Pepper & Tanner, Inc.

PEPPER & TANNER, INC. 109 Pepper & Tanner, Inc. and Radio and Television Engineers, Local Union 1275, International Broth- erhood of Electrical Workers, AFL-CIO. Cases 26-CA-3822 and 26-CA-4037 May 25, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On December 20, 1971, Trial Examiner Ramey Donovan issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief and a brief answering Respondent's exceptions. 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 1 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, with the following modifications. We agree with the General Counsel that Respon- dent violated Section 8(a)(1) of the Act when its engineering supervisor and its general counsel solicited the employees to sign the letter of October 5, 1970. It is clear from the record that the solicitation of these employees was engaged in by Engineering Supervisor Gaines and James E. Irwin, general counsel for, and secretary of, the Respon- dent. Their purpose obviously was to secure a document from the employees to be used against the Charging Party herein, the employees' bargaining representative. Thus, rather than just confronting the Union with a disclaimer (as the Respondent had already done) of the Union's claim that Respondent attempted to "bribe" the employees to defect from the Union, Respondent, through high level manage- ment, sought to enmesh its employees personally in its dispute with their representative. It is clear that intimidation did occur in the circumstances of this case, particularly when the incident is reviewed in context with other related unfair labor practices occurring at the time. The Board has heretofore held that solicitation of information from employees may violate Section 8(a)(1) of the Act under certain circumstances.2 Here the record shows that Respondent ignored the Union's request of August 7, 1970, for negotiations on a new contract and thereafter entered into direct negotiations with the employees regarding conditions of employment, and, prior to October 5 but after September 11, 1970, Respondent did in fact make offers of wage increases directly to the employees, to the exclusion of the Union. Respondent was obvious- ly hostile to the Union and this hostility was clearly conveyed to the employees. Gaines, in mid-Septem- ber, had made it very clear to Union Steward Brumley that Tanner, Respondent's president, had definite feelings about the Union and did not think the men were in the right kind of union. In addition, the information included in the letter was already known to Respondent and it was not sought in answer to any unfair labor practice charge previously filed. Although the actual interview was conducted by Gaines, it was made clear to the employees that it was Irwin who had prepared the original letter and the revision ultimately signed by the employees. The letter was addressed to Mr. Tanner, Respondent's president and majority stockholder. In addition, the initial request to sign the letter was made to the employees in a group after they had been called away from their work stations and into Gaines' office. And, after they had declined to sign the first draft, the employees were then again called into the office to be presented with Irwin's revised draft. Further, an analysis of the letter itself shows some rather glaring half-truths. First, accepting arguendo the contention that no "bribes" in the form of wage increases were made prior to September 11, 1970, there is no mention in the letter that actual offers of wage increases had in fact been made directly to the employees prior to the date of the letter. In addition, the first draft of the letter contained the following sentence: "No one at Pepper & Tanner, Inc., has ever offered us any bribe or monetary reward to withdraw from the Union." The employees refused to sign the letter with this clause in it. The revision contained the following: "None of our discussions have involved any monetary rewards or bribes made on the basis of whether we did or did not belong to a union." Both sentences carry the message that at no time were any wage offers made which were conditioned on the employees' status with the Union, but neither sentence meets the question as to whether there were individual wage offers or other induce- ments made directly to the employees in derogation of the Union's bargaining status. If there had been such unilateral offers they would of course properly support the inference that the Respondent's motive in making such offer was to cause a defection by the employees from the Union. I In the absence of any opposition thereto, General Counsel's motion to correct the record is hereby granted We also agree with the General Counsel that those portions of the Respondent's exceptions relating to the Union's motion to amend its certification are not relevant to the issues herein 2 Cannon Electric Company, 151 NLRB 1465 197 NLRB No. 23 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In these circumstances, we find that the request to the employees that they sign the letter of October 5, 1970, interfered with the employees' Section 7 rights in violation of Section 8(a)(1) of the Act.3 We are also of the opinion that paragraph 1 of the Trial Examiner's recommended Order does not fully respond to the Respondent's unfair labor practices herein. Respondent's interrogation of its employees would constitute a violation of Section 8(a)(1) of the Act independent of the fact that various aspects of the interrogations occurred in the context of illegal dealings with the employees by Respondent in derogation of the rights of the Charging Party, the collective-bargaining agent of Respondent's employ- ees. In addition, as the nature of Respondent's unfair labor practices goes to the very heart of the Act, we shall include in our Order a broad cease-and-desist order. Accordingly, we shall substitute our own Order and Notice for that recommended by the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as, amended, the National Labor Relations Board hereby orders that the Respondent, Pepper & Tanner, Inc., Memphis, Tennessee, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees regarding their union sympathies and feelings. (b) Interrogating its employees regarding condi- tions of employment, to the exclusion of and in derogation of the rights of Radio and Television Engineers, Local Union 1275, International Brother- hood of Electrical Workers, AFL-CIO, the collec- tive-bargaining agent of the employees involved herein. (c) Soliciting its employees to sign statements or letters with regard to conduct of the Union in a context of illegal dealings with the employees in derogation of the Union's rights as collective-bar- gaining agent of its employees. (d) Soliciting proposals and arrangements from employees for the purpose of direct dealings or negotiations between the employees and the employ- er regarding conditions of employment, to the exclusion of the Union, the collective-bargaining agent. (e) Offering inducements or indicating detriments to benefits presently enjoyed by employees for the purpose of inducing and establishing direct dealings or arrangements with employees to the exclusion of the Union, the collective-bargaining agent. (f) Failing and refusing to bargain with the Union as the exclusive collective-bargaining agent of the employees in the following appropriate unit: All recording engineers, technicians, mixers, tape editors and duplicators at its Memphis, Tennessee, location, excluding all other employ- ees of the Respondent, watchmen, guards, and supervisors as defined in the Act. (g) Failing and refusing to meet with and bargain with the Union with reasonable frequency and through a representative vested with authority to make reasonably definitive decisions and responses regarding the subject matters of collective bargain- ing. (h) Discouraging union or concerted activity protected by Section 7 of the Act by discriminating against employees regarding their employment be- cause of the exercise by employees of rights guaran- teed by the Act. (i) Refusing to furnish the Union, upon request, with information concerning Respondent's claimed projected costs relating to wage increases proposed by the Union. (j) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights to self-organization, to form labor organiza- tions, to join or assist Radio and Television Engi- neers, Local Union 1275, International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, or to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action to effec- tuate the policies of the Act: (a) Upon request, bargain collectively with the above-named Union as the exclusive bargaining agent of the employees in the appropriate unit and, if agreement is reached , embody the said agreement in a signed written contract. (b) Upon request, bargain collectively with the Union with reasonable frequency and through a representative vested with authority to make reason- ably definitive decisions and responses regarding the subject matters of collective bargaining. (c) Make whole James L. Cotton and Stan Dacus for any loss of pay they may have suffered by reason of their discharge for the period from June 14 to June 28, 1971, less any intermediate earnings they may have had, and with interest at 6 percent. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, 3 Cannon Electric Company, supra PEPPER & TANNER, INC timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its Memphis, Tennessee, operation and place of business copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 26, in writing, within. 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 4 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL, upon request, bargain collectively with Radio and Television Engineers, Local Union 1275, International Brotherhood of Elec- trical Workers, AFL-CIO, and if an agreement is reached we will embody it in a signed written contract. The appropriate unit is: All recording engineers, technicians, mixers, tape editors and duplicators at its Memphis, Tennessee, location, excluding all other employees, watchmen, guards and supervi- sors as defined in the Act. WE WILL NOT interrogate our employees re- garding their union sympathies and feelings. WE WILL NOT offer inducements or indicate detriments to benefits presently enjoyed by our employees for the purpose of inducing or estab- lishing direct dealings or arrangements with our employees to the exclusion of the Union, the collective-bargaining agent. WE WILL meet with and bargain with the said Union with reasonable frequency and through a representative vested with authority to make reasonably definitive decisions regarding the subject matters of collective bargaining. WE WILL NOT solicit employees to sign state- 111 ments or letters with regard to conduct of the Union in a context of illegal dealings with the employees in derogation of the Union's rights as collective-bargaining agent of our employees. WE WILL NOT question or solicit employees to induce or bring about direct dealings between employees and the Company to the exclusion of the Union, the certified bargaining agent. WE WILL NOT discourage union or concerted activity protected by law by discriminating against any employees because they have exer- cised their rights as guaranteed' by' law. WE WILL NOT refuse to furnish the Union, upon request, with information concerning our claimed projected cost factors relating to wage increases proposed by the Union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Radio and Television Engineers, Local Union 1275, Interna- tional Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent authorized in Section 8(a)(3) of the Act. WE WILL pay to James L. Cotton and Stan Dacus any wages they lost when they were illegally discharged from June 14 to June 28, 1971, less any intermediate earnings they may have had during the aforesaid period, and with interest at 6 percent. Dated By PEPPER & TANNER, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Clifford Davis Federal Building, Room 746, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901-534-3161. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE RAMEY DONOVAN, Trial Examiner: The charge in Case 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 26-CA-3822 was filed by the above-mentioned Union on October 7, 1970. The charge in Case 26-CA-4037 was filed by the Union on June 14, 1971, and an amended charge was filed on July 12, 1971. A complaint was issued in Case 26-CA-3822 on December 23, 1970. Respondent filed a reply or answer. On February 1, 1971, a settlement agreement in Case 26-CA-3822 was approved by the Board's Regional Director. On July 22, 1971, the Regional Director, on behalf of the General Counsel of the Board, issued an order consolidating cases and a consolidated complaint against Respondent, alleging therein, inter aha, that Respondent had violated the terms of the settlement agreement and stating that the said settlement agreement was vacated and set aside. The consolidated complaint alleged a refusal to bargain in'violation of Section 8(a)(1) and (5) of the Act; the discriminatory discharge of three named employees in violation of Section 8(a)(1) and (3) of the Act; and various acts of interference, restraint, and coercion in violation of Section 8(a)(1) of the Act. Respondent filed its reply or answer denying the violations of the Act. The case was tried in Memphis, Tennessee, on September 28-30 and October 1, 1971. FINDINGS OF FACT AND CONCLUSIONS 1. JURISDICTION Pepper & Tanner, Inc., at all times material, is a corporation with an office and place of business in Memphis, Tennessee, where it is engaged in the business of producing sound recordings and selling and bartering radio and television time, together with other matters related to these businesses.' Irwin, general counsel, vice president, and corporation secretary of Respondent, testified that the corporation is the major supplier of commercial music for radio in the United States and throughout the world and that Respondent makes com- mercial jingles and commercial concepts which is the music for advertising commercials, serving radio and television media. The corporation has approximately 12 different divisions in various aspects of the business. In a representative 12-month period, Respondent, in the course of its business operations, had sales in excess of $500,000 and, during the same period, Respondent provided in excess of $50,000 worth of products and services directly to points outside the State of Tennessee. Respondent purchased and received goods and materials valued in excess of $5,000 directly from points outside the State of Tennessee. Respondent is, at all times material, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is, at all times material, a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES Pursuant to a Board election, the Union was certified on 1 Until about 1968, the Company was known as Pepper Sound Studios, Inc As Respondent states in its brief, "It is stipulated that Pepper & Tanner, Inc, and Pepper Sound Studios, Inc, are identical and that Pepper & Tanner, Inc , bears the same legal responsibilities, if any may exist, as under its former name " April 24, 1967, as the collective-bargaining representative of a unit of Respondent's employees consisting of all recording engineers, technicians, mixers, tape editors, and duplicators at its Memphis, Tennessee, location.. Excluded from the unit were all other employees of the Employer, watchmen, guards, and supervisors as defined in the Act. The Union and the Respondent entered into a contract covering the above unit. The term of the contract was from October 9, 1967, through October 8, 1970, and from year to year thereafter unless either party, on 60 days' notice, notified the other party of its desire to change or terminate the contract. By letter of August 7, 1970, Nelson, business manager of the Union,2 wrote to Respondent. Citing the appropriate clause of the contract, the letter stated that the Umon desired "to meet with you in collective bargaining" to negotiate changes in the contract. The letter affirmed that the Umon continued to represent the unit employees of Respondent and requested that the first negotiating meeting be at 1:00 p.m. on September 1, 1970. The letter requested that, if the time and date were not convenient, "please let us know and suggest other dates." On August 8, 1971, Tanner, president of Respondent, wrote to the Union, stating that, in accordance with the provisions of the contract, it desired to terminate the existing contract. Neither in this letter nor in any other way did Respondent reply to the Union's request for contract negotiations. Previous to the above union letter to Respondent on August 7, 1970, requesting meetings to negotiate changes in the about-to-expire contract, the unit employees of Respondent had been discussing various improvements and changes that they desired in the new contract. The six employees in the unit, all members of the Union, met together on various occasions after work at the apartment of Cotton, who was one of their number.3 Since the men were aware of the impending expiration of the contract in October, Brumley, union shop steward at the time, testified that they decided to draw up a rough draft of a contract containing provisions that they wanted "that could be bargaining points. . . . We thought that we would . . . get it out of the way ahead of time." Inasmuch as these sessions began in the summer of 1970, before August, it is apparent that the men intended to have their contract demands in shape in anticipation of negotiations for a new contract. Nelson, business manager of the local union, was aware that the men were holding these sessions. In fact, Cotton testified that the meetings that were held at his home were held at Nelson's suggestion and that Nelson had indicated that the men should get together and draw up proposals that they would like to secure. Neither Nelson nor any other union official participated in these sessions at Cotton's home. The union members aforementioned, in their sessions during the summer of 1970, used the existing contract as their model. In their draft, they did not change the recognition clause and it remained as a proposed contract 2 The membership of the Union, Local 1275, IBEW, is not confined to the employees of Respondent, but embraces employees of other employers in the area, such as sound shops and related businesses. 3 The six were. Brumley, Cotton, Crawford, McHugh, Dacus, and Wulff PEPPER & TANNER, INC. 113 between the Company and Local Union 1275 of the International Brotherhood of Electrical Workers. Other provisions of the existing contract were also left un- changed, e.g., the grievance and arbitration clause. Howev- er, many provisions in the draft embodied substantial monetary improvements for the employees. Various fringe benefits, such as amounts of holidays, vacations, and sick leave, were increased and proposed wages were substan- tially higher, e.g., engineers were to receive a $100 a week increase across the board. In his testimony, Brumley acknowledged that the men realized that some of their proposals, such as wage increases, were "unreal, "but they decided that starting high would be a good tactic. In any event, when the men had decided on the provisions they desired in the contract, Brumley and his wife typed the contract draft. Brumley states that the duration clause was included, but the dates were left blank, although the men desired a 1-year contract or possibly a 2-year contract. The indication is that this work of typing the contract draft was completed by August 1970, or sometime early that month. Since at all times the union members' proposed contract draft retained the recognition clause of the existing contract and reflected the fact that the contract would be between the Union and the Company, this evidently represented the desires and contemplation of the mem- bers.4 Brumley, an employee of the Respondent for 6 years and recording engineer at the time of the hearing, testified that in late August or early September 1970, Chief Engineer or Engineering Supervisor Gaines spoke to him in the mixing room of Respondent's studios. Gaines asked Brumley "what the men's feelings were about having a contract with the Company." Brumley said he had no idea and that he would have to ask the men. About 2 weeks later, Gaines again spoke to Brumley in the same location. He asked if Brumley had had a chance to speak to the men about having a contract with the Company. Brumley said no and that he had not even thought any more about the matter. Evidently to impress upon Brumley the seriousness of the proposition, Gaines said that he had spoken with the officers of the Company "and they were anxious to find out about this." Gaines said that he did not think the men were in the right type of union and that, moreover, "Mr. Tanner had feelings about this." Gaines went on to point out that Tanner had financially sponsored athletic teams for the men5 and was interested in having a better relationship with the engineers and a relationship that could be worked out and that "would beat the one we had"; but, if the things that Tanner had done were not appreciated, "he would feel compelled to cut off all activities that he had been sponsoring. ..."6 Before proceeding further to describe events, we find that Gaines, at the time of conversations described above and hereinafter, was a supervisor and management agent which is confirmed by his citation of his conversation with company officers and their interest in the proposition put to Brumley by Gaines about making a contract with the Company, as well as his reporting on Tanner's views to Brumley as described above. The fact that Gaines in 1967 was a union activist as a rank and file employee, prior to his promotion in 1968 or 1969, does not alter these findings. Testimony regarding Gaines' statements and activities is not controverted since Gaines was not called as a witness. During the same week in September as the last mentioned conversation between Gaines and Brumley but after Gaines' conversation, Brumley was summoned to Tanner's office.? In the office, Tanner asked Brumley how the men felt about the Union. Brumley replied that, on the whole, they all liked the Union and did not really have anything against the Union. Tanner asked whether Brumley felt the Union was the right type and whether it was helping the Company and servicing the employees properly. Brumley said that these were matters that the men had not really gotten into. Tanner then told Brumley to ask the men what their feelings were about the Union and to let him know, adding, that "a special deal might be worked out." Brumley agreed to talk to his fellow employees as requested by Tanner. In this period from the latter part of August through September 1970, there were a large number of meetings. Brumley estimated that there probably were about 15 meetings. Some of these sessions between Gaines and Brumley and Brumley and Tanner have been described above. There were other sessions at which there were three participants, Brumley, employee McHugh, and Tanner; there were meetings at which Gaines addressed all the employees in the unit; at one meeting Respondent's counsel, Irwin, and Vice President Bankhead met with Prumley and McHugh. Because of the variety and number of the meetings, we find it unnecessary to describe each one but shall limit ourselves to enough meetings to convey a representative picture of their general tone and nature. McHugh, the maintenance engineer, who has been employed by Respondent for 3 years, testified that around the first week in September 1970 Gaines met with McHugh, Brumley and all the other employees in the unit. The meeting was at Respondent's studio. Gaines told the assembled men "that Mr. Tanner had asked him to ask us [the employees ] what we would take to have a contract without the union." McHugh did not recall that any response to this was made, but believes that at the end of the meeting Gaines was given a copy of the contract draft that the men had prepared, as previously described. Brumley recalls a meeting that Gaines held at about this time, but believes that at the meeting there was a general discussion of complaints and needs. According to Brumley, it was a day or 2 later that Gaines asked Brumley, alone, if 4 Brumley testified that during the past year, 1970, prior to August 1970, the men had had "some discussion" concerning the desirability of affiliating with a different union, "about wanting to get under a different affiliation than IBEW [some union affiliated with another international union other than the IBEW] " While the men regarded the IBEW as a good union, Brumley states that some felt that a union more specialized in their field of work might be better than a union like the IBEW which embraced a fairly broad jurisdiction in the sound, recording, and electrical fields Brumley states that he had discussed this matter with his father, who was business manager of "Agents Local 242" (this organization or its affiliation was not otherwise identified in the record). His father advised him that, if he wished guidance regarding such matters, he should consult a labor lawyer. Brumley never did speak to a labor lawyer and the matter was not pursued thereafter 5 Such activities as bowling and softball. 