Wire Products Manufacturing Corp.

652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wire Products Manufacturing Corp. and Rib Moun- tain Lodge No. 2131, International Association of Machinists and Aerospace Workers, AFL-CIO. Cases 30-CA- 1390 and 30-CA-1542 August 3, 1972 DECISION AND ORDER On October 1, 1971, Trial Examiner Harry H. Kuskin issued the attached Decision in this proceed- ing. Thereafter, the General Counsel and Respon- dent filed exceptions and supporting briefs. Respon- dent also filed an answering brief and request for oral argument.' The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings,2 and conclusions as consistent with our decision herein. For the reasons set out by the Trial Examiner, we agree that the Respondent violated Section 8(a)(1) of the Act by certain statements made shortly before or during the bargaining lockout by its president, Lindstrom, and one of its supervisors, Angus.3 We also agree, as alleged by the General Counsel, and for the reasons the Trial Examiner found, that Respondent violated Section 8(a)(1) and (3) of the Act by its discharge of Marilyn Kufahl on March 4, 1971. The General Counsel also alleged that the lockout which Respondent undertook from September 18, 1970, to December 9, 1970, was an illegally motivat- ed lockout and that its illegality was further com- pounded by Respondent's continuance of operations during the lockout. The Trial Examiner refused to find that the lockout was illegally motivated from its inception. He did find, however, that the lockout became illegal through Respondent's continuance of operations during the lockout.4 We find merit in the General Counsel's exceptions to the Trial Examiner's failure to find the lockout I We hereby deny the Respondent' s request for oral argument, as the record, including the briefs, adequately presents the issues and the positions of the parties 2 The Respondent and the General Counsel have excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F.2d 362 (C.A 3) We have carefully examined the record and find no basis for reversing his findings. 3 In the absence of exceptions by the General Counsel to the dismissal of certain other allegations of alleged 8(a)(1) statements made by Respondent's agents, we adopt the Trial Examiner's dismissal of these allegations pro forma 4 In finding the continuance of operations illegal, the Trial Examiner relied on Inland Trucking Co and Wesley Medhn, Co-Partners, d/b/a Oshkosh Ready-Mix Co, 179 NLRB 358, affd 440 F.2d 562 (C.A 7, 1971). Note that his decision preceded our decision in Ottawa Silica Company, 197 NLRB No. 53, in which Members Kennedy and Penello stated their here to have been illegal at its inception. Since we have determined that the lockout was illegally motivated, we need not reach, nor do we, the question whether Respondent's continuance of oper- ations here was itself an illegal action.5 Our reasons for finding the lockout illegally motivated follow. While the Trial Examiner found numerous state- ments by certain of Respondent's agents to be violative of Section 8(a)(1), he declined to find that these statements evidence the illegality of the lockout from its inception. The evidence reveals that Respon- dent's President Lindstrom, shortly after the employ- ees had been notified about the lockout on Septem- ber 17, told employee Kufahl that if the local plant committee repudiated Norbeck, the Union's agent, the local plant committee could negotiate its own contract. On the same day, Lindstrom said that Respondent would not bargain with the Union until the employees elected another committee and, speaking to Kufahl, Lindstrom said that the fact the employees were now out of work was her fault.6 Two weeks later, Lindstrom in speaking with employee Prentiss told her that the employees could go back to work when they got rid of the Union. And in the latter part of October, Lindstrom threatened in the presence of employee Klempke that Respondent would move its plant to another city if the locked-out employees did not return to work on the terms set forth in its last contract offer.? Finally, on a Saturday morning during the lockout, Respondent's Foreman Angus, during a discussion with locked-out employ- ees initiated by him as to when the employees were coming back to work, urged them to reject the Union in favor of a smaller union. In American Ship Building Company v. N.L.R.B., 380 U.S. 300 (1965), the Supreme Court upheld the legality of a lockout which was used "solely" in support of a legitimate bargaining position. The Court put aside those cases in which there was substantial evidence showing that the employer had disagreement with Inland Trucking 5 Unlike his colleagues, Member Fanning would also reach this issue and in agreement with the Trial Examiner here and in line with his dissent in Ottawa Silica Company, he would find the continuance of operations by Respondent to be a per se violation of the Act. 6 As the Trial Examiner noted, Kufahl was a member of the Union, a member of the union shop committee which met every other Monday with representatives of Respondent on employee grievances, and a member of the union bargaining committee , serving in that capacity ever since the beginning of negotiations for a new contract on May 6, 1970 Furthermore, in May or June 1970, Kufahl was elected shop chairman by the employees. 7 This incident, which the Trial Examiner found was a violation of Sec 8(a)(1), was not alleged as a violation in the complaint nor in the amended complaint. However, the matter was litigated at the hearing, and at the hearing Respondent did not seek further time to pursue the factual setting of this violation Since no extension of time was sought by Respondent at the hearing and since the matter was litigated at the hearing , we find no merit in Respondent's exception that the incident should not be relied on in our determination of this proceeding 198 NLRB No. 90 WIRE PRODUCTS MANUFACTURING CORP. used the lockout as a means to injure the union or to evade its bargaining duty. However, the Court noted in N.L.R.B. v. Brown, 380 U.S. 278 (1965), that where improper motivation of the employer is shown through independent evidence, this antiunion moti- vation will convert an otherwise lawful business measure into an unfair labor practice. Thus, even if the Respondent's lockout was motivated in part by a desire to bring legitimate economic pressure to bear in support of the Respon- dent's bargaining position, the lockout was unlawful if it was also motivated by union animus and there was the improper intent to injure the bargaining representative or to evade a bargaining duty. We find such improper motivation to be demon- strated in the various statements set forth, supra, which were found to be violations of Section 8(a)(1). We find that in these statements Respondent's President Lindstrom linked the lockout with the abandonment of the Union when he told the employees just after the lockout was announced that if they 'got rid of the union negotiator they could negotiate their own contract and when he told Kufahl, a vigorous union adherent, that the fact the employees were out of work was her fault. By these statements and by Lindstrom's further comment to Prentiss that the employees could go back to work if they got rid of the Union and by Angus' remarks to the locked-out employees that they should form another union, we find that shortly before and during the lockout, Respondent attempted to induce em- ployees to abandon the Union, attempted to induce employees to join another union, and conditioned the end of the lockout on the employees' abandoning the Union. In such circumstances we are constrained to find the lockout here was illegally motivated.8 We also find that the Respondent has violated Section 8(a)(1) of the Act by its halting payments of the regular individual health insurance premiums for the employees during the time period running from November 1, 1970, to December 9, 1970. The stoppage of such payments, which was first threat- ened in a letter of October 22, 1970, from the Respondent to the employees if production was not resumed, as it was not, was clearly the result of the lockout which we have found was discriminatorily motivated. Since the Trial Examiner made no specific provision in his remedy for those employees who suffered pecuniary losses caused by the Respon- dent's cancellation of such premium payments during the time of the lockout, we will so provide for their reimbursement in our decision. s Cf Southern Beverage Company, Inc, 171 NLRB 926 In so finding, we do not rely on General Counsel's argument that the Respondent further evidenced the illegality of its lockout by its August-September 1970 recall of employees who were in a layoff status 653 We further find that the various statements in violation of Section 8(a)(1) made by Respondent's agents shortly before and during the lockout, in combination with the lockout itself, which we have found to be illegally motivated, were actions de- signed to undermine and destroy the Union's majority while collective-bargaining negotiations were taking place and that by such devices Respon- dent demonstrated that it was bargaining in bad faith and thereby violated Section 8(a)(5) of the Act.9 Since the Trial Examiner failed to so find in his decision, we shall set forth the remedy for this violation in our decision. THE REMEDY Having found that Respondent engaged in unfair labor practices proscribed by Section 8(a)(1), (3), and (5) of the Act, it will be ordered that Respondent cease and desist from such conduct and take certain affirmative action set forth in a broad order designed to effectuate the policies of the Act. Having found that Respondent illegally discrimi- nated against its employees with respect to their hire and tenure of employment by a bargaining lockout which was illegal at its inception, and having further found that Respondent terminated the lockout and unconditionally offered to all locked-out employees full reinstatement to their former positions com- mencing with December 9, 1970, it shall further be ordered that Respondent make whole all its locked- out employees, whether they returned or not after the lockout, for any loss of earnings or other benefits they may have suffered by reason of the discrimina- tion against them during the lockout period, less interim earnings, and in a manner consistent with Board policy as prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Having found further that Respondent violated Section 8(a)(1) of the Act by halting payments of the regular individual health insurance premiums for the employees during November 1970 and until Decem- ber 9, 1970, it will be ordered that Respondent make whole its locked-out employees, whether they re- turned or not after the lockout, for any pecuniary losses caused by its cancellation of health insurance premium payments during the lockout. Having found, further, that Respondent violated Section 8(a)(1) and (3) of the Act by discharging Marilyn Kufahl, it shall be ordered affirmatively that Respondent offer her immediate and full reinstate- ment to her former job or, if thatjob no longer exists, 9 We so find notwithstanding the General Counsel's admission and our agreement that Respondent did not otherwise violate the Act dunng the bargaining sessions that took place before, during, and after the lockout. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to a substantially equivalent position, without preju- dice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered as a result of the discrimination against her by payment to her of a sum of money equal to that which she would have earned as wages from the date on which she was available for work after the discrimination on March 4, 1971, to the date of Respondent's offer of reinstatement , less her net earnings during such period, with backpay and interest thereon to be computed in accordance with Board policy as prescribed in F. W. Woolworth Company, and Isis Plumbing, supra. SUPPLEMENTAL CONCLUSIONS OF LAW 1. By locking out its employees on September 18, 1970, with a discriminatory motivation of undermin- ing, injuring, or destroying the Union, Respondent engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) of the Act. 2. By halting payments of the regular individual health insurance premiums for the employees during November 1970 and until December 9, 1970, Respondent violated Section 8(a)(1) of the Act. 3. By various statements in violation of Section 8(a)(1) made by the Respondent's agents before and during the lockout and by the illegally motivated lockout, Respondent violated Section 8(a)(1) and (5) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Wire Products Manufacturing Corp., Merrill, Wis- consin, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Telling employees during a bargaining lockout that, if the local plant union committee repudiated its chief negotiator, a grand lodge representative, the local plant union committee could negotiate its own contract. (b) Telling employees during a bargaining lockout that it will not bargain with the Union until the employees elect another union committee , albeit it does thereafter bargain. (c) Telling employees during a bargaining lockout that they could get back to work if they repudiated the Union and its grand lodge representative. (d) Urging employees during a bargaining lockout to reject the Union in favor of a smaller union also affiliated with the AFL-CIO. (e) Threatening during a bargaining lockout to move the plant to another city if the locked-out employees did not return to work. (f) Locking out its employees with the intent to undermine, injure, or destroy Rib Mountain Lodge No. 2131, International Association of Machinists and Aerospace Workers, AFL-CIO, the collective- bargaining representative of its employees. (g) Refusing to pay the regular individual health insurance premium for its employees during an unlawful lockout. (h) Refusing to bargain with the Union as the exclusive bargaining representative of the production and maintenance employees. (i) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Bargain in good faith with the Union as the exclusive representative of its production and main- tenance employees. (b) Make whole its locked-out employees, whether or not they returned to work after the lockout, for any loss of earnings they may have suffered by the discrimination against them during the lockout period, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Make whole its locked-out employees whether or not they returned to work after the lockout for any pecuniary losses caused by its cancellation of health insurance premium payments during the lockout. (d) Offer to Marilyn Kufahl immediate and full reinstatement to her former job or, if that job no longer exists , to a substantially equivalent position, without prejudice to her seniority, or other rights and privileges, and make her whole for any loss of earnings she may have suffered as a result of the discrimination practiced against her , in the manner set forth in the section of this Decision entitled "The Remedy." (e) Preserve and, upon request, make available to the Board or its agents , for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (f) Notify immediately the above-named individu- al, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. WIRE PRODUCTS MANUFACTURING CORP. 655 (g) Post at its plant in Merrill, Wisconsin, copies of the attached notice marked "Appendix." 