Alkahn Silk Label Co.

ALKAHN SILK LABEL CO. Alkahn Silk Label Company and United Textile Workers of America, AFL-CIO. Cases 6-CA-5111 and 6-CA-4897 September 16, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On April 29, 1971, Trial Examiner Herzel H. E. Plaine issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices alleged in the complaint in Case 6-CA-51 11, and recommending that said complaint be dismissed and that the settlement agreement in Case 6-CA-4897 be reinstat- ed, as set forth in the attached Trial Examiner's Decision . Thereafter, the General Counsel filed timely exceptions to the Trial Examiner's Decision with a supporting brief. Pursuant to the provision 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 proceeding to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed . The rulings are hereby affirmed . The Board has considered the Trial Examiner's Decision , the exceptions and briefs, and the entire record in this proceeding, and hereby adopts the findings , conclusions , and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the complaint in Case 6-CA-5111 be and it hereby is, dismissed in its entirety and that the settlement agreement in Case 6-CA-4897 be, and it hereby is, reinstated. TRIAL EXAMINER'S DECISION HERZEL H. E. PLAINE, Trial Examiner: Respondent is a manufacturer of silk labels who moved its plant from Paterson, New Jersey, to Weston, West Virginia. Other than supervisors, the employees at Weston are almost entirely persons recruited in West Virginia. The same Union, the Charging Party, that represented the employees at Paterson represents the unit of production and maintenance employees at Weston, pursuant to Board I On a charge filed by the Union January 28, 1970, amended March 27, 1970 167 certification following an election, and is seeking a collective-bargaining contract with Respondent. Respondent is charged with negotiating in bad faith with the Union and with no intention of entering a contract, in violation of Section 8(a)(5) and (1) of the National Labor Relations Act (the Act). The charge arose first under the complaint in Case 6-CA-4897 issued March 30, 1970,1 following a series of nine bargaining meetings, eight in 1969 and one in January 1970, and a strike that began November 24, 1969. Trial of that case began on May 13, 1970, but adjourned sine die after the parties entered into an informal settlement. Under the settlement the Respondent and Union agreed that (1) they would resume bargaining in good faith, including the supplying by Respondent of requested wage information; (2) Respondent would accord to the strikers the rights of unfair labor practice strikers, including reinstatement, on request, to their former or substantially equivalent jobs (except five named employees whose rights were not disposed of); and (3) Respondent would post a notice stating these things. Following four more bargaining meetings in May, June, and July 1970, Respondent was again charged with bad faith bargaining, under the complaint in Case 6-CA-5111, issued December 11, 1970, and amended January 5, 1971.2 On the same date, January 5, 1971, the Regional Director determined administratively that Respondent had failed to comply with the previous settlement agreement and ordered it vacated. As a result, the complaint in Case 6-CA-5111 has charged Respondent with both presettlement and postset- tlement bad-faith bargaining, in violation of Section 8(a)(5) and (1) of the Act. In addition Respondent has been charged with unjustified delay in reinstating most of the returning strikers, who gave up the stake without a contract on July 23, 1970, and with unlawful refusal to reinstate three of them, in violation of Section 8(a)(3) and (1) of the Act. Respondent contends that it bargained with the Union in good faith and offered to sign a contract, and that it complied in other respects with the settlement agreement by reinstating those strikers who applied to their jobs and posting the required notice (the latter is not in issue). Respondent staggered the return of the strikers over a period of from 2 to 12 working days after they applied in a group and attributed the delay of several working days for some of them to a lack of orders providing work for them and the need for orderly startup of machinery idled by the strike, as the orders came in. It refused to reinstate three of the applying strikers, says Respondent, because of their alleged violent misconduct on the picket line. Therefore, Respondent contends, there was no basis for vacating the settlement of Case 6-CA-4897 or for the new complaint in Case 6-CA-5111. The case was tried January 19-21, 1971, in Weston, West Virginia, pursuant to the Board practice approved in N.L.R.B. v. Hod Carriers, 389 F.2d 721 (C.A. 9, 1968), affirming Joseph's Landscaping Service, 154 NLRB 1384 (1965), under which the merit of vacating the settlement is 2 On a charge filed by the Union July 22, 1970, amended August 11, 1970, and amended again December 9, 1970 193 NLRB No. 29 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in issue, but permitting admission of evidence of both presettlement and postsettlement activity, and considera- tion of the presettlement evidence to establish the motive or object of the Respondent's postsettlement actions Only counsel for the General Counsel has filed a brief. Upon the entire record of the case, including my observation of the witnesses, and after due consideration of the brief, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent is a New Jersey corporation with facilities in several States engaged in the manufacture and nonretail sale of woven labels. At its Weston, West Virginia, plant, during the respective 12-month periods prior to issuance of the two complaints, Respondent has received goods valued in excess of $50,000 directly from points outside West Virginia and has shipped goods valued in excess of $50,000 direct to points outside West Virginia. Respondent is, as it concedes, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is, as the parties admit, a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Business Operation The Respondent, Alkahn Silk Label Company, is a manufacturing arm or affiliate of Alkahn Labels, Inc., which is located in New York City and apparently handles the sales and customer relationships that provide the orders manufactured by Respondent. For many years, Respondent was located in Paterson, New Jersey. In 1967 it commenced the transfer of its manufacturing operations to a new plant in Weston, West Virginia, and gradually phased out the Paterson operation. By some time in 1968 the transfer of operations to the West Virginia plant was complete and the Paterson plant no longer in operation The supervisors of the Weston plant, plus one or two other employees, came from the Paterson, New Jersey, plant. These include the plant manager, John W. Van Kirk, and assistant plant manager, Howard J. Van Der Wende, both of whom are employed and paid by Alkahn Labels, Inc. Plant Manager Van Kirk is also a vice president of Respondent, Alkahn Silk Label Company, and a vice president of Century Woven Label Company (Century) of Prospect Park, New Jersey, another of the Alkahn Labels, Inc., affiliates , operating at the time of the trial under a petition in bankruptcy. Lloyd Kahn is the president of Respondent. He, together with Mac Kahn and Lloyd Kahn, Jr., comprise the board of directors of the parent company, Alkahn Labels, Inc; and Mac Kahn is its president. The Weston plant manager Van Kirk is not an officer of the parent company but is as indicated a vice president of two of the manufacturing affiliates, Respondent and Century. For many years, going back to the 1930's, the Union represented the employees of the Paterson plant in collective-bargaining negotiations and contracts. The negotiations were on an industrywide basis, between the Union and employers of the woven label industry in New York and New Jersey (metropolitan area). Each side had group representation in the negotiations, and the employ- ers' committee had authority to bind the employers. Respondent's president, Lloyd Kahn, was a member of the employers' committee from 1945 to 1965 and was its chairman for 10 of those years. Vice President Van Kirk testified that he too participated in all of the contract negotiations in the period following World War II except the 1967 negotiation. The original employer group has shrunk in numbers, so that in recent years each employer has represented himself on the employers' committee. The most recent of the contracts affecting the employees of Respondent's Paterson plant was the contract of May 1967, G.C. Exh. 23, which expired in May 1970. That contract was signed by Vice President Van Kirk on behalf of Respondent. It is noteworthy from the standpoint of the contract negotiations affecting the Weston plant that Van Kirk, for the Respondent, has been resisting acceptance of union-security, checkoff, and arbitration provisions that were part of the last Paterson plant contract, G.C. Exh. 23, and predecessor contracts with the Union. The Union became the representative of the Weston plant production and maintenance employees as the result of a Board conducted representation election on July 31, 1969, and certification on August 8, 1969. There were about 50 such employees. Their work is largely in connection with the operation of the 48 highly mechanized and sophisticat- ed looms and other machinery on the plant floor for the production and packing of a great variety of woven labels used by manufacturers of and dealers in clothing, bedding, furniture, and other labeled products. All work is "to order" and personalized, with the customer's name woven into each label, and all orders are separate even for regular customers, since they habitually change colors, styles, and wording of the labels. The production process is a complex sequential operation, involving, for each label order, a design, cutting of a pattern, punching the pattern on jacquard cards (average about 500 cards per pattern), putting the pattern on a loom, winding of threads on quills (spools) for the loom and making a warp for the loom, weaving on the loom, doffing or removing the product from the loom, and then finishing, inspecting, cutting, folding, and boxing the labels for shipment. The looms are large, ranging from 13 to 23 feet in overall length. A loom may have between 18,000 and 20,000 threads running at one time. These will usually be of several colors, since the average label embodies two or more colors. The thread or yarn woven varies from cotton to rayon to polyesters to silk. The workers vary in degree of training and skill. At the upper end, requiring more training and skill, are the weavers, who control the loom operations, the loom fixers, who repair and maintain the equipment, and the "smash" hands, who reorganize the threads when they break out of sequence on the loom. At the lower end, requiring much less training but a fair grade of dexterity and ability to perform the tasks, are the quill winders and quill changers, ALKAHN SILK LABEL CO. 169 the finishers, the cut and fold people (whose work is also done by machine), and the employees of the card department. As the plant reached the point in 1969 when it had acquired 48 looms, it operated on two shifts with the prospect of going to three shifts and a substantial increase in employment. The strike that began in November 1969, because of failure of the employer and Union to agree on a contract, took out of the plant about 30 of the 50 employees, and idled in the 8-month period of the strike somewhere between 16 and 24 looms, even though there were some replacements for the strikers , according to Vice President Van Kirk and Assistant Manager Van Der Wende. Nevertheless , even without the strike and in periods of normal production there never was a time when all of the looms were in operation at one time . It would require, said Van Kirk , orders for 25 different labels of different qualities and sizes to keep all 48 looms operating at once. This is because the looms are not regarded as interchangeable from an economic standpoint. A changeover, for example from a loom making a 3-inch label to a smaller size is time consuming and expensive, according to both Van Kirk and Van Der Wende , and was done at Weston on only one occasion for one loom , according to Van Kirk . Hence it will frequently happen that while some looms stand idle for lack of suitable orders, other looms may have orders for their size and color labels backed up awaiting their turn to be processed. B. The Bargaining 1. Presettlement Following certification of the Union as the employees' bargaining representative in August 1969, Respondent and the Union met in eight negotiating sessions in the balance of 1969, the first on September 18, 1969, the eighth on November 20, 1969. Mr. Arnold Zab, an International representative of the Union, was its spokesman , and Vice President Van Kirk was the Respondent's spokesman in these meetings. The Union had presented a list of 18 items or subjects it wanted included in the contract by letter dated August 29, 1969 (G.C. Exh. 7), and an attached "worksheet" (G.C. Exh. 8) which provided a suggested text of various articles that might become the text of the contract. By the time of the third meeting, October 16, 1969, Respondent had presented its own draft proposal (G.C. Exh. 9) which included some but not all of the items the Union wanted and, on the inclusions, did not go as far as the Union wanted in several respects. Nevertheless, the Union agreed to use Respondent's draft proposal as the basis of further discussion and, as the meetings progressed, the Union gave up many of its items and acquiesced in a number of Respondent's suggested items. In the main this amounted to accepting the status quo on economic items and taking Respondent's view on such matters as overtime, paid holidays, no increase in the 5- cent-per-hour differential between shifts , no extra pay for employees instructing other employees, and dropping the Union's proposals in the worksheets (G.C. Exh. 8, articles 20, 21, 22) for layoffs, recalls, and vacancies, as too elaborate for Respondent's plant. On wages, the Union had first suggested a 75-cent-per- hour increase over a 3-year period, or 25 cents per year; then reduced the proposal to 60 cents , or 20 cents per year; and then indicated a willingness to discuss a contract term shorter