Glomac Plastics, Inc.

406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Glomac Plastics, Inc. and Textile Workers Union of America, AFL-CIO-CLC. Case 3-CA-4113 December 1, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On July 26, 1971, Trial Examiner Laurence A. Knapp issued the attached Decision in this proceed- ing. Thereafter, only the Textile Workers Union of America, AFL-CIO-CLC, filed exceptions and a supporting brief. Respondent filed a brief which was previously submitted to the Trial Examiner. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order.' 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 be, and it hereby is, dismissed in its entirety. 1 Upon careful scrutiny of the record, we have discovered no evidence reflecting upon the Trial Examiner's fairness and impartiality We therefore find no merit in the Union's charge of bias and prejudice and deny its request for a new heanng. FINDINGS OF FACT 1. RESPONDENT'S BUSINESS ; THE LABOR ORGANIZATION INVOLVED The complaint alleges, Respondent's answer admits, and I find that in the year preceding issuance of the complaint Respondent, a New York corporation engaged in the manufacture and sale of plastic products at its Syracuse, New York, plant, shipped products from its Syracuse plant valued in excess of $50,000 directly to destinations outside the State of New York. Respondent is engaged in commerce within the meaning of the Act. The complaint alleges, Respondent admits, and I find that the Charging Party, Textile Workers of America, AFL-CIO-CLC (herein sometimes called the Union), is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES Questions Presented The main ultimate questions presented as the case was tried are whether Respondent violated the Act in declining to recognize the Union as the bargaining representative of its production and maintenance employees unless the Union first established its majority status in a Board- conducted election; whether a strike of certain of Respondent's employees following the Union's initial demands for recognition was an unfair labor practice strike; and whether following the strike Respondent engaged in certain acts of unlawful coercion and interfer- ence violative of Section 8(a)(1) of the Act. An issue underlying and decisive of certain of these principal questions is whether two of Respondent's employees are supervisors within the meaning of Section 2(11) of the Act. Brief Description of Respondent's Operations and Personnel TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LAURENCE A. KNAPP, Trial Examiner: I heard this case in Syracuse, New York, on March 16, 17, 18, and 19, 1971, following pretrial procedures in compliance with the National Labor Relations Act, as amended (herein called the Act.)1 Following the hearing, briefs were filed by counsel for the General Counsel and for Respondent. Upon the entire record in the proceeding, including my observations of the demeanor of the witnesses, I make the following: 1 Following the filing of an original charge on May 4, and of an amended charge on June 17, 1970, the complaint herein issued on December 28, 1970. Respondent answered the complaint on January 6, 1971. All dates used herein refer to the year 1970 unless otherwise indicated. In the manufacture of its plastic products, such as grills for the front of room air-conditioners supplied to the Carrier Corporation, Respondent employed at the times of the Union's recognition demands not more than 62 (nonsupervisory) production and maintenance employees,2 working on three shifts. Respondent's production opera- tions fall into two main divisions: manufacture of plastic products by the operation of molding machines; and the assembly, at least in some instances, of products so produced by the molding machines. Respondent's prod- uction employees fall into two corresponding groups; i.e., operators of the molding machines and those engaged in the assembly operations. Assembly operations are per- 2 This number was stipulated at the hearing and was derived from a list (G. C. Exh. 5) supplied by Respondent to the Board's Regional Office in response to a petition for an election filed by the Union contemporaneous with its recognition demands as further described infra 194 NLRB No. 63 GLOMAC PLASTICS 407 formed only on the first, or day, shift, while the molding machine operations are performed on all three shifts.3 At the time pertinent to this case, Respondent's managerial officials appear to consist of Daniel J. Mackessy, president, and Andrew Sidor, plant superintend- ent. In addition, the evidence makes passing reference to a foreman named Donaldson. Then there are "group leaders" of the assembly and molding machine operators, consisting, so far as this record shows, of Joanne Bombard, group leader of the first-shift assembly workers; Frederick Dashnaw, group leader of the second-shift molding machine operators; and John Marinelli, group leader of the third-shift molding machine operators. At issue in the case is the question whether these group leaders were supervisors within the Act's definition of that term. The Union's_ Organizational and Representational Activity In early April 1970, two representatives of the Union, Sherman and Lamb, undertook a union representation drive among Respondent's employees. Their initial efforts consisted of distributing, to employees entering and leaving the plant, union flyers4 the bottom portions of which, containing spaces for the name, address, etc., of employees, could be torn off and when filled out be returned to the union representatives by interested employees. Group Leader Dashnaw, who favored the Union's