10 Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the consolidated complaint, as amended, be dismissed insofar as it alleges violations of the Act not found herein. MEMBER JENKINS, concurring: I concur in the result, but question the wisdom or necessity of grounding the lockout violation on Respondent's "discriminatory motivation." All of Respondent's words and actions found herein to constitute violations of the Act are violations without regard to whether Respondent's motives were "good," or "bad." The statements made contemporaneously with the imposition of the lockout and during it would be no less 8(a)(1) violations. The statements having the thrust of avoiding the bargaining obligation, of undermining the Union, of instilling fear in the employees, of effecting a change in bargaining representatives, all violate Section 8(a)(1) and (5) without reference to the purity or impurity of Respondent's motives. A lockout in this context is not a lockout in support of a legitimate bargaining position and thus (as my colleagues note) is outside the ambit of American Ship, as the Supreme Court clearly pointed out: It is important to note that there is here no allegation that the employer used the lockout in the service of designs inimical to the process of collective bargaining. There was no evidence and no finding that the employer was hostile to its employees' banding together for collective bar- gaining or that the lockout was designed to discipline them for doing so. It is therefore inaccurate to say that the employer's intention was to destroy or frustrate the process of collective bargaining.ii We are here presented with the precise situation which the Court thought it important to note was not present in American Ship. Here the employer did use the lockout "in the service of designs inimical to the process of collective bargaining." Here the evidence objectively establishes employer conduct inimical "to its employees' banding together for collective bar- gaining" and that "the lockout was designed to discipline them for doing so." Hence the only conclusion possible is that the lockout was unlawful because of the Respondent's conduct and actions, regardless of whether or not it engaged in these actions because of some kind of subjective motive or hostility. In my view the foregoing renders unnecessary the dangerous entry by the majority into the thicket of inquiry as to an employer's subjective motives for utilizing the lockout. It is enough for the Board to determine the tendencies and effects of his conduct. Excursions into psychological state of mind and subjective motive have proven difficult and often fruitless. In the instant case the result is unaffected, but as decisional doctrine "motive" provides an insecure base. 10 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 " 11 American Ship Building Co v. NLRB, 380 US 300, 308-309 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT tell our employees during a bargaining lockout that if the local plant union committee repudiated its chief negotiator, a grand lodge representative, the local plant union com- mittee could negotiate its own contract. WE WILL NOT tell our employees during a bargaining lockout that we will not bargain with Rib Mountain Lodge No. 2131, International Association of Machinists and Aerospace Work- ers, AFL-CIO, herein called the Union, until the employees elect another union committee, albeit we do thereafter bargain. WE WILL NOT tell our employees during a bargaining lockout that they could get back to work if they repudiated the Union and its grand lodge representative. WE WILL NOT urge our employees during a bargaining lockout to reject the Union in favor of a smaller union, also affiliated with the AFL-CIO. WE WILL NOT threaten during a bargaining lockout to move our plant to another city if the locked-out employees do not return to work. WE WILL NOT lock out our employees in order 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to undermine, injure, or destroy Rib Mountain Lodge No. 2131, International Association of Machinists and Aerospace Workers, AFL-CIO, their collective-bargaining representative. WE WILL NOT refuse to pay our employees' regular individual health insurance premiums during a lockout which is illegally motivated. WE WILL NOT refuse to bargain with the Union as the exclusive bargaining representative of our production and maintenance employees. WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. WE WILL bargain in good faith with the Union as the exclusive representative of our production and maintenance employees. WE WILL make whole our locked-out employ- ees, whether or not they returned to work after the lockout, for any loss of earnings they may have suffered by the discrimination against them during the lockout period. WE WILL make whole our locked-out employ- ees, whether or not they returned to work after the lockout, for any pecuniary loss caused by our cancellation of health insurance premium pay- ments during the lockout. WE WILL offer Marilyn Kufahl immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights, privileges, or working conditions, and make her whole for any loss of earnings she may have suffered as a result of the discrimina- tion against her. All our employees are free to become or remain, or refrain from becoming or remaining, members of Rib Mountain Lodge No. 2131, International Association of Machinists and Aerospace Workers, AFL-CIO. WIRE PRODUCTS MANUFACTURING CORP. (Employer) Dated By (Representative) (Title) We will notify immediately the above-named indi- vidual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, I I granted the General Counsel 's motion to amend over the objection of counsel for Respondent , indicating, however, that I would entertain a motion from him for additional time to prepare to meet these additional allegations, if he felt the need therefor , at the close of the General Counsel's upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. 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, Commerce Building, Second Floor, 744 North Fourth Street, Milwaukee, Wisconsin 53203, Telephone 414-224-3861. TRIAL EXAMINER' S DECISION STATEMENT OF THE CASE HARRY H. KUSKIN, Trial Examiner: This proceeding was heard at Merrill, Wisconsin, on May 18, 19, and 20, 1971. A complaint in Case 30-CA-1390 issued on December 30, 1970, based on a charge and an amended charge filed against Wire Products Manufacturing Corp., herein called Respondent, on September 21 and December 15, 1970, respectively. On March 9, 1971, a charge was filed in Case 30-CA-1542, also against Respondent. Thereafter, on March 29, 1971, the Regional Director for Region 30 of the Board consolidated these two cases and issued an amended consolidated complaint. The amended consolidated com- plaint, as further amended at the hearing,' alleges that Respondent (1) has interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act; (2) has discriminated, in violation of Section 8(a)(3) of the Act, against all of its production and maintenance employees, including machine shop employees, of which employees Rib Mountain Lodge No. 2131, International Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union, is the certified bargaining agent, by locking them out, thereby depriving them of employment; (3) has further discriminated against employee Marilyn Kufahl in violation of this section of the Act by discharging her on or about March 4, 1971, and thereafter refusing to reinstate her; and (4) has refused since about September 11, 1970, and continues to refuse, to bargain in good faith with the Union, in violation of Section 8(a)(5) of the Act, by engaging in the conduct described in (1), (2), and (3), above. Respondent's answer, as amended at the hearing, denies that it has violated the Act in any respect alleged herein. And by way of affirmative defenses, Respondent alleges (1) that the lockout occurred after an impasse had been reached in negotiations with the Union, was undertaken by it as part of its bargaining strategy and in an effort to avoid a strike, and was motivated by economic considerations; and (2) that Kufahl terminated her employment voluntarily, and, even assuming a finding that she was discharged, such discharge was for cause. Upon the entire record, including my observation of the case in chief However, no such motion was made thereafter by counsel for Respondent. Indeed, the matters so alleged were fully litigated thereafter by him. WIRE PRODUCTS MANUFACTURING CORP. witnesses, including their demeanor while on the witness stand, and after due consideration of the briefs of the General Counsel and Respondent filed herein, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The consolidated complaint, as amended, alleges, and Respondent admits, that it is a Wisconsin corporation engaged in the manufacture of wire products and related items at its plant in Merrill, Wisconsin; that during the past calendar year, which is a representative period, it pur- chased and received directly from points outside Wiscon- sin goods and materials valued in excess of $50,000; and that, during the same period, it made sales across state lines or performed services outside Wisconsin Valued in excess of $50,000. I find, upon the foregoing, as Respon- dent also admits, that Respondent is an employer, as defined in Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent further admits , and I find, that Rib Mountain Lodge No . 2131, International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Some Background Facts; the Sequence of Events; and the Issues Herein Respondent is a corporate entity which came into being on October 1, 1965. Its stockholders are Harold Lindstrom, president; Roger Dupke, secretary; Robert Hill, treasurer; and Godfrey Lindstrom, who holds no office and is inactive in corporate matters. Each one owns about a 25- percent interest in the business. The three office holders operate more or less as a partnership, with each one attending to a specific phase of the business. Thus, Harold Lindstrom is in charge of the office staff, and of sales which the Company does through manufacturer's repre- sentatives; 2 Dupke is the Company engineer, taking care of the estimating, working out design problems that customers might have, and redesigning parts which customers might want fabricated; and Hill is the works manager and shop superintendent. In the case of Hill, he works closely with Donald Zabawa, the production manager, who is his immediate subordinate and is in 2 Harold Lindstrom shall hereinafter be referred to as Lindstrom or President Lindstrom 3 The record shows that foremen, unlike their subordinates, are salaried and do not punch a timeclock, that they direct the employees in their respective departments, assigning them to anotherjob when they run out of work on their given assignment, that they have the power to discipline their subordinates, can recommend wage increases , including merit increases, that they attend meetings with top management concerning production problems, working conditions, and disciplinary matters, and that they are consulted by top management on questions of hiring and firing relating to their respective departments, and, on occasion, have been able to persuade Hill, who has final authority as to discharges, to reverse a tentative decision made by him as to their subordinates It is thus apparent , and I find, that 657 charge of production from start to finish, and, together, they run the plant. The three active stockholders have the same authority in making decisions and in policy making. The Company operates a day shift and a night shift. At times material herein, the foremen on the day shift were, in addition to Zabawa, Roger Zastrow in the shipping department, Leroy Angus in the press department, Louis Peelers in the welding department, and one Peske in the toolroom. There were only two foremen on the night shift, i.e., Gordon Marnholz who was in charge of the welding department, and Lloyd Puhl who was in charge of the press department.3 In September 1970, Respondent had a total complement of about 100 to 105 employees, of whom about 85 were production and maintenance employees. Respondent's operations are somewhat cyclical. Thus, production is at the lowest level during June, July, August, and most of September; it starts to pick up in late September and reaches a peak by January which lasts through May. As heretofore indicated, the lockout oc- curred on September 17, 1970, which was the tail end of Respondent's slower production period. Respondent's production and maintenance employees have been represented for collective-bargaining purposes by the Union since 1968. The record shows, in this connection, that on April 19, 1968, the Union was certified by the Board, in Case 30-RC-843, as the exclusive bargaining representative of the following employees of Respondent: All production and maintenance employees, excluding office clerical employees, professional employ- ees, guards, and supervisors as defined in the Act.4 Respondent and the Union thereafter negotiated a collec- tive-bargaining agreement covering these employees for the period between October 24, 1968, and September 10, 1970. At the time of the lockout, negotiations for a new contract, which began on May 6, 1970, were still in progress. A stumbling block to reaching an agreement, aside from differences as to wages and contract term, was the failure to agree on a union shop clause. Reference will be made hereinafter to article II of the 1968 contract between the parties which is captioned "Modified Union Shop" and which reads as follows: Par. I-It shall be a condition of employment that all employees of the employer covered by this agreement who are members of the Union in good standing on the effective date of this agreement shall remain members in good standing and those probationary employees, as defined in this Agreement, who are not members on the effective date of this agreement shall, on the sixty-first (61st) day following the effective date of this agree- ment, become and remain members in good standing in Respondent's foremen responsibly direct their subordinates and exercise independent judgment in doing so, and that their recommendations on personnel matters are accorded considerable weight. In all these circum- stances, I am persuaded, and find, that each of the above-mentioned foremen is a supervisor within the meaning of Sec . 