than 3 years. Respondent offered only a 10-cent- per-hour increase in a 1-year contract . On a 1-year basis, the Union later proposed a 15-cent-per-hour increase for the first 6 months and a 10-cent-per-hour increase for the last 6 months of the year. On noneconomic items, Respondent refused to include any provision for union security , checkoff, arbitration of unresolved grievances, or any alternatives. Indeed, Respon- dent was insisting on the dropping of the Union's demand for an arbitration provision if Respondent were to provide in article IV (G.C. Exh. 9) that it would establish only "reasonable" rules and regulations for the governance of employee conduct. In addition Respondent was insisting upon a "no strike" clause with no arbitration of any sort and conceding only a very limited right to strike for unresolved grievances after 40 days ' notice and only one notice in a 4-month period, G.C. Exh. 9, art. IX. According to the uncontradicted testimony of Union Representative Zab, by the end of the seventh meeting, November 14, 1969, Respondent's proposal, including the items that the Union had been willing to agree to and excluding the "no strike" provisions, represented no more than existing conditions at the plant other than a 10-cent- per-hour wage increase , and provisions for jury duty pay, call-in pay, and a hospital room rate increase (under the hospitalization insurance policy) from $15 to $19 per day. On the following day, November 15, 1969, Union Representative Zab reported the foregoing extent of progress in the negotiations to a meeting of the employees. They voted, 22 to 1, to strike if nothing better was achieved. The next negotiating meeting, the eighth, was held on November 20, 1969, with a representative of the Federal Mediation and Conciliation Service present. Vice President Van Kirk indicated that Respondent had not changed its position . Union Representative Zab informed Van Kirk of the employees' strike vote. On November 24, 1969, the strike began with more than half of the employees walking out and maintaining a picket line at the roadway entrance to the plant. With the strike in progress, a ninth negotiating meeting was held on January 14, 1970. The federal mediator was again present, but other than ascertaining that positions had not changed, no bargaining took place. On March 30, 1970, the complaint against Respondent (essentially for failure to bargain in good faith) was issued in Case 6-CA-4897 . Trial commenced on May 13, 1970, but was adjourned sine die awaiting compliance with an informal settlement reached after opening of the trial and approved by the Trial Examiner. For unexplained reasons, signing of the settlement agreement was not completed until June 9, 1970. 2. Settlement Under the settlement, (1) the Respondent and Union agreed to resume 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining in good faith, including the supplying by Respondent of wage information requested by the Union; (2) Respondent agreed to accord to the employees, who were on strike because of the alleged failure to bargain in good faith, the rights of unfair labor practice strikers, including reinstatement on request, to their former or substantially equivalent jobs. Respondent excluded from this undertaking five employees-Barbara Bonnell, Wil- liam Cayton, Charity Coffman, Bernice Kerns, and Hallie Mae Mullinex-whose rights were not disposed of by the settlement agreement; 3 and (3) Respondent agreed to post a notice stating the foregoing things. 3. Postsettlement Notwithstanding the delay in the signing of the settlement agreement, Respondent and the Union resumed bargaining in the week following the settlement, on May 21, 1970, their tenth consecutive meeting. Vice President Van Kirk continued as principal spokesman for Respondent. The Union added its International vice president and area director, Roy Groenert, to the representation by Mr. Zab and both spoke for the Union.4 At this first postsettlement meeting Vice President Van Kirk indicated that his lawyer was in process of revising Respondent's earlier written proposal, G.C. Exh. 9, but agreed with Union Director Groenert that this was not an obstacle to negotiating and agreeing upon terms. Respon- dent's redraft, G.C. Exh. 14, was ready for the subsequent meetings , and was essentially, according to the description attributed to Van Kirk, a restatement of the previous proposal with clarification of some provisions, plus items theretofore agreed upon by the parties. As the negotiations proceeded, it became clear that the parties were able to agree on economic matters. At the second postsettlement meeting, June 24, 1970, Respondent offered an increase in vacations from the existing 1-week maximum to 2 weeks for employees of 5 or more years standing. The Union expressed a preference for using 4 or more years as the criterion, but this did not become an obstacle. The Union expressed willingness to agree to a 1-year contract and, on wages, modified its previous proposals for a 3-year or 2-year scale by suggesting a 15-cent-per-hour increase for the first 6 months and a 10-cent-per-hour increase for the last 6 months of the year. At the third postsettlement meeting, July 14, 1970, Respondent came back with a wage counteroffer of the 10-cent-per-hour increase previously offered, plus an added 6 percent on the whole of this increased hourly amount. This averaged out a few cents better per hour than the Union's proposal.5 Vice President Van Kirk accompanied the new wage 3 The problem here, as later disclosed, was alleged picket line misconduct attributed, at the time, to these five employees These claims were not continued against employees Bonnell and Cayton, who were reinstated after they applied for their jobs Respondent did deny reinstatement to Coffman, Kerns, and Mullinex, for claimed violence on the picket line, discussed infra 4 Groenert missed the third of the four postsettlement meetings that were held, and Zab missed the fourth, when he dropped out of the negotiations, he said 5 Using, as an example, weavers who were earning $190 per hour, the offer with the proposal that the parties "wrap up" the contract and sign it before he went off on his vacation.6 At the fourth and final postsettlement meeting, July 21, 1970, Union Director Groenert expressed satisfaction with Respondent's wage offer as part of a complete agreement but made clear that a complete agreement had to have some form of either union security or the checkoff, and some form of arbitration. On these noneconomic subjects, there had been almost no progress in the four postsettlement meetings . Respon- dent had in general reiterated its opposition, voiced in the presettlement sessions, against including any of these matters in the contract. On union security the Union had offered a number of alternatives, described as modified union shop, mainte- nance of membership, or variations of these. Vice President Van Kirk's position was that he should not sign an agreement that would force an employee to join the Union, that joining the Union was the employee's decision not the employer's. In the postsettlement meetings, when Van Kirk repeated this reason for his opposition to a union-security clause, the