me alone, telling me the disadvantages of the union. They had tried it before. They would quit their overtime, they would put on a second shift and things like this. TEMPCO MFG. CO., INC. 339 b. Other preelection conversations On May 10, Peter Cronen, Jr., presented employee Gary Battleson with a slip of paper upon which was recorded information informing Battleson of his eligibility for a 15-cent raise. As Cronen presented the slip of paper to Battleson, Cronen stated that if the Union "came in" the raise was not "worth the paper it was written."' c. Postelection conversations On May 17, the day following the Board election, Peter Cronen, Jr., informed David Adams that if he was against the Union he should take all the company time he desired to walk around and converse with other employees and talk them out of the Union. Approximately a week later Cronen, Jr., spoke with employee Richard Uherka. Cronen, Jr., approached Uherka in the plant and said, "You know if you stick with the company you can get further ahead than by going to the union." During the month of June Cronen, Jr., spoke on a second occasion with employee Richard Uherka and emphasized the advantage of Uherka's being on the "Company's side instead of with the Union." Cronen further asserted that the Union did not have anything Uherka wanted and that all the employees would get out of the Union would be "paying of dues." In mid-June Cronen, Jr., approached David Adams in the pressroom and conversed with him. During the course of the conversation Cronen observed that in the event of a strike the Company could haul parts out in the trunks of automobiles in order to receive income and could thus withstand a strike. Cronen recounted to Adams that approximately 10 years earlier employees had struck the Company and had remained on strike for approximately 18 months. Cronen asserted that the Company had beaten the strike. The conversation then turned to the issue of Adams' resignation from the Union. On this subject Cronen stated that if Adams would resign from the Union he would take Adams and his wife to a baseball game and buy steak dinners at the Stadium Club. Cronen further offered to promote Adams to the die room with a raise in pay. Cronen observed, in this connection, that if Adams was a union member and went on strike and if Adams were to cross the picket line the Union could fine him but that "a raise could make up for the fine." In late June, Peter Cronen, Jr., approached employee Fred Wormsbaker in the deburring room of the plant and stated that he had conversed with his father and that the Company would not sign a collective-bargaining agreement. The conversation terminated on this note and Cronen left the deburring room but after a few minutes returned. Upon Cronen's return employee Dennis Knorr asked Cronen if in the event of a strike the Company would hire employees back. Cronen asnwered that in the event of a strike the employees "would go out for a long time" and he further stated that the Company would not hire the employees back. At this point Wormsbaker, who `I do not credit the testimony of Alvin Bunk concerning an incident in early May wherein he, Cronen, Jr., employee Don Faul and employee Gerry Lansick discussed a petition which the latter two employees sought to circulate in the plant. Bunk heard only a portion of the conversation relating to the petition and I am convinced that the testimony of Cronen, Jr , more accurately reflects the setting and content of the entire incident than does that of Bunk . Nor do I credit Bunk's testimony that soon after this incident, but on the same day, he was informed of his transfer to the die room from his job as a working foreman in the machine shop. had suffered a physical disability from polio, observed that the Company would have to hire him back. Cronen answered in the negative but Wormsbaker asserted that he was protected by the "discrimination clause." Cronen answered that this did not apply to Wormsbaker and left the deburring room. Soon after Cronen had departed employee Mike Olson came in to the deburring room and spoke with Wormsbaker. Olson informed Wormsbaker that because of Wormsbaker's polio he, Olson, would not have to hire him, the Union would not have to represent him and if the Company became a union shop Cronen would not have to hire him. Olson left and Cronen entered the deburring room. Cronen stated to Wormsbaker that if the employees went on strike they would be out a long time and that the Company would not have to rehire any of them. The conversation turned again to the "discrimination clause" and Cronen reasserted that he would not have to hire Wormsbaker back in the event of a strike. Cronen left and Olson again returned and commenced to speak with Wormsbaker. Olson again asserted that because of Wormsbaker's polio the Company would not have to hire him and reiterated, in substance, what he had said earlier. Prior to leaving, Olson asked Wormsbaker if he would want a letter of resignation prepared for him. Wormsbaker answered that he would and instructed Olson to proceed to have it prepared. During the first week of August Cronen, Jr., spoke with Richard Rolling and discussed the collective-bargaining contract and the concept of having a "split shop." Cronen stated that the employees should endeavor to get a 10-year contract. Rolling answered that this was not possible and Cronen stated that he knew more about unions than Rolling. The conversation turned to Alvin Bunk and Cronen stated that he was not a good foreman and could not perform well as a press operator. Cronen observed that Rolling was doing a good job compared with Bunk on the presses and that he was worth 50 cents an hour more than Bunk. In mid-August, Cronen, Jr., called Battleson to a back room in the plant and asserted that the Company could not afford a union . Cronen stated that he did not know whether or not Battleson was for the Union, but if the employees went on strike he was going to build the Company from the bottom up and start over again. Cronen observed that he would like to have Battleson with him when he started over, and it made no difference whether or not he had joined the Union.' 'The foregoing findings are based principally upon the testimony of the employees who were found to have been the participants in the conversations as detailed above. I have carefully evaluated the testimony of Peter Cronen, Jr., concerning conversations with employees and credit it to the extent of finding that by reason of his close working relationship with rank -and-file employees he was frequently the recipient of inquiries concerning unionization and was often drawn into conversations about the effect and consequences of unionization. These conversations covered a penod of 4 month 's time and, in the main, testimony concerning them emanated from leading union proponents among the employees I do not discount their advocacy of the union cause nor deem them to be entirely dispassionate or disinterested witnesses They patently were not. However , neither was Peter Cronen, Jr., found to be and his interest in the outcome of this litigation is similarly patent. It is entirely likely that over the course of the 4 months encompassed by these conversations Cronen, Jr , often avoided threats and promises and spoke only in terms of opinion and economic prediction. However, the testimony of the employee witnesses with respect to these specific incidents found to have transpired was intrinsica lly believable and 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD d. Postelection resignations from the Union The week following the Board election , the Union held a meeting which was attended by many of the employees of Respondent. Mike Olson, a tool-and-die maker, attended the meeting . Olson had been in the employ of Respondent for over 4 years and had attended all previous union meeting during the organizational period. At the meeting questions were raised with respect to the possibility of a strike in order to enforce the Union's collective-bargaining demands . Olson testified that the answers he received from the union leadership, particularly Liljedahl, were unsatisfactory to him and, as a consequence, he made the determination that the Union was not going to be the answer to the problems of the employees. He testified further that on the following day, May 23, he circulated among several employees whom he believed shared his feelings concerning the Union a document entitled shop petition for modified union which had been prepared by an office employee. Typewritten at the top of the petition was the following: READ EXPLANATION OF ABOVE AND SIGN BELOW: EXPLANATION: A modified union is whereas the older employees are not forced to join the union rather than a closed shop union where everyone is forced to join. Olson further testified that the first 10 or 11 signatures on the document were those of employees whom he contacted as a result of his belief that they shared his own views concerning the Union. Thereafter, the petition hung on a nail behind Olson's workbench . Olson testified that all signatures subsequent to the 10th or 11th signature were affixed to the petition by employees who approached his work station where the petition was posted , read the petition and affixed their signature. He testified that no words were spoken concerning the petition.' Timothy Cronen testified that at approximately this point in time he had learned that an employee desired to resign from the Union and had approached Alvin Bunk concerning the question . The employee had been informed by Bunk that he could not resign from the Union . Cronen testified that upon learning of this he contacted his attorney and was informed that resignations could be accomplished by submitting a letter of resignation to the Union. Cronen further testified that as a result of this instruction he posted a notice on the company bulletin board to the effect that if an employee desired to join the Union he should contact either employee Bunk, Bradshaw or Rolling. The notice continued that, if on the other hand, an employee desired not to join the Union they were not required to do so and could "stay out." Additionally, the notice contained an instruction that if employees wanted to resign from the Union they had to send a letter to the Union informing the Union of this desire. gains added credence from other events, subsequently found to have transpired, which establish the atmosphere created by reason of the union effort Moreover, although Peter Cronen, Jr., denies some of the remarks attributed to him by the employees, his testimony with respect to many of these conversations was equivocal , evasive and frequently unresponsive In sum, with respect to this phase of the case , the testimony of Peter Cronen, Jr , was generally unconvincing 'The posting of this petition and these acts of Mike Olson arc not alleged as violative of the Act. Timothy Cronen additionally testified that after posting the notice employee Lewis Stumpf brought employee Edwin Hohn to the office and informed him that Hohn desired to resign from the Union . Cronen informed Hohn that he would have to send a letter to that effect and upon being advised by Hohn that he did not understand how to accomplish this Cronen prepared for him a typewritten form letter for his use. During the period June 21 through 24, nine employees submitted letter of resignation to the Union. The initial letter of resignation was submitted by employee Edwin Hohn and was dated June 21. Thereafter, during the 3-day period June 24 through 26 eight