representation- al objective, and with whom Union Representatives Sherman and Lamb met at Dashnaw's home during this period,5 circulated an indeterminate number of these flyers (apparently the one in evidence as G.C. Exh. 28) to employees in the plant and after getting the employees to fill out and sign them, returned them to Sherman and Lamb outside the plant. After receiving the names, addresses, etc., of a considerable number of employees in this fashion, Sherman and Lamb then sought to obtain employee signatures to union cards by which the signing employee accepted membership in the Union and designated it his bargaining representative. To accomplish this, they ob- tained some signatures through their own efforts (via calls at employees' homes), but a far greater number of signatures were obtained by sympathetic employees to whom Sherman and Lamb gave blank cards with the request that they obtain employee signatures, among whom was Group Leader Dashnaw. On one occasion, which I find was about mid-April, Dashnaw, who had come in early that morning to assist in starting up the molding machines, obtained the signatures of at least 25 employees working on 3 The day shift is from 7 a.m. to 3.30 p.m.; the afternoon shift from 3.30 to 11 p.m.; and the night shift from 11 p.m. until morning. 4 See G.C Exhs. 26, 28, and 29. 5 While the fact that Sherman and Lamb met with Dashnaw at his home one evening during the organizational period was brought out at the hearing, strangely enough neither counsel for the General Counsel or for Respondent took advantage of this disclosure to examine Dashnaw as to what transpired at this early meeting between ban and the union representatives. 6 Some of the employees whom Marinelli solicited told him they had already signed cards, as some of them had at the behest of Dashnaw. 7 Among the many gaps in the evidence on significant factual points is one with respect to from whom Marinelli obtained the cards and to whom he returned them But Union Representative Lamb admitted to having had a talk with Marinelli at a time which I find would have been during this the day shift to such cards, which that morning he had obtained from and returned to Sherman and Lamb, and on other occasions Dashnaw successfully solicited employees on other shifts. For his part, Marinelli distributed the union designation cards to employees on his third shift, about six of whom signed.6 According to Marinelli, he told the employees he solicited that the Union was outside and wanted to get in; one of the employees he solicited testified, as I find, that Marinelli, in handing him the card, told him that "We're going to try and form a union," or something to the effect that "Here are the cards for the union people to sign Up." 7 While the record does not establish similar solicitation on the Union's behalf on the part of Group Leader Joanne Bombard, the record establishes that she filled out the returned portion of one of the flyers and also signed a union designation card. By these means, Sherman and Lamb possessed some 40- odd signed cards by April 15 8 on which date they sent to Respondent a registered letter asserting the Union's claim of majority representation, offering to submit signed authorization cards supporting their majority claim, and requesting recognition and collective-bargaining negotia- tions. On April 17, Sherman and Lamb called on Daniel J. Mackessy, Respondent's president, at his office in the plant. On this occasion one or the other of the union representatives asserted that they possessed representation cards signed by a majority of the employees, referred to the April 15 letter they had sent to Respondent, offered to permit Mackessy to compare the cards (Mr. Sherman had a bundle of cards in his hand during this meeting) with Respondent's payroll list, and requested recognition. On Mackessy's part, he informed them that the letter had not been received,9 declined to undertake any examination or check of the cards, and told the union representatives that when their letter arrived he would see that they received a reply from Respondent's attorneys.10 Likewise on April 17, Mr. Lamb sent to the Board's Regional Office in Buffalo a letter enclosing 44 of the signed cards and stating that a petition for an election would promptly be filed by the Union. On the evening of Sunday, April 19, pursuant to a notice Sherman and Lamb had distributed, they held a meeting with some 30-35, more or less, of the employees at a local motel. Group Leaders Dashnaw and Marinelli attended this meeting at the invitation of the union representatives and were present throughout.11 At this gathering, Sherman reported concerning his and Lamb's meeting with Mr. Mackessy on April 17 and proposed, and the employees period, and Marinelli, along with Dashnaw, was invited by one or another of the union representatives to attend the meeting of union sympathizers held on the evening of April 19 (see infra) Under all the circumstances disclosed by the record, I am certain and find, contrary to the testimony of union representatives, that they must have become aware of Marinelli's solicitations soon after they took place, if they had not requested them. 8 See G.C Exhs. 17(1), et seq. 9 The letter arrived at Respondent's plant later that afternoon, after this meeting was concluded. 