2(11) of the Act Respondent admitted at the hearing that, as alleged in the consolidated complaint, Lindstrom, Hill, and Zabawa are supervisors as well as agents of Respondent, within the meaning of the Act 4 Although not specifically excluded from the unit , the record shows that the electrician and the timestudy man were not part of the unit At all times material, the incumbents in these jobs were Tom Arsenau and Harvey Knewald, respectively 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union. It shall also be a condition of employment that all employees covered by this agreement and hired on or after its effective date shall, on the sixty-first (61st) day following the beginning of such employment become and remain members in good standing in the Union. Par. 2-The Company will, within three (3) working days after receipt of notice from the Union, discharge any employee who is not in good standing in the Union as required by the preceding paragraph. It is noteworthy that the requirement of section 111.06, Wisconsin Statutes, that a referendum be conducted by the Wisconsin Employment Relations Commission in order to determine whether or not the employees in the contract unit favored an "all-union agreement" between Resp$ri- dent and the Union was not held prior to the effective date of the 1968 collective agreement . And so far as appears, the modified union shop clause was not enforced by Respon- dent during the contract period. Such a referendum was, however, held during June 1970, while negotiations for a new contract were going on; and, on June 24, 1970, the above Commission certified that "the required number of employees in [the aforesaid unit] voted in favor of an All- Union Agreement between the Employer and the Union, and the Employer may, therefore, enter into such agree- ment." So far as appears there were at the time some 20 employees who were then not members of the Union.5 About a year before the expiration date of the initial and only agreement between the parties to date, there was set up at the plant herein at the instance of George Vogl, a Federal Mediator, an arrangement whereby Respondent and a shop committee of union members were to meet every other Monday for the purpose of "iron[ing] out all difficulties that arose in the shop between the workers and management and any problems." The union shop commit- tee was not to engage in any negotiations for bargaining agreements. Representing the Union at these meetings were employees Kufahl, Roy Nichols, and Willard David. Representing Respondent were Lindstrom, Dupke, Hill, and Zabawa. Notwithstanding the understanding as to the scope of these bimonthly meetings, Lindstrom did request the union shop committee sometime in April 1970 to draw up and submit to Respondent a proposal for a new agreement so that Respondent and it could exchange proposals simultaneously. The committee did thereafter prepare such a proposal, without consulting Walter J. Norbeck, the Grand Lodge representative serving the Union, and it was presented to management by Nichols 5 The referendum showed that there were 84 eligible voters, of whom only 80 cast ballots, and, of these, 59 voted for, and 19 voted against, and 2 ballots were challenged 6 Schmitt testified that Dupke approached him about the end of April 1970 concerning representing Respondent in its negotiations with the Union and that he agreed to do so, provided that he would be in complete charge of the bargaining tactics and procedure, and with the understanding that he would come back to Lindstrom, Dupke and Hill only for ratification of the provisions of the final contract So far as appears, members of management attended only the first few bargaining sessions 7 Although the 1968 contract had expired on this date, it was extended at this meeting to September 17, with Respondent's negotiators offering to make any raise in pay retroactive to September 10, if a new contract were negotiated within that week However, at a union meeting held soon thereafter, the membership considered and rejected Respondent's latest contract offer during an interval between bimonthly meetings. Norbeck was thereupon notified of this action by Kufahl. He was then in the process of drafting a contract proposal to be submitted by the Union to Respondent. Actual negotia- tions began on May 6, 1970. By that time, Respondent had engaged Attorney Leonard F. Schmitt, Esq., along with Wayne W. Hansen, Esq., a member of Schmitt's law firm, to act as its negotiators.6 Acting as negotiators for the Union throughout were Norbeck and the members of the union shop committee. In all, 10 bargaining sessions were held prior to the lockout action by Respondent, i.e., on May 6, June 19, July 28, August 19 and 26, September 4, 5, 10,7 15, and 17. At the last mentioned session, Schmitt presented the union negotiators with a copy of the following lockout notice and stated that such a notice was being posted on the bulletin board in the plant. It was, in fact, posted on the bulletin board in the plant at about 2 p.m. and was to the following effect: NOTICE TO OUR EMPLOYEES Because we have reached an impasse in bargaining negotiations as to wages and working conditions with the bargaining representative of our employees, Rib Mountain Lodge No. 2131 International Association of Machinists and Aerospace Workers, AFL-CIO, and because our present contract has expired, we have decided to cease operations and close our plant as of the close of the night shift at 1:15 A.M., September 18, 1970. The plant will remain closed for production pending the further decision of our Board of Directors. Dated September 17, 1970-2:00 P.M. WIRE PRODUCTS MFG. CORP. By President Any employee with personal tools or equipment in the plant should remove them not later than 1:30 A.M., September 18, 1970. At the time of the lockout, as already noted, the principal unresolved issues between the parties related to wages, the scope of the union-security clause,8 and the contract term. It is not contended by the General Counsel that Respon- dent did not bargain in good faith during these sessions; 9 rather is it contended that the lockout of all the employees in the contract unit during the course of bargaining established the 8(a)(3) as well as the 8(a)(5) violation, since 8 As appears hereinabove, the modified union shop clause of the 1968 contract provided, in substance , that all employees who were members of the Union on the date the contract was signed had to remain members, and all probationary employees and new employees hired thereafter were to become members The record shows, and I find, that during the negotiations for a new contract which antedated the lockout, the Union demanded an all-union shop clause as opposed to the above modified union shop clause, and that Respondent offered first an open shop and later a modified union shop clause but with a cutoff date of June 10 , 1970, so as not to require membership of those employees who had not become members of the Union as of about 10 days prior to the union shop election held by the Wisconsin Employment Relations Board about June 20, 1970 9 In this connection, counsel for the General Counsel volunteered at the hearing that he "has never alleged that there were any unfair labor practices committed during the specific mechanics of the bargaining sessions " WIRE PRODUCTS MANUFACTURING CORP. 659 it was illegally motivated as shown by (1) the conduct of Lindstrom on or about the day of the lockout, and the conduct by him and others, during the lockout period, of seeking by statements to employees to undercut the status of the Union as their certified bargaining agent, allegedly in violation of Section 8(a)(1) of the Act, and (2) the conduct of management about 2 weeks before the lockout of recalling its temporarily laid-off employees for the "express purpose" of depriving them, once they were locked out, of the unemployment compensation to which they would have been entitled had they not been recalled but continued in layoff status. These allegations and the claimed nexus between such alleged conduct and the lockout will be treated more fully hereinafter. During the lockout which lasted from September 18 until December 9, Respondent carried on production on a reduced basis by the use of (1) its supervisory personnel; (2) two office employees, namely, Jack Lindstrom and Paul Leopold, both of whom would have, under normal conditions, worked on payroll and/or insurance in the office, and were the son and son-in-law, respectively, of President Lindstrom; and (3) the following nonunit personnel, Tom Arsenau, the electrician; Harold Waller, the quality control man; and Harvey Kriewald, the timestudy man, each of them apparently doing production work when his regular work gave out. In addition, Roger Dupke's wife and son spent one evening doing work in the plant. So far as appears, the supervisory and nonunit personnel worked about 50 hours each week instead of the usual 40 hours, and they were able to maintain production at approximately a 25-percent level during the lockout period. According to Lindstrom, production during No- vember of the lockout period was about 50 percent of what it was during the prior August, which was a slow period and which preceded the lockout. It would appear that five negotiating sessions were held during the period of the lockout, the first one occurring on September 25. The other sessions occurred on November 6, 11, 12 and 30.10 In between the first and second of these negotiating sessions during the lockout period, Respondent sent a letter, under date of October 22, to all its production and maintenance employees in which it: (1) told them that a negotiating session had been held, and that the Union had not contacted Respondent since then to arrange another meeting; (2) set forth, for their information, the content of certain provisions of the offer it had made to the union negotiating committee at that meeting;11 (3) informed them that it had been notified by the Wisconsin Department of Labor, Industry and Human Relations that unemployment compensation benefits will not be paid to the employees affected by the lockout while this labor dispute continues; and (4) further informed them that it had paid the regular individual health insurance premiums for October for all employees, but will not pay the November premium for them, and that continued coverage under the old health insurance plan would depend upon 10 The record shows that further bargaining sessions were held, after the lockout period, on December 18, 1970, and on January 15 and April 13, 1971 On the last mentioned date, no arrangement was made, for a subsequent meeting. 11 I e., as to paid holidays, a health, accident and life insurance plan, a grievance procedure, wage increases, and a management prerogative clause payment by each employee of the entire premium for the coverage desired, be it individual or entire family. Another development during the lockout period was the initiation of picketing by the Union. The picketing was done by locked-out employees who carried signs saying variously, "Wire Products Unfair to Local 2131"; "Ma- chine Products Local 2131 Locked Out by Wire Products"; "Wire Products Stalling at the Bargaining Table"; and "Wire Products on Strike against Local 2131." This picketing, which appears to have started shortly after the lockout began, lasted until December 9, when the pro- duction and maintenance employees returned to work at the instance of Respondent. The return to work was triggered by a letter from Respondent under date of December 5 to all its production and maintenance employees in which it (1) alluded to the four abovemen- tioned negotiating sessions held since the session in September; set forth various offers made to the bargaining committee at the November 12 negotiating session pertain- ing to wages, vacations, increases in the disability portion of the insurance plan, and a form of union security now in effect in the plant of the Merrill Manufacturing Company in the same city; (2) suggested that these items plus those mentioned in its October 22nd letter to them add up to a fair and honest proposal, yet it was turned down by Norbeck, the Union's chief negotiator; (3) announced that the plant "will reopen for regular production" on Wednes- day, December 9, and invited all employees to return to the jobs they held at the time of the lockout and gave them until Monday, December 14, to do so or be permanently replaced; and (4) set forth certain increased benefits commencing December 9, which it assertedly had thereto- fore offered to the Union,12 explaining in its letter that "Because an impasse has been reached in negotiations, the Company has a right to reopen the plant and to provide some of the benefits that we offered to the Union." About 10 or 12 of the locked-out employees did not return to work on December 9 or thereafter.13 Although employee Marilyn Kufahl was among the employees who did return, her employment ceased on March 4, 1971. Respondent takes the position that she quit her employ- ment at that time, and further, even assuming that it discharged her, the discharge was for cause. The General Counsel contends that she did not quit but was discharged for union-connected reasons. This issue will also be treated more fully hereinafter. B. Findings of Fact and Conclusions as to the 8(a)(1) Allegations 1. Preliminary observations As heretofore noted, the 8(a)(1) allegations of the consolidated complaint, as amended, refer to conduct by representatives of management on or about September 17, 1970, and thereafter. It is noteworthy, however, that this 12 The benefits involved general wage increases , a shift premium for the second shift, additional paid holidays, increased insurance benefits, washup periods, and break periods 13 It would appear, however, and I find , that they, like those who returned, were offered unconditional reinstatement to their former positions beginning with their regular work shift on December 9, 1970 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occurred against a backdrop of antipathy, both to the Union because it was part of a large international union associated with the AFL-CIO, and to dealing with Norbeck as the representative of its employees. Illustrative of this are the statements made by management at certain bimonthly meetings to the union shop committee.14 In this connection, there is uncontradicted testimony by employee Kufahl, which I credit, that: (a) during a bimonthly meeting, the approximate date being sometime in April 1970, Lindstrom told the shop committee that "We did not need Walter Norbeck to negotiate our contract, we should do this ourselves"; (b) during a bimonthly meeting in May, and again in June, Hill told the shop committee that "They didn't want to negotiate with Norbeck, the IAM. They didn't want the IAM union in there. It was too big"; and'. (c) during one of the June bimonthly meetings, after Lindstrom had raised the matter of negotiations and Kufahl answered that negotiations were not to be conduct- ed at such meetings, Zabawa said, "Walter Norbeck will not let you negotiate your own contract"; to which Lindstrom said, in turn, that "Walter Norbeck has no idea how a small company is run, he has big ideas and too big for a small company"; and Hill added, "We will settle for or agree to a small company union, just the people from it. This [we] will go along with. But, Walter Norbeck and