Union ultimately offered to drop union security if Respondent would agree to a checkoff of union dues. Respondent gave no indication, when this new offer was made, that it would accept the tradeoff, other than its negative reaction to the checkoff. On the checkoff, Vice President Van Kirk's position was that he didn't want to cut the size of any employee's paycheck except as the deduction was required by law (as in the case of tax withholding). Union Director Groenert replied that the deduction from pay was the result of the employee authorizing it, and that employees would not sign the cards if they were opposed to the deduction. Van Kirk indicated concern that authorization cards already signed would be used for the checkoff, and that his agreeing to a checkoff might preclude employees who had changed their minds from withdrawing the authorizations. Groenert responded that the Union was willing to discard the existing dues checkoff authorizations and rely only on newly submitted cards. Van Kirk answered it was still a checkoff. In its contracts with the Union covering the Paterson plant, Respondent had both union security and checkoff provisions, see G.C. Exh. 23, art. 2. G.C. Exh. 23 was the most recent contract, for 1967-1970, signed by Vice President Van Kirk on behalf of the Respondent. The testimony of Douglas Ebocker, the Union's international representative for the New York-New Jersey area and a principal negotiator of the woven label industry agreements for many years, established (with support from Van Kirk) that the checkoff provision had come into the contracts that Respondent signed in the late 1950's or early 1960's, and that the union security provision was in the contracts going back 30 years or more. Union's wage proposal would average over the year $2 10 per hour, whereas Respondent's wage proposal provided $2 12 per hour, see G C Exh 17, embodying Respondent's new wage offer 6 In accordance with previous practice, the plant was to be shut down for employee vacations in the first week of August. Van Kirk planned and took that week and the week before (the last week in July) for his 2-week vacation, and his assistant Van Der Wende planned and took the week of the plant shutdown and the following week (second week in August) for his 2-week vacation By this means, at least one of the two was available to supervise production when the plant was open ALKAHN SILK LABEL CO. 171 At the bargaining table in this case, Vice President Van Kirk made no reference to any difficulties experienced under these two contract clauses related to Respondent's current objections. Indeed, on the checkoff the sole reference made by Van Kirk to his Paterson experience, that only 2 of 70 employees agreed to the checkoff, provided an illustration in support of the Union's contention that the employees were free to make up their minds as to whether they would authorize the deductions or not. On the matter of union security, Van Kirk testified that he made no reference to any experiences but only to his own opinion in opposition.7 At trial, Vice President Van Kirk claimed that he and President Lloyd Kahn had opposed the checkoff in the employers' committee that bargained for the Paterson and other metropolitan plants but had been outvoted by the other employers . Van Kirk conceded that he made no mention of this in the bargaining sessions relating to the Weston plant, and he made no claim that the Union representatives were apprised at the time of this previous opposition ; nor did he claim that he or Kahn had opposed the union security provisions of the Paterson contracts. On arbitration, notwithstanding the fact that Respon- dent's previous contracts with the Union covering the Paterson plant had arbitration provisions since the late 1930's and provided for a permanent arbitrator since 1964 (Ebocker testimony), Respondent flatly opposed any arbitration provision in the presettlement negotiations and repeated its opposition in the postsettlement meetings. Respondent was agreeable to a several step grievance procedure that involved consultation with Union represent- atives but refused to accept arbitration as the final step, if there were disagreement. Respondent's reason , said Vice President Van Kirk, was that it was against outsiders making the decisions . Van Kirk made no reference to any history or basis for dissatisfaction with arbitration under its previous contracts with the Union other than to note an unnamed and undescribed decision in which, he said, the arbitrator had agreed with the company but decided against it on "past practice." When, in the postsettlement discussions, Union Director Groenert suggested use of the Federal Mediation and Conciliation Service , the American Arbitration Associa- tion, the bar association , or the local clergy as the sources from which to select an arbitrator or arbitrators , it was Van Kirk's expressed view that these were outsiders who were not knowledgeable of the plant , according to Union Representative Zab's testimony. Van Kirk expressed the further view, said Zab, that the company had the right to make the final settlement of any grievance , that it was its plant and money and it should have the final say on grievances. In this connection , Respondent was insisting on a no- strike pledge by the Union (G.C. Exh. 9, art. 25; G.C. Exh. 14, art. 26), allowing for only a very limited right to strike 7 Van Kirk added that he made a passing reference to a run-in he had with a union representative over refusal to fire an employee who would not pay a union assessment , but this vague, general reference was all that was made 8 The latest proposal, G C Exh 14, art 9, p 6, is ambiguous as well as limited It would permit a strike regarding a grievance if the Union gives over a grievance after the grievance procedure had run its course.8 Also, Respondent was insisting that the Union drop its demand for an arbitration clause if it wanted Respondent to provide for "reasonable" rules and regulations to govern the conduct of employees (presettlement negotiations, G.C. Exh. 9, art. 4), or "fair" rules and regulations (postsettlement negotiations, G.C. Exh. 14, art. 4). In the third postsettlement meeting , on July 14, 1970, Union Director Groenert suggested that perhaps the parties could get around Vice President Van Kirk's concern about outsiders making decisions affecting the plant by excluding some matters from arbitration. The collective-bargaining contract of the General Electric Company (GE) had gotten into the conversation and, according to Groenert and Zab, Van Kirk mentioned that the GE contract sent only discharges to arbitration. Groenert pursued the thought and brought copies of the GE arbitration clause, G.C. Exh. 18, to the next (and final) meeting, July 21, 1970. Groenert gave Van Kirk a copy of the text providing for arbitration of employee discharges, and Groenert stated that the GE clause was acceptable to the Union as an arbitration article in the contract. Van Kirk, without agreeing to accept it, indicated there was merit to the proposal and that he was willing to discuss the possibility of agreeing upon it. However, Van Kirk pointed out he was going on the planned vacation for 2 weeks (see fn. 6, supra) that