6 Tanner was president and majority stockholder of Respondent 7 Tanner did not testify at the hearing 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the men wanted a contract with the Company and if Brumley had a contract that could be presented to the Company. Brumley answered affirmatively and gave Gaines a copy of the contract draft prepared by the men. The next day, Brumley was summoned to Tanner's office. Brumley brought McHugh with him and believes that the meeting was around the middle of September 1970. Tanner spoke to McHugh about his work and some studio equipment about which McHugh had been com- plaining. Toward the end of the session, Tanner instructed Brumley to compile a list of the advantages and disadvan- tages that the Union had for the employees. Later, at the end of the same week, the three aforementioned again met in Tanner's office. They discussed complaints and prob- lems that the men had. Tanner asked McHugh and Brumley to compile a list of complaints, problems, and equipment needed by the men in their work. He fixed a date in the following week for McHugh and Brumley to have lunch with him at the University Club. Some days before the University Club luncheon, there was a meeting at the studios attended by all the unit employees, Gaines, Irwin, and Vice President Bankhead. The discussion was about problems and complaints of the men and needed equipment. Irwin said that he would discuss such matters, but did not want to get into wages and other contract matters. Although there is some indication to the contrary, we believe the meeting did proceed along the lines indicated by Irwin and did not involve wages and other contract items. Pursuant to Tanner's prior invitation, Brumley and McHugh had lunch with him at the University Club. The date was apparently around September 20. They discussed the list of employee complaints that Tanner had asked them to compile. Then Tanner brought up the matter of job classifications. In the existing contract there were, in substance, two classifications, recording engineer and maintenance engineer. Tanner asked them if they would mind having a third classification, apprentice engineer. The two employees said that they would have to discuss it with their fellow workers. Tanner then asked them whether, if they were to receive, for example, a $50 raise, would they like it in one raise or broken down into two payments. The men opted for the latter. The meeting lasted about 2 hours, one of which embraced normal working time for the two employees. Tanner arranged to meet with Brumley and McHugh again on the following Saturday in his office, saying that he wished to discuss matters a little bit further and saying that there might be some surprises forthcoming. At the Saturday meeting, Tanner asked the men if they had discussed the adding of a third classification with the other men. They said yes and that the men were agreeable to the change. Tanner again talked about raises, saying that if the three classifications received raises of $40, $50, and $60, they would be broken down into two raises each of $20, $25, and $30. The men agreed. Tanner then said that there was a possibility that stock options might be given to the men and explained the nature and operation of this form of remuneration. 8 Blair, an international representative for 23 years, had negotiated the 1967 contract between Respondent and the Union During the foregoing period from August to approxi- mately the end of September 1970, when Respondent had initiated direct dealings with the employees in the bargaining unit, it had ignored the Union's request on August 7 for contract negotiations. In our opinion, Respondent's action was devoid of legal justification. The fact that the employees had been told by Union Business Manager Nelson sometime in June or July 1970 to get together and decide on what they wanted in the contract that would succeed the one expiring in October 1970 lends no sanction to Respondent's conduct, even assuming that Respondent was aware that this had occurred. It is not uncommon for employees, in advance of contract negotia- tions, to formulate among themselves what they would like to have in an impending contract. Prior to the actual commencement of contract negotiations, a union, in order to formulate the bargaining demands to be presented to the employer generally goes over the matter with the employ- ees. The contract proposal presented eventually to the employer may include all the demands of the employees or it may present them in modified form with some additions or subtractions arrived at through discussion. It is not in the interest of a union to present a contract proposal to an employer that is unacceptable to the Union's members or does not reflect their aspirations in essential respects. When the Union, in the instant case, 2 months prior to the expiration of the old contract, requested contract negotiations with the Employer, it surely contemplated that before negotiations commenced, the union representa- tive and the employees would go over among themselves their contract demands. From the Union's standpoint as the certified bargaining agent, the contract to be negotiated would not only be negotiated by the union representative, but would be a contract between the Union and the Employer. The employees, too, despite some critical sentiments about the Union in the past, formulated their contract ideas in the form of a contract between the Union and the Employer. Nor did any employee resign from or repudiate the Union. Respondent, however, ignored the Union's August 7 request for negotiations and took the initiative in dealing directly with employees, suggesting a contract between the Company and the employees without the Union. At Respondent's request, the employees thereafter furnished Gaines with a copy of the contract draft they had prepared. Meanwhile, Nelson, who had written the August 7 letter to the Respondent and had received no reply, went to Blair, an international representative of the Union. This was on August 20, 1970.8 Nelson brought Blair up to date and showed him Nelson's letter of August 7 and the Company's letter of August 8. In the conversation about the situation with which they found themselves confronted, Nelson men- tioned that Irwin was Respondent's attorney. Evidently Blair regarded this as a hopeful circumstance since he and Irwin had known each other socially and politically for many years.9 Beginning on August 20, 1970, Blair telephoned Irwin several times a day for more than a week. He was never able to contact Irwin and received no 9 Blair had had no dealings with Irwin in the course of his duties as a union representative PEPPER & TANNER, INC. response to his calls although he had informed Irwin's secretary and Irwin's wife of the nature of his calls and of his desire to hear from Irwin.10 On August 25, Blair wrote to Irwin recounting his numerous efforts to contact him, stating that the Union represented a majority of the employees, and offering to prove its continuing majority status if Respondent entertained a good-faith doubt thereon. He requested a meeting for contract negotiations on September 10. Irwin did not answer the letter. By September 11, Blair had evidently learned about the dealings between the Company and the employees as described hereinabove. On September 11, Blair wrote to Tanner recounting the Union's efforts from August 7 to open contract negotiations, including the most recent unsuccessful efforts to secure some response from Irwin. The letter reiterated the Union's majority status and stated that: We have been advised by employees in the unit that an attempt has been made by management to bribe the employees out of the Union with a wage offer made unilaterally by management. The letter again requested the commencement of negotia- tions and suggested September 15. On September 15, Tanner's secretary telephoned Blair and, acting for Tanner, arranged a meeting for Tanner with Blair for September 24. The secretary said that Tanner had a death in his family and that his wife was seriously ill.ii By letter of the same date, Tanner confirmed the appointment. His letter also took strong issue with the statement in Blair's letter of September 11 that the company' had I attempted ^ to bribe' the employees.12' On September 16, Tanner's secretary postponed the September 24 meeting to September 26. Meanwhile, Blair met with the employees and went over with them the contract draft they had prepared. He particularly com- mented on the wage provision, expressing the view that it was very high. Blair asked them to give consideration to a more modest and realistic wage proposal. They agreed to do so. Tanner's secretary contacted Blair on September 26 and postponed the meeting to the September 29, explaining that Tanner was very busy and that his wife was ill. On September 29, Tanner's secretary called Blair and said that Tanner had told her to call and cancel the meeting because a settlement or understanding had been reached with the employees and there was no need for a meeting. Blair said he knew nothing about a settlement and said, in effect, that he was coming to Tanner's office as scheduled to find out what was going on. On September 29, therefore, Blair went to Tanner's office. Tanner asked him if he had not received the message to cancel the meeting. Blair said he had. Tanner said a settlement had already been made with the employees and there was no need for a meeting. Blair said he knew nothing about a settlement and asked Tanner to 10 Blair knew Mrs Irwin personally 11 Tanner's father was ill in February 1970 He had an operation in May 1970 and died on August 20, 1970 Tanner's mother was hospitalized with terminal cancer in February 1970 She died about March I, 1970. 