the IAM union was too big." 2. The allegations of paragraphs 7(a) through 7(d) of the consolidated complaint, as amended Paragraphs 7(a), (b), (c), and (d) allege, respectively, that on or about September 17, 1970,15 Lindstrom made the following remarks contravening the Act : If the Union were repudiated the employees could go back with no further problems; if the union committee were repudiated, Respondent would bargain in good faith with the employ- ees; if the local plant union committee repudiated Norbeck, the local plant union committee could negotiate their own contract ; and Respondent would not bargain with the Union until the employees elected another union committee . The record shows that on September 17, at about quitting time for the day shift, which occurred at 3:30 p .m., and about an hour and a half after the lockout notice was posted on the plant bulletin board, Lindstrom appeared in the plant proper, approached various employ- ees and made comments in a shouting voice to them about the impending lockout . According to Kufahl , she was on her way to the shipping room in order to get a large fan of hers,16 when she met Lindstrom and the following occurred: After telling Lindstrom what she was doing, Lindstrom remarked to her, "All of these people out of work and it is all your fault . . . You cannot get unemployment, I've checked with Madison, and with Wausau,17 and no unemployment will be paid in a labor dispute." Lindstrom followed her as she moved through the plant. After she picked up her fan, she went to the 14 Testimony concerning the above was introduced by the General Counsel as background and I received it on that basis 1s All dates mentioned hereinafter, except in respect to the unfair labor practice allegations involving Kufahl, are in 1970 16 In the lockout notice, the employees were told to remove their personal tools and equipment from the plant timeclock in order to punch her card. At that point, Lindstrom shouted to her, "We have told you repeatedly that we will not negotiate a contract with Walter Norbeck, you have to negotiate your own contract . . . when will you people realize you have to negotiate your own contract ... there's 100 people out of work and it's all your fault." Employees Roy Nichols, Elaine Rice, Richard Rice, and Willard David also testified concerning statements made by Lindstrom in their presence at the timeclock about 3:30 p.m. that day. According to Nichols, Lindstrom said, in substance, that the employees were offered a package of 60 or 65 cents but it was turned down 18 and that if they would get rid of Norbeck and the committee it would be to their advantage. He was not sure who else was there at the time, explaining that he was moving through the plant with his toolbox when he heard Lindstrom make these remarks, albeit, not the whole conversation. According to Elaine Rice, Lindstrom was talking to Kufahl when she arrived at the timeclock and she heard him say that, "If [the employees] got rid of the Union [they would be] better off and that's what [they] should have done." She testified further that when Kufahl walked out of the plant at this point, saying that the employees would be filing for unemployment compensation, Lindstrom yelled real loudly that there would not be any unemployment compensation; whereupon she queried Lindstrom on the last point and he gave her the same answer as he gave to Kufahl, explaining that he had checked this matter out with lawyers in Chicago. Further, according to employee Richard Rice, the husband of Elaine Rice, he heard Lindstrom say to Kufahl and to a few other people that they should have accepted the money package that Respondent had offered, that they would not be getting any unemployment compensation during the lockout, that the employees would be sorry they did this, and finally that if the employees had rid themselves of the Union, they would not have had this trouble. And lastly, Willard David testified that he saw Lindstrom talking to Kufahl at the timeclock, but he was not paying too much attention to what Lindstrom was saying. He did recall, however, that, as he was leaving, Lindstrom said to him, "Willard, I thought you had more sense than to let something like this happen." In addition, the General Counsel adduced testimony by employee Romona Gano that she heard Lindstrom say to employee Helen Schultz about 2:10 p.m. on the day of the lockout, in the vicinity of the timeclock, that "until they get a different committee we can't do anymore talking." Both Hill and Lindstrom testified for Respondent in regard to the above. According to Hill, he saw Lindstrom at the timeclock about 3:30 p.m. but he heard only the exchange between Lindstrom and Elaine Rice on the matter of unemployment compensation for the locked-out employees. And Lindstrom could recall only that he discussed the matter of unemployment compensation with Kufahl on that occasion. While he denied generally having made to employees any of the remarks alleged in the 17 The reference was, I find, to inquiries made by him concerning unemployment compensation for locked-out employees at the office of the Wisconsin Department of Labor, Industry and Human Relations in these cities 1s As already found, the membership had, in fact, voted against accepting Respondent's latest offer at a union meeting about a week before WIRE PRODUCTS MANUFACTURING CORP. 661 consolidated complaint, as amended, he admitted that he had been drinking before 3:30 p.m. that day and that he was not "in complete control of [his] senses at the time" 19 of these alleged remarks. While I am satisfied, and find, on the basis of this testimony and that of Kufahl and Elaine Rice, that Lindstrom was under the influence of liquor at the time, the fact remains that the foregoing attributions to Lindstrom by the witnesses for the General Counsel stand unchallenged on the record in all significant respects. For, Lindstrom's general denial is entitled to no probative weight in the light of his admissions that his condition was such that he cannot recall what he said, other than his remarks to Kufahl concerning unemployment compensa- tion. In these circumstances, and as there is no warrant for finding on this record that Lindstrom's remarks were not seriously regarded by the employees involved, and as these attributions to Lindstrom are rendered increasingly plausi- ble when measured against the credited background evidence that Lindstrom, among others in management, was antipathetic both to the Union because it was part of a large international union associated with the AFL-CIO, and to dealing with Norbeck as the representative of its employees, I conclude, and find, that Kufahl, Nichols, Elaine Rice, Richard Rice, David, and Gano gave credible testimony and that Lindstrom made the remarks attributed to him by each of them. An analysis of the above testimony of the General Counsel's witnesses, however, reveals that the record is devoid of any testimonial support of paragraphs 7(a) and (b), but that there is substantial supportive testimony of the allegations in paragraph 7(c) that Lindstrom said that, if the local plant union committee repudiated Norbeck, the local plant union could negotiate their own contract, and in paragraph 7(d) that Lindstrom said that Respondent would not bargain with the Union until the employees elected another union committee. Accordingly, I find that, by the conduct alleged in paragraphs 7(c) and (d), which was calculated to, or tended to, undermine the Union, Respondent interfered with, restrained, and coerced its employees in their Section 7 rights under the Act, in violation of Section 8(a)(1) of the Act. And I find further that the record falls short of sustaining paragraphs 7(a) and (b) of the consolidated complaint, as amended. 3. The allegations of paragraph 7(e) of the consolidated complaint, as amended This paragraph alleges that on or about September 30, 1970, while in a tavern in Merrill, Wisconsin, Lindstrom remarked to locked-out employees, who were present, that the only way they could get back to work was by repudiating the Union. Employee Myrtle Prentiss testified that about 2 weeks after the lockout began,20 she was in the Corner Tap, a tavern in Merrill, Wisconsin, which she frequented, and found Lindstrom there; that she asked Lindstrom when the locked out employees were going back 19 According to Lindstrom, he had a heart condition and his doctor had told him that it would not hurt if he had a little brandy or whiskey occasionally. 20 This date would appear to approximate that alleged in par. 7(e). 21 Respondent cites the case of Tomco Studs Co. Inc., 170 NLRB 428, in support of its position that it should not be held responsible for Lindstrom's to work and that Lindstrom replied, "You girls know when you can go back to work, when you get rid of Norbeck and the Union." Here again, Lindstrom denied making the above remark attributed to him by Prentiss. He admitted that he was probably at the Corner Tap at the times testified to by his employees, including Prentiss, and added that there was one time when, because of the number of drinks he had consumed, he was not in control of his senses, and that, consequently, he does not recall what he said on that occasion. On this state of the record, I cannot find that Lindstrom was under the influence of liquor at the time of the episode testified to by Prentiss. And since Prentiss impressed me as a more credible witness than Lindstrom, I credit her and find that Lindstrom made the remarks attributed to him above by her. Moreover, even assuming that Lindstrom was under the influence of liquor at the time, I find, for the reasons already given in the instances involving the attributions to him by employees on September 17, that this circumstance would not alter my finding above that he made these remarks to Prentiss and that Respondent is answerable therefor. Accordingly, I conclude, and find, that Respondent thereby contravened the Act in violation of Section 8(a)(1) of the Act.21 4. The allegation of paragraph 7(f) of the consolidated complaint, as amended This paragraph alleges that, about the time referred to in paragraph 7(e) and at the same place, Hill told employees of Respondent that they would get better wages and working conditions if they repudiated the Union. There was testimony by employee Ruby Tupa attributing such a remark to Hill at the Corner Tap about a month earlier, namely, on or about September 1. According to Ruby Tupa's direct testimony, the following occurred: She was at the tavern with Prentiss on that occasion, after work; Hill was also there and a conversation ensued between Hill and them. At one point, they asked him why the work was so slow and he replied that "with the union contract the way it was work would be slow until that was settled" and that "without a union [they] would get better wages and [they] wouldn't be . . . running out of work right now." However, on cross-examination, she indicated that the question put to Hill was whether they were going to be laid off and Hill answered that "with a union they just couldn't tell how the work was going to go." Ruby Tupa then omitted any attribution to Hill concerning what the situation would have been as to wages and available work in absence of a union. And, I note also that, during cross- examination, she testified that although Prentiss was standing in the immediate vicinity, Prentiss claimed that she did not hear the conversation. Accordingly, in view of the differing versions given by Ruby Tupa on direct and cross-examination as to what transpired, in view of the absence of any corroborating testimony by Prentiss although she was in the immediate vicinity, and also in remarks to employees made while at the bar, called the Corner Tap. However, as that case is clearly distinguishable on its facts from the instant situation, it is not controlling herein and does not militate against any of the 8(a)(1) findings as to remarks made by Lindstrom to employees while at the Corner Tap. 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD view of Hill's denial that he made the remarks attributed to him by Ruby Tupa on this occasion, I conclude, and find, that the record fails to preponderate in favor of a finding that, on about September 1, 1970, or thereafter, Hill made any of the remarks attributed to him by Ruby Tupa. It follows therefrom, and I find further that, apart from any other considerations, the record fails to sustain the allegations of paragraph 7(f) of the consolidated com- plaint, as amended. 5. The allegations of paragraph 7(g) of the consolidated complaint, as amended This paragraph alleges that on or about September 14, Foreman Lloyd Puhl told employees in the plant that they would get better wages and working conditions if they repudiated the Union. Employee Thomas Tupa placed such a conversation about a week before the lockout of September 17. According to him, he approached Puhl in the press department either before or after he had punched his timeclock and inquired as to how things were going. He testified readily that Puhl then said that things were not too good, that things were slow. And it was only after he could not recall what else was said that he testified piecemeal, in response to two leading questions (i.e. as to what was said as to working conditions, and as to what was said concerning wages), that Puhl also said that working conditions would be better without the Union, and that wages would be better without the Union. Puhl, on the other hand, dented making any such remarks to Respon- dent's employees on September 14 and could not recall ever making such a statement to Thomas Tupa. In view of the fact that Thomas Tupa initiated the conversation, in view of the manner in which the foregoing attributions to Puhl were adduced from Thomas Tupa, in light of Puhl's denial of these attributions, and as Puhl impressed me as a more reliable witness than Thomas Tupa, I credit Puhl's denial and find that the record fails to preponderate in favor of a finding that Puhl made the remarks to employees alleged in paragraph 7(g). Accordingly, I conclude, and find, that the allegations of paragraph 7(g) of the consolidated complaint, as amended, have not been sustained. 