50 Other matters were referred to in the conversation between the union representatives and Mackessy on this occasion but the significant exchanges are those referred to in the text. u According to Sherman, he had some conversation with Dashnaw on this occasion concerning Dashnaw's eligibility to attend the meeting, i.e., concerning whether Dashnaw was a supervisor, and Dashnaw testified in (Continued) 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD present by a show of hands agreed, to assemble outside the plant at 7 a.m. the next morning and to refrain from going to work as, a means of substantiating the Union's majority claim. Some 40-50 employees did so foregather, and while outside the plant signed a document bearing the same wording as the union cards described above.12 Thereafter, with Mr. Lamb in the lead, at least a considerable portion of the employees trooped into the plant to a reception area near President Mackessy's office. When Mr. Mackessy emerged from his office, Mr. Lamb told him the Union was seeking recognition and, in the form of the employees present, was presenting visible proof of its majority claim. At the same time, as I find, the employees in attendance created a noisy commotion by loudly chanting "We want recognition," accompanied by some other outcries and pounding on the walls. Mr. Mackessy told Mr. Lamb that this was no way to proceed-that they should get their respective attorneys together and meet like gentlemen, and gave Lamb the name of Respondent's attorney, Mr. Sullivan (of the firm representing Respondent at the hearing), and reentered his office. He emerged again when Mr. Sherman, who had somewhat belatedly followed the group into the plant, knocked on his door and at this time told the union representatives and employees to leave the premises, which they soon did.13 The union representatives then set up picket lines from among the striking employees, which in greater or lesser degree were maintained for some considerable but not precisely determinable period there- after. Group Leader Dashnaw participated in the picketing with the other picketing strikers during the morning of April 20.14 On this same day, April 20, the Union filed an election petition with the Board's Regional Office in Buffalo15 but after initiating his investigation of this petition and certain related steps, the Regional Director later suspended action this connection that he was told (he did not state by whom) that he could not belong to the union. But it is clear from Dashnaw's and other testimony that he and Marinelli sat through the entire meeting. 12 Apparently, this document was never exhibited, or sought to be exhibited, to Respondent 13 Mr. Mackessy called the local police to aid in evacuating the employees from the plant, but by the time the police arrived the employees had made their exit. 14 After testifying on his direct examination by Respondent's counsel that he picketed for about a half day on April 20, Dashnaw, on cross- examination by counsel for the General Counsel, stated that he was not really picketing but went out to talk to the "girls" whereupon Sherman put a picket sign on his back. But I am satisfied on the record as a whole that Dashnaw so conducted himself on the picket line as to be supporting the strikers and did not make known to the other striking pickets any contrary version of his participation. 15 Two such petitions were actually filed, one by Sherman and Lamb, and the second by another union official from a nearby union office. The latter was the one accepted by the Regional Office in the representation proceeding. 16 In the election proceeding on April 20 the Regional Director mailed to Respondent a copy of the petition and a "NOTICE OF ANTICIPATED HEARING" (see G C. Exh. 3), stating that unless the parties agreed to waive a hearing and agree to a consent election he would hold a formal hearing on the petition on May 5. Arrangements were made, apparently under the aegis of the Regional Director, for a conference among the parties respecting the possibility of a consent election, this conference to be held at the office of Respondent's attorney, Mr Sullivan, on April 23; and on April 23, Respondent, by its attorneys, entered its appearance in the election proceeding and submitted to the Board's Regional Office an employee and job classification list This conference in the election proceeding as a result of the Union filing its first charge in this matter on May 4.16 Likewise on April 20, Respondent's attorneys sent Mr. Sherman a reply to the union representatives' letter of April 15, stating that Respondent did not intend to recognize the Union as the employees' representative unless it was so certified by the Board, expressing the view that a vote by secret ballot was the appropriate way to ascertain the employees' true wishes, and acknowledging a notice Mr. Sherman had given to Respondent's attorneys that the Union was filing an election petition (as it did on that date, see above). On April 24, Respondent sent, apparently to all its employees, a letter remonstrating against the strike and further stating, inter alia: "Our plant will remain open for business, and if you do not choose to come back to work, new employees will be hired to take your place." 