12 As we shall see, at a meeting near the end of September , Tanner told Blair that the Company had not only made a specific wage offer to the employees, but had asserted that an agreement or settlement had been 115 tell him about it. Tanner said he did not want to talk to Blair about the matter since he considered it a private matter with the men. Blair said that as bargaining agent he wanted to know the terms of any settlement. Tanner proposed that Brumley be called in. Blair agreed. While waiting for Brumley, Tanner told Blair that he had met with Brumley and McHugh and they had agreed that McHugh would receive a $30 increase; and Brumley, Wulff, and Crawford, $25; and Goodman, Dacus, and Billy Lee Tanner, $20. Brumley then arrived in the office with McHugh.13 Blair told them what Tanner had just said to him, above, about the increases. Blair said he did not know how the increases fitted into the contract. Tanner interposed and said that there was not going to be a union contract, that they had made an agreement among themselves without a union and that it would last for 5 years. It was not clear whether the increases were supposed to be weekly or monthly increases. Blair said he still did not understand how the three proposed types of increases were supposed to fit into the contract. Tanner said, "I told you there is not going to be a union, it does not fit in here." Blair asked him about the proposed union contract.14 Tanner said that he had seen the proposed contract some time ago, but had thrown it in the wastebasket. Tanner then proceeded to make derogatory remarks about Blair personally and about unions in general . Blair left. Between September 29, 1970, the date of the first and last meeting between the Union and the Respondent, described above, and January 27, 1971, Blair heard nothing from Respondent. On October 5, 1970, Tanner sent an interoffice memo- randum to Brumley and McHugh stating: I have given the agreements to Jim Irwin [company attorney] and Wilson Northcross [company official] to draft your contractual arrangements, so they should have them for you this week. I may be out of town but wanted you to know it is being done. Also, on October 5, Gaines asked the employees, evidently through Brumley, to sign a letter prepared by Irwin and addressed to Tanner. After a change in the letter requested by the employees, they each signed the letter. The substance of the letter was that it was to clear up the allegation that the Company had attempted to bribe the employees.15 The letter stated that wages had not been discussed in a meeting between the employees and Irwin, but that on occasion some operational complaints had been discussed with Tanner by some of the employees. And, finally, "None of our discussions have involved any monetary rewards or bribes on the basis of whether we did or did not belong to a union." On October 7, 1970, the Union filed a refusal-to-bargain charge against Respondent in Case 26-CA-3822. Employee Cotton, on October 13, was going to his car in the company parking lot. Tanner came up to him and told Cotton that he had not been meaning to neglect the men, reached with the employees apart from and without the Union and that the latter was no part of the picture 13 All the men were technicians or engineers in the unit . Billy Lee Tanner was a relative of President Tanner 14 The contract draft prepared by the men which was by its terms a contract between the Union and the Company 15 Blair's September I I letter to Tanner, supra 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but he had been involved in some big deals in Philadelphia and New York. He said, however, that he would get back with the men in a few days. The following day, October 14, an interoffice memoran- dum "To All Engineers, From Bill Tanner" and marked "Personal & Confidential" was sent to all the employees in the unit. The memorandum stated: I want you to know that I have not intentionally delayed you at all and look forward to getting with you this week and finishing our arrangements. As you know, Mr. Irwin is out of town. As soon as he returns we will finalize this. I am writing this to reassure you of the confidence the Company has in you. I look forward to a long and beneficial relationship with you. About a week later, Brumley asked Irwin how everything was going. Irwin said that he had been trying to do everything possible, but he had so many cases to handle that he had not been able to devote much time to the matter. Irwin showed Brumley a copy of a contract he had been working on. Irwin told the employees not to say anything to anyone about seeing this contract and that it was dust a matter between himself and Brumley During the period Brumley's wife was pregnant, Brumley testified that he knew that the Company "had had an unwritten Company policy concerning maternity benefits." He spoke at various times around the latter part of October 1970 to the personnel director, to Irwin, and to Tanner, about receiving maternity benefits for his wife. Tanner asked the personnel director about the company policy, stating, in a memorandum, "Didn't we used to give them $150 or was that discontinued?" The personnel director replied, "We still pay it on your approval ... there is no written policy. ..." Brumley received a copy of the foregoing. Later, he asked Tanner about receiving materni- ty benefits for his wife. Tanner said that he "wanted to wait on giving the maternity benefits at the time." Tanner offered to, and did, give Brumley a $150 interest free loan and Brumley accepted. The $150 was the amount allowed in the past for maternity benefits. An 8(a)(1) and (5) complaint was issued against Respondent in Case 26-CA-3822 on December 23, 1970. Irwin telephoned Blair on January 27, 1971, and informed him that Respondent was prepared to sign a settlement agreement as proposed by the Board agent. On January 29, 1971, Respondent entered into a settlement of Case 26-CA-3822 with the Board, acting through its Regional Director. The crux of the settlement was Respondent's agreement not to refuse to bargain with the Union as the representative of the employees in the appropriate unit and the cessation of various acts and conduct with respect to employees in the unit. Also, on January 29, as arranged on the January 27, Irwin came to Blair's office. Irwin said he was prepared to get down to negotiations. He told Blair that he, Irwin, needed some arguments to present to Tanner that would stabilize employment and wages. Irwin asked Blair what he 16 This proposal has been earlier described This is the document that Tanner had told Blair on September 29, 1970, that he had thrown in the wastebasket 17 Irwin, as we have seen, was general counsel , vice president, and secretary of Respondent He maintained an office in Respondent's building Irwin was also senior member of the law firm of Irwin, Owens, Gillock, and could give him along these lines. Blair suggested that actual contracts between the Union and other companies in the industry would tend to meet Irwin's request and he gave Irwin copies of various contracts with broadcasting and recording companies. Blair also gave Irwin a copy of the contract draft proposal of a contract between the Union and the Company that the unit employees had drawn up preparatory to the expiration of the old contract, expiring in October 1970.16 Irwin and Blair then arranged to meet on February 1 and commence negotiations. They mutually agreed that at this preliminary stage they would meet alone without any employee committee or others present. On February 1, Blair did not see or hear from Irwin, so he contacted him by telephone. Irwin explained that he had forgotten the matter or that he had been too busy, so the meeting was set over to February 2 at 2:30 p.m.17 On February 2, by telephone at about 2:30 p.m., Irwin told Blair that he had not had time to prepare anything or to look at the material that Blair had given him. At Irwin's request the meeting was put off until February 4. On February 4, Irwin called and said that he was still not prepared since he did not have an opportunity to talk to Tanner and had no authority otherwise. A meeting was arranged for February 8. On February 8, Irwin called and canceled the meeting for the same reason as given on February 4. He said he would call Blair on February 9. On February 9, not having heard from Irwin by 11 o'clock, Blair called him. Blair was unable to reach Irwin until I o'clock. Irwin said that he still had nothing formulated but would call Blair on February 10. On the latter date, a meeting was arranged for February 15. They met on that day. Gaines was also present because Irwin had said that he needed some expert advice. Brumley was likewise present as Blair, on February 10, had informed Irwin would be the case. Irwin said the Company operated on a 24-hour basis. He said he would like to talk about having straight salaries and thus eliminate expensive overtime. They discussed the matter, including the legality of working more than 40 hours without overtime. Blair said that he was agreeable to negotiating on a salary basis but with overtime, since he did not believe the latter could be legally avoided. Blair said that the Union was interested in a 1-year contract. Irwin said he was interested in a 3-year contract, but was flexible on the matter. No other proposals were made by Irwin regarding the provisions of a contract or regarding the contract draft proposal that Blair had given him on January 29. They agreed to meet on February 18. Irwin called Blair on February 17 and said that he had not had a chance to talk with Tanner and was not ready with any proposals. They scheduled a meeting for February 25. Blair raised the matter of the delays and cancellations that had taken place and asked Irwin for a block of dates when he would be available and said that he, Blair, would make himself available on those dates. The parties met on February 25. Blair suggested going Cotton with offices in downtown Memphis He serves or has served on numerous bar and judicial committees and on various civic and public commissions and bodies There is little doubt that he is a very busy attorney. From Irwin's testimony and statements, it also appears that Tanner is a busy executive and, as president and owner of 51 percent of the stock, he is the decisive voice in Respondent's policies and operations PEPPER & TANNER, INC. through the proposed contract from the beginning and thus finding out where they stood. On the term of the contract, Irwin wanted 3 years. Blair said this was agreeable if other contract provisions were favorable. On grievance and arbitration, there had been no change from the old contract in the Union's proposal, but no agreement was reached on this either way. Brumley raised the matter of the seniority clause. Irwin said he wanted the probationary period changed from 90 days to 6 months. This was discussed and opposing views were expressed. On layoff and recall, Irwin said that he liked the language on these in the standard union contract sample that Blair had previously given him. He said that when he had a chance to talk to Tanner he would recommend its inclusion in a new contract. On the strike and lockout clause, there was no disagreement. The union proposal on funeral leave had been broadened from the prior provision and would include funerals of brothers-in-law and sisters-in-law. Irwin would not agree to present this to Tanner for considera- tion. The union proposal would improve the sick leave allowance. Irwin was opposed to recommending this to Tanner, saying that lawyers did not receive sick leave. Blair said the existing sick leave was substandard to anything in the area. He said the Company could require a doctor's certificate where it felt there was abuse of leave. Irwin then said he would talk to Tanner on the matter. On the discharge provision, Irwin said that he liked the standard union clause on the subject and would recommend it to Tanner. No other contract clauses were reached that day. Irwin said that he could not meet anymore that week because he had to go to Dallas. He produced a telegram. It appears that important contract negotiations had been set by the parties concerned in Dallas. Among the parties in Dallas were various companies, including Pepper & Tanner and the Musicians Union. Irwin also said that after Dallas he was going to the west coast and then to Chicago and Philadelphia on various legal matters Blair testified that he reacted strongly upon the above announcement because his understanding with Irwin in arranging to meet on February 25 was that they would meet for 2 days in a row. The meeting on February 25 ended about noon because of Irwin's announcement that he had to go to Dallas. Blair and Irwin arranged to meet next on March 10 at 9 o'clock. On March 10, Blair and Brumley appeared at the appointed time and place, but Irwin was not there. After 45 minutes, Blair contacted Irwin's secretary. She said that Irwin was still in Chicago and, after checking Irwin's calendar, she told Blair that the March 10 meeting with Blair did not appear thereon. Thereafter, on March 10, Blair wrote a letter to Irwin describing what had occurred on that date as described above. Blair said that he had put off other matters in order to meet Irwin on March 10. He stated his availability to meet Irwin on March 11, 12, 22, and April 1 and asked Irwin to advise him of a series of dates when Irwin would be available for negotiations. On March 11, Blair wrote another letter to Irwin, stating that at the time he had 18 The Brumley discharge incident is no part of the allegations in the instant case and its merits or details are not before us Apparently, a charge had been filed because of the discharge There was an investigation and, as 117 written the letter on March 10 he had misread his calendar. Blair said he would be available March 16, Tuesday, and any of the remaining days of that week and then on April 1 and any dates thereafter mutually agreeable. Irwin and Blair thereafter agreed to meet on March 16. Blair was out of the city on March 15 and Irwin telephoned Blair's office on that date. Blair returned the call on March 16. Irwin said he had called the day before to advise Blair that the Company had discharged Brumley for mishan- dling and illegal use of company equipment. Blair said that he would take up the Brumley matter with Irwin that afternoon at their scheduled meeting. Blair telephoned Brumley and told him not to attend the meeting in view of the subject matter. Blair came to the meeting with McHugh instead of Brumley. However, Brumley also came by himself. Blair and Irwin discussed the merits of the Brumley discharge. No issue was made of Brumley's presence by either party. At the instant hearing, Irwin stated that when the foregoing incident occurred he had been incensed because he believed that Blair had invited Brumley, an action Irwin regarded as reprehensible. 