other employees submitted letters of resignation . Subsequently, on July 1 employee James Evenson submitted a letter of resignation.9 The employees who resigned from the Union approached Olson or Stumpf for assistance in affecting their resignation . Nine typewritten letters of resignation were submitted to the Union." The typewritten letters were prepared in the company office and the envelopes were prestamped in the office." Upon being approached by an employee concerning resignation from the Union, Olson and Stumpf answered questions posed to them by the employee and upon being requested to do so they instructed the employee to return later stating that they would secure the necessary letter of resignation." e. The selective wage increases In May 1967, Respondent posted on its bulletin board a pay scale of prevailing hourly rates based on job classification and length of service. However, in practice, Respondent paid wages above scale to employees whose production and overall job performance warranted higher rates." No written policy statement contained criteria for granting increases above scale was ever formulated or posted by the Company. After the Union's certification on May 23, and prior to October 1, the Company granted approximately 21 wage increases above scale. The Company did not consult with the Union prior to granting these increases." f. Restriction on use of parking lot In the rear of Respondent's plant is maintained a parking lot for the use of rank-and-file employees. On the 'Employees submitting letters of resignation from the Union were Edwin Hohn, James Evenson, Fred Wormsbaker, David Adams, Richard Uherka, Dennis Knorr, Thomas Seaton, Terry Seaton, Leonard Spears, and Donald Lhotka. "The letter of resignation submitted by James Evenson, dated July 1, was handwritten. "The credited testimony of Mike Olson establishes the manner of preparation of the letters and envelopes. "The testimony of employees Edwin Hohn , David Adams, Richard Uherka, Leonard Spears, and Fred Wormsbaker , although containing minor variations not of substance concerning the technique of preparation and execution of their respective letters of resignation, establishes all of the foregoing. "The testimony of Timothy Cronen establishes this as does a comparison of company pay records with the rates contained in the posted wage scale "Including among the increases granted were those of Richard Uherka on June I I and to Mark Bradshaw on June 20 The testimony of Timothy Cronen, which I credit with respect to both raises - specifically rejecting all conflicting testimony of Richard Uherka and Mark Bradshaw with respect thereto - reveals that both raises had the effect of crediting the recipient for time spent in Military Service and thus to bring their respective wage levels to normal scale TEMPCO MFG. CO., INC. 341 other hand, in front of the plant, is a parking lot for management and office employees and for the use of salesmen, tradesmen and visitors. During the first 6 months of 1968 there occurred some instances of damage and vandalism to automobiles parked on the employee parking lot and management had been the recipient of such reports. Additionally, materials stored on the parking lot outside of the plant had been stolen and the plant had been burglarized on two occasions. In mid-summer 1968 a meeting was held which was attended by Peter Cronen, Jr., Superintendent Ed Kadlec and several employees including Lewis Stumf and Mike Olson. The meeting was held in an auxiliary office in the plant and transpired the day following some vandalism perpetrated against the automobile of employee Wayne Jones who also attended the meeting. A general discussion occurred concerning vandalism and it was agreed that a notice should be posted forbidding loitering in the parking lot. Some discussion also transpired at that meeting concerning the use of the employee parking lot by employees who desired to eat their lunch in their automobiles on the parking lot. As a consequence of this meeting, within an hour after the meeting's termination, a notice was posted on a bulletin board in the plant to the effect that because of vandalism and damage to automobiles employees could not loiter in the employee parking lot and that any employee wishing to eat his lunch in his automobile must do so on the front parking lot or leave the premises completely. is The posted rule placed no limitations upon the freedom of employees to discuss matters on their own in any portion of the plant building. The posted rule contained no time specification for departing the plant premises at the conclusion of a work shift." In early August, Alvin Bunk approached employee James Huston in the parking lot soon after the termination of Huston's shift at 5:30 p.m., in an effort to have him sign the union shop petition which he was circulating." Bunk was accompanied by employees Mike Bradshaw and Robert Rolling. Huston declined to sign the petition. They had conversed for 2 or 3 minutes when Peter Cronen, Jr., came out to the parking lot and approached the group of employees. As he approached, Bunk and Huston were seated in Huston's car discussing the petition. As Cronen reached the car he inquired of Huston as to what was transpiring. Huston stated that Bunk was endeavoring to have him sign a petition. Huston added that he had previously worked at other plants which had become unionized, that he had been terminated and he had no intention of executing this petition. Thereupon Cronen asserted that Huston would be better off in the plant without a union shop. Bunk answered that the "The Company provided a lunchroom for employees and it was permissible for employees to leave the plant premises and to park along the shoulder of a highway which ran very proximate to the plant. "The foregoing is based principally upon the credited testimony of employee Ray Kadlec and Peter Cronen, Jr. Upon an analysis of the record testimony concerning this incident, I am convinced that Cronen and not Kadlec was the more accurate in placing the time of the meeting and the posting of the notice which resulted . In connection with the foregoing I credit also the testimony of James Huston, Lawrence Hopwood and Timothy Cronen to the effect that a notice was posted and find the testimony of Alvin Bunk and Robert Rolling to the effect that they were unaware of any written notice insufficient to overcome this affirmative testimony. Union had no authority to hire or terminate employees. Thereafter, there transpired a lengthy discussion of the advantage and disadvantage of unionization. Bunk asserted that the Company was going to have a union shop whether it desired it or not. Cronen challenged this and Bunk stated that in support of their demands the employees would strike and that a picket line would be established which would prevent employees from working and the Company from receiving deliveries. This focused the conversation upon the length of the strike and in this connection Cronen stated, in essence, that the Cronen family, particularly his father, had sufficient financial substance to withstand a long strike. The conversation became rather animated and Huston stated that in the event of a strike he would cross the picket line and work. To underscore his determination in this regard he reached into the glove compartment of his automobile and withdrew a gun and told Bunk that he was going to work, strike or no strike. At this point in the conversation Cronen told Bunk to cease loitering in the parking lot and bothering employees about the Union. He instructed Bunk and the other employees to leave the parking lot.'5 Alvin Bunk testified that approximately a week and a half prior to this incident Cronen had come to the parking lot and instructed Bunk that he had 5 minutes to get out of the parking lot. g. The bulletin board incident Alvin Bunk testified that on the day of the parking lot incident involving Huston, Cronen and himself, he had been told by Cronen, Jr., that the Union would not support the employees and that he would cease "fighting the Union" if Bunk could get a letter from the Union on the letterhead of the Union stating affirmatively that the Union would support the employees. Alvin Bunk was the recipient of a letter from Earl H. Drange, secretary-treasurer of the Union, dated August 15, on the letterhead of the Union. The letter read as follows: This Local Union is prepared to support to the hilt the endeavors of the people who are members of Local 970 at Tempco Manufacturing Company. Your employer, like many others, is taking an extremely difficult and anti-labor position during these negotiations. This Local Union, on the other hand, is doing everything short of a strike to attempt to convince him to negotiate with your Committee and this Local Union in good faith. Should his defiant attitude leave you with the necessity of economic action, that is a strike, each and every member will receive the full support from the "As considered below, this petition had been furnished Bunk by the Union as an outgrowth of developments at the August 7 bargaining session between the parties 'The foregoing is predicated upon a synthesis of the testimony of Peter Cronen, Jr , James Huston, and Alvin Bunk. I have considered also the testimony of Mike Bradshaw and Robert Rolling concerning this incident. The testimony of Alvin Bunk and that of Peter Crimea, Jr., to a lesser degree, tends to highlight those portions of the conversation which redound most favorably to their personal interests in the outcome of this case However, I consider the testimony of Cronen with respect to this incident more plausible than that of Bunk. Weighing Cronen's testimony in connection with the thoroughly credible testimony of James Huston concerning this conversation I am of the opinion that the foregoing findings concerning the substance of the incident to be an accurate chronology and evolution of the conversation that transpired over a period of approximately 45 minutes. 