17 Apparently, thereafter (or after April 20), some of the initial strikers returned to work, and during some uncertain period, beginning about a week after the strike began, Respondent hired some new employees. On April 24, and again on May 6, the Union sent to Respondent letters repeating the Union's claims to majority representation and, in the case of the latter letter, a request for a conference to discuss the recognition matter.18 Respondent did not reply to these letters.19 On June 1, Union Representative Sherman sent to Respondent President Mackessy a telegram expressing on behalf of the strikers and the Union an unconditional offer of the strikers to return to work, and on June 4 Sherman repeated this offer by letter and requested a reply from Respondent. In the interim, Respondent sent to Sherman a letter, dated June 3, in which, responding to Sherman's June 1 telegram, Respondent advised that it had no job openings at that time.20 was not held, apparently because the Union declined to agree to a condition proposed by Respondent's attorney, Mr. Sullivan; i.e., Respondent would agree to a consent election if the Union terminated the strike and picketing. In connection with the picketing, on April 23, Respondent filed suit in the New York Supreme Court seeking an injunction to restrain alleged massive and other violent and threatening picketing and strike activity on the part of union agents, as a result of which the court later issued an order laying down certain rules to govern the conduct of the picketing, from which order the union representatives appealed. See Resp. Exhs. 1-3. 17 This letter further states that if the Union had been willing to call off the strike, Respondent would have agreed to a consent election, but that in view of the Union's position it would be necessary to have the May 5 hearing in the representation proceeding previously scheduled (see In. 16, supra) by the Regional Director. 18 G.C. Exhs 6 and 7. 19 Because of doubts concerning the validity of the first set of union cards, i.e., because of the solicitation of many of them by Group Leaders Dashnaw and Marinelli and the possibility that these men were supervisors, the union representatives solicited employee signatures to a second set of cards beginning about April 23. Some 50 such cards purportedly signed by employees during the period April 23-28 are in evidence along with others undated and others bearing dates extending from May 1970 to February 1971 See G.C. Exhs. 19(1), et seq However, the employees purportedly signing these cards' during the April 23-28 period are in large part the same employees who signed the first set of cards. These cards, as well as those first signed (G.C. Exhs. 17(1), et seq), were admitted subject to any defects Respondent might demonstrate. 20 Beginning about October 1, Respondent called back some of the workers then remaining on strike GLOMAC PLASTICS 409 A. The Alleged Refusal to Bargain 1. The appropriate unit While Respondent's answer denies that the unit of production and maintenance employees described in the complaint is an appropriate one, it made no such claim in responding to the Union's recognition demands referring to such a unit. In any event, on the evidence and on the basis of applicable Board decisions, I find that, as alleged in the complaint, all production and maintenance employees, including truckdrivers, employed by Respondent at the Syracuse plant, excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. The question of the Union's majority The General Counsel contends that when the Union made its recognition demands on April 17 and 20 it possessed valid designation cards signed by a majority of the then employees, that is, 44 out of 62. However, this contention cannot be sustained for two reasons. First, on all the evidence of record it cannot be found that the General Counsel adequately established the authenticity of the signatures on the majority of the cards in question.21 Second, the 25-30 cards which I have found were solicited by Group Leaders Dashnaw and Marinelli are invalid because, as' the General Counsel contends, they were supervisors within the meaning of Section 2(11) of the Act, as I find upon the evidence I will now review. Some nine employees, including "group leaders" Bom- bard, Dashnaw, and Marinelli, testified concerning the activities, functions, duties, responsibilities, and authorities of Dashnaw and Marinelli, and there is no direct conflict on any significant matter in this body of testimony. Among the many facts which it shows in relation to the question of the supervisory status of Dashnaw and Marinelli are the following: although perhaps officially denominated "group leaders, company documents they had-occasion to sign 21 refer to them as a "foreman," and they were commonly so referred to by the production employees; they attended meetings with Respondent's managerial officials, Mr. Mackessy and Mr. Sidor, to discuss production matters and ways and means of coping with production problems; they assigned the employees on their shifts to the machines they should operate (depending upon the product to be molded), 21 Union Representative Sherman identified only seven of the cards as ones the signatures on which he secured (one of which certainly and another of which possibly was signed after April 20). As to the balance he testified that they somehow came into his possession or that of Mr. Lamb. Of the remaining cards, 13 show on their face that the signatures on them were solicited, not by Sherman or Lamb, but by an employee named Mary Preston, who, according to inscriptions on these cards, turned them in to Lamb. Mary Preston was not called to attest to the signatures on these cards. Some 20-odd others of the cards bear the initials of Mr. Lamb, "D.L.," and most of these carry on the back an inscription to the effect that the card was received from the signing employee in front of the plant, and in this connection Lamb testified that cards so marked were received by him from the purported signer. But evidence I have credited establishes that Group Leaders Dashnaw and Marinelli solicited the signing employees in about 25-30 instances and, in the case of Dashnaw, he himself turned in the corresponding cards to Sherman or Lamb. (For example, while the card and reassigned employees to other machines, or to