18 After going into the Brumley discharge on March 16, the parties, on the same day, then turned to the subject of contract negotiations. Irwin said he still had not had time to prepare a complete proposal. He asserted, however, that he would get to work on it and had already dictated two pages to his secretary. The parties discussed the probation clause, with Respondent contending for a 6-month period and the Union advocating the existing 60-day period. With respect to the attaching of a new seniority list to the contract, Irwin said he agreed. On a provision relating to the possibility of employees being required to move to Dallas, Irwin said this was not going to occur and if it did the Company would pay all moving expenses. This apparently satisfied the Union. The layoff clause of the standard union contract which had earlier been given to Irwin was one that Irwin again indicated seemed all right to him, but he said that he had not yet talked to Tanner about it. Regarding the standard union layoff clause and the no-strike and lockout clause, Irwin said he saw nothing wrong with them. On the old management rights clause of the contract, Irwin said he wanted to rewrite it because of some cases he had been reading. With respect to the provision on leaves of absence, Irwin said he was having something prepared. On discharges, Irwin was agreeable to the standard union clause. There was disagreement on some sections of various umon-proposed clauses, but on other sections no changes had been proposed from the old contract. Regarding rest periods between shifts, Irwin said he had to do some rethinking and was not prepared to discuss it. On the matter of travel expenses, when employees used their own cars on company business and had not been paid, Irwin said that if the men had turned in vouchers they would have been paid. The matter was resolved on the understanding that the Company would pay, if vouchers were submitted. On some sections Irwin far as appears, the matter was disposed of Brumley was in Respondent's employ at the time of the instant hearing 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had no position, saying he had not discussed them with Tanner or had not been able to do so.19 At the end of the meeting, Blair was unable to secure a firm date for future meetings from Irwin. Irwin said that he needed more time to prepare and that Tanner was a difficult man for him to see and talk to. Irwin said that he wanted to prepare proposals and secure full authorization for matters at future meetings. Irwin later agreed, however, to call Blair that night regarding Brumley. The meeting on March 16 had lasted about 2 hours. Blair, however, had received no call or word from Irwin by March 19. On March 19, Blair wrote to Tanner requesting Brumley's reinstatement. He also said that he "was seriously concerned with the long delays of negotia- tions which have been brought about because your attorney, Mr. James Irwin, has so little time to devote to these matters." Blair requested that time be set aside to complete negotiations. By letter of March 26, Irwin acknowledged receipt of Blair's letter to Tanner, above. He stated the Company's position on the Brumley matter. He went on to character- ize Blair's action of having Brumley, a discharged employee, present at the last meeting as "an attempt to affront management . . . and another attempt to intimi- date management." Irwin said the proposed contract that the Union had submitted contained many changes from the old contract, but he believed that on "most of these items we have reached a general understanding." As to future meetings, Irwin said that Blair had told him that Blair would be out of town March 22-26 and March 29-April 3. Irwin stated that he had told Blair that he would be in court April 4-9. The letter did not propose a date for another meeting. On March 29, Blair replied to Irwin by letter and proposed a meeting for April 2. Blair then was not able to contact Irwin by telephone until April 12, when they agreed to meet on April 14 and 15. Irwin said that he had the material ready to submit and believed that they could move along in the negotiations. The parties met on April 14. Regarding insurance, Irwin said that he was not prepared to discuss it because the Company was investigating changes in insurance carriers. Blair asked Irwin if he had any proposal on wages. The latter said no but he would have one the next day. On vacations, Irwin offered no change from the old contract. They discussed holidays and Irwin said that he would make certain named recommendations to Tanner regard- ing improvements. With respect to provisions that Irwin said he had dictated to his secretary, he said that he did not have them with him. At Blair's suggestion, the secretary was asked to come to the meeting with the aforesaid material. The five pages of material, aforementioned, when brought to the meeting, were the same as the contents of the old contract, with the exception of a change in the probationary period from 90 days to 6 months and the incorporation of the standard union layoff and recall provision. Irwin said he would have the balance of his material dictated by April 15. At this and other meetings, Irwin referred to his limited authority and the great 19 The reference to contract provisions, clauses, articles, and sections refer to the Union's proposed contract draft which was being considered together with the old expired contract and its articles, provisions, etc difficulty he had in being able to talk to Tanner. He said that he had not dictated more material because on some of the provisions he had not had an opportunity to discuss them with Tanner. Blair suggested that Irwin either secure full authority or that Tanner should be present at the negotiations. Irwin said that Tanner was the boss and that Irwin was in no position to tell him what to do. On April 15, when the parties met, Irwin did not have the proposal that he had said he expected to have. 20 Blair asked him if he had any proposal. Irwin replied that he had talked to Tanner and could now offer a 5 percent wage increase and a provision for a 6 months' probationary period for new employees instead of 90 days. He had no other proposals. Blair asked him about their tentative agreement on using some of the provisions in the standard union contract. Irwin said that he believed that he could sell Tanner on the idea, when he had a chance to discuss such matters with Tanner. Blair cited a newspaper report that the Company had agreed on a 10 percent wage increase with the Musicians Union; he cited figures on rises in the cost of living in an effort to convince Irwin that his 5 percent wage increase offer was inadequate. Irwin said that his hands were tied, and 5 percent was as far as he could go. Towards the end of the meeting, Irwin said that he would have the balance of his proposal ready for Blair by April 21 and that the latter could pick it up at Irwin's office on that date. Regarding Christmas Eve and New Years' as holidays as proposed by the Union, Irwin said that he had forgotten to discuss this with Tanner but would do so. Blair telephoned Irwin's secretary on April 22 and said that he would like to come over and pick up the balance of the contract proposal that Irwin had dictated. The secretary said that there was nothing dictated and all she had were the five pages that she had previously brought to the meeting of the parties on April 14. Blair asked the secretary to have Irwin call him. Not having heard from Irwin, Blair wrote to him on April 23, reciting Irwin's prior promise "to have the complete company proposal on the union contract ready by Wednesday, April 21. " The letter described what occurred on April 22 as well as Blair's failure to hear from Irwin. Blair remonstrated with Irwin about the course of the negotiations and concluded with the plea, "May we have the Company proposal that was promised, at once." Blair had endeavored to reach Irwin on April 23 and had left messages for Irwin to call him. Receiving no reply to his letter of April 23, Blair contacted Stokes, the Federal mediator, on April 29. He asked for Stokes' assistance, citing his own inability to reach Irwin and to arrange further meetings. Blair informed Stokes that he was available up to May 10, but on May 10 he would be in the hospital for an operation and would be available after May 16. On May 5, Blair again wrote to Irwin, stating that Irwin had failed to reply to his telephone calls of April 24, 26, 28, and May 3 and 4. He proposed a meeting at Irwin's office on May 7. About May 5, Stokes told Blair he was having difficulty in reaching Irwin. On May 17, Stokes advised 20 As previously described, on April 14 there had been only five pages of the contract proposal that Irwin had promised PEPPER & TANNER, INC. Blair that a meeting had been arranged for May 19. Irwin's secretary telephoned Blair on the morning of May 19 and canceled the meeting.21 When Irwin's secretary spoke to Blair on May 19, supra, he asked her to have Irwin call him. Not having heard from Irwin, Blair called him on May 24 without success. On the same day, May 24, Stokes informed Blair that he had set up a meeting of the parties for 10 o'clock. On June 2, Blair and McHugh appeared at the appointed time and place. Irwin did not appear, but Stokes kept Blair and McHugh in his office until 11:30 a.m. while he endeavored to reach Irwin. Stokes was unable to contact Irwin. On June 3, Stokes called Blair and said that he had contacted Irwin and had arranged a meeting for June 8. On June 8, the parties met. Blair said that the men were pretty frustrated by the way negotiations had been dragging. He said he had a "package" to offer, to wit, a 10 percent wage increase; a 1-year contract; funeral leave to include deaths of brothers-in-law or sisters-in-law; the $150 maternity benefit to be set forth in the contract; standard layoff, discharge, and recall provisions of which Irwin had -spoke favorably in prior meetings; and the polishing up some of the contract language concerning which both parties had previously commented. Irwin said he did not have the authority to make a decision on the proposal. He said he would take the proposal to Tanner and would call Blair that afternoon. Irwin called Blair that afternoon and said that Tanner had rejected the proposal. Irwin stated that Tanner had had the auditing department run up some cost figures on the proposal and found that it would cost around $250,000. Blair said the figure was preposterous. He asked if the figures were available for