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Teamsters, the two Joint Councils in this area, as well as this Local Union. This support is promised in the form of financial, moral, and any other support necessary to bring about the successful conclusion of these negotiations. Do not hesitate to call this Local Union office should any problem arise that you feel needs our help. On August 19, Bunk posted the letter which he had received from the Union on a window-bulletin board near the employee timeclock." The letter remained on the bulletin board for approximately 1 hour and 30 minutes when it was removed by Peter Cronen, Jr. Cronen testified credibly that he first observed the letter posted on the bulletin board at approximately 7 a.m. He looked at the letter and concluded that it conformed to standards which had been agreed upon for the posting of letters from the Union to employees." Cronen returned approximately an hour later and reread the notice and concluded that it contained derogatory remarks concerning Peter Cronen, Sr., and the Company's negotiations with the Union. He testified credibly that he was going to remove the notice when he was approached by Ed Kadlec who counseled him not to do so. However, Cronen reread the letter. After Cronen and Kadlec consulted together concerning the letter Cronen decided to remove the letter from the bulletin board and to take it to the office for his father's study and consideration. He removed the letter and while en route to the office he was intercepted by Alvin Bunk . Bunk protested the removal of the letter and threatened a strike. Cronen answered that the letter was being removed so that Peter Cronen, Sr., could make a decision with respect to it. Cronen took the union notice to the company office and returned to work in the toolcrib. In the meantime, without the knowledge of Cronen, Jr., Bunk removed from the bulletin board a company notice over the signature of Peter J. Cronen, Sr., captioned "Questions - Answers pertaining to the Union." In the notice were posed nine questions which were briefly or succinctly answered. Soon thereafter Cronen, Jr., was approached by Ed Kadlec who informed Cronen that Bunk had removed a company notice from the bulletin board. Cronen told Kadlec to follow him and he also summoned employee Stumpf and Olson. As the group approached Bunk, Ed Kadlec informed Bunk that he would have to send him home for the day. Bunk was informed that he was being taken off the clock for the rest of the day and that he was not being discharged. Bunk raised some question as to whether he would be compensated for the day's work and Cronen interjected that he would be paid until Cronen, Sr., made a decision "on this matter." Cronen, Jr., informed Bunk that if he 'The evidence of record establishes that the Company maintains a regular bulletin board in the employee lunchroom as well as a window-type bulletin board near the timeclock . The latter is recumngly used by both the Company and the employees for postings of general interest to the employees. "The credited testimony of Peter Cronen, Jr., establishes that during the postelection period the bulletin board became a device for the posting of all manner of ad hoc pronouncements and propaganda, favorable and adverse, concerning union matters. He testified credibly that during this postelection period company notices were disappearing from the bulletin board. As a consequence of this, a meeting was held which was attended by Alvin Bunk and Robert Rolling as well as Cronen and Ed Kadlec. At this meeting it was decided that material from the Union would be posted on the company bulletin boards if it was on the letterhead of the Union, addressed to the employees generally and contained no derogatory statements. desired to know his job status he should check with Cronen, Sr., Bunk answered that he was going to the Union." h. Bunk returns to the Plant Upon being told that he was suspended for the balance of the day, Bunk left the plant in the automobile of Robert Rolling . He returned to the plant in the forenoon and after speaking briefly to Rolling and employee Soderstrom he tore down from the bulletin board another notice. This notice bore the stamped name of Peter Cronen, Sr., and provided that anybody tearing down signs would be liable for discharge. Bunk returned to the plant again during or soon after the 3 p.m. break. Peter Cronen, Jr., became aware of Bunk's presence on the premises when he was informed of this by Lawrence Hopwood, Bunk's successor as foreman of the small press division, and by Hopwood' s assistant, Robert Noll. According to the credited testimony of Hopwood, at approximately 3:15 p.m., on the afternoon of August 19, he observed Bunk on the employee parking lot. He consulted with Noll and they together went to Cronen and told him of Bunk's presence. Cronen, Noll and Hopwood went together to the parking lot where Bunk was speaking with employee Edwin Mattila, a forklift operator. According to the credited testimony of Mattila, Bunk had approached him while he was in the process of operating a forklift in the parking lot area and had urged him to "sign up" for the Union.22 Cronen approached Bunk and asked Bunk what he was doing. Bunk informed him that he was asking employees if they desired to sign the union petition. Cronen answered that the employees were on working time and requested Bunk to leave the premises. Bunk asserted that he would not leave and Cronen answered that "Mr. Cronen" did not want any loitering on the parking lot. Bunk answered, "Who is Mr. Cronen?" Cronen, Jr., repeated his statement and Bunk again answered, "Who is Mr. Cronen?" Bunk augmented this rhetorical inquiry with an obscenity directed towards Cronen, Jr. Bunk said that he would leave when Cronen, Jr., left. Thereupon Cronen instructed Mattila, Hopwood and Noll to return to work. Cronen also left the parking lot and returned to work. Approximately 20 minutes later Cronen was informed by Hopwood that Bunk had not left the premises and was still in the parking lot. Cronen returned to the parking lot and there observed Bunk speaking with employee Uherka, Rolling, and Soderstrom. Cronen, Jr., spoke to the group of employees asserting that "Mr. Cronen" did not want any loitering in the parking lot and asked them to leave as fast as they possibly could. Thereupon Cronen returned to the plant. Approximately 20 minutes later Cronen was again informed by Hopwood that the employees had not left the parking lot. Cronen went out to the parking lot and said, "Mr. Cronen doesn't want any loitering in the parking lot, and would you please leave." Employee Uherka was in his truck. After Cronen had spoken Uherka accelerated causing the truck wheels to spin. As he progressed through the parking lot the parked automobiles were "The foregoing is based upon a composite of the testimony of Peter Cronen, Jr., Alvin Bunk , and Mike Olson concerning this incident. I rely principally upon the testimony of Cronen for I consider his version of the incident more reliable than the more abreviated account of Bunk. "The document which Bunk desired Mattila to sign was the union petition which Bunk was at that time circulating among the employees. TEMPCO MFG. CO., INC. 343 sprayed with gravel which covered the parking lot. Upon observing this, Cronen vowed to the group of employees gathered that he was not going to come out again and stated that he was going to the office and have his brother call the police. He stated that he wanted the employees to leave the parking lot before the police arrived so that there would be no trouble." i. The discharge of Alvin Bunk On August 30, the Company directed a letter to Alvin Bunk which read as follows: I have been authorized to inform you that because of your actions of August 20, 1968, your services with the company will be terminated effective August 30th. It has been reported that you posted on the company bulletin board a personal letter addressed to you without permission or approval of the company. When that fact came to the attention of one of your supervisors, Peter Cronen, Jr., you were instructed to remove the document but you refused to do so. When the letter was taken from the board, you became so enraged that you tore all the company notices from the bulletin board. This conduct took place in the presence of other employees of the company. You were then told to leave the premises immediately. You went to the parking lot, stopped other employees who were still on duty, engaged these employees in conversations and solicitations for an extended period of time. Your supervisor again asked you to leave. You once more refused to follow instructions and, in addition, you used profanity and all forms of foul language against you supervisor. You finally left the premises only after being told that the police had been called. This incident has been reviewed by management and because of your insubordination and other misconduct, it has been determined that a discharge is the only appropriate remedy under the circumstances. The company can not permit conduct of this kind to continue. Rules must be followed and the position of supervisor must be respected. The letter was drafted by the Company's legal counsel upon information supplied to him by Timothy Cronen. j. The early collective-bargaining negotiations The parties conducted their first collective-bargaining meeting on June 27. Present were Peter Cronen, Sr., his sons Timothy and Peter Cronen, Jr., and Joseph Hamilton, an attorney, who served as a principal "The foregoing is predicated upon the credited testimony of Peter Cronen, Jr., as supported in some aspects but the testimony of Lawrence Hopwood and Edwin Mattila . I do not credit Alvin Bunk's version of this series of incidents Specifically I do not credit Bunk's inferential assertion that all employees to whom he spoke were on breaktime for upon cross-examination he conceded that employee Mattila was in the process of operating a forklift when he spoke with him. Moreover, I do not credit the implications of Bunk's testimony to the effect that during his series of sojourns from the plant to the parking lot to instruct Bunk to leave Cronen did not in specific terms order him to leave the premises . Bunk conceded that during the last exchange between him and Cronen, Cronen informed him that he was going to call the police , and Bunk further conceded that there was a heated exchange of words between them . Despite Bunk's reticence and his convenient lapse of memory concerning the various details of these conversations it is most unlikely that Cronen would have refrained from directly ordering Bunk from the property in light of his continued presence there. negotiator on behalf of the Respondent during the course of the collective-bargaining meetings which transpired. Present for the Union were Donald Liljedahl, president and business agent of the Union, and members of the employee bargaining committee selected by the membership of the Union. Little of a substantive nature was accomplished at the first meeting which was marked by exchange of recriminations between Peter Cronen, Sr., and Donald Liljedahl at the outset of the meeting. This arose from Cronen's inferences that the Union had been responsible for rather extensive window breakage which had transpired at the plant the previous night. Liljedahl denied union complacity. Cronen characterized the Teamster leadership as being comprised of racketeers and Liljedahl responded by directing some obscene remarks toward Cronen. Cronen left the meeting and some discussion transpired between Hamilton and the Cronen brothers, on the one hand, and Liljedahl on the other. The second meeting transpired under the auspices of the Federal Mediation and Conciliation Service and was held on July 9. At the meeting the Union took the position that it would accept nothing short of a full union shop. On the other hand, the Company opposed this because of the apparent desire of a number of employees not to be forced into a union membership." Initially, the Company took the position that only an open shop would be acceptable. However, it modified this position to indicate amenability to something less than a full union shop. The second meeting on July 9 was devoted almost exclusively to a discussion of the union-shop issue. At the subsequent meetings conducted on July 23 and August 7, respectively, the union-shop issue continued to be the predominant one discussed by the parties. At the July 9 meeting the Union had requested the Company to submit wage proposals and classification schedule and the Company had agreed to do so. However, the discussions again turned to the issue of union security and the parties remained adamant with respect to their positions. Peter Cronen, Sr., reiterated his objection to forcing employees "into the union." At the July 23 meeting the conversations again centered upon the question of a union shop. In addition to reiterating his opposition to forcing employees into a union shop situation, Cronen restated his position with respect to wages and asserted that it was his practice to do as well as or better than his competition. He specifically cited in this regard the leader in the field, Dayton-Rogers. The issue of wages generated no substantial dispute but the conversation again merged into a discussion of the principal of a union shop and the possible alternatives thereto. At the August 7 meeting, which was also conducted under the auspices of the Federal Mediation and Conciliation Service, the Union's wage proposal which had been submitted was discussed. However, the discussion again returned to the principal of a union shop.25 In this respect, the Federal mediator, in response to Cronen's stated position that it could not force employees into the Union against their wishes, inquired if Cronen would have a change of heart on this matter if "Prior to the commencement of negotiations, Peter Cronen, Sr , had shown to Attorney Joseph Hamilton the document which Mike Olson had circulated and posted in the plant reflecting preference for less than a full union shop. "The record does not reflect whether the Union 's wage proposal was submitted at the August 7 meeting, or at an earlier meeting. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD some "clear evidence" were submitted to the effect that employees did not object to Cronen executing a collective-bargaining agreement encompassing a "full union shop." Cronen answered that he would reconsider his position if such evidence were submitted to him. The meeting of August 7 ended with an agreement that a subsequent meeting would be arranged and negotiations would proceed from the point reached as a result of the Federal Mediator's suggestion. k. The union shop petitions As a consequence of this meeting, Liljedahl drafted some petitions containing the following text: A Union Shop provision would not be objectionable to me, and I would continue working at Tempco with such a provision in the contract. Tempco management will not see this petition nor any signature thereon. These petitions, in blank, were dispatched to Alvin Bunk who circulated them to employees on the plant premises during nonwork time. The petitions, bearing employees signatures, were returned to Liljedahl on or about August 15. 1. The cancellation of the August 26 meeting A meeting was subsequently scheduled for August 26 but the meeting did not transpire. A day or two following the August 7 meeting, Hamilton was contacted by Cronen, Sr., who conveyed his dissatisfaction with the progress of negotiation, and the Union's insistence upon "a full union shop or nothing." Cronen asserted that he was inclined toward terminating further negotiations with the Union. Hamilton discussed with Cronen the legal implications of terminating negotiations and the circumstances which must prevail as a precondition to doing so, as well as the alternative consequences of doing so. On August 12, Hamilton dispatched a letter to Peter Cronen, Sr., whereby he noted that in his conversation with Cronen that Cronen had indicated his desire to cancel the meeting of August 26. The letter also contained the observation that Cronen had submitted certain material concerning union activity for posting on the company bulletin board. Hamilton noted that he had studied the material and had made some changes and submitted an enclosed copy thereof. In addition, in the letter of August 12, Hamilton submitted to Cronen a letter for Cronen's signature in the event Cronen determined that he desired to terminate negotiations. In the letter, Hamilton detailed the likely consequences of such a course of action. The letter which Hamilton submitted to Cronen for his submission to the Federal Mediation and Conciliation Service read as follows: Please be advised that the Company can see no purpose in meeting with the Union August 26 as proposed. It appears that an impasse has been reached. It is requested that all further meetings be cancelled until such time as the Union demonstrates a willingness to compromise and a desire to bargain in good faith. The Union has demanded that all employees of the Company be forced into the Union against the wishes of the individual employees affected and the Union has refused to consider any other alternative, making further negotiations impossible. A copy of this letter was submitted to the Union, as well as to Alvin Bunk. Liljedahl, and other representatives of the Union appeared on August 26 at the appointed place and time for the meeting but no representative of the Company made an appearance. Liljedahl denies having ever asserted to the Company at collective-bargaining meeting that he would not continue to negotiate unless the Company accepted a full union shop. Peter Cronen, Sr., testified that in writing the letter to the Federal Mediator canceling the August 26 meeting, he felt that it was futile to meet further with the Union unless the Union would "cooperate" in moderating its consistent demand for a full union shop provision. in. The September 4 strike On September 4 employees of Respondent went on strike and a picket line was established. In late August, approximately 20 employees of Respondent had met in the capacity of a union meeting and the course of negotiations was discussed. Consideration was given to the Respondent's letter to the Federal mediator relative to the cancelation of the August 26 meeting, and Liljedahl expressed his opinion that the Company had no intention of negotiating seriously with the Union. Moreover, at the meeting the termination of Alvin Bunk was discussed. The employees voted at the meeting in favor of a strike." n. The poststrike negotiations The parties met again in a collective-bargaining meeting on September 12. Present at the meeting was a commissioner of the Federal Mediation and Conciliation Service. At the September 12 meeting the Company made an oral offer of a maintenance of membership clause to be included in any collective-bargaining agreement consummated, and a wage scale adopting the provisions of the Dayton-Rogers contract. On September 20, the Company transmitted by letter the language of the proposed maintenance of membership clause and the proposed wage scale correlated to department and to work classification. The Company's offer of a maintenance membership provision was made in contest of an in-depth discussion by the FMCS commissioner of the various alternatives to a full union shop provision. The commissioner recommended that in order to stimulate further discussion of the issue the Company submit this proposal in writing. The Company' s oral wage proposal arose from a reiteration of the Company's earlier stated negotiating position that wage adjustements were due the employee under the Company's policy of annual wage adjustments which, but for the pendency of the Board election, would have matured in May 1968. The Company pointed out at the September 12 meeting that it had deferred pay increases due under the established wage policy and that it desired to make effective a wage scale which would correspond with or exceed the Dayton-Roger schedule. At the September 12 meeting, the Company stated that it was submitting this proposal to the Union as was required pursuant to its bargaining obligation, but underscored the "The foregoing is based on a composite of the testimony of Donald Liljedahl, Alvin Bunk, and Robert Rolling. I do not credit Bunk's testimony to the effect that the Company's position on the Dayton-Rogers wage scale was a determinative factor in voting in favor of the stoke for the exchange of positions with respect to wages had not hardened at this point in time and neither Liljedahl or Rolling made a reference in their testimony to the wage issue as being a factor in the stoke vote TEMPCO MFG. CO., INC. 345 Company's wish to put the pay increase in effect. The wage proposal subsequently submitted in writing on September 20 reflected wage scales effective in the Dayton-Roger contract on May 1, 1968. At the October 1 meeting the Company's written submissions of September 20 formed the discussion of the union shop question and wage rates. The Union indicated its willingness to consider a modified union shop provision and the Company offered a maintenance of membership clause. Wage rates were discussed but the Union asserted that the issue of union security must be resolved. Additionally, the Union insisted a satisfactory resolution of the question of Alvin Bunk's termination must be made. At the October 1 meeting , the FMCS commissioner suggested that the Union submit its position in writing. As a direct consequence of this recommendation, by letter of October 8, the Union dispatched the following letter to the Company: The meeting held Tuesday, October 2, 1968, was ended by Commissioner Earl Smith with the thought that this Local Union would submit a counter proposal to the company. I do not think it is necessary to submit a complete contract proposal as both parties have already done so. I believe the basic differences between us lies in three areas - one being the Union Shop . Somewhere between the employer's maintenance of membership proposal and the Union's full Union Shop proposal we could resolve this issue . I am proposing, specifically, a modified Union Shop. The proposal on wages, as received at the last meeting, was designed primarily for Dayton-Rogers, and because of the exceptions made by the employer to his own proposal , it would seem to me that we must draw up a wage and classification sheet that would fit the specifics of the Tempco Company. The third issue involved is the dismissal of Mr. Alvin Bunk , and certainly the company must be aware that the firing of Mr . Bunk , and our subsequent filing of unfair labor charges, was at least partially instrumental in bringing about the strike situation. I believe that the exclusions to the modified Union Shop, the wage rates and classifications, the dismissal of Alvin Bunk, and any other issues that might exist, would best be worked out by direct meetings between the two parties. The parties did not meet again in collective -bargaining negotiations until November 26. o. The general wage increase On October 2, Respondent put into effect a general wage increase for employees. The schedule of newly effective wage rates was posted on the company bulletin board. Timothy Cronen credibly testified that in May the Company had been prepared to post a new wage scale but refrained from doing so after consultation with the National Labor Relations Board's Regional Office suggested that the course of action might be violative of the Act. 3. The alleged strike misconduct a. General On the morning of September 4 a picket line was established at Respondent's plant manned by striking employees. Witnesses at the hearing variously estimated the number of pickets to have ranged from 25 or 30 to 40. On the first morning of the strike a substantial number of the pickets gathered at the employee entrance to the plant and vehicular progress through the picket line was slowed due to the impending affect of the convened pickets who verbally taunted the nonstriking employees who refused to observe the picket line. During the subsequent progress of the strike the picket line was usually manned by 25 striking employees. The credited testimony of Timothy Cronen reveals that during the strike the word "scab" had been painted on the building, an air compressor in the rear of the building had been damaged, a gas tank had been tampered with and bullet holes had been shot in the windows of the front office located in the plant. With respect to the latter incident Cronen testified that during the first or second week of the strike when he arrived at the office one morning