started in a few days, and that he was not going to be able to consider it with the Union in a meeting until he and Assistant Manager Van Der Wende got back in August. He was willing to meet then. This was Union Director Groenert's testimony, and he conceded that Vice President Van Kirk also expressed willingness to consider and to meet again in August on not only the GE contract article on arbitration as the Union's new proposal for an arbitration article, but also the Union proposal to swap checkoff for union security. Notwithstanding this clear offer on July 21 by Respon- dent to further negotiate the Union's altered proposals on arbitration and on checkoff and union security, no further meeting was held. Instead, upon notifying Vice President Van Kirk on the following day, July 22, that the strikers would return to work and arranging that Respondent put into effect its new wage offer without a contract, the Union simultaneously filed charges with the Board that the Respondent had continued to bargain in bad faith since the settlement, G.C. Exh. 5(a), and suspended the calling of further meetings. 4. Conclusion respecting postsettlement bargaining In my view the Union's July 22, 1970, charge of bad-faith bargaining by Respondent, and the Regional Director's supporting action in vacating the settlement and issuing the new complaint, were premature. It can hardly be said, as the language of the complaint notice within 10 working days after the grievance procedure is concluded and waits 14 working days from the giving of the notice; but failure to strike within 21 working days after the notice shall waive the right to strike Moreover, the strike may not include a cause not assigned in the notice and there may be no other notice until after 90 days from the date of the preceding notice 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD puts it, that Respondent negotiated with no intention of entering into a final or binding collective -bargaining agreement. On the contrary, with concessions on both sides, including Respondent's wage offer that was slightly higher than the Union's last preceding wage proposal, the parties had reached tentative agreement by the fourth, if not the third, postsettlement meeting on articles for a contract, except on the three noneconomic items of arbitration, checkoff, and union security. Respondent was ready, indeed eager, to sign a contract without these contested items. Nevertheless, in view of the Union's unwillingness to sign and its revised proposals affecting the three items, Respondent indicated its willingness to bargain further on these matters, a willingness that has not yet been explored by the Union. In this posture , Respondent's postsettlement conduct has given every evidence that Respondent was bargaining with an intention to enter into a final and binding contract. On the complaint's allegation of lack of good faith in the bargaining, if one looked only at Respondent's presettle- ment and postsettlement position up to the third postsettle- ment meeting, a position of total opposition to arbitration, checkoff, and union security , allegedly on principle after it had granted such terms to this Union in previous contracts and offered no reasons or history in support of their withdrawal, it could be said that Respondent was bargaining with the intent to weaken or cripple the Union as an effective representative of the employees, compare United Steel Workers ofAmerica v . N. L. R. B., (Roanoke Iron and Bridge Works), 390 F.2d 846 (C.A. D.C., 1967), cert. denied 391 U.S. 904, rather than engaging in good-faith "hard" bargaining. However, Respondent's willingness, proferred in the fourth postsettlement meeting to reexamine its position in the light of the Union's new suggestions of limited arbitration (inspired by Respondent's reference to such in the third postsettlement meeting), and a dropping of union security for the checkoff, makes premature a conclusion that Respondent was bargaining either in bad faith or good faith . The bargaining is simply not completed. Therefore, I would dismiss the postsettlement complaint in Case 6-CA-5111 and reinstate the settlement of the earlier complaint. This leaves dismissal or other disposition of Case 6-CA-4897 in abeyance, as before, pending full and complete compliance with the settlement, in particular the obligation of the Respondent and the Union, on the Union's request, to resume bargaining in good faith. foot. Respondent supplied information on wages at the next meeting October 29, by classification, G.C. Exh. 10. The Union said this was inadequate and not what it had wanted. In the first postsettlement meeting, May 21, 1970, Vice President Van Kirk, for the Respondent, insisted that he wanted in writing a statement of the wage information that the Union was seeking, so that he could comply and provide a record of compliance. At this point it appeared that the Union was having a difficult time in articulating precisely what it wanted. Union Representative Zab, who had made the oral request, agreed to write and wrote a letter, May 22, G.C. Exh. 13, to which Vice President Van Kirk responded June 4, 1970, Resp. Exh. 2, pointing up the several choices of information Respondent would have to elect to provide in order to comply with the imprecise request, and asking the Union for clarification. Zab initially didn't remember this June 4 letter but later indicated through counsel that he may have received it. Anyway, it was not until the following month, at the July 14 meeting, that Van Kirk had to ask again about clarifying the Union's May 22 letter. At that point Van Kirk and his assistant, Van Der Wende, were shown a carbon of a reply allegedly sent by Zab July 4, G.C. Exh. 16, which neither Van Kirk or Van Der Wende had received, they testified; nevertheless in the July 4 reply, Zab was still asking for "base rates" which he orally said in the meeting he did not want, according to Van Kirk. At this point, Union Area Director Groenert promised that he would write a clarifying letter on behalf of the Union. He did so 2 weeks later, on July 28, 1970, G.C. Exh. 20, and Assistant Manager Van Der Wende replied on July 30, 1970, G.C. Exh. 21, supplying the desired information. The problem here does not appear to have been reticence on the part of the Respondent to supply information but ineptness of the Union representatives in describing what was wanted and their leisurely pace in getting around to it. The slowness evidently stemmed from a lack of Union interest in the data because from the beginning and throughout the negotiations the Union bargained for, and Respondent agreed to, a uniform across-the-board wage increase applicable to all of the employees, regardless of individual earnings or classifications. The 4llegation of the complaint, paragraph 9(b) in Case 6-CA-5111, charging Respondent with failure to supply wage data with reasonable promptness, should be dis- missed. C. Wage Information The complaint charged Respondent with unreasonable delay in furnishing wage information to the Union in the course of the negotiations. The evidence of both the union and employer witnesses indicated that there was no problem generally about Respondent supplying, and