him to see. Irwin said they were not. Irwin said he was authorized to make an offer to Blair, namely, a 3-year contract; a 5 percent increase; 6 months' probationary period; and no other changes from the old expired contract. Blair asked about the various changes that Irwin had previously indicated were acceptable. Irwin said he would talk to Tanner and would call Blair. Blair had told Irwin that the men were scheduled to meet with Blair that evening at 6 p:m. and they were frustrated and he was afraid they would take a strike vote. Irwin called Blair that evening, June 8, at about 6 o'clock. He said that he had a new proposal-a 7 percent increase in a 2-year contract; 6 months' probationary period; and no other changes Blair said the 7 percent over 2 years was less than the original offer. He said the men were in his office and when they received the offer they would probably regard it as unfavorable. Irwin said that he would call Blair if there was any change in what he had offered. He did not call again. Blair met with the men that evening and reported all that Irwin told him regarding the contract offer. All unit employees except Billy Lee Tanner were present. A strike vote was taken and passed, but no date was set for a strike. After the vote, Blair told the men that the strike vote would have to be ratified by the local union which met on Thursday, June 10. Blair reminded the men of the seriousness of a strike vote and advised them that the local union had no strike fund. He advised them to 119 consider accepting the old contract and the 7 percent increase since it was at least better than their present situation of no contract and no raise. The men expressed strong disagreement with this advice. Stokes was advised that a strike vote had been taken. On June 9, Stokes left word with Blair's secretary to the effect that Stokes had informed Irwin that the Union had rejected his offer. When Blair received this message, he called Stokes and said that Stokes had misinformed Irwin regarding the Union's action. Blair said that he wanted another meeting with Irwin and would call the latter. When Blair called Irwin, he told him of the strike vote, but said that the company offer had not yet been rejected and- that he would like to have further meetings. Irwin said that he would talk to Tanner and would call back. Blair did not hear from him again that day. On June 10, the local union ratified the strike vote taken by the unit members on June 8. On June 11, Blair called Irwin at about 9 o'clock. He urged Irwin to come forward with some change in his offer. Irwin said that he would call back within the-hour. When he did not hear from Irwin, Blair called him. Irwin said that he had been unable to talk to Tanner. because the latter had been busy with an important client. Later that morning, Irwin advised Blair that he still had nothing, but that he hoped or expected to have some word for Blair by around 2 o'clock and would call Blair. During the morning of June 11, Blair had also been receiving telephone calls from employees in the unit, particularly McHugh who had been acting as spokesman for the men. The gist of these calls was that the men wanted to know what was developing, and Blair described his conversations with Irwin, including the fact that Irwin was to call him by 2 o'clock or 2:30 that afternoon with some definitive word. Sometime around 2:30 p.m., McHugh called Blair and was advised that Irwin had not yet called. McHugh said that the men were mad about the way negotiations had been dragging and that they were coming over to Blair's office. Blair neither encouraged nor discouraged this predicted action. He simply told McHugh that there was some risk involved in such action. McHugh said that they were coming notwithstanding. Blair then advised that they should not walk off the job without advising their supervisor and telling him why they were leaving and where they were going. Employee Cotton testified that on Friday, June 11, the men had been advised that Irwin was to give Blair some definitive word on the contract. When Irwin had not called Blair that afternoon, the men regarded it as more company stalling in negotiations and they decided to meet with Blair in his office regarding the situation. McHugh, Cotton, and Dacus, shortly after 2:30 p.m., went to Vice President Bankhead. They told him they were going to a meeting with Blair. Bankhead asked whether their action was shutting down the place. They said no and that Brumley and Billy Lee Tanner were remaining at work.22 The men 21 Either no reason was given by the secretary for the cancellation or she 22 Goodman, the sixth engineer, was on vacation said that Irwin was out of town 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then punched out and Bankhead wished them good luck and said he would see them next week.23 Upon leaving work, the men went to Blair's office and recounted what they had done. Blair endeavored to reach Irwin but did not succeed. Stokes called Blair and said that Irwin was very mad about Blair pulling the men off the job. Stokes called again about 5:30 p.m. He told Blair that Irwin and Tanner refused to meet to discuss the situation. Blair tried to contact Irwin that evening and again on Saturday, June 12. Blair testified that on Sunday, June 13, Stokes called him and said that Irwin was refusing to meet with the Union and considered his obligation to meet with the Union as ended and had indicated that on Monday morning the men were going to be fired. At this point in the instant hearing, Irwin, Respondent's counsel stated: Now, I object to that conclusion. They had already quit their jobs. It is the Company's position if they quit their job and walk off from it, that it is a voluntary termination on their part. It is not any question of firing and I am objecting to an interpretation that Mr. Blair put on it, because that is not the truth. We treated it as a voluntary termination of employment. It wasn't a question of firing anybody or discharging them. They had already quit. The Examiner is prepared to accept Irwin' s statement as counsel as reflecting Respondent's position. On Monday, June 14, 1971, Blair called Irwin and spoke to him. Irwin said that Tanner would not allow him to meet with the Union and that he considered the obligation to bargain ended when the men walked off the job. Also, on Monday morning, June 14, all the employees reported for work at their regular starting time24 Dacus' account of what occurred is representative. He started work as usual at 8 o'clock. About 9 o'clock, Brumley came over with Ellis, an engineer from the Company's Dallas operation. Brumley told Dacus to teach Ellis how to perform Dacus' work.25 Dacus proceeded to do so. At about 11:30, the employees prepared to go out together on their regular lunchbreak. Irwin and Tanner came in and asked them to wait. They did so. Irwin and Tanner went upstairs. Then Brumley came downstairs and handed Dacus, Goodman, and Cotton identical letters. The letters, dated June 14, stated that on June I 1 the men had left the Company premises "without authority from management" and their "arbitrary absence" had resulted in substantial monetary loss to the Company. The letters continued: In order to assure continued production of our products, we have made other arrangements to man our production facilities. Your services are not needed at this time. The company has elected to treat your intentional absence from employment during regular working hours as a voluntary act on your part to terminate your employment. 23 The immediate supervisor was out of town at the time, and the men had previously been told to see Bankhead about any problems that arose 24 Including Goodman who had been on vacation 25 Brumley had ceased to be shop steward in March 1971 By June he was evidently functioning in a quasi-supervisory capacity for the Company 26 On June 15, by letter to Goodman, the Company acknowledged that it had now determined that he had not been involved in the "work stoppage " He was offered reinstatement without loss of pay [/s/ TANNER] After receiving the above termination notices, all the men came to Blair's office on June 14. This included Goodman who had been on vacation on June 11, the day of the work stoppage.26 McHugh also came although he had not received a letter despite his participation in the walkout with the others. When McHugh, during the lunch hour on June 14, came to Blair's office with the terminated men, Blair advised him to return to work and he did so. Blair endeavored to contact Irwin but did not succeed. However, on June 14, he hand delivered a letter to Respondent requesting reinstatement of Goodman, Cot- ton, and Dacus and requested immediate meetings to continue contract negotiations. On June 14, Blair received no reply from Respondent. On that date, Stokes told Blair that the Company was refusing to meet and showed Blair a copy of a letter addressed to Stokes and Blair from Irwin, dated Friday, June 11.27 Inter alia, the letter asserted that Blair had called the men off the job on June 11, although Irwin had previously told Blair that he was planning to submit a proposal to Blair on that day. Further stating, the letter asserted: It is the position of Pepper & Tanner that the IBEW has wrongfully and illegally terminated negotiations while this matter was in the hands of the Federal Mediation and Conciliation Service and at a time when the Company was diligently pursuing negotiations .. . Since we have no existing contract with IBEW, I am now forced to the position of reviewing the pertinent labor law to determine if we are under any legal obligation to negotiate with a union who has arbitrarily broken off negotiations. On June 15, in a hand-delivered letter to Blair, Irwin, in effect, attributed complicity in the June 11 walkout to Blair. By letter of the same date to Irwin, Blair denied Irwin's aforementioned allegation and accused Irwin of failure to submit a proposal as promised on June 11.28 He said that the proposal had still not been received and stated that the Company continued to refuse to meet for negotiations. On June 15, the Union set up a picket line in front of Respondent's premises. Late on the afternoon of June 16, Blair spoke to Irwin as the latter emerged from Respondent's building. He proposed negotiations and getting the men back to work. Irwin said he had no authority and could not talk to Tanner, who was ill. Substantially, the same conversation took place between Blair and Irwin in the parking lot on June 17. By letter of June 16 to Irwin, Blair stated, inter alia, that the Umon was prepared to meet at any reasonable time to continue contract negotiations and was available if the Company would set a time and place. He also requested reinstatement of the terminated employees. Irwin, on June 21, acknowledged an earlier letter of Blair's 27 Blair received his own copy of the letter on June 15. 