he found bullet holes through many of the windows and by looking through the bullet holes he lined them up with a camper which was being utilized by strikers and which was parked approximately 100 yards from the building. Employees testified at the hearing concerning verbal threats allegedly by striking employees to nonstrikers, minor physical altercations between strikers and nonstrikers and damage inflicted upon the automobiles of nonstrikers by striking employees. Approximately a week after the commencement of the strike, Lewis Stumpf had occasion to converse with Alvin Bunk and as a result of that conversation he concluded that some progress might be made in resolving the strike issues. As a consequence, he spoke with Mike Olson and they agreed at a meeting between the employees might prove beneficial . They agreed to hold a meeting at Bunk's residence with Olson and Stumpf in attendance. Bunk was to select an employee of his choice to be present at the meeting. _' The meeting took place at Bunk's residence and during the course of the meeting discussion was had with respect to incidents that were transpiring as a result of the strike. At the meeting, Olson and Stumpf urged Bunk to use his influence to stop the slashing of automobile tires and to prevent picketers from bringing children to the vicinity of the plant. In the exchange at the meeting, Bunk related an assertion by some of the pickets that they would bring a rifle to the picket line and shoot the gas tank of vehicles. The conversation at the meeting turned to the question of the ability of the Union to represent the interests of the employees. Olson and Stumpf suggested that, as an alternative to union representation , the employees should form their own plant union. The meeting terminated with an understanding that those present would consider the question of a plant union. _' "Stumpf and Olson explored with Supervisor Kadlec the question of a meeting with the strikers and, in a noncommittal fashion, Kadlec stated that the effort was worth exploring. He was invited to attend the meeting but declined. 'The foregoing is based principally upon the testimony of Mike Olson and Lewis Stumpf. I credit the testimony of Alvin Bunk to the effect that at the meeting the participants discussed the possibility of forming a plant union as an alternative to the Teamsters' union. This testimony finds support in the testimony of Mike Olson. While I consider Alvin Bunk's testimony as generally unconvincing with respect to most aspects of the instant meeting, I do credit his denial of the testimony of Stumpf that at the meeting he asserted that he would like to see more tire slashing and related conduct. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. The alleged strike misconduct of Bunk On the second day of the strike an automobile driven by employee Howard Walker in which employee Edwin Mattila was riding, was stopped by picketers as it entered the plant. Alvin Bunk was at the front of the automobile near the front fender and another picket was in the rear of the automobile. Walker suddenly heard a sound and the picket at the back of the automobile shouted, "Your tire is going flat." Walker got out of the automobile and found that both the front and rear tires were flat. Mattila had observed Bunk as he stood near the right front side of the car bend down and straighten up again." During the first or second week of the strike Lawrence Hopwood was entering the plant in his automobile and Alvin Bunk struck the automobile aerial with his hand and broke it off. During the course of the strike Ray Kadlec observed Alvin Bunk engage in a "pushing contest" with employee Ken Leiran. Subsequently, approximately 2 weeks after the commencement of the strike, Donald Faul observed from the door of the shipping room a company truck utilized to haul parts in and out of the plant, enter the plant and be stopped by Alvin Bunk and Richard Uherka. Bunk was at the rear of the truck and Uherka was standing on the front at the right side of the truck. He noticed Uherka stoop over and touch the tire near which he was standing. Approximately 15 minutes later Faul examined the tire and found air escaping from the sidewall. On the evening of September 18, Richard Noll was at his home when at approximately 10:20 p.m., he heard a loud crashipg noise outside. He looked out the window and observed three men running away from his automobile which was parked outside his residence. A few minutes later the front doorbell rang and then some individuals ran around the house to the outside back door. They broke the lock of the door and entered the hallway of the house and knocked at the back door of Noll's apartment. A man outside the back door said, "Dick, look what somebody did to your car." Noll held a gun in his hand and shouted, "Bunk, get the hell out of here." A man outside the door answered, "Dick, I want to talk to you." Noll answered, "Bunk, get the hell out of here." As he did so Noll pulled back the bolt of the gun which produced a clicking sound. The individual outside of his door ran out of the house. Noll called the police and upon investigation it was found that all of the glass in the automobile had been broken or damaged, all of the tires had been slashed, the wiring underneath the hood had been pulled out, the spark plug wires had been removed, dirt had been placed in the gas tank and other lesser damage had been inflicted. No charges were filed as a result of this incident and Noll testified that he could not identify the three individuals who had approached his home. He testified that the following morning he accompanied his brother and employee Hohn to work in Hohn's automobile and as they approached Alvin Bunk, his brother asked Bunk how he liked to "wreck cars." Noll testified that Bunk got "red in the face" and did not say anything. "Mattila places this event as having transpired on the first day of the strike but I am convinced that his testimony related to the same incidents as that placed by Walker as having transpired on the second day This minor discrepancy, in its record context, is not such as to warrant discrediting of Matdla's testimony. Noll testified that he recognized Bunk by his voice and so informed the police who stated that he had insufficient evidence to support his charge. James Huston testified that during the strike he had his automobile parked on the company parking lot overnight for 2 successive nights. On the third day Bunk approached him and stated that he would not be responsible for what happened to the automobile if Huston left it there another night. On or about September 13, the evening following the meeting between Alvin Bunk, Lewis Stumpf and Mike Olson, Olson received a telephone call from Bunk. During the conversation Bunk states that he did not know how much longer he could hold the "union off" Stumpf and Olson in that Stumpf and Olson were impeding the objectives of the Union. Bunk stated that Stumpf and Olson should talk to the men going "with the Union." During the telephone conversation Bunk also stated that the "union" was going to get employees Dick Noll, Kenneth Leiran, Charles Buback and two other unspecified employees. Bunk singled these employees as prime targets of the Union and labeled them troublemakers.'° c. The misconduct of David Adams Approximately 6 weeks after the strike began, Richard Hohn was leaving his home when he observed Alvin Bunk, Robert Rolling, David Adams, Jim Evenson, and Derrick Soderstrom arrive in an automobile. Hohn was in his automobile and Evenson approached him and started to talk with him. They were soon joined by Rolling and later by Alvin Bunk and David Adams. After they had conversed a brief time David Adams threatened to break the radio antenna of Hohn's automobile. However the other employees disuaded him from doing so. Subsequently, however, as Hohn drove away, David Adams who was leaning against the left side of Hohn's automobile made a jerking motion. As Hohn passed him he made a second jerking motion. Hohn left his automobile overnight at a different location and the following morning he was informed by his brother that he had two flat tires on his automobile. As a result of this incident, David Adams was charged and convicted of a misdemeanor in the criminal division of municipal court in Minneapolis, Minnesota, and fined $100." The conviction was, at the time of the instant hearing, under appeal. At his trial in this matter, which Hohn attended, Adams testified that he had an ice pick in his hand on this occasion. d. Other alleged strike misconduct On an occasion during the strike when Lewis Stumpf was stopped in his pickup truck at the entry gate to the parking lot, he observed Richard Uherka holding something in his hand against the truck. He observed Uherka jerk his hand back and put a scratch in the door panel to the tailgate of the pickup truck. During the course of the strike employees James Enson and Duane Colonga kicked and damaged the door of the "Olson also testified that at some juncture during the strike he was told by strikers that they were going to "kick the hell" out of him and also asserted that if the strike was not settled before October 15 they were going to "wreck" the plant "The maximum sentence permissible was a fine of $100, 90 days detention and a suspension of the driving permit of the convicted individual TEMPCO MFG . CO., INC. 347 automobile of employee Ron Letendre. During the third or fourth week of the strike, Edwin Hohn conversed with employee Derrick Soderstrom with whom Hohn had in the past played pool. As they conversed Soderstrom suggested that they "go down and shoot a game of pool" and Hohn declined to do so. Soderstrom then observed, "We could have a good game of pool if I don't get carried away and hit you over the head with a pool cue." Soderstrom added, "another thing, don't ever turn your back on me." 32 Conclusions 1. Interrogation, threats, and promises The record of this proceeding amply establishes that when the organizational efforts of the Respondent's employees became overt and known to management and supervision, Respondent undertook a verbal campaign which exceeded the permissible limits of Section 8(c) of the Act and which had as its unlawful purpose the undermining of the Union's organizational effort. That Peter Cronen, Jr., by virtue of his close working relationship with employees frequently became drawn into the discussions relating to the Union serves as no immunity for the interrogation and threats which he undertook. Nor did Ed Kadlec gain privilege to utter threats merely by reason of the fact, well established, that the topic of unionization was openly discussed in the plant, and was the source of preoccupation among many of the employees with whom he closely worked. I find that Respondent, through acts of its supervisors violated the Act by threatening to curtail overtime and imposing a night shift,)' threatening the discharge of Bradshaw and the ultimate discharge of other union supporters, interrogating Rolling concerning his union membership, conditioning Battleson's raise on the continued nonunionization of the plant and requesting Bradshaw to withhold executed authorization cards from the Union. The Union's success in the election and its certification by the Board did not abate the Respondent's efforts to undermine the Union's following. Thus, during a period of time when collective-bargaining negotiations were pending Peter Cronen, Jr., conveyed to employees Klemec, Uherka, Huston, Adams, Wormsbaker, and Rolling the concept that their employment interests