the Union obtaining, informa- tion promptly. For example, the pension information requested by the Union in one of the presettlement meetings, October 16, 1969, was supplied by Respondent at the next meeting, October 29, 1969, even though that information had to be obtained from New York. Unfortunately, the request for wage information, also made at the October 16, 1969 meeting, got off on the wrong D. Reinstatement of Strikers 1. Their return The settlement reached in May 1970 provided for treatment of the employees on strike as unfair labor practice strikers, with the right of reinstatement to theirjobs if they applied. However, the strike continued for the duration of the four postsettlement bargaining meetings. The last of these meetings was held on July 21, 1970. On July 22, Union Area Director Groenert called Vice President Van Kirk and said the strikers were coming back as a group to work without a contract. Groenert was unable to say how many would return, and Van Kirk questioned whether he could put all to work at the same time. ALKAHN SILK LABEL CO. 173 Nevertheless, the two men arranged that the striking employees would come in and sign up the following morning. It was also arranged that Respondent's wage increase offer would be put into effect for all of the employees. On Thursday, July 23, 1970,21 of the employees who had been on strike came in and signed a sheet of paper, prepared by Vice President Van Kirk, stating that they were requesting reinstatement to theirjobs , each listing his or her job and home phone number, G.C. Exh. 22. Van Kirk explained that he would work out a schedule for their return and call them. Vice President Van Kirk and Assistant Manager Van Der Wende began calling the listed employees individually for return to work beginning with the following Monday, July 27. Looking at Respondent's Exhibit 4, five applying employees were called back at the rate of one per day in that first workweek following the applications for reinstate- ment. The following week, beginning Monday August 3, was the scheduled plant shutdown for vacations and the entire plant and its office was closed , see In . 6, supra. In the next or second workweek commencing Monday August 10, 10 of the applying employees (3 on Monday, 4 on Wednesday, I on Thursday, and 2 on Friday), were called back, and in the third workweek commencing Monday August 17, 2 more applying employees were called back I each on Monday and Tuesday, making a total of 17 of the 21 applying employees reinstated. An additional applying employee requested and was granted a 6-month leave of absence, and the remaining three applying employees were denied reinstatement because of their alleged violent conduct on the picket line. In the settlement agreement, Respondent had preserved its right to refuse reinstatement to these three by excluding them (and two others) from the group of strikers whose rights were covered as unfair labor practice strikers by the settlement. The complaint in Case 6-CA-5111 charged that, in violation of Section 8(a)(3) and (1) of the Act, Respondent discriminatorily delayed reinstatement of 15 of the 17 reinstated employees, excluding the first 2 employees reinstated on July 27 and July 28 respectively, and including those who recommenced work on July 29 and the several days thereafter. The complaint also charged Respondent with violating Section 8(a)(3) and (1) by discriminatorily refusing to reinstate the three applying employees who were entirely denied reinstatement because of their picket line misconduct. 2. The staggered return was not unreasonable or discriminatory delay It took 12 workdays, on a staggered basis, for Respon- dent to get all 17 of the reinstated employees back to work that each had been engaged in when the strike began. Respondent contended that the gradual return to work was the unavoidable result of the lack of orders and the lowered state of plant production and readiness for increase caused by the 8-month strike . In this connection Respon- dent pointed out the sequential nature of the operation (see sec. II A supra) that limited precipitate startup of production on idled machinery when new orders came in, and the need for orderly startup and inclusion of the returning employees into the plant processes in order to resume the interrupted development and growth of the plant production. When the strike began, according to Assistant Manager Van Der Wende, the plant had reached the point where it had 48 looms, installed over a period of a year and a half. With a growing employee roll, the operation had reached two shifts and Respondent was planning to hire more and go to three shifts. The strike, commencing the end of November 1969, took out 30 of the 50 employees and production was cut in half, said Van Der Wende. Respondent went back to a one shift operation , and only gradually, with replacements including mostly trainees for the more highly skilled weaver jobs, did the plant get back to a somewhat less than complete two shift operation at the time the strike terminated on July 23, 1970, said Van Der Wende. After the strike began, orders had to be turned back to the New York office because of inability to produce and deliver them on time, according to Van Der Wende; and Van Kirk testified that overall the plant was producing 25 percent less orders than it had been producing before the strike. According to Van Der Wende, there were at various times between 16 and 24 of the 48 looms idle during the period of the strike as compared to the previous average of 6 idle looms during normal operations. Vice President Van Kirk testified that when Union Area Director Groenert told him on July 22, 1970, that the strikers were returning, he called President Kahn in New York the same day to inform him and to speed getting orders to the Weston plant. As noted under section II A above, Van Kirk testified that all of the label manufactur- ing is personalized and "to order" for the particular customer and product, and there is no stock work or inventory work produced. Van Kirk said he followed up the July 22 phone call with a "speed" message to Kahn on July 23, Resp. Exh. 6, which said that, with the strikers returning, it was necessary to have orders for the looms that were standing idle for lack of personnel and asking Kahn to start sending more orders, recognizing that it might take time to reroute them. The larger variety of orders needed to employ more looms began arriving with the end of the plant vacation shutdown and the reopening Monday, August 10, said Van Kirk, and it was in that week that most (10) of the applying employees were put back to work, followed by the final 2 returnees in the next 2 working days . In the week before the plant vacation shutdown , commencing on the second workday after the strikers had applied, Van Der Wende had begun the restoration process by putting back to work five returnees, comprising three weavers, a quill winder to keep their looms supplied, and a card boy to do preparatory work on getting patterns ready. General Counsel's major complaint is that Respondent did not immediately and at one time fire employees hired intermittently after the strike began , some of whom were still employed when the