6. The allegations of paragraph 7(h) of the consolidated complaint, as amended This paragraph alleges that on or about October 15, Foreman Leroy Angus told employees, while outside the plant, that they should form a smaller union of their own. Employee Sandy Becker testified to an episode along these lines that occurred on the Saturday morning before Thanksgiving. At that time, according to Becker, she and other locked-out employees were standing in front of the factory, by the office door, when Angus approached them, and the following occurred: Angus asked, "When are you people coming back to work? . . . we sure miss you." At this, she responded with, "Why don't you open the doors we'll come back in?" Angus rejoined with, "I don't know why you people don't form your own small union .. . you can still be affiliated with the AFL-CIO." Her retort to this was, "Yeah, where would be sitting with someone else? ... at least now we're getting $40 a week . . . it may not be a heck of a lot but at least it's putting food on our tables." Becker's testimony was corroborated, in substan- tial part, by that of employee Marian Giese.22 There was also testimony by Angus in respect to the above. He denied making the statement attributed to him in this allegation to any employee, including Becker, and insisted that, while he recalled seeing Becker on the picket line, he did not recall talking to her, "not to the extent of any conversation, no." On the entire record, including the fact that Becker's testimony was corroborated in large part by that of Giese, and the fact that both of them impressed me as more reliable than Angus, I credit them rather than Angus and find that Angus made the remarks attnbuted to him by Becker on this occasion. Accordingly, I find that, by urging employees to reject the Union in favor of a smaller union, also affiliated with the AFL-CIO, and seeking thereby to undermine the established bargaining agent of its pro- duction and maintenance employees, Respondent re- strained and coerced its employees in violation of Section 8(a)(1) of the Act. 7. Matters which were not alleged as violations of the Act but which were litigated herein The General Counsel introduced testimony by employ- ees Willard David and Glorian Klempke attributing threats to move the plant to Lindstrom. There is testimony that Lindstrom made such remarks on two different occasions in October. According to David, the following occurred on the occasion involving him: He was at the bar of the Corner Tap one afternoon about a month after the lockout began, having a beer; employee Lucille Holzum23 and Lindstrom were also at the bar. Lindstrom was talking to Holzum and said that he was directing his remarks to her and not to him. At this point, Lindstrom started to talk louder to Holzum and said that "they were going to open another plant in another city if this wasn't settled soon24 and just move out there, and they had enough money to open three more plants if they wanted to." In the same vein was the conversation testified to by Klempke. According to her, she was at the bar of the Corner Tap around the end of October; Lindstrom and two men from Chicago related to the bartender were also at the bar. Lindstrom was then in conversation with these two men, who were sitting between Lindstrom and her, and the following occurred: Lindstrom told them that "us people don't want to work that we rejected this contract that they had offered and if they didn't come across or start working pretty soon he would start another plant in Sturgeon Bay . . . he already had the lot, it was overlooking the Bay, and they were going to build him a factory down there, and that he could hire help down there a lot cheaper than what he could here, for $1.60 and $1.65 an hour." She did not say anything up to this point, but when Lindstrom spoke further of what he had offered the production and maintenance employees over the contract period, and added that the Union had locked 22 She and several other named employees were present at the time 24 I infer, and find, from the context of these remarks and the entire 23 Holzum did not testify in this proceeding record, that the reference was to the lockout WIRE PRODUCTS MANUFACTURING CORP. Respondent out, she took issue with him as to how much the offer would mean to the employees in dollars and cents, and as to who did the locking out. During its case in chief, Respondent adduced testimony only relating to the above episode involving Klempke and Lindstrom. And as to this, Lindstrom was unable to say whether Klempke and he were at the bar in the Corner Tap at the time testified to by her in October; and, further, he could not recall making any statements like the one relating to Sturgeon Bay, as mentioned by her. As Klempke impressed me as a truthful witness, and as Lindstrom failed specifically to deny her account of the episode, and in light of the entire record, I conclude, and find, that Lindstrom made the remarks attributed to him by Klempke and that Respondent thereby threatened to move its plant to another city if the locked out employees did not return to work on the terms set forth in its last contract offer, in violation of Section 8(a)(1) of the Act.25 C. Findings of Fact and Conclusions as to the 8(a)(3) Allegations With Respect to the Lockout Itself The General Counsel contends that the instant lockout situation does not involve an employer's protected conduct of using a temporary layoff of employees solely as a means to bring economic pressure to bear in support of his bargaining position, after an impasse has been reached, as was the case with the offensive lockout in the American Shipbuilding Co. case.26 Rather does it involve, his argument continues, the use by an employer of a temporary layoff with the illegal objective of injuring a labor organization, a type of offensive lockout which the Board has, since the American Shipbuilding Co. case, held to be violative of the Act. That there was such illegal motivation, he further asserts, is clear from the contempo- raneous conduct of Lindstrom and other members of management alleged herein to be violative of Section 8(a)(1) of the Act, and from the conduct of Respondent, 2 weeks before the lockout, of recalling its temporarily laid- off employees for the "express purpose" of depriving them, once they were locked out, of the unemployment compen- sation to which they would have been entitled had they continued in layoff status. The General Counsel also contends, in the alternative, that, even if the original lockout was lawful, Respondent nevertheless violated Section 8(a)(3) of the Act by continuing operations during the offensive lockout period by using replacement labor consisting of supervisory and nonunit personnel , citing as authority therefor the case of Inland Trucking Co. v. N.L.R B., 440 F.2d 562 (C.A. 7), affg. 179 NLRB No. 56. Respondent contends, on the other hand, that the lockout was a defensive action by it in anticipation of a strike, and was taken only after an impasse had been reached during good-faith negotiations; that the recall of a number of employees who had been laid off during the slack August 25 See Textile Workers Union of America v Darlington Manufacturing Company, et at (In 20), 380 US 263 I find it unnecessary to, and do not, pass upon David's testimony detailed above, as neither Holzum nor Lindstrom , the two principals involved in the episode, testified with respect thereto and, in any event, a finding based thereon would merely be cumulative on the issue of a threat by Respondent 663 period was not illegally motivated but was, instead, part of its preparation for a strike as these employees were used to move out the work then in'progress and to deplete its inventory preparatory to a strike; and further that the otherwise legal lockout was not tainted by statements attributed to various company officials, because (1) the conduct of negotiations and responsibility for deciding upon strategy rested entirely upon attorney-negotiators completely removed from Respondent's operations so that there was a clearly recognizable line of demarcation between them and the Company's officials; (2) even assuming that the line of demarcation argument is rejected, any motivation attributed to Lindstrom cannot taint the true motivation for the lockout, as ownership of Respon- dent was divided equally among Hill, Dupke, and Lindstrom, with each having an equal and separate voice in management decisions, which required the concurrence of at least two of them; and (3) assuming still further that the aforesaid divisions of responsibility argument is rejected, these attributions to management fail to establish discriminatory motivation and do not, in their totality, establish union animus sufficient to taint the lockout action.27 It is apparent that the foregoing contentions of the parties raise the ultimate questions of (1) whether the lockout was an offensive or defensive one, the General Counsel maintaining the former and Respondent the latter; (2) whether, if it was the former, it was vulnerable because it was illegally motivated; and (3) whether, if the lockout was lawful initially, Respondent nevertheless violated the Act by continuing operations during the lockout with supervisors and nonunit personnel. As to the nature of the lockout, Respondent asserts that the lockout was a defensive action in anticipation of a strike and gives as the reason for its preoccupation with a strike (1) the fact that negotiations had been held since May 6, 1970 "without any apparent success"; (2) the fact that the strike record of Walter Norbeck, the union negotiator, was well known to Respondent's negotiators; (3) the fact that, as the existing contract with an expiration date of September 10, 1970, drew to an end, Respondent's negotiators sensed a pattern in Norbeck's style which tended to steer away from substantive issues and instead resulted in interminable discussions about areas previously discussed; (4) the fact that Federal Mediator Vogl, on at least two occasions, characterized the union security issue as a stumbling block and warned that "he'll take them out on that"; and (5) the statement of Willard David, a bargaining committee member, to Robert Hill on Septem- ber 10, when the latter posted Respondent's latest offer to the Union on the shop bulletin board, that "if Norbeck could see that, he'd call a strike right now." I am persuaded, however, that the aforesaid reasons do not withstand scrutiny. Thus, as to (1), at the time of the lockout about 4 months had elapsed since the start of negotiations, 10 negotiating sessions had been held, and to move its plant. 26 380 U S 300 See more detailed discussion infra 27 In view of my findings hereinafter based on (3), 1 need not, and do not, spell out my reasons for finding contentions (1) and (2) to be lacking in merit 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the unsettled issues between the parties were union security, wages and contract term.28 While both Respon- dent and the Union were apparently disappointed with the failure to reach agreement in these areas on their own terms, there is no warrant for finding that the Union's failure to reach agreement was tantamount to a threat of strike action. That this is so is underscored, inter alia, by the uncontradicted and credible testimony of Kufahl and David, who were members of the union bargaining committee, and by Norbeck, the chief negotiator for the Union, that no threat to strike was made during these sessions, by the further credited and uncontradicted testimony of David that, on September 17, when Respon- dent's negotiators handed the Union's negotiators a copy of the lockout notice which had dust prior thereto been posted by Respondent on the plant bulletin board, Norbeck offered to continue working under the old contract, and by the lockout notice itself, which Lindstrom testified gave the only reasons for the lockout, and which attributed the lockout to the impasse reached in negotia- tions and to the expiration of the contract and made no mention of a strike threat. As to (2), Respondent's mere assertion, unsupported by any specific proof herein, that Norbeck had a record of resorting to strike action as a tactic to gain his contract demands and that its negotiators were aware thereof, carries no probative force. Indeed, even assuming that he had pursued such tactics in the past, no case has been made 'out here to support a finding that he gave Respondent's negotiators cause to anticipate strike action here.29 As to (3), there is testimony by Schmitt and Hansen, Respondent's negotiators, in effect accusing the Union of using stalling tactics during negotiations in September, toward the end of prolonging negotiations into Respondent's busy season when strike action by it would be more effective. Absent either a contention herein that such tactics as the Union used constituted bargaining in bad faith or any basis on this record for so concluding, and absent any warrant for concluding that the Union was contemplating strike action at some time after the slow season ended, I am unable to find any merit in this argument. As to (4), there is testimony by both Schmitt and Hansen, in substance, that, on at least two occasions, Federal Mediator Vogl, in reporting back to them during negotiating sessions, raised the subject of strike action over the union-security issue, which was a stumbling block to reaching an agreement. I note, however, that Schmitt's and Hansen's versions were at variance with each other. Thus, Schmitt testified that Vogl told them on these occasions that "he [Norbeck] was going to take them out on the union security issue," whereas Hansen testified that Vogl said "that he felt that they would take them out, meaning the Union would take the employees out on this issue." Accordingly, in the absence of any testimony by Vogl concerning these episodes, in view of the material variance 28 In his brief, the General Counsel states , in relevant part, "The deadlock in negotiations was created by the Company 's insistence that it could not live with the existing modified union shop clause " In view of this, and his further concession that Respondent did not engage in bad-faith bargaining before the lockout, I conclude , and find, as Respondent also contends, that a bona fide impasse had been reached by the parties by September 17 on the issue of union security. 