would better be served through affinity to the Company than through allegiance to the Union." Cronen's reference during his conversation with Rolling and Huston in the parking lot to the insolating effects from union and employee demands of the family's financial resources, uttered in context of a discussion of benefits to be derived from the Union, carried an implicit threat, as did a similar reference to family wealth uttered earlier to Adams in context of other unlawful threats.35 The unlawful interrogation and threats transpiring after the Union's election and certification were carried out in conjunction with efforts to induce employees to resign from the Union. The approach of Peter Cronen, Jr., to David Adams the day following the election wherein Cronen invited Adams to use company time to induce employees to withdraw from the Union serves as a forecast of events to follow. The efforts of employees Olson and Stumpf may not reasonably be viewed as independent effort by interested, nonunion employees. I find this to be so for company support and condonation of their activities, carried on in the plant, is revealed, not alone by use of company equipment, stationary and postage in the preparation and dispatch of the letters of resignation, but is evidences also by the coordinated efforts of Cronen, Jr., and Olson in obtaining through cajole, threats, and persuasion the resignation of Adams and Wormsbaker, and the participation of Timothy Cronen in the drafting and preparation of Hohn's resignation . While, as a unit employee, Olson was free to persuade fellow employees to resign from the Union, the Company was not free to interpose its influence in the persuasive process and to assist Olson in his endeavors. The evidence is convincing that, Olson's opposition to the Union became well defined and known to management and it is further convincing that, as the General Counsel contends, Olson was acting as the agent of management not only in facilitating the resignation of employees -- like Spears - voluntarily dispose, but in inducing resignations . This is illustrated by the fine-tune performance of Olson and Cronen, Jr., in eroding though threats and promises the confidence of Wormsbaker in his job security under unionized conditions; and, in a more suttle manner, achieving the resignation of Adams. In the process of inducing Wormsbaker's resignation the Respondent through Cronen, Jr., and Mike Olson, its agent in this special purpose undertaking, violated the Act by the sum total of a dialogue which instructed Wormsbaker that Peter Cronen, Sr., would not sign a contract with the Union; would not rehire striking employees; would not rehire Wormsbaker and that because Wormsbaker had had polio he would not be rehired in a union shop.36 The mid-August statement of Cronen to Battleson to the effect that employees who struck would be discharged as an incident to Respondent's intention to rebuild the Company, was both a threat to Battleson's job tenure and an effective inducement for him to leave the Union. 2. The termination of Bunk In the foregoing circumstances, and at a juncture when collective-bargaining negotiations had been punctuated by acrimony and division over the subject of union security, Alvin Bunk was terminated. Bunk's leading role as a "Howard Walker testified that on the first day of the strike his automobile was damaged when he tried to gain entry to the plant through the entrance at which were convened many strikers . Additionally, Douglas Stockwell testified that at approximately 1.30 a.m., on an occasion during the strike a car was driven in his yard and the occupants called out epithets to him from the automobile. Neither Walker nor Stockwell were able to identify the individuals involved in these incidents. Similarly, Stockwell testified that during the strike Alvin Bunk called out to him that Cologna was going to burn down his garage if Stockwell kept coming to work . However, Stockwell testified that Bunk stated he wasjust "kidding Stockwell." "This threat was uttered by Peter Cronen, Jr., to Adams and by Ed Kadlec to Mark Bradshaw. "Throughout this period of time there was widespread discussion and speculation over the prospects and affect of a strike to enforce union demands. "The comment to Adams was couched not in terms of a prediction of legitimate counteraction to a union-called economic strike but, in context of threats affecting job tenure and income, implied the futility of unionization. "It is doubtful, even in this context , that Wormsbaker accepted as factual Olson's further statement that the Union would not represent him because of his polio-related physical limitations. As Olson's pronouncement clearly related to a union decision beyond the capacity of the Company to control or implement, it was not violative of the Act. 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union advocate, including his participation as a member of the Union's negotiating committee and his designation as steward, is too well memorialized in the record to require analysis. Respondent's hostility to the Union is similarly sealed by abundant record evidence. Respondent's initial act of suspending Bunk pending a determination by Peter Cronen, Sr., arose, I find, from an over literal and discriminatory application of a rule formulated and promulgated to place a fair limitation upon the use by employees and the Company of the bulletin boards for communications relating to the Union.37 It is clear from the record, upon an analysis of Respondent's own reasons for removing the letter, that Respondent seized upon a pretext for disciplining Bunk. The letter was on the letterhead of the Union, clearly related to matters of common concern to all employees and contained no statements so slanderous, obscene, "obnoxious" or frivilous - criteria detailed by Cronen, Jr., as leading to the formulation of the rule - as would necessitate summary removal of the notice." The notice was addressed to Bunk in his capacity as shop steward, and had been obtained in direct response to a conversation between Bunk and Cronen, Jr., Bunk's suspension resulted directly from his removal of a company notice, but Cronen's arbitrary action in removing a notice of significant importance to the union cause triggered the chain of events. Cronen, Jr., had peculiar knowledge of the highly charged atmosphere which prevailed at the plant and welcomed nothing that counteracted or undercut the Company's effort to erode the delicate margin of the support the Union had commanded at the Board election. I am convinced that Cronen removed the letter because its contents proved him wrong in his earlier prognostication of the union disinclination, in the showdown, to guarantee support to the employees. Thus aroused, he reacted against Bunk , the symbol of union investiture among the employees. In doing so he disciplined Bunk for his union activities and for exercising rights protected under Section 7 of the Act. The Respondent thus violated Section 8(a)(1) and (3) by the temporary suspension of Bunk, and independently violated Section 8(a)(1) by the removal of the letter." In light of the discrimination against Bunk, his subsequent removal, an hour or two after his suspension, of another company notice may be found to bear close relationship to the discrimination against him, and on that ground be excused." However, his offenses in the afternoon of the day of his suspension received no similar shield . With the passage of some 5 hours' time the emotion and exuberance aroused in Bunk by his suspension may reasonably be presumed to have subsided at least to a state of reasoned resentment which rendered his actions rational and purposeful. The record evidence convinces me that in the afternoon of his suspension Bunk acted with premeditation in carrying out his course of intentional disruption of employee work tasks, direct disobedience to valid directive of supervision, obscene derision of a management representative and "At the hearing, the General Counsel made clear that he was not attacking the rule as such, but only its application in the specific context here under consideration. "Indeed Cronen read the notice twice and consulted with Supervisor Kadlec before removing it. Kadlec disagreed with Cronen 's interpretation of the notice as nonconforming to the specifications "See Challenge Cook Brothers of Ohio. Inc, 153 NLRB 92, enfd. 374 F. 2d 147 (C.A 6) "N L.R.B. Y. M & B Headwear Co, 349 F 2d 170 (C.A. 4); Blue Jeans Corporation and Whiteville Manufacturinf Company, 170 NLRB No. 149. calculated trespass upon company property. Such activities receive no protection under the Act; break the chain of causation as between discriminatory motive and justifiable discharge; and, in my judgment, render the Company's discharge action beyond the reach of Section 8(a)(1) or (3) of the Act. The General Counsel characterizes as palid Bunk's offenses of the afternoon and seeks to excuse them on the ground that, ( 1) Bunk chose to wait in the parking lot for his coworker and corider, Rolling, despite Cronen's instructions that Bunk leave; (2) because Bunk "thought" the coworkers with whom he conversed were enjoying an afternoon break; and finally, (3) because Bunk merely had "words" with Cronen, which Bunk assessed as being free from profanity. The record places a substantially different hue on the events of the afternoon and renders reasonable and justified the discharge action that subsequently followed, even, as the General Counsel pointedly asserts, when assessed against a satisfactory employee of 8 years' standing. The dichotomous nature of Respondent 's actions against Bunk , as here found, is not dispelled by the wording of the Respondent's discharge letter. There is nothing in the letter which reveals that, absent Bunk's conduct in the parking lot following his suspension, his suspension would have been permanent. On the other hand, strong emphasis is placed in the letter upon the nature of his parking lot misconduct. There is reason to believe that Bunk's suspension arising from his removal from the bulletin board of the first company notice would have received the timely attention of Cronen, Sr. There is insufficient evidence, however, to permit a determination that Cronen, Sr., would have ordered Bunk's termination. While the discharge letter places some stress upon the effect of the example set by Bunk in removing the notices from the bulletin board in the presence of other employees, it is noteworthy that Bunk's removal of the notice was followed only by his temporary suspension and not by summary discharge. Thus, it may reasonably be concluded that Bunk's subsequent actions on the parking lot controlled the decision ultimately reached. The General Counsel points to the popularity of Bunk among the employees and the impact upon employees of actions against Bunk . The evidence, at least, establishes that Bunk was a leader among the employees and served as their union steward . Equally valid, in the circumstances prevailing on August 19, is the speculation that the discharge of a union steward, well regarded by the rank-and-file, would tend to solidify the very body of support which the Company was seeking to wean. Moreover, the General Counsel's case gains no significant assist from the evidence that Cronen , Jr., had earlier threatened the discharge of Bunk , for the statement was one impulsively made and quickly recanted. In contra-distinction, and in sum , there is strong reason to believe that because of Bunk's status as a steward and his participation as a bargaining committee