28 As appears from Respondent's brief and its statement of position, described below, Respondent asserts that on June 11 it had prepared a counteroffer to present to the Union , but Respondent refused to transmit its new offer to the Union because Respondent took the position that any obligation to bargain ceased when the employees engaged in a walkout on June 11. PEPPER & TANNER, INC. of June 15. Irwin's letter dealt only with Irwin's version surrounding the events and circumstances of the June 11 walkout and immediately thereafter. On June 24, Dacus and Cotton told Blair that on June 23, Respondent's chief engineer, Crawford, told them that if the men would return to work, Irwin would resume bargaining. Blair went to Crawford on June 25 and repeated to him the foregoing report. Crawford affirmed the report. On Saturday, June 26, Blair met with the men on the parking lot at Respondent's premises. The men agreed to return to work on Monday, June 28. Crawford was also present at the parking lot on June 26. Blair showed him a letter addressed to Tanner from Blair that the latter had prepared the day before, June 25. Blair asked Crawford to read the letter, particularly regarding the accuracy of the reference therein to Crawford. Crawford read the letter and affirmed that his position had been accurately described. In substance, the letter recounted that Crawford had stated that he had been authorized by Irwin "to advise the men that if they would end the strike and return to work, all would be reemployed and negotiations would resume in good faith." It was then stated that McHugh, Cotton, Dacus, and Goodman would make an unconditional offer to return to work and would furnish letters to that effect. Continuing, the letter stated that the Union had been trying to negotiate a contract with the Company since August 1970. Tanner and his committee was asked to meet with the Union on June 28 at the Federal Mediation office to resolve the differences between the parties in negotia- tions. If that date was not convenient, the letter said alternative date suggestions would be welcome. The above-described letter and others were given to Cy Tanner on June 26 in front of Respondent's premises at about 10 o'clock.29 Cy Tanner took the letter into the building and emerged in about 5 minutes to say that he had delivered the letter to Tanner's office and to Irwin's office. No evidence was offered to establish nonreceipt of the letter or to controvert the foregoing testimony.36- The employees returned to work and resumed work on June 28 without any problems. Respondent did not reply to Blair's letter of June 26, above,31 and the request to resume negotiations. Blair wrote to Tanner on July 1, 1971. He stated that he had received no reply to his June 25 letter requesting negotiations on June 28. He again requested meetings to continue negotiations. It was stated that while Blair would be on vacation for several days out of town, Union Representative Smith would act in his place and Smith and the employee committeeman, McHugh, would have full authority to negotiate and reach an understanding with Respondent. Respondent did not reply to this letter and Blair testified that he has had no further contact with Respondent. Conclusions The evidence has persuaded us that Respondent has 29 Cy Tanner was a rank-and-file employee, a relative of President Tanner who was working during the strike 30 In addition to Blair's letter to Tanner, the letters delivered as above described on June 26 included four individual letters from each of the 121 violated the provisions of the January 1971 settlement agreement and the requirements of the Act by its conduct subsequent to the execution and approval of the settlement agreement. In our opinion, the Regional Director was justified in setting aside the said settlement agreement and instituting complaint action against Respondent covering Respondent's conduct both in the presettlement and postsettlement period. Without repeating the evidence that we have set forth in earlier sections of our Decision, we find that the crux of Respondent's violation of Section 8(a)(1) and (5) of the Act in 1970 was Respondent's failure to respond to the Union's request of August 7, 1970, to meet and to commence negotiations for a contract. Respondent ignored the Union, although the latter was at all times the certified bargaining representative. Instead, Respondent through its supervisor, Gaines, took the initiative in proposing to employees in the bargaining unit the idea of having a contract or agreement between the Respondent and the employees and soliciting contractual proposals from the employees. This course of action was carried forward and developed by President Tanner who, in effect, proceeded to deal with the employees directly and discussed with them such matters as wage increases and job classifications. The culmination of this illegal course of conduct occurred on September 29, 1970, when Tanner told the union representative, Blair, that he, Tanner, had arrived at a private 5-year settlement agreement with the unit employees, including specific wage increases, and that the agreement excluded the Union. For emphasis, Tanner stated that there was not going to be a union and that the Union did not fit in "here," at Respondent's operation. After Respondent's refusal and failure to comply with its legal obligation to bargain with the Union from August 1970, Respondent entered into a settlement agreement with the Board in January 1971. By the terms of the settlement, Respondent agreed to bargain with the Union as the representative of the employees in the certified bargaining unit. Respondent's obligation to bargain in good faith thereafter stemmed from the requirements of Section 8(a)(1) and (5) which were at all times applicable since August 1970, and the bargaining obligation also stemmed from the provisions of the settlement agreement when executed and approved. In our opinion, Respondent did- not thereafter comply with the requirements of the settlement nor with the requirements of Section 8(a)(5) and (1) of the Act. A reading of the chronicle of events, that we have previously set forth in our Decision, manifests that Respondent's bargaining representative, Irwin, was not available to meet and negotiate with the union representative, Blair, with reasonable frequency. Each party had an equal obligation to meet and negotiate and to initiate such meetings and negotiations. However, substantially the entire burden in these respects was placed on Blair's shoulders. Almost without exception, Blair was obliged to initiate proposals for meetings. Arrangement for meetings with Irwin was a employees to Tanner. The letters made an unconditional offer to return to work and stated that the writer would report for duty at the usual reporting time on Monday, June 28 3i Dated, June 25. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD difficult task. Irwin was not, in our opinion, a person whom Blair was able to contact without considerable difficulty and expenditure of time. When contact was made and arrangements made, the arrangements on occasion were not carried out. Accepting Irwin's own explanation for his extremely busy schedule, he was a partner in an active law firm as well as being general counsel, vice president, and secretary of Respondent. He was involved in a wide variety of litigation and other legal proceedings not only in Memphis but in other far-scattered areas of the United States. Representing Respondent in contract negotiations with the instant union was but one of his many duties and assignments and, in our opinion, he was unable to, or at least did not, make himself available for negotiations with the Union with the reasonable availability and frequency contemplated by Section 8(a)(5) of the Act.32 A further impediment in the collective bargaining was that Irwin, when he did meet with the Union, repeatedly emphasized that he had no authority to take definitive positions or to make decisions regarding the various items raised by the Union. Despite Irwin's prominent positions not only as general counsel but as an officer of Respon- dent, Irwin asserted that all proposals made to him would have to be submitted by him to Tanner for decision. The difficulty of this procedure was compounded by the fact that Irwin often told the Union of his great difficulty in gaining access to Tanner. According to Irwin, Tanner was so busy that Irwin frequently was unable to talk to him on this or that proposal that the Union had raised in a meeting with Irwin. Union suggestions that Tanner participate in negotiations were fruitless, despite the fact that some months before, in 1970, Tanner personally held a series of meetings with employees, Brumley and McHugh, as representative of the employees, in an effort to negotiate an agreement between the employees and the Company, with the Union excluded from such agreement. In sum, there was a formidable troika of obstacles that stood in the path of reasonably effective bargaining. First, an,exceedingly busy attorney, Irwin, was selected as Respondent's sole representative to negotiate with the Union; second, at such times as Irwin was able to, or did, meet with the Union within the framework of Irwin's responsibilities, the Union was told that Irwin had no decisional authority; third, the source of decisional authority, Tanner was quite regularly reported to be inaccessible to Irwin, and the latter, therefore, at a succeeding meeting with the Union, would report that he had been unable to discuss a particular proposal with Tanner. In the Trial Examiner's opinion, all of the foregoing obstacles to reasonably effective bargain- 32 "It is plain that the negotiations were carried on primarily on behalf of Respondents by a busy and successful lawyer . It is understandable that in a busy law practice some difficulty apses in giving as prompt consideration to the representative of the opposing side as would entirely satisfy the other Nevertheless . [this] does not exempt the Employer from the normal requirements that nothing be done for the purpose of stifling an opportunity for discussion. There remains on the Employer the positive legal duty to meet and confer with the Union at reasonable times and intervals " N L R B v Exchange Parts Co, 339 F.2d 829, 832-833 (C.A 5), A H Belo Corporation v N L R B, 411 F 2d 959, 968 (C A. 5) (Company could not meet more than once a week for 2 hours because its attorney had negotiations with other unions) ing were attributable to Respondent and were within its -power ower to control, alter, or modify. It, never did so. The other essential respect in which, in our opinion, Respondent has violated Section 8(a)(5) and (1) of the Act is by its refusal to meet with the Union and to resume and continue negotiations on and after the June 11, 1971, walkout of employees. In our view, neither is the walkout nor any other event furnished legal justification for Respondent's position in refusing to bargain. In its reply or answer to the consolidated complaint before 'us, Respondent denies the allegations of the complaint and makes several contentions regarding legal issues in the case. It asserts, as it did in its dealings with the Union in June 1971, that the walkout of employees on June 11, 1971, constituted a "voluntary termination of their employment." There is no doubt that Respondent treated and regarded the employees as terminated and advised them that they were terminated employees. In the same pleading, Respondent asserts that "the vicious, vindictive and purposeful act of the union representative in calling this walkout made further negotiations at that time impossible from the Company's standpoint inasmuch as it was an act to intimidate, coerce and embarrass the Company in any negotiations...." Finally, Respondent asserts "that the IBEW and its representative, Taylor L. Blair, Jr., had violated the terms and conditions of any prior existing contract through which it derived its position as the sole bargaining representative and by reason of such violation that legally it is not entitled to demand the compliance by Respondent in view of the Union's own violation.33 Respondent takes the position that a breach of the legal contract between IBEW and Respondent Compa- ny34 was intentional, malicious and willful and that by reason of such intentional, malicious and willful breach of said contract, that the Respondent has no further duty to continue to negotiate beyond the terms and conditions of the offers heretofore made."35 In a statement of position filed with the Board's Regional Office on July 8, 1971, Respondent referred, inter alia, to the June 1971 walkout and stated that "the Company had a no-strike clause in its previous contract and could not condone an illegal and unauthorized walkout. . . . Management's legal position is that the IBEW has engaged in and cooperated with an illegal stoppage of work at Pepper & Tanner and that Pepper & Tanner has no binding legal duty to continue to negotiate with IBEW since it had violated the legal provisions of the contract which ended October 5, 1970. It is Pepper & Tanner's position that it has a legal duty to negotiate only as long as IBEW works within the framework of the contract that previously existed. Since IBEW had previous- 33 In context, Respondent's reference to "compliance" and the asserted "Union's own violation" appear to refer to Respondent's contention that the walkout of June 11, 1971, was a violation of the Act and the settlement agreement of January 1971 and therefore compliance with the settlement agreement and the Act by Respondent could not be required As appears, above, Respondent also contends that conduct of the Union, subsequent to the October 1970 expiration of the old contract, violated the provisions of the expired contract. 