29 1 note, in this connection , that, in response to a question from the between the respective versions of Schmitt and Hansen, in that Hansen's version is much more tentative than that of Schmitt and implies speculation by Vogl as to what might happen if the union-security issue was not resolved, and in light of the denial by Norbeck that he ever conveyed to Vogl during these negotiations any threat to strike over the union-security issue, as well as the absence of any evidence that the Union made any preparations for a strike during this period, such as taking a strike vote among its members, I conclude here, too, that no finding adverse to the Union can be predicated thereon. And finally, as to (5), even granting that David made the remark that Norbeck would call a strike right now if he were to see Respondent's posting on the bulletin board on September 10 of its latest offer to the Union, I am satisfied, and find, that the clear import of David's remarks was that he was not speaking for Norbeck but was speculating, on the basis of his own reactions to the posting, as to what Norbeck might do. Accordingly, here too, I draw no implication adverse to the Union from David's remark. While the Board has heretofore sustained an employer's defensive action of locking out his employees where a strike was threatened and there were unusual circum- stances to support the employer's action,30 this is not such a case. As found above, the record fails to support a finding that the lockout action here was taken in anticipation of a threatened strike. Rather does it appear that such action, as set forth in the lockout notice itself, was taken because of the impasse reached in negotiations and because of the expiration of the 1968 contract. Accordingly, I conclude, and find, in agreement with the General Counsel, that Respondent acted offensively rather than defensively when it locked out its employees on September 17, effective as of September 18. We come now to the General Counsel's contention that the instant offensive lockout is vulnerable because it was illegally motivated. In this connection, he relies on the 8(a)(I) conduct herein and on the conduct of management about 2 weeks before the lockout of recalling its temporari- ly laid-off employees for what he asserts was the "express purpose" of depriving them, once they were locked out, of the unemployment compensation to which they would have been entitled had they not been recalled but continued in layoff status. As to the former, I have heretofore found violative of the Act (1) Lindstrom's conduct on September 17, shortly after the employees were notified of the lockout, of telling employee Kufahl that if the local plant union committee repudiated Norbeck, the local plant could negotiate their own contract; and also told employee Schultz that "until [the employees] get a different committee we can't do any more talking"; (2) Lindstrom's conduct about 2 weeks later of telling employee Prentiss that the employees can go back to work when they get rid of the Union; (3) Foreman Angus' undersigned as to whether he ever asked Norbeck if the employees intended to take stoke action, Hansen replied, "We assumed that would happen . . We were quite aware of Mr. Norbeck's record in this area and didn't need to get confirmation at this time." 30 Duluth Bottling Association, et a!, 48 NLRB 1335, International Shoe Company, 93 NLRB 907, Betts-Cadillac Olds, Inc, 96 NLRB 268; and Central California Chapter the Associated General Contractors, et a!, 105 NLRB 767. WIRE PRODUCTS MANUFACTURING CORP. statement on or about October 15, during a discussion with locked-out employees initiated by him as to when they were coming back to work, urging them to reject the Union in favor of a smaller union, affiliated with the AFL-CIO; and (4) Lindstrom's threat made in the presence of employee Klempke around the end of October that Respondent would move its plant to another city if the locked-out employees did not return to work on the terms set forth in its last contract offer. While it is true that the foregoing conduct establishes that once the lockout was announced, Respondent engaged in unlawful conduct which was calculated to, or tended to, undermine the Union as the certified bargaining agent of Respondent's employees, such conduct, particularly when viewed against the General Counsel's concession that Respondent did not engage in bad-faith bargaining prior to the lockout, is arguably just as consistent with a finding that it derived from the fact that the lockout situation was already in being as with a finding that it mirrors some operative considerations in effecting the lockout. And this is so notwithstanding employee Edward Jahns' testimony that, on or about August 21, after a negotiating session between Respondent and the Union, Lindstrom said to Hill in the plant, in his presence, that "if we didn't get rid of Marilyn Kufahl and Willard David they would lock us out on September 10th." Lindstrom denied making the above statement. It is noteworthy that Jahns was not certain of the date or the time of day when this occurred and could not recall what else was said by either Hill or Lindstrom. In all these circumstances, including the fact that Jahns did not impress me as a reliable witness, I do not credit this testimony. I am therefore unable to conclude on the basis of the 8(a)(1) findings herein alone that the record preponderates in favor of a finding that the lockout was illegally motivated.31 The other contention as to illegal motivation is addressed to the consequences in terms of loss of unemployment compensation to some of Respondent's employees because Respondent recalled them from layoff status on either August 31 or September 1, about 2-1/2 weeks before the lockout, rather than allow them to remain in layoff status and continue to receive unemployment compensation. This contention carries the implication that the lockout was already planned and a certainty at the time these laid-off employees were recalled, and that Respondent sought by recalling them and then locking them out to impair their financial situation and thereby lessen their support of the Union during the lockout 32 The record establishes, in this connection, that the month of August and most of September fell during Respondent's slow season; that, in August, some of these laid-off employees had been asked to, and did, take voluntary leave, subject to recall; that these laid-off employees were recalled while work was still 31 See United States Pipe & Foundry Co., 180 NLRB No. 61. 32 Sixteen employees were in layoff status during August out of a total complement in excess of 80 production and maintenance employees. Of these 16, 13 returned to work at the instance of Respondent on August 31, and two returned on September 1, and one did not return to work before the lockout, although requested to do soon September 8. 33 Employees Evelyn Arndt, Marian Giese, and Marlene Hinz gave mutually corroborative testimony to this effect, which I credit. 34 1 note, too, from the credible testimony of Kufahl that Lindstrom told 665 slow; that work continued to be slow until the time of the lockout, with the consequence that many of them were doing their regular work only part of the time and dividing the rest of their time between washing windows and walls, sweeping and cleaning in the plant proper and in the office, stacking barrels, and handling occasional assignments to the shipping department; and that, on September 10, Lindstrom told employees in the plant that they would not get unemployment compensation if they were locked out,33 notwithstanding the fact, admitted by him at the hearing, that while he had made inquiries, he was not sure on September 17, the day the lockout was announced, that this was so.34 However, the foregoing must be appraised against the following: (1) Respondent's explanation in its brief for its basic action in recalling its laid-off employees daring the slow season, i.e., that "it did so in order to move out the work in progress and to deplete its inventory preparatory to a strike" is not so unreasonable as to warrant an inference of illegal motivation in this claimed business judgment; (2) construing the record evidence most favorably to the General Counsel, it establishes only that, at the time the above employees were recalled, the lockout was viewed by Respondent as an available bargaining technique in the event no new contract was concluded with the Union by the end of the contract period; and (3) it is patent that Respondent could not have foretold to a certainty what the decision of the Wisconsin Department of Labor, Industry and Human Relations would be on the issue of entitlement of its employees, if locked out, to unemployment compensation.35 On balance, therefore, I am unable to find that this contention has been sustained by the record. In sum, I conclude, and find, for the reasons indicated above, that the evidence with respect to the General Counsel's above contentions, whether such contentions are considered separately or in combination, does not warrant a finding that the lockout was illegally motivated. D. Conclusions as to the 8(a)(5) Allegations of the Consolidated Complaint, as Amended It follows from the findings immediately above that, contrary to the General Counsel, no violation of Section 8(a)(5) of the Act can be predicated on the theory that contract negotiations were interrupted by an illegally motivated lockout. Accordingly, I conclude, and find, that the 8(a)(5) allegations of the consolidated complaint, as amended, have not been sustained by the record.36 E. Findings of Fact and Conclusions as to the 8(a)(3) Allegations in Continuing Operations After the Lockout There still remains the General Counsel's further her immediately after the lockout was announced that there would be no unemployment compensation paid. 35 This would, of course, involve a mixed question of law and fact and the factual situation was still unfolding. Such a decision was rendered by this Department on January 22, 1971. In it, the locked-out employees were found to be ineligible for benefits during the lockout period. 36 The General Counsel makes no contention herein that Respondent contravened this section of the Act during the bargaining that took place during the lockout and thereafter. 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contention that, in continuing operations after the lockout with supervisors and nonunit personnel , Respondent violated Section 8(a)(3) and (1) of the Act. In the American Shipbuilding Co., case,37 the Supreme Court found no violation of Section 8(a)(3) or 8 (a)(1) in an employer's conduct, after bargaining impasse , of temporarily shutting down his plant and laying off his employees for the sole purpose of bringing economic pressure in support of his legitimate bargaining position . It left open, however, the situation now under consideration , saying, "We intimate no view whatever as to the consequences which would follow had the employer replaced his employees with permanent replacements or even temporary help " (emphasis supplied). More recently, the Board and the Court of Appeals for the Seventh Circuit were confronted with t#i's unresolved situation in Inland Trucking Co. v. N. L.R.B., 440 F.2d 562 (C.A. 7). There, separate employers, after locking out their respective union employees temporarily, utilized supervisory personnel and new employees to do the work ordinarily done by these locked-out employees. At the time of this offensive lockout , negotiation of new collective-bargaining agreements had allegedly reached an impasse and a strike was, as here, not imminent. The court, in enforcing the Board's order, said, in relevant part: We conclude that the bargaining lockout , which was held in American Ship not to be inconsistent with protected employee rights, does become so if the employer does not shut down, but continues operation with temporary replacements. Such lockout forecloses the employees' opportunity to earn without surrender- ing the corresponding opportunity of the employer. It would not merely pit the employer's ability to with- stand a shut down of its business against the employ- ees' ability to endure cessation of their jobs , but would permit the employer to impose on his employees the pressure of being out of work while obtaining for himself the returns of continued operation . Employees would be forced , at the initiative of the employer, not only to forego their job earnings , but, in addition, to watch other workers enjoy the earning opportunities over which the locked out employees were endeavoring to bargain. Permitting an employer to impose this additional price on the protected right to collective bargaining would , in our opinion, conflict with the intended scope and content of that right , as protected in 29 U.S.C. Section 157. We conclude that a lockout in the circumstances at bar, accompanied by continued operation with replacement labor, is, per se, an interference with protected employee rights , and, accordingly, per se, an unfair labor practice under Section 158(a)(I). The court held further, applying the tests enunciated by the Supreme Court in N.L.R.B v. Great Dane Trailers, 388 U.S. 26, 34, that this conduct was also violative of Section 8(a)(3) because the lockouts plus the use of replacements to continue were "inherently destructive of protected rights," and that even if the adverse effect of this discriminatory conduct on employee rights were deemed "comparatively slight" and antiunion motivation must be proved if the employer has come forward with evidence of legitimate and substantial business justification for the conduct, the same result would follow as "We do not find that the [employers] have come forth with evidence of legitimate and substantial business justification for their insistence on continued operation." Respondent takes the position, in its brief, that the Inland Trucking Co. case is not applicable to the instant fact situation because (a) the lockout here was a defensive tactic rather than an offensive one; and (b) even if the above case were arguably applicable, "it would be an inappropriate analogy as Respondent did not hire any replacements for the locked out employees," utilizing only its supervisors and nonumt personnel. Respondent's argument is, however, misplaced. Thus, I have found heretofore that, contrary to Respondent's contention, the lockout was an offensive rather than a defensive action. And further, it is patent from a reading of the Inland Trucking Co. case that the court, speaking in a context where both supervisory and new employees were utilized to continue operations during the lockout, found unlawful the use of "replacement labor," and made no distinction in this category between the existing supervisory personnel and the newly hired rank-and-file employees. Indeed, it would appear that, insofar as the locked-out employees are concerned the employer's interference with their protected employee rights, of which the court spoke, is no less when the replacement labor during a lockout is supervisory personnel than when such labor is newly hired personnel or nonumt personnel. For, in either case, the vice, of which the court also spoke, would still maintain, viz, that "such lockout forecloses the employees' opportunity to earn without surrendering the corresponding opportunity of the employer," and thus permits an employer to impose this additional price on the protected right to collective bargaining, in conflict with the intended scope and content of that right.38 In all these circumstances, I conclude, and find, that Respondent's continuance of operations during the lockout intruded on the Section 7 rights of its locked- out employees. It is, of course, clear, as already found, that the court, in enforcing the Board's decision in the above case held that "a lockout in the circumstances at bar, accompanied by continued operation with replacement labor is, per se, an unfair labor practice" under Section 8(a)(1) of the Act, and further that this conduct was "inherently destructive of protected rights" in violation of Section 8(a)(3) of the Act. However, as the Board, in its decision, declined to hold, although urged to do so, that such conduct is per se violative of the Act, I shall also apply, in the alternative, the criterion invoked by the Board in reaching its conclusions there that such conduct had an antiunion motivation.39 In that connection, I note that Respondent failed to show that there was legitimate and substantial justification for this curtailment of the Section 7 rights of its employees. As already indicated, there is 37 380 U S 300, 318 to the Union during the bargaining subsequent to September 17 and as to 38 As