strike ended, in order to make places for all of the strikers instead of taking the several days used to stagger their return. Assistant Manager Van Der Wende, who was directly in charge of production, testified that dropping employees would have hurt rather than helped the restoration, since he 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was trying to build, in the space of a few days, a work force that would include all of the returning strikers and existing employees and make possible the startup of idle looms as the new orders started to come in. For example, he said, to have replaced a weaver trainee with a returning weaver would have slowed up the process since a returning weaver could initially occupy some of his time with teaching and overseeing the work of the trainee. Replacements of this kind would provide less work and less immediate need for weavers and attendant employees, explained Van Der Wende, whereas his object was to have a larger force and become a three shift plant. As for General Counsel's contention that Respondent might have offered some of the returning skilled employees the newer employees' jobs requiring lesser skills, Van Der Wende felt that this procedure would have been subject to the added objection of asking the returning employees to take pay cuts, a procedure he felt unnecessary in view of his expected ability to place all of the returning employees into their former kind of work in a matter of a few days. Van Der Wende and Van Kirk succeeded in doing just that, restoring the 17 employees to jobs they had been performing when they went out on strike, at equivalent pay for each, plus the new wage increase made effective for all employees with the Union's consent. The time used to accomplish this, involving but 2 working days for the employee first reinstated and 12 working days for the 17th and last reinstated, cannot be said to be unreasonable in view of the production and economic problems that Respondent had to meet.9 There was no evidence of discrimination against the 17 returning workers because they had been strikers and no evidence of discrimination as between any of them in the order of their recall, which apparently followed the sequential nature of the operation as orders came in and looms became operational. 10 3 Violence on picket line Respondent refused to reinstate three of the applying strikers, Charity Coffman, Hallie Mae Mullinex, and Bernice Kerns, because they had engaged in picket line violence. In the settlement agreement, they were specifical- ly excluded from the group of employees whose reinstate- ment was assured by Respondent. Access to Respondent's plant is a level private road or driveway, 15 feet wide and about 400 feet in length from the public road. Most of the employees come to work by automobile. When the strike began November 24, 1969, the striking employees set up a picket line at the entrance to the plant road. Apparently not succeeding in otherwise persuading 9 1 have discussed time in terms of working days rather than calendar days because, when the Union returned its striking members to the plant for reinstatement on Thursday, July 23, it was known by all concerned that the plant would be completely shut down for vacations in the first week of August, on a customary planned basis Thus, the plant was closed for 9 calendar days from Saturday, August I, to Monday, August 10 Taking into account this circumstance and the bona fide and successful efforts of Respondent to return the strikers to their former work promptly and efficiently I would not regard the 5-day provision for reinstatement of unfair labor practice strikers, usually included in Board orders, as an immutable standard or the one to apply to the facts in this case the nonstriking employees to stay out of the plant, the pickets resorted to violence and the threat of violence against the nonstrikers at the plant road entrance, according to Vice President Van Kirk. Among other things the pickets armed themselves with tire irons and baseball bats which were waved at and sometimes used on incoming and outgoing cars, threw rocks and eggs at such cars, and scattered roofing nails at the road entrance that caused flat tires. According to Van Kirk, this misconduct started early in the picketing, and Respondent obtained a temporary injunction in a local civil action against the Union and named individuals, including Coffman, Kerns, and Mulli- nex, restraining them from interfering with persons or vehicles entering or leaving Respondent's property, Resp. Exh. 8(e). The temporary injunction was expanded by court order of December 22, 1969, limiting the number of pickets and specifically prohibiting pickets from carrying or using baseball bats, tire irons, sticks, or other weapons, and from intimidating or harrassing employees or damaging their property, Resp. Exh. 8(q). The misconduct did not come to an end until Respondent obtained orders against Coffman, Kerns, and Mullinex (and some other individuals) to show cause why they should not be adjudged guilty of contempt for violating the injunction, see Resp. Exh. 8(1) and (1). On the return of these orders, with the defendants represented by counsel and no contest offered, the circuit court judge (of Lewis County, West Virginia) warned the defendants to desist from the misconduct or suffer punishment (testimony of Charity Coffman); and by order of January 7, 1970, he continued indefinitely the show cause hearings involving Coffman, Kerns, and Mullinex (among others), Resp. Exh. 8(t). From testimony of plant employees who were victims or near victims and objects of the violence or attempts or threats, and from testimony and admissions by Coffman and by Mullinex, the latter also implicating Kerns, her sister, there was clear proof of the participation of all three in the picket line violence. According to testimony of employee Noretha Bonnett, buttressed by testimony of her sister Georgia Hefner, on the morning of November 25, 1969, employee Bonnett was almost pulled out of the automobile in which she was a passenger in coming to work, when picket Coffman opened the car door of the vehicle, moving slowly and almost stopped among the pickets, and grabbed employee Bonnett. Bonnett was saved from being pulled out and falling by the countergrab of employee Hefner, sitting beside Bonnett, and by the forward movement of the car when Bonnett yelled to the driver to keep the car going.ii Coffman blamed another sinker for opening the car door but admitted reaching into the car to touch employee Bonnett. I 10 General Counsel's reference to Rutter-Rex Mfg Co, 158 NLRB 1414 at pp 1483-1485, is not apposite to the situation in this case . The Trial Examiner there was largely concerned with the employer's rejection of a legal obligation to dismiss replacements of unfair labor practice strikers where there were no vacancies for the returning strikers . Here there was not a lack of fobs or rejection of the obligation to dismiss replacements if it were necessary to make room for strikers , but simply a planned method of absorbing the returnees efficiently and expeditiously, that might have been slowed rather than speeded by firing some of the replacements, in the employer's judgment The