nonmachme work, when necessary due to production changes or delays; they granted employees leave or time off at least for short periods; they were the sole persons in authority at the plant over their respective shifts of workers during, in the case of Marinelli, the whole period (11 p.m. -7 a.m.) of his shift, in the case of Dashnaw, during that portion of his shift after Plant Superintendent Sidor had left the plant for the day (usually about 5 p.m.); they had and exercised the authority at least to recommend that disciplinary action be taken against employees for attend- ance or work performance derelictions through the issuance of "warning" slips; 22 after the strike, both Dashnaw and Marinelli appealed to or requested striking employees to return to work under circumstances indicating that they were doing so on behalf of Respondent; and both exercised the authority to prevent employees from using chairs in the performance of their work. In the circumstances, Dashnaw and Marinelli had and exercised authority requiring the use of independent judgment to take or recommend action of various types detailed in Section 2(11) of the Act and hence were supervisors within the meaning of that provision. Between them, Supervisors Dashnaw and Marinelli made such a vital and extensive contribution to the success of the Union's promotional and card signing activity, and in a fashion which must have been widely known among the, ordinary employees who signed up with or otherwise supported the Union, that their manifested attitude and activity vitiated all the bases upon which the Union's claim to majority representation rest. Thus, in the earliest stages of the Union's drive, Dashnaw circulated to employees in the plant copies of the Union's campaign flyers and obtained for the union representatives "tear" slips bearing the names and addresses of employee he solicited for this purpose; thereafter, in a way similarly manifesting their support of the union cause, Dashnaw and Marinelli solicited employee signatures to what must have been more than a majority of the employees signing the first batch of cards, thereby making their prounion feelings and wishes known to other employees as well (other employees testified that they were aware of Dashnaw's activities in this regard); they were invited by the union representatives to attend and did attend the union prestrike meeting of April 19 where, as this record stands, their prounion position must have been manifest to the ordinary employees in attendance; and Dashnaw not only joined the strikers and carried a picket sign during the morning of the first day of the strike but also, after doing so, sojourned with other strikers to the of Mary Gullen-G C. Exh. 17(l%-bears Lamb's initials and his inscription on the back that he received it from the "employee," the truth is that Dashnaw gave this card to Miss Gullen and took it from her after she signed it.) In the circumstances, the signatures on these 22 cards cannot be deemed authenticated by the General Counsel's evidence; i.e., the testimony of Sherman and Lamb. 21 See G.C. Exhs. 20, 21, and 25. 22 Any employee who received three warning slips (see G.C. Exh. 20) was subject to automatic discharge. Marinelli testified that his usual practice was to consult Superintendent Sidor before such a slip was given to the employees, but admitted that he sometimes issued them in Sidor's absence Dashnaw could not recall ever having issued such a slip but there is employee testimony that he did on one occasion. In any case, Dashnaw admitted that he did report employee malfeasance to Sidor as a result of which warning slips were issued and which, in some cases, he delivered to the offending employee 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Franklin Grill where the union representatives held a meeting of some kind with the nonpicketing strikers. Such open and widespread activity of supervisors, and particu- larly of supervisors as intimately and familiarly associated with the production workers as they were, cannot but have a telling and pervasive influence upon the rank-and-file workers, that is, for purposes of the Act, a "coercive" influence and effect upon them. In the circumstances, the first set of cards, the strike activity of the employees on April 20, and those of the second batch of cards as can have any relevance to this case (those signed in the days following the strike, which in most instances were signed by those signing the first batch and who also went on strike) must all be held, as I find and conclude, to have been infected by the coercive prounion activity and conduct of Supervisors Dashnaw and Marinelli.23 In consequence, none of these bases can be accepted as satisfactory proof that the Union represented an uncoerced majority of the unit employees at the times of its recognition demands. 