already found, most of the locked-out employees did thereafter which it claimed impasse return to work in December, without a contract, and on Respondent's 39 See Insurance Agents International Union, AFL-CIO, 119 NLRB 768. terms, which called for putting into effect some of the terms proposed by it WIRE PRODUCTS MANUFACTURING CORP. lacking here any convincing proof of any affirmative or overt act on the part of the Union which impelled Respondent's conduct of locking out its employees. And Respondent makes no claim of special situation in justification of its continuance of operations during the lockout, beyond alluding, in its brief, to its objective "to continue production in the absence of the normal pro- duction unit." While it is true that, at the time of the lockout, Respondent could expect an increase in its business in the months ahead because of its cyclical nature, there is no indication that this situation differed in any way from that in 1968 when the parties were able to resolve their differences and reach an agreement as late as October of that year without a work stoppage. And so far as appears, then, as in September 1970, Respondent had to contend with the competition of the Merrill Manufacturing Company, a firm engaged in a similar manufacturing business in the same city. Nor can Respondent derive any comfort from the fact that the 1968 contract had expired and the Union was free to strike, since this is not such an unusual occurrence in collective bargaining as to justify discriminating against its employees by continuing to operate the business after it had locked them out. Further, while it is also true that Respondent chose to continue operations on a reduced basis during the lockout, the significant consideration is that it operated at all and not that it made a business judgment to operate on a reduced basis. Accordingly, I conclude, and find, in the alternative, in accord with the Board's decision in the Inland Trucking Co. case, that the curtailment of the Section 7 rights of its employees through the continuance of operations during the lockout was illegally motivated. Moreover, such illegal motivation is underscored by the unfair labor practices in violation of Section 8(a)(1) found herein to have occurred on September 17 and thereafter. In sum, therefore, I conclude, and find, on the basis of all the above and the record as a whole, that by employing and using supervisory employees and nonunit personnel as replacements to perform the work of employees whom it had locked out, Respondent interfered with, restrained, and coerced its employees in the exercise of their rights under the Act, in violation of Section 8(a)(1) of the Act, and discouraged membership in labor organizations by discriminating against these locked-out employees in respect to their hire and tenure of employment, in violation of Section 8(a)(3) of the Act. It follows therefrom, and I find further, that, by such continued operation, Respon- dent rendered the lockout unlawful. 40 All dates hereinafter relative to the termination of Kufahl are in 1971, unless otherwise indicated 41 According to Kufahl, at that time, which she fixed at approximately February 25, she had learned from the doctor attending her boys that they had infectious mononucleosis. 42 According to Zabawa, Kufahl was the only one on the day shift "really trained" to do the side ring job on the fan guards, whereas they already "had a good girl on the night shift doing that same particular job In fact, [they] had a few." Notwithstanding the above, also according to Zabawa, he told Hill that he would not stand in the way if there was some way the night foreman could work matters out. The night foreman, according to Hill, indicated that they did not know where to put her. 43 The fact that Kufahl was in the plant on February 26 in order to pick up her paycheck and then inquired from Marnholz whether Hill had mentioned anything to him about her working nights, and the further fact F. Findings of Fact and Conclusions as to the '8(a)(3) and (1) Allegations with Respect to Marilyn Kufahl 667 1. The events preceding Kufahl's separation Kufahl started her employment a little more than 3 years before her termination on March 4, 1971. For the first 5 or 6 months she worked at a variety of jobs; thereafter she worked in the welding department on the day shift. Since the early summer of 1969 and at all times material, Peeters has been Kufahl's foreman. On September 15, 1969, and again on January 12, 1970, Kufahl received merit raises of 5 cents an hour. It was conceded by Production Manager Za iawa that Kufahl was "very apt" and "very good" at welding side rings, which was the last operation on the fan guards manufactured by Respondent. Although he main- tained that she was "sporadic" on other jobs, i.e., "some jobs doing good some jobs doing poor," it is clear from his testimony that she worked on side rings most of the time. From Monday, February 22, 1971, until March 4, 1971, the day40 of her termination, Kufahl did not report for work. On the former date, Kufahl called the plant and notified Respondent that she would be off a couple of days because her two boys, who were 8 and 10 years old, respectively, were ill. A few days later, Kufahl called the plant again41 and spoke with Works Manager Hill. She apprised him of the nature of her sons' illness and that they required bed rest and extensive care, and asked him for a transfer temporarily to the night shift so that she could be with them during the day. Hill indicated that he would look into the matter and let her know. Thereafter, Hill spoke to Zabawa and to Marnholz and Puhl, the night-shift supervisors. The upshot of these discussions, according to Hill, was a decision by management that because employee Gloria Newman, who was then on leave of absence, would be returning on March 8 to her welding job on the night shift, they had no place for Kufahl on that shift;42 Newman's date of return was in fact, March 8, about 2 weeks after Kufahl's transfer request. Hill did not thereafter advise Kufahl of this decision.43 However, on March 2, 2 days before her termination, Zabawa tele- phoned her at her home and told her that there was no opening for her on the night shift.44 Whereupon, Kufahl asked for an indefinite leave of absence,45 telling Zabawa what she had already told Hill about the situation confronting her because of the sickness of her two sons. To this, Zabawa's answer admittedly was that Respondent "gave no leave of absence for illness in the family, only that Hill learned of this visit by Kufahl, in no way mitigate Hill's failure to communicate directly with Kufahl, particularly since Hill testified that management's decision on February 26 not to transfer Kufahl was never relayed to Marnholz 44 Hill testified at first, on cross-examination , that he never instructed Zabawa to call Kufahl on the telephone, but that he did tell Zabawa to mention it to her, however, when pressed on the latter by counsel immediately thereafter, he answered that he could not recall having done so In these circumstances, I find that this testimony does not militate against my finding heretofore that, although Hill promised to get in touch with Kufahl concerning her request for a transfer, he never did so, and I find further that he never instructed Zabawa to do so for him. 45 Kufahl so testified Although Zabawa testified that she asked for "4 to 6 weeks" leave, I do not credit him for the reasons indicated immediately below. 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD personal illness or a death in the family"; and that she would have to be back at work the following day, March 3. According to Zabawa, the reason for his telephone call to Kufahl was that Respondent was running into "a tremendous amount of difficulty" with production on Monday, March 1, and on Tuesday, March 2, because there were nine and seven employees, respectively, missing from work, counting both shifts. The record shows that, of these, five were from the day shift on March 1, and three were from the day shift on March 2; and further that among those absent on each of these days was Violet Culbert, who was on leave of absence due to personal illness. It is not apparent from the record which of these absentees were welders, like Kufahl, and which were press department employees or toolroom employees or shipping department employees etc. In all these circumstances,-and as Zabawa did not impress me as a reliable witness, I find that the record does not preponderate in favor of a finding that Respondent was confronted with an urgent pro- duction problem involving welders on March 2. In any event, when Kufahl indicated that she could not comply with his order to report on March 3, it was agreed that she would be given additional time so that she could try to get a babysitter for the boys. According to Kufahl, Zabawa then said that he would allow her until Thursday, March 4, to return to work and that if she had any more problems to let Respondent know. According to Zabawa's differing version, Kufahl asked, "does that mean if I do not come in Thursday I'm fired?", and he replied "that's right and .. . irregardless of whether you come back to work or not I want to hear from you before Thursday, and you can either talk to myself or Mr. Hill." Although Kufahl did not get in touch with either Zabawa or Hill before Thursday, it is unnecessary to decide whether Zabawa did, in fact, impose such a condition upon Kufahl. As found hereinafter, Kufahl was terminated by Hill on Thursday mormng, when he learned that she had not yet reported to work and, so far as appears, without regard to whether she had failed to call in the day before that she would not be there Thursday. In this connection, the record shows the following: Kufahl testified that she did not come to work at all on that day for the claimed reason that the babysitter for whom she had arranged on March 3 did not report on the morning of March 4 as per arrangements. Her starting time would have been 7 a.m., and about 7:15 a.m., according to Hill, he learned from Zabawa that Kufahl had not reported for work, and thereupon, without having discussed this course of action with anyone, took her timecard and wrote the word "quit" across it. Shortly thereafter, Kufahl telephoned Zabawa46 at the plant. It is her testimony that she advised him that she would not report for her work that morning because she did not have a babysitter and that she "would have to run an ad or look for somebody else"; that he answered, "I'm sorry you weren't here at 7 o'clock, you're all through"; that she pointed to the fact that she had called to explain why; that he rejoined with, "it doesn't make any difference, you weren't here at seven"; that she thereupon inquired whether her record would show that she had been fired; and that Zabawa then left the telephone and, upon his return, told her, "that's right, you're all through." Here again, Zabawa gave a differing version of the telephone call. Thus, according to him, Kufahl called him between 7:45 and 8 a.m. to tell him that she had not gotten a babysitter and might get one by Monday. He remonstrated with her for not telling him this at 4:30 p.m. on Wednesday when, as he said, she was in the plant and no more than 10 feet from the office. Her response was that he did not tell her that she was supposed to call, but he said that he had told her. At this point, Hill came into the office and he interrupted the conversation with Kufahl and "explained the situation to [Hill ]." He then resumed his conversation with Kufahl, telling her that she could not have more time. Whereupon, she asked whether that meant that she was fired. He again interrupted the conversation to talk to Hill and then told her that he was sorry. Notwithstanding the differences in their versions, it suffices here to find that both Kufahl and Zabawa gave mutually corroborating testimony, in substance, that Kufahl's request for more time to get a babysitter was denied and that Hill refused, after being advised by Zabawa of her request, to reconsider his prior action that morning effecting her termination. It is noteworthy, in this latter connection, that Zabawa admit- ted that he had never disciplined an employee for not coming in to work and calling at 8 o'clock to say that he was not coming in, when the starting time was 7 o'clock; and that some employees have called in 3 or 4 hours after their reporting time with such news without being disciplined therefor. Accordingly, I find further that Hill acted precipitately on Thursday morning in effecting her termination about 15 minutes after starting time. Respondent takes the position that Kufahl quit her employment on March 4, and that, even assuming that she is found to have been discharged, her discharge was for cause in that, as stated in its brief, it carried her for nearly 2 weeks while allowing her to try to work out her personal affairs, and "faced with ever increasing stalling" by her exercised its rights to terminate her. The General Counsel contends, in effect, that the claimed stalling by Kufahl was a pretext to mask her discharge because of her union activity. I shall now proceed to consider the validity of the reasons urged in support of these respective positions. However, I shall do so in the frame of reference of a discharge rather than a quit, for I find no warrant, upon this record, for concluding that Kufahl quit her job. Indeed, it is neither contended, nor is there any record evidence that Kufahl ever said or implied that she was quitting or would quit. Further, her conduct of seeking a leave of absence and of agreeing, when that was not forthcoming, to try to get a babysitter so that she could come to work is incompatible with any intention on her part to quit. In these circumstances, it follows, and I find, that by writing "quit" across Kufahl's timecard when she failed to appear for work by 7:15 a.m. on Thursday, March 4, Hill effected her discharge. 46 Kufahl placed the time as about 7 20 a in and explained that she was a in. However, I find it unnecessary to, and do not, in view of my other unable to call earlier because she had an eight-party telephone line and the findings and conclusions herein, resolve this testimonial conflict. line was tied up before then Zabawa places the time as between 7 45 and 8 WIRE PRODUCTS MANUFACTURING CORP. 669 2. Kufahl's union activity I have heretofore found that Kufahl was a member of the Union, a member of the union shop committee which met every other Monday with representatives of Respondent on employee grievances, and a member of the union bargaining committee, serving in the latter capacity ever since the beginning of negotiations on May 6, 1970, for a new contract. The record also shows that in May or June 1970, Kufahl was elected shop chairman by the employees. It is, of course, clear that, by reason of her active role in the Union, Kufahl was in frequent contact with Respondent's officers, supervisors, and negotiators on union matters. 