member, Bunk had greater immunity from discriminatory discharge than did other employees. Also, there is much in the record to show that Cronen, Sr., knew that he was dealing with an aggressive, militant union leadership that would call for an accounting of Bunk's discharge . On this ground it is too simplistic to indulge the easy assumption that because Respondent had resorted to tactics designed to undermine the employee support of the Union and had discriminatorily suspended Bunk, the discriminatory design continued unbroken whatever the justification for the discharge action taken . This process of reasoning TEMPCO MFG . CO., INC. 349 would further assume that Respondent would intentionally accord to the Union a rallying point around which to marshal its supporters, both dedicated and wavering. In light of the foregoing, I find the evidence affords insufficient ground for concluding that the temporary suspension of Bunk on the morning of August 19 would have been extended to become permanent but for Bunk's own offenses perpetrated in the afternoon of August 19. I am convinced it was the actions of disobedience , insolence and, misconduct which brought his discharge . I find that Respondent violated neither Section 8(a)(1) nor Section 8(a)(3) in permanently discharging Bunk. 3. The no-loitering rule Contrary to the General Counsel, I do not find that the evidence preponderates in favor of a finding that the Respondent either promulgated or applied the no-loitering rule applicable to the employee parking lot for the purpose of impending union activity . The General Counsel is correct in his contention that prior to the commencement of organizational activities employees were accorded free access to and use of the parking lot during lunch and break time, as well as some off duty hours. This access continued for approximately 2 months after union activities had begun . As an incident of this activity and the conflict in interest and views among the badly divided employees constituency, vandalism and damage was inflicted during working hours to vehicles parked on the employee parking lot. The credible evidence of record establishes that the rule was adopted as a direct consequence of these incidents . The rule promulgated and applied against Alvin Bunk related solely to the parking lot which was the situs of the property offenses. In no manner did it limit free time discussion of union matters in any other portion of plant property . There is no significant evidence to reveal that the rule was given other than evenhanded enforcement . While in August, during the Bunk-Huston incident, Cronen instructed Bunk to leave and "stop bothering employees about the Union" there is no showing that after adoption of the rule employees were allowed to solicit for nonunion or other causes, or to congregate for discussion of nonunion topics.41 As to the foregoing, as the burden of proof was upon the General Counsel, and as special circumstances existed warranting Respondent's adoption of the no-loitering rule, I shall dismiss the allegations of the complaint relating to it.42 4. The collective-bargaining violations I find upon the record before me that at no time during the course of collective bargaining did the parties reach a bargaining impasse which would permit a termination of further bargaining or unilateral employer action . Thus, I find that Respondent violated Section 8(a)(5) of the Act by canceling the scheduled August 26 meeting and by unilaterally granting selective and general wage increases "It is true that on the principal occasion of its application to Bunk, Cronen, Jr., himself engaged in an extensive dialogue with Bunk concerning the pros and cons of unionization . However, this conversation evolved from the corrective action which Cronen took to enforce observance of the rule, and may not reasonably be viewed as a disparate departure from the rule. "See Republic Aviation Corporation v. N.L.R B., 324 U.S. 793; Walton Manufacturing Company 126 NLRB 697, enfd. 289 F.2d 177 (C.A. 5), cf The Wm H. Block Company, 150 NLRB 341; The Rose Company, 154 NLRB 228. to employees in the unit represented by the Union, the certified collective-bargaining representative of the affected employees." The evidence reveals that at the August 7 meeting - the fourth between the parties - the parties had discussed various contractual provisions but the issue of union security was one which separated them . The subject of wages had received attention but the disagreement over union security had limited consideration of that topic and had relegated it to a secondary position . The August 7 meeting terminated with a stipulation by Cronen , Sr., that revealed his position on union security was not totally inflexible and was subject to some moderation. The evidence establishes to my satisfaction that at the termination of the August 7 meeting the position of the parties with respect to the issue of union security had not hardened to a point which rendered further exploration and discussion of the issue futile and predictably unproductive . This is suggested by the evidence establishing that a further meeting to be held on August 26 was scheduled. Thus, viewing the attitude and position of the parties as projected through their bargaining table discussions, and considering contractual issues of importance which remained unresolved , including the issue of wages, upon which the parties, at least to this point in time, had evidenced amenability, it may not be concluded that a bargaining impasse existed when the August 26 meeting was canceled by Respondent." Nor does the evidence establish that an impasse was reached during subsequent negotiations which ensued following the commencement of the September 4 strike. The discussion of wages which transpired at the September 12 and October 1 meetings revealed no cleaveage of positions as would justify a conclusion that the respective positions of the parties on this particular issue were final and beyond reconciliation . While at the October 1 meeting the Union asserted that a resolution of the issue of union security was a prerequisite to ultimate contractual agreement, both the Union and the Company submitted proposals which represented a modification of their previous position with respect to union security, thus revealing the viability of the bargaining relationship with respect to the issue of union security . Moreover, the October 1 meeting terminated with the suggestion of the FMCS commissioner that the Union submit its bargaining position in writing . The foregoing negatives the existence of a bargaining impasse." In light of the absence of a bargaining impasse , and the Union's status as certified collective-bargaining representative the Respondent was not free to effectuate "Misplaced is the Respondent's reliance upon that line of cases which renders permissible the grant of wage increases to unit employees when, without antiunion motivation, the increases have been long contemplated and planned or when they accrue pursuant to an established schedule. The evidence establishes quite conclusively that wage increases above scale do not accrue automatically but require the intraposition of management evaluation and judgment as to the work performance of each employees. Thus, it may not be reasonably found that this category of wage increase falls within the ambit of the cases cited by Respondent.Eg. Standard Coil Products, Inc., 99 NLRB 899; N L R.B. v. Cleveland Trust Co., 214 F 2d 95 (C.A 6); Taft Broadcasting Co., WDAF AM-FM TV, 163 NLRB No 55. The vice of the wage increases granted Uherka and Bradshaw was not that they were unwarranted but that they were granted without consultation with the certified collective-bargaining agent and instituted in a manner and circumstance calculated to erode the recipients' support of the Union "See Taft Broadcasting Co., WDAF AM-FM TV, 163 NLRB No. 55. "Taft Broadcasting Co., WDAF AM-FM TV, supra 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unilaterally either the individual, selective wage increases or the general wage increase which it accomplished by its action of October 2. This is so with respect to the general wage increase even though the wage rates put into effect were those which were presented to the Union during the course of the September 20 and the October 1 meeting. This action, taken in the absence of a bargaining impasse, had the effect of circumventing the Respondent's duty to negotiate with the Union and frustrated the object of collective bargaining thereby violating Section 8(a)(5) of the Act.96 In the circumstances it is not significant that the wage rates put into effect were those discussed earlier with the Union." 5. The September 4 strike I find that the strike which commenced on September 4 was an unfair labor practice strike as it arose as a consequence of the strike vote taken by unit employees pursuant to consideration given the cancelation of the August 26 meeting, Respondent's alleged intention not to bargain in good faith and its alleged unlawful conduct in terminating Alvin Bunk. These considerations, I find, were the determinative factors in the decision to strike. Accordingly, as I have found the Respondent to violate the Act by canceling the August 26 meeting and in suspending Alvin Bunk temporarily, I conclude that the strike which commenced on September 4 was an unfair labor practice strike, arising as it did, in part, from the unlawful acts of Respondent. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminated against Alvin Bunk by affecting a temporary layoff of some 5 hours' duration I shall recommend that Respondent make Alvin Bunk whole for any loss of pay he may have suffered because of the discrimination against him by payment to him of a sum. of money derived through application of the formula prescribed in F. W. Woolworth Company, 90 NLRB 289, with interest at a rate of 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716. It having further been found that the strike of September 4, was caused by Respondent's unfair labor practices I shall recommend that Respondent offer each unfair labor practice striker immediate and full reinstatement to his former or substantially equivalent "N L R B v. Benne Katz, etc., d/b/a Williamsburg Steel Products, 369 U.S. 736; Iowa Mold Tooling Co., Inc, 173 NLRB No. 154 "Flowers Baking Company, Inc., and Ideal Baking Company, Inc., 169 NLRB 101. position of employment, without prejudice to his seniority or other rights and privileges, discharging if necessary any employee hired on or after September 4, 1968, and make each of them whole for loss of earnings which they may have incurred as a result of their participation in the strike by payment to each of them of a sum of money equal to the amount he normally would have earned as wages during the period from 5 days following the date of his application for reinstatement to the date of Respondents' unconditional offer of reinstatement. Said loss of earnings shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, together with interest at the rate of 6 percent per annum as provided in Isis Plumbing & Heating Co., supra. °0 While I have found that certain picket line and other strike misconduct transpired, I find, as detailed below, only one unfair labor practice striker herein is disqualified by reason of said conduct for reinstatement and backpay. I base my finding upon precedent holding that unauthorized acts of violence on the part of individual strikers are not chargeable to other union members in the absence of proof that identifies them