3. Concluding Findings Respecting the Alleged Violation of Section 8(a)(5) Regardless of all else, Respondent did not refuse to recognize or bargain with the Union in violation of Section 8(a)(5) of the Act because at the times of the Union's demands the Union did not represent an uncoerced majority of the unit employees. There is thus no occasion to deal with the General Counsel's contention that, by reason of the employee support of the strike, Respondent had "knowledge" on April 20 that the Union represented a majority of the employees. But even if the Union could be said to have represented an uncoerced majority on this date, it would seem from the record I have that a considerable number of the employees who went on strike on April 20 abandoned the strike and returned to work not long thereafter, so that in this regard, as in others, this case illustrates the pitfalls surrounding the "knowledge" notion, a notion recently discontenanced by the Board in Linden Lumber Division, Summer & Co., 190 `NLRB No. 116. Moreover, I see no justification for saddling an employer with presumed "knowledge" that a union represents a majority of his employees because they refrain from work for a short period, since there are many reasons why employees may join a strike movement for a few days, just as they may sign representation cards, and still cast a negative vote in the inviolable secrecy of the ballot box. Hence, I would reject the "knowledge" theory in this case even if positive proof that the strike participation was coerced were absent. Assuming again that proof were lacking that the Union's 23 This supervisory infection was all the greater because "group leader" Bombard signed a union card and participated in the strike. Upon the evidence previously reviewed, which is as applicable in most respects to Bombard as it is to Dashnaw and Marmelh, I find that Bombard was likewise a supervisor within the meaning of the Act. 24 Bearing in mind that the Union filed an election petition and notified Respondent's attorneys thereof, on April 20, and assuming as I must that a competent investigation of the Union's charges disclosed the roles played by Dashnaw and Marinelli (and Bombard) in the Union's representational campaign, this case also illustrates the unwisdom of seeking a bargaining order based on some untrustworthy "knowledge" theory (and particularly when the Union to benefit by the bargaining order has itself solicited or majority was coerced, the contention that Respondent refused the Union's demands in violation of Section 8(a)(5) must be rejected because at no time did Respondent engage in an outright refusal of the Union's demands, On April 17 and 20, Mr. Mackessy did not reject the recognition demands; rather, on both occasions he in effect postponed any definite response by stating that they were matters for his attorneys and others to deal with. Essentially the same position was taken by Respondent's attorneys when they notified the union representatives that Respondent would not recognize the Union except as a result of the election which the Union was itself then seeking. Respondent was entitled to take this position without thereby finding itself in the position of having made an refusal to bargain in violation of Section 8(a)(5), whether on some "knowledge" or similar legalistic theory.24 For all the foregoing reasons , the complaint's allegations that Respondent reacted to the Union's demands in such a way as to violate Section 8(a)(5) of the Act must be dismissed and my recommended Order will so provide. B. The Alleged Violations of Section 8(a)(3) The complaint alleges that because of their union or strike activities, Respondent refused to reinstate striking employees following the Union's June requests for such reinstatement, but at the hearing counsel for the General Counsel stated that he predicated this charge of discrimina- tory. nonreinstatement solely on the ground that the strike was an unfair labor practice strike, meaning that the strike was in protest of Respondent's alleged refusal to bargain so that after the requests for reinstatement were made Respondent was obliged to reinstate the strikers, discharg- ing any replacements hired after the strike began. In his brief, counsel for the General Counsel advances no argument in support of this contention. In any caF ., it is sufficient to say, as I necessarily find on the facts previously found, that the strike was not the result or in protest of any violation on Respondent's part of Section 8(a)(5) of the Act, or any other unfair labor practice.25 C. The Alleged Violations of Section 8(a)(1) of the Act The complaint charges that following the strike Respon- dent provided its employees with benefits not existing prior to the strike to induce them to refrain from becoming union members or from supporting the Union; i.e., free lunches, use of chairs or stools to sit at their work places, and provision of cooling fans. As to the lunches, the credible evidence establishes that only for a period of some weeks following the initiation of the strike on April 20, and accepted the assistance of employees whom the General Counsel likewise charges are supervisors), when the truth of the Union's majority claim could soon have been clearly and definitively resolved by the secret election sought by the Union, without all the delay, frustration, and expense this proceeding has entailed. (In connection with his "knowledge" argument, counsel for the General Counsel points to the fact that Respondent did not file an election petition, but since the Union had there obviously was no occasion for Respondent to do so.) 25 Moreover, there is no evidence that Respondent failed to reinstate any strikers because of their union activity or because of their participation in the strike, even if that were the issue presented. GLOMAC PLASTICS 411 because of certain violent and intimidating activity taking place during the picketing, Respondent made free lunches available to interested employees so that, if they wished, they did not need to leave the plant during the lunch hour. This true state of facts, not referred to in the brief for the General Counsel, cannot be erected into a violation of Section 8(a)(1); hence this portion of the complaint must be dismissed. As to the matter of the chairs and fans, counsel for the General Counsel refers only to the testimony of his sole witness in this regard, Group Leader Bombard. But the evidence