record does not contradict thatjudgment 11 Employee Bonnett immediately reported the incident on coming into ALKAHN SILK LABEL CO. 175 am persuaded that the incident happened as described by employees Bonnett and Hefner. In addition, Coffman conceded that she carried a baseball bat on the picket line, and that she also carried eggs, which were there, she said, for throwing at people who crossed the picket line. Coffman said she saw them thrown, and employee Hefner testified that Coffman threw one and hit the car in which Hefner was riding. Coffman saw other pickets, she said, swinging their baseball bats, although she claimed not to have seen a car hit by one. Employee Goldsmith testified that he saw employees on the picket line wield baseball bats and tire irons. On one occasion, driving his wife's car to work, he had to drive very slowly into the plant roadway between two lines of picketing employees with baseball bats. He saw Bernice Kerns among them, swinging her bat and striking his car just below the taillight. He immediately reported the incident to the office, gave an affidavit on the subject for the court proceeding, and appeared in the circuit court proceeding prepared to testify. Bernice Kerns did not testify in the present trial, but her sister Hallie Mae Mullinex did, and testified that Kerns carried a baseball bat on the picket line and that Mullinex saw Kerns strike a car with the bat. Vice President Van Kirk testified that on several occasions he saw Kerns and Mullinex with baseball bats and saw them waving the bats at people coming in and going out on the plant driveway. Employee Denver Lesher testified that, leaving the plant one afternoon, he had to run a gauntlet of picketing employees, lined up on both sides of the plant roadway, swinging baseball bats. He was driving a small truck that belonged to his father-in-law. The truck stalled as he reached the point where the pickets stood and he said he saw Hallie Mae Mullinex swing her baseball bat and put a crease in the side door. Employee Lesher said he didn't stop to talk but hurried away as fast as he could. He reported the incident to Van Kirk and Van Der Wende the next day, gave an affidavit in the court proceeding, and came into the circuit court to testify on the matter but was not called upon. Employee Lesher was unable to identify Mulllnex in the courtroom at the trial of the present case. However it was brought out that he had not known her before the strike began, but came to know her and several other pickets on sight by asking other employees about them, and that at the time of this trial, in January 1971, it was almost 5 months since he had last seen her on the picket line. Mullinex denied that she ever carried a baseball bat and denied that she hit employee Lesher's truck with a bat. However Vice President Van Kirk testified that he had seen Mullinex and Kerns with baseball bats several times. Mullinex admitted that she threw a rock at the door of a moving truck leaving the plant at quitting time, and that she passed out eggs that were thrown from the picket line, but she did not admit throwing them herself. Considering the total testimony, I am not inclined to credit her denial of hitting Lesher's truck with a baseball bat, although whether her denial of this specific act is true or not would appear to make little difference in view of her confessed rock throwing at a moving vehicle. The foregoing evidence identifies all three pickets, Coffman, Kerns, and Mullinex, directly with the described acts of picket line violence. These were not isolated or casual acts, but part of a pattern of violent and threatening conduct against nonstrikers, designed to intimidate them to cease work, and halted only when Coffman, Kerns, and Mullinex, in particular, were hailed into court on contempt citations charging them with violating a temporary injunction against such misconduct. Respondent's conduct prior and subsequent to the strike cannot be said to have afforded provocation for this misconduct. General Counsel makes no such claim, but appears to argue that because no one was injured physically by the throwing of rocks and other missiles and the swinging of baseball bats at moving cars, or by the attempt to pull a passenger out of a moving vehicle, such misconduct was not so serious or flagrant as to justify denial of reinstatement to the three perpetrators of these acts. Conversely, he would apparently concede if their marksmanship or lack of it was unlucky enough to have caused an accident and physical injury this would have been serious and flagrant. This is not the test or the law. Activities by strikers, as here, calculated to instill fear of physical harm to the nonstrikers, lose the protection of Section 7 of the Act, N. L. R. B. v. Thayer Company, 213 F.2d 748, 757 (C.A. 1, 1954), cert. denied 348 U.S. 883; Food Store Employees v. N.L.R.B., 422 F.2d 685 (C.A.D.C., 1969). Respondent was justified in denying reinstatement to former employees Coffman, Kerns, and Mullinex. Com- pare, Hilton International Co. d/b/a San Jeronimo Hilton Hotel, 187 NLRB No. 140, fn. 2 (1971). CONCLUSIONS OF LAW 1. Respondent has not violated the settlement of Case 6-CA-4897. On the contrary, Respondent has been bargaining with the Union in good faith; has not delayed unreasonably in supplying wage information; has met its obligation, to date, to reinstate applying strikers to their former jobs without unreasonable delay or discrimination; and was justified in denying reinstatement to the three strikers, Coffman, Kerns, and Mullinex, who engaged in serious picket line violence that was coercive and calculated to instill fear of physical harm in the nonstrikers and therefore not protected under Section 7 of the Act. 2. Accordingly, the complaint in Case 6-CA-5111 should be dismissed, and the action of the Regional Director in vacating the settlement of Case 6-CA-4897 should be set aside. 3. Because the bargaining under the terms of the settlement has not yet been completed or reached an impasse, Case 6-CA-4897 will remain in the status it was prior to the issuance of the complaint in Case 6-CA-5111, i.e., adjourned sine die subject to report and motion by the parties warranting either dismissal upon full compliance the plant, and later gave an affidavit in support , and appeared in the local circuit court to testify on the subject but was not called upon because of the procedure worked out among counsel and the court , see discussion of court orders, supra 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the settlement or reopening if there is a failure of compliance. Upon the foregoing findings of fact , conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following recommended: i2 ORDER , The complaint in Case 6-CA-5111 is dismissed, and the settlement in Case 6-CA-4897 is reinstated. 12 In the event no exceptions are filed as provided by Section 102 46 of provided in Section 102.48 of the Rules and Regulations, be adopted by the the Rules and Regulations of the National Labor Relations Board, the Board and become its findings, conclusions, and order, and all objections findings, conclusions, recommendations, and Order herein shall, as thereto shall be deemed waived for all purposes.