as participating in such violence." Moreover, regarding many instances of misconduct and damage to property arising during the course of the strike the identity of the perpetrators was not established, '" or, in some, the casual relationship between employee action and subsequently discovered damage could not be established with sufficient precision. Finally, I find the conduct attributed to Richard Uherka, James Enson, Duane Colonga and Derrick Soderstrom is not of sufficient gravity to warrant their disqualification for reinstatement." However, in light of the conviction of David Adams on a criminal misdemeanor charge arising from damage inflicted upon the automobile of Richard Hohn, a nonstriker, and in further light of Adams' threat, during this incident, to inflict damage upon the automobile of Hohn, I determine that Adams has disqualified himself for reinstatement and his reinstatement is not recommended. S3 Having further found that Respondent has unlawfully refused to bargain by unilaterally instituting wage increases and by canceling a scheduled collective-bargaining meeting with the Union I shall recommend that Respondent cease and desist therefrom. I find no merit in Respondent's contention that by reason of picket line and other strike misconduct normal remedial requirements redounding to the benefit of the Union in its capacity as collective-bargaining representative should not be invoked.53 Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: "The record contains no list or other identification of the complement of employees who participated in the strike This matter must, perforce, be resolved at the compliance stage of this proceeding. "N L R. B. v. Deena Artware, Inc, 198 F.2d 645, 650 (C A. 6) The applicability of Rubin Bros. Footwear, Inc, 99 NLRB 610, enforcement denied 203 F 2d 486 (C.A. 5), is not in issue. "See Morris Fishman & Son. Inc., 122 NLRB 1436, 1438 "In view of the determination made with respect to the discharge of Alvin Bunk I find it unnecessary to decide whether his conduct on the picket line and during the course of the stoke would be sufficient to deprive him of reinstatement rights. "Cf Quality Limestone Products, Inc, 153 NLRB 1009, 1011-112, 1046. "See United Mineral & Chemical Corp, 155 NLRB 1390, 1395, Call, Burnup, and Sims. Inc.. 159 NLRB 1661, 1682. TEMPCO MFG. CO., INC. 351 CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. Metal Shop, Warehousemen and Helpers Union, Local 970, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent temporarily suspended Alvin Bunk in retaliation against him for his support of and activity on behalf of the Union , and did thereby violate Section 8(a)(1) and (3) of the Act. 4. By threatening employees with curtailment of overtime, imposition of a night shift, discharge of union supporters, refusal to hire employees who might strike in support of the Union , refusal to rehire physically debilitated employees in the event the plant was unionized, and refusal to sign a collective-bargaining agreement with the Union; by interrogating employees concerning their own union activities and the union activitie s of other employees; by conditioning a wage increase granted an employee on continued nonunionization of the plant; by undermining the employees ' support for the Union by statements suggesting that employment interests would be better served through giving affinity to the Company than through allegiance to the Union; by inducing through promises of employment and social benefit employees to withdraw from the Union , and by lending support to and facilitating the actual withdrawal of employees from the Union; and by discriminatorily implementing a rule governing posting of notices and written material on employee bulletin boards , the Respondent has engaged in conduct violative of Section 8(a)(1) of the Act. 5. Metal Shop, Warehousemen and Helpers Union, Local 970, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, has been since May 23, 1968, and now is, the exclusive certified collective-bargaining representative of a majority of Respondent's employees in a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 6. The following described collective-bargaining unit is a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. All production and maintenance employees of Respondent at St. Paul, Minnesota operation ; excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. 7. By unilaterally increasing the wages of employees in the unit in which the Union was and has been at all material times the certified collective-bargaining representative, and by canceling a scheduled collective-bargaining meeting the Respondent engaged in conduct violative of Section 8(a)(5) and (1) of the Act. 8. The strike which commenced on September 4 was an unfair labor practice strike arising from the prior unlawful conduct of Respondent. 9. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and upon the basis of the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with curtailment of overtime, imposition of a night shift, discharge of union supporters, refusal to hire employees who struck in support of the Union, refusal to hire physically debilitated employees in the event the plant was unionized, and refusal to sign a collective-bargaining agreement with the Union; interrogating employees concerning their own union activities and the union activities of other employees; conditioning a wage increase granted an employee on continued nonunionization of the plant; undermining the employees' support for the Union by statements suggesting that employment interests would be better served through giving affinity to the companies and through allegiance to the Union; inducing through promises of employment and social benefit employees to withdraw from the Union, and lending support to and facilitating the actual withdrawal of employees from the Union; and discriminatorily implementing a rule governing posting of notices and written material on employee bulletin boards. (b) Discouraging membership in Metal Shop, Warehousemen and Helpers Union , Local 970, affiliated with International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America, by discriminatorily suspending employees or in any like or related manner discriminating against any employee with regard to his hire or tenure of employment, or any term or condition of employment, except as authorized in Section 8(a)(3) of the Act. (c)Refusing to bargain collectively with Metal Shop, Warehousemen and Helpers Union, Local 970, affiliated with International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America, as the certified and exclusive representative of all employees in an appropriate collective-bargaining unit by unilaterally granting wage increases and by canceling scheduled collective-bargaining meetings. (d) In any like or related manner, interfering with, restraining, or coercing its employees in the right to self-organization, to form their own labor organization, to join or assist the Union , or any other labor organization, to bargain collectively with representatives of their own choosing, and to engage in 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 authorized in Section 8(a)(3) of the Act. 2. Take the following affimative action designed to effectuate the policies of the Act: (a) Make whole Alvin Bunk for any loss of pay he may have suffered as a result of the discrimination against him, in the manner set forth in the section entitled "The Remedy." (b) Upon application, offer striking employees reinstatement to their former or substantially equivalent positions of employment without prejudice to their seniority or other rights and privileges discharging, if necessary, all replacements hired on or after September 4, 1968, and make said applicants whole for any loss of wages they may have suffered, to the extent and in the manner set forth in the section entitled "The Remedy." (c) Post at its plant and places of business at St. Paul, Minnesota, copies of the attached notice marked 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Appendix."" Copies of such notice, to be furnished by the Regional Director for Region 18 shall, after being duly signed by a representative of the Respondent, shall be posted by Respondent immediately on receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 18, in writing, within'29 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.55 "If 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 " "If 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, of the steps which 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 threaten employees with less overtime, the start of a night shift, discharge of supporters of the Union , refusal to hire employees who might strike in support of the Union, refusal to rehire physically disabled employees in our unionized plant or refusal to sign a collective-bargaining agreement with the Union. WE WILL NOT interrogate our employees concerning their own union activities and the union activities of other employees. WE WILL NOT condition wage increases to employees upon our plant being nonunion. WE WILL NOT undermine the support of our employees for the Union by unlawful statements suggesting that employment interests of employees would be better served through giving loyalty to the Company than by loyalty to the Union. WE WILL NOT induce employees to withdraw from the Union by extending promises of employment and social benefits or by lending support to and assisting in the actual withdrawal of employees from the Union. WE WILL NOT in an unlawful or discriminatory manner give effect to the rule governing posting of notices and written material on our bulletin boards. WE WILL NOT refuse to bargain collectively with Metal Shop, Warehousemen and Helpers Union, Local 970, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive certified collective -bargaining representative of our employees in the following described unit by unilaterally granting selective or general wage increases to our employees or by canceling scheduled collective-bargaining meetings. The appropriate collective-bargaining unit is: All production and maintenance employees at our St. Paul, Minnesota, operation; excluding office clerial employees, professional employees, guards and supervisors as defined in the Act. WE WILL offer Alvin Bunk approximately 5 hours backpay for unlawfully suspending him from his employment on a temporary basis on August 19, 1968. WE WILL, upon application, offer immediate and full reinstatement to their former or substantially equivalent positions, without loss of seniority or other rights and privileges, all employees on strike on or after September 4, 1968, discharging , if necessary, all replacements hired on or after September 4, 1968, the date on which the strike became an unfair labor practice strike, and will make such applicants whole for any loss of pay suffered by reason of our refusal , if any, to reinstate them within 5 days after application. All our employees are free to become, remain, or refrain from becoming or remaining members of the above-named, or any other labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment in Section 8(a)(3) of the Act, as amended. TEMPCO MFG. CO., INC. (Employer) Dated By (Representative) (Title) NOTE: - Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, 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. Any questions concerning this notice may be directed to the Board's Regional Office, 316 Federal Building, 110 South Fourth Street, Minneapolis, Minnesota 55401, Telephone 612-334-2618.