34 By express notification by the Union and Respondent, respectively, in August 1970, the old contract terminated in October 1970 by its terms. 35 This reply or answer to the instant complaint was filed in August 1971. PEPPER & TANNER, INC. 123 ly participated in an illegal work stoppage at Pepper & Tanner, the Company had refused to transmit its previous- ly intended offer."36 The Examiner is unable to agree with the aforedescnbed legal propositions advanced by Respondent, above, as justification for its refusal to bargain. We regard the walkout of employees on June 11, 1971, as lawful union and concerted activity prompted by what the employees regarded as Respondent's unreasonable delays and stalling in contract negotiations. Although he neither called for the walkout nor forbade it, Blair accepted and ratified the action of the employees when it occurred. In our opinion, neither the Union nor its members were under any legal obligation not to strike or not to walk out concertedly in June 1971. There was no contractual or other legal obligation enjoining a strike. The law does not proscribe strikes during contract negotiations absent an existing contract containing a no-strike clause. The Union had been endeavoring as the certified collective-bargaining agent of the unit employees to negotiate a contract with Respondent since August 1970. The frustrations and the illegalities encountered in the process have been described in this Decision. We find the walkout of June 11, 1971, to have been an unfair labor practice strike. We find that the Union continued to be the representative of the unit employees by virtue of its certification and not by reason of any prior contract, the provisions of which had expired in October 1970. Respondent has violated Section 8(a)(1) and (5) of the Act by refusing to bargain further with the Union and, in our opinion, the legal reasons advanced by Respondent, as set forth in various pleadings and state- ments of position described above, are unconvincing and legally untenable. When the employees returned to work on June 14, 1971, they worked from their starting time until their regular lunchbreak at 11:30 a.m. They were then terminated on June 14 for their participation in protected activity on June 11. We find that Dacus, Cotton, and Goodman were terminated and discharged in violation of Section 8(a)(3) and (1) of the Act. Although the Trial Examiner is of the opinion that his "Conclusions," set forth hereinabove, deal with what is the essence of Respondent's violations of Section 8(a)(1), (3), and (5) of the Act, we feel obliged to pass upon the allegations set forth in numerous paragraphs and subpara- graphs of the complaint. We find that the evidence sustains the following complaint allegations: 37 Paragraph 7(a), interrogation by Gaines. Paragraph 7(b), to the extent that Gaines, in speaking to Brumley about the proposition of having a contract between the Company and the employees implied that if the employees were not responsive and did not 36 As we have seen, Irwin made a 7 percent wage increase proposal to Blair on June 8, 1971 At that time and thereafter, Blair urged Irwin to come forward with a better offer Irwin said that he would take the matter up with Tanner Apparently, he did so and had a better or different offer to propose to the Union However, because of the walkout on June 11, 1971, according to the above "Statement of Position," Respondent "refused to transmit its previously intended offer [the offer that'it had intended to make]" The foregoing is also confirmed in Respondent's brief, filed with the Trial Examiner in November 1971 to wit, "[after June 8, 1971 ] Respondent's thus cooperate with the Company, Tanner would view such action as indicating lack of appreciation for Tanner's sponsorship of various teams and Tanner would then feel obliged to cut off such sponsorship. Paragraph 8(a) and (b), interrogation by Gaines. Paragraph 9, interrogation by Gaines. Paragraph 10, interrogation by Tanner. Paragraph 11(a), interrogation by Tanner as to how the men felt about the Union. Paragraph 11(b), request by Tanner that employees prepare a list of advantages and disadvantages of union membership and support Paragraph 12. Paragraph 12. Paragraph 13. Complaints from the employees were solicited and discussed. The matters dealt with working conditions and complaints about work equipment. This occurred in the general context of a situation where Respondent had already proposed to employees on prior occasions during the period, that they consider dealing with Respondent directly, including a contract between the employees and Respondent. Paragraph 14, conduct and statements by Tanner. Paragraph 15, conduct and statements by Tanner. Paragraphs 21 through 27, except as to Irwin in paragraph 27. As to Irwin, it is our opinion that paragraph 13 reflects his conduct as described above. Paragraph 28 and 29. As to paragraph 29(c) it is our opinion that the evidence shows that Respondent told the Union that figures compiled by its auditors showed the cost of the Union proposal, rejected by Respondent would be about $250,000 and, although asked, Respondent, refused to allow the Union to see its figures used in arriving at the alleged high cost figure that led Respondent to reject the Union proposal. We believe the evidence sustains the allegation of paragraph 29(c). Paragraphs 30, 31, 32, 33, 34 and 35. Paragraphs 36, 37, 38, except as to those paragraphs of the complaint, cited in paragraph 36, concerning which the Examiner finds, as set forth hereinafter, that the evidence does not sustain the allegation. Paragraphs 16 and 17 of the complaint allege that Irwin and Gaines, respectively, solicited employees to sign a letter critical of, and demeaning to, the Union. This letter was prepared by Irwin, October 5, 1970; it was addressed to Tanner and employees were asked to sign it. The letter was then revised in one respect as requested by the employees and they then signed it. The letter referred to a statement in Blair's September 11, 1970, letter to Respon- dent in which Blair stated that employees reported that management had attempted to bribe them out of the Union by means of a wage offer. The October's letter, in effect, stated that management had not tried to bribe the employees. As we view the evidence, the employees were attorney obtained still another counter offer from management but failed to deliver it because of a work stoppage [on June 11, 19711 " And, as otherwise has been described, Respondent has refused to continue negotiations with the Union, the last negotiation meeting having been held on June 8, 1971, despite union requests for the resumption of negotiations 37 There may be variations in dates as between August and September 1970 or the early or latter part of one or the other of these months. No witness to such matters was able to remember precise dates. i 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not threatened that they had to sign the letter, albeit requested to do so by a supervisor .38 The indication is that the employees signed because they were willing to do so and felt that they could subscribe to the statements in the letter.39 We recommend dismissal of paragraphs 16 and 17. Paragraph 18(a), (b), and (c), in our opinion, is not sustained by the evidence. We do not find evidence that Irwin made statements attributed to him in 18(a), (b), and (c). As to (c), Tanner did tell Brumley that because the singers (not in the instant unit) might or had joined AFTRA, another union, whose salary demands he said he could not pay, he might have to send the engineers to Dallas and bring them back to Memphis on weekends. Brumley testified that the engineers would have enjoyed going to Dallas. Quite apart from the last-mentioned testimony, we do not find the foregoing remarks of Tanner to be illegal. Dismissal is recommended. On paragraph 19(a), we do not find that the loan to Brumley was conditioned as alleged . Dismissal is recom- mended . In our opinion, the evidence sustains the allegation of 19(b). Referring to the charges filed by the Union against Respondent, Tanner said to Brumley that he did not think the engineers to whom he had been talking (about wages and so forth) would go behind his back and if people did not respond to all he was doing for them, he would be compelled to cut out his sponsorship of sporting and other activities . The fact that Tanner may have also been displeased about past lack of employee attendance at some sponsored activities does not alter our conclusion, in view of the particular context in which Tanner was speaking with reference to union -filed charges. Paragraph 20 has been referred to in our discussion of paragraph 18(c), above, and for the reasons stated is not sustained. Conclusions of Law As hereinabove found and concluded, Respondent has violated Section 8(a)(1), (3), and (5) of the Act by acts, statements, and conduct including the discharge of Dacus, 38 Dacus was asked to sign by fellow employees Brumley and McHugh He testified that he felt that he would lose his job if he did not sign it Assuming that he felt this way, his feeling, in our opinion, is not attributable to Respondent Brumley testified that Gaines gave him the letter Brumley then took the letter to the other men He told them to read it and to sign it only if they agreed with what was written therein Brumley was the union Cotton, and Goodman, and by refusing and failing to bargain with the Union. In view of the large number of allegations in the complaint and the length of the Decision, we see no useful purpose in again reciting the specific conclusions of law heretofore made and set forth. In certain other respects, also heretofore set forth, Respon- dent has not violated the Act. The Remedy Posting of a notice and a cease-and-desist order directed to the unfair labor practices committed will be recom- mended. Affirmative action will also be recommended, including bargaining with the Union, upon request, at reasonable times and places, at reasonable frequency, and through representatives or a representative vested with reasonably sufficient authority to carry on meaningful collective bargaining. Also affirmatively recommended is the making whole of employees Cotton and Dacus for any pay they may have lost from June 14, 1971, the date of their discharge, to June 28, 1971, when Respondent allowed them to be reemployed, with interest at 6 percent on any wages due, less any intermediate earnings. Although we have found that Goodman was illegally discharged with the others on June 14, 1971, we believe that Respondent removed its liability for backpay to Goodman by offering him, on June 15, 1971, reinstatement without loss of pay. Goodman had been mistakenly terminated due to Respondent's failure to realize on June 14 that Goodman had not participated in the June 11, 1971, walkout and strike. As far as appears, Goodman, as was his right, did not choose to resume his employment when offered by Respondent. He stayed out, apparently with the other employees who were picketing, in protest of their illegal discharges. Cotton and Dacus were discharged employees and, involuntarily, were thus prevented from working. Goodman, however, had voluntarily elected to stay out on strike in sympathy with his fellow employees and the union picket line. In our opinion, he is not entitled to backpay during this period. [Recommended Order omitted from publication.] steward at that time 39 We have elsewhere made findings regarding Respondent's dealings with its employees to the exclusion of the Union Opinions of employees as to the legal interpretation to be placed on particular conduct of an employer are not determinative