adduced by Respondent, which is considerable and persuasive, establishes to my satisfaction that there were no changes in these respects after the strike. Since these allegations of the complaint are not sustained by the evidence, they must be dismissed. The complaint further alleges that on an occasion at the Franklin Grill 26 about April 24, Supervisor Dashnaw threatened employees with loss of jobs because of union membership or prounion activities. The evidence fails to sustain this charge. On the basis of all the evidence, I find that what happened was that, in the course of some conversations which Dashnaw had with a number of the strikers, extending over a period of hours, and in the course of which some of the strikers were importuning Dashnaw to join them in the strike, Dashnaw stated that he had gone out on strike once (on April 20) but that he had a family to feed and Sherman and Lamb were not going to feed them. He further stated that he hated to see the girls out in the ram, that they were doing no good staying out, and only they were being hurt. Mrs. Massimiami, a striker, picking up the thread of who was being hurt, told Dashnaw that while the girls were on strike the Company was "hurting"; i.e., would be unable to get out production (referring apparently to the grills produced by the machines and later processed for delivery on the assembly line). In refutation of this argument, Dashnaw pointed out that Respondent could replace the strikers and also, if it were prevented by the strike from performing the assembly work, it could send the grills processed on the assembly line to the Carver Corporation, the customer, for assembly by it. I further find that during this conversation or otherwise on this occasion, Dashnaw did not tell any striker that Respondent would discharge strikers for remaining on strike, or that they would never get their jobs back. The statements Dashnaw did make on this occasion obviously represented permissi- ble opinions he expressed in response to opinions expressed by strikers, and, in regard to replacement of strikers and performance of assembly line work, represented merely courses Respondent could lawfully pursue in response to difficulties posed by the strike. Accordingly, this portion of the complaint must be dismissed.27 The complaint further charges that during the strike Marinelli threatened employees with discharge if they joined or supported the Union. In connection with this 26 The record establishes that before and during the strike the relatively nearby Franklin Grill was a place which employees of Respondent customarily frequented, and which was used as an assembly point by strikers during the strike 27 The complaint further charges that Dashnaw engaged in unlawful interrogation on this occasion, but counsel for the General Counsel points to no such specific evidence in his brief If counsel has in mind the allegation, Miss Gullen, a striker, testified concerning an occasion in the first or second week of the strike when she was talking to Marinelli outside the plant. At his invitation, they moved into the plant where, she testified, Marinelli told her that if "we," meaning the strikers, did not return to work "we" would never get "our" jobs back and that the Union would never "get in"; and Mrs. Bliss, a striker, testified that, in a conversation she had with Marinelli at the front door of the plant during the strike, Marinelli asked her when she was coming back to work, she replied when the strike was settled, and he said that if this was what she was waiting for she might as well forget it because the Union would not "get in." Mrs. Bliss admitted that there was more to this conversation but she could not recall the rest of it. Marinelli was not interrogated with specific reference to Gullen's testimony. As to Bliss, he testified that he had several conversations with her during the strike concerning the Umon (meaning also, I infer, the strike) and that she asked for his opinion and he told her he did not know if the Union would get in or not. He denied telling her that she would not get her job back, or that he made such a statement to any striker. My conclusion is that Marinelli's denials that he told Bliss or any other striker that they would never get their jobs back should be credited. Marinelli, who obviously was on friendly terms with the production employees, and who obviously was in sympathy with the union organizational movement prior to the strike, had a good many conversa- tions with strikers after the strike began, and particularly at the Franklin Grill. Moreover, at the times of the conversations with Gullen and Bliss, the employees had received Respondent's letter of April 24 inviting them to return to work but informing them replacements would be hired if they chose to remain on strike, and in his testimony concerning the conversation with Mrs. Bliss, Marinelli made reference to this letter although not certain that it was specifically mentioned in the conversation. In the circum- stances, I am inclined to believe that the conversations Marinelli had with Gullen and Bliss (neither of whom related the totality of the exchanges between them and Marinelli on these occasions) involved exchanges with respect to the advisability of remaining on strike and the possibility of replacement, that Marinelli expressed some opinions on these subjects, and that the testimony of Gullen and Bliss, while perhaps representing their subjective feelings as to the import of something Marinelli said, cannot be taken as accurate repetitions of his precise words. Under all the circumstances, if Marinelli said anything to the effect that the strikers' jobs were in jeopardy, I believe what he referred to was the replacement possibility. Accordingly, I find the evidence insufficient to sustain the count of the complaint that Marinelli threatened employees with discharge because of their union membership or testimony of Mrs. Massimiame that, during her conversation with Dashnaw, he several times asked her what the Umon had done for her, such a rhetorical question was a perfectly legitimate one in view of the argumentative character of the debate which took place on this occasion concerning the advisability of the strikers remaining on strike. Hence, this allegation must be dismissed. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sympathies, and will recommend that these allegations of the complaint be dismissed. In relation to a further allegation of the complaint that Marinelli offered employees wage increases in order to induce them not to join or support the Union, the General Counsel adduced the testimony of one Mrs. Geddes. Mrs. Geddes, hired in March, was laid off about April 2 but told to call back. After one call to Sidor on April 15, she called and talked on April20 with Mr. Mackessy who asked her to come in immediately. She did so, but when she reached the plant encountered the striking employees and joined the ranks of the strikers. Two days later she received a call from someone, she believed Marinelli, who told her that if she came to work she would be paid $1.95 per hour. She rejected this offer, telling Marinelli she would stay with "the girls." Her previous rate was $1.65, plus 10 cents bonus for work on her then third shift. There is no evidence that Respondent was then following any pattern of offering or paying returning strikers increased pay if they would abandon the Union or the strike, nor is there any proof that $1.95 was not the rate in effect for the type of job Respondent had in mind for Mrs. Geddes. In the circumstances, I am unable to treat this evidence as sustaining the complaint's allegation that Respondent, through Marinelli, offered employees higher wages to wean them away from the Union or the strike, and my recommended Order will provide for dismissal of this allegation. Finally, the complaint alleges that Respondent discrimi- nated against the, or certain of the, strikers by denying them vacation pay. The only evidence of Respondent's vacation policy is that of President Mackessy, who testified that employees employed prior to May 30 of any year were, if they continued to be employed or worked for 12 months thereafter, were entitled to 1 week's paid vacation when Respondent shut down for vacation purposes, which in 1970 occurred for about a week in August. About,June 24, Mrs. LaRock, a striker, whose term of service had begun prior to May 30, 1969, had a conversation with President Mackessy, with other strikers present, in which she inquired about "vacation pay" and Mackessy replied that the strikers were no longer employed there and he did not see that they deserved vacation pay. Counsel for the General Counsel cites N.LR.B. v. Great Dane Trailers, Inc., 388 U.S. 26, as supporting his contention that Mackessy's anticipatory denial of a week's vacation, or the equivalent in pay, constituted unlawful discrimination against the strikers by reason of their having gone on strike. But in Great Dane Trailers the decisive fact was that the rights of the strikers to vacation pay had accrued before they went on strike, so that denying such employees their accrued rights (unless they abandoned the strike by a certain date) necessarily constituted discrimina- tion as between them and the employees who had not struck or who had returned to work, and violated the statute as destructive of the rights of employees to strike regardless of the absence or proof, of a specific antiunion motivation. In this case, however, the rights of the strikers had not accrued at the time, April 20, when they went on strike, since Mackessy's definition of eligible employees appears to include only employees who had been at work for a full 12 months succeeding May 30, 1969. Whereas there was a contractual provision in the Great Dane case defining the rights of employees in this connection (under which the vacation rights had accrued at the time of the strike), in this case we have only Mackessy's testimony, and, as I have found, according to him employees had to be at work for 12 consecutive months from the May 30 starting date to be eligible. In short, striking employees were no more entitled to the vacation benefits if the 12 months' period included a period of being on strike, any more than the employees were entitled to their regular work pay while on strike. In the circumstances, Great Dane Trailers is not in point and this count of the complaint should be dismissed. The General Counsel's Request for a Bargaining Order On the assumption that his claims of violation of Section 8(a)(3) and (1) were made out by the proof, counsel for the General Counsel requests issuance of a bargaining order on the principles enunciated by the Supreme Court in the Gissel case, 395 U.S. 575 . But since these violations have not been established, there is no basis for issuance of a bargaining order. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in activities affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent has not engaged in any of the unfair labor practices alleged in the complaint. Upon the foregoing findings and conclusions and the entire record in the case, I hereby issue, pursuant to Section 10(c) of the Act, the following recommended: ORDER The complaint herein is hereby dismissed in its entirety.