3. Statements and conduct attributed to members of management allegedly deriving from Kufahl's active role in the Union a. According to employee Elaine Rice, about the third week of the lockout, she and her husband, also an employee, stopped at the Bridge Tavern, which is on the way to Gleason, Wisconsin, and saw Foreman Zastrow and his wife there. The Rices and Zastrows have had a good social relationship, exchanging visits to their respec- tive homes frequently, going out socially on many occasions, and, in addition, Zastrow is godfather to the Rices' little daughter. During the exchange which ensued between the Zastrows and the Rices the discussion turned to the picketing by the Union at the plant. According to Elaine Rice, Zastrow then remarked that "he was really surprised how nice Marilyn Kufahl acted . . . she was really reasonable, because her and Roy Nichols had followed a truck down to Wausau and they had got out with their signs and when the Company, wherever the truck went, asked them to leave . . . they got in the car, put their signs back in there and they left." However, also according to Elaine Rice, he continued with, "but . . . I can tell you one thing, she's going to be the first one to go when we get back to work"; and added further that he wanted to get rid of Elva Prentiss and Violet Culbert because of their conduct on the picket line. Zastrow acknowledged having a conversation with the Rices during the lockout in regard to Kufahl and saying that he was surprised, when he took a truck out, that Kufahl did not stand in front of it; and as to Culbert and Prentiss, he acknowledged saying that they had been guilty of such conduct. However, he specifically denied saying that Kufahl was going to be the first one to go after the lockout. I am satisfied, from my observation of Zastrow and Elaine Rice on the witness stand, that she testified more forthrightly as to this episode. In view of this and Zastrow's corroboration in part of her testimony, I credit her, and I conclude, and find, that Zastrow made the remarks which she attributed to him. Further, granting, without deciding, as Respondent in effect contends that, because these remarks, if made, were made during a social visit, they were not coercive, it nevertheless does not militate against their materiality on the issue of motivation in respect to the discharge of Kufahl, and I so find. b. The record shows that on November 13, 1970, Zabawa made a telephone call to Kufahl at her home under the following circumstances: On that day, a cow, belonging to Zabawa and which he kept on his farm, had been mutilated. His wife had seen a car drive by the farm a couple of hours before she found the dead animal. She telephoned him and described the car and the individual in the car to him. Thereafter, his wife and he drove by the house of this individual, who was an employee of Respondent, and his wife recognized the car. He thereupon communicated with Kufahl. According to Kufahl, Zabawa told her that he had just had a $300 heifer shot, that she would have to control the union members better than this, and that he would find out who killed his animal. It is further apparent from the testimony of both Kufahl and Zabawa that the conversation became heated thereafter. According to Kufahl, Zabawa called her an unhealthy person to have in the shop; spoke of her efficiency being down; and that when she returned to work she would be one of the first ones out of the door; and told her that he did not like her and never had, and that, as to the latter, she replied that the feeling was mutual. In regard to the above, Zabawa admitted making the remark to Kufahl that he did not like her, and that she responded in kind, but he could not recollect saying she was an unhealthy person. As to the dislike he expressed for her, Zabawa indicated that his remark was preceded by an exchange between Kufahl and him in which he commented that there have been instances of cars damaged and tires flattened, that her reply was that the individuals owning the cars probably had caused the damage themselves, and that he rejoined with, "the next thing you'll be telling me is that I shot my own cow." He denied, however, that he threatened to fire Kufahl or told her that after she got back to work she would be the first to go. It is apparent from all the foregoing that, during the telephone conversation, Zabawa got little satisfaction from Kufahl with regard to the complaint about the loss of his cow and with respect to his strong implication that a member of the Union must have done it; and that, in consequence, he resorted to ad hominem remarks. In this connection, I note that while Zabawa admitted telling Kufahl that he did not like her, he was unable to recall whether he also called her an unhealthy person. Yet, the logic and probabilities of the situation, plus the fact that Kufahl impressed me as a more reliable witness than Zabawa, indicate, and I find, that Zabawa went beyond expressing his dislike for Kufahl. Accordingly, I find that Kufahl gave a more accurate account of this episode than did Zabawa, and find further that Zabawa made the remarks attributed to him above by Kufahl.47 c. It is not disputed that on December 16, 1970, about the third day after Kufahl returned to work following the lockout, Peelers told her that her past practice of going for a cup of coffee immediately after she punched her timecard at 7 a.m., and of thereafter drinking it at her place of work would have to stop.48 However, Kufahl's and Peelers' testimony differs as to the balance of their 47 The record shows that about a month after the end of the lockout, i.e., getting along with each other in their dealings on work-related matters. sometime in January 1971, Zabawa approached Kufahl at work and made a 48 Kufahl testified, without contradiction, that she had done this daily, plea to her not to let their past personal differences interfere with their without objection, before the lockout. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conversation dunng this episode. According to Kufahl, when Peeters told her to stop this practice, she asked whether Peeters was taking coffee privileges away from all the employees; at this, he became "real angry" and said, "I'm telling you, you come to work at seven o'clock in the morning, you go to your machine and you stay there until the 9:30 buzzer blows, you do not leave your machine to get a cup' of coffee. Don Zabawa has been on my back every day since you've been back, and I'm sick of it." Peeters, on the other hand, denied that he said that Zabawa had been on his back ever since Kufahl came back, adding that he was the one who approached Zabawa and told him about being fed up with Kufahl's coffeebreak routine, as a result of which Zabawa approved of his speaking to Kufahl about it. In the above connection, I note that Peeters failed to deny Kufahl's testimony that, 10 minutes after this episode, employee Helen Schultz, who worked across the aisle, left her work to get a cup of coffee, but Peeters, who was present, said nothing about it; and that other employees have since done the same while Peeters was present, without reprimand. In view of this, I credit Kufahl, and find, that, as she testified, Peeters took away her coffee privileges on that day, while allowing other employees to enjoy such privileges. And I find further that, even granting that, as Peeters testified, he acted on his own, after getting clearance from Zabawa, rather than in response to pressure by Zabawa, this episode nevertheless constitutes disparate treatment by management of Kufahl after her return to work following the lockout. d. On February 15, about 2 months after the episode immediately above, Respondent issued a warning slip to Kufahl under the signature of Peeters, her foreman. The legend on the slip read: "Cohering49 (sic) employees during working hours." Peeters testified, in this connection, that he learned of this conduct by Kufahl while he was in a tavern; at that time, employees Bob Gremler and Dennis Schroeder informed him that Kufahl had told them that they would lose their jobs if they did not join the Union. He testified further that Kufahl was called into the office by Zabawa subsequently and questioned about this, in his presence; that Kufahl denied talking to these two employ- ees during working hours, at first, but, upon being confronted by Gremler and Schroeder, who were called to the office and attributed the above remarks to her, she admitted that she had done so. I note, however, that Schroeder, who was called as a witness by Respondent,50 testified that he could recall only that the "conversations [with Kufahl] were about the Union, when [he] would join or if [he] would loin . . ."; that his response would be that he did not know; that this happened "maybe 5 or 10 times a week," but that he "couldn't really tell over how many weeks"; that he asked Peeters about it because he did not know what to do about the Union; and that he was in the office with Zabawa, Peeters, and Kufahl when Kufahl admitted talking to him about the Union dunng working hours. With respect to the above, Kufahl denied ever telling employees that, if they did not join the Union, they would lose their jobs when a new contract was signed; and further denied asking employees on the job to join the Union. While she admitted discussing the Union with Gremler, she said she did so only during the latter's first few days at work, in response to questions by him while they were working on a job together, but that she did not urge him to join the Union at those times. And as to Schroeder, she admitted that, after the locked-out employ- ees returned to work, she talked to him about the lockout during breaktime and told him that it was to everybody's advantage to have the Union behind him; and that Schroeder asked some questions and she answered them. Also according to Kufahl, at the time she was given the warning slip by Zabawa, she denied that she had been talking to the new employees during working hours about joining the Union, but Zabawa replied that she had, that this was her second warning,51 and that if she committed any further infraction of the rules she would be discharged without any further warning. It is apparent from all the foregoing, and I find, that Schroeder's testimony falls short of establishing that Kufahl made any coercive remarks to him; and, if believed, it establishes only that Kufahl asked him frequently dunng working hours about joining the Union; and that, in his presence, during the meeting in the office on February 15, Kufahl was asked about whether she had talked to him about joining the Union during working hours and she admitted doing so. In these circumstances, I am unable to find that the record preponderates in favor of a finding that either Schroeder or Gremler ever told Peeters that Kufahl threatened them with discharge if they did not join the Union, or that, when Kufahl was confronted by them during the meeting on February 15 in the office, she admitted having made such remarks to them. It follows, therefore, and I find, that even granting that Respondent had reports from employees that Kufahl was talking to them, during working hours, about joining the Union, there is no warrant on this record for its issuance of a warning slip to her on February 15 for coercing employees during working hours. e. I have heretofore found the following, in substance: On approximately February 25, Kufahl apprised Hill of the nature of the illness of her two sons and their need for bed rest and extensive care and asked him for a temporary transfer to the night shift so that she could be with them during the day. Hill thereafter consulted with Zabawa, Marnholz, and Puhl and, according to Hill, it was decided that, because employee Gloria Newman, who was then on a leave of absence, would be returning on March 8 to her welding job on the night shift, they had no place for her on that shift. The denial of Kufahl's request for transfer was communicated to her on March 2 by Zabawa. It is noteworthy, however, that, contemporaneously with Ku- fahl's request for a transfer to the night shift from the day shift, Newman, who was also a welder, was seeking a transfer from the night shift to the day shift. In this connection, there is testimony by Newman that (1) she made such a request three times of Hill; i.e., on February 8 and 18 and March 2; (2) that Hill denied her request each time, claiming that "with all the asking everybody that had seniority ahead of [her], and everything, it would just be 49 It is agreed that the word "coercing" was intended 50 Gremler did not testify in this proceeding 51 The record shows that Kufah [ received her first warning in June 1970 for not meeting production standards during May 1970. WIRE PRODUCTS MANUFACTURING CORP. 671 too complicated a procedure for [her] to switch on days"; (3) that, on the last mentioned date, she arranged to come back on the night shift on March 8; and (4) that, after working on the night shift on March 8 and 9, she asked Hill again to allow her to transfer, was again refused, and quit. Although Hill testified that Newman asked for a transfer to the day shift for the first time on March 9, his testimony in this regard did not have the ring of truth, whereas Newman's testimony did. Accordingly, I credit her version. It is thus apparent that had Respondent wished to take advantage of the coincidence of Kufahl's request for a transfer to the night shift at the very time that Newman was seeking a transfer in the other direction, it could have accommodated both Kufahl and Newman. However, the fact that it did not do so does not warrant a finding adverse to Respondent, particularly in view of the stipulation of the parties herein that, between September of 1969 and early 1971, there were several occasions on which requests for transfers from one shift to another were denied. f. I have found heretofore that, upon learning from Zabawa that her request for a transfer had been denied, Kufahl asked for an indefinite leave of absence; and further that Zabawa admittedly told her that Respondent "gave no leave of absence for illness in the family, only personal illness or a death in the family." In view of the serious nature of the conversation between Zabawa and Kufahl at that time, and in view of their past differences, I am unable to credit Zabawa's testimony, during cross- examination, that he "meant it in a joking manner." Rather does it appear, and I find, that he was invoking a rule which had, so far as the record shows, never been applied before by management. In this connection, the record reveals that employee Steve Bandioli was granted a 2- month leave of absence by Respondent in 1967, during his first year of employment, in order to go on a vacation trip to Europe. And it shows further that employee Sandra Finnegan asked Puhl, her foreman on the night shift, for a 2-week leave of absence in August 1970, because 'her mother had come home from the hospital and she wanted to take care of her; that her request was granted; and that her leave was thereafter extended for another week by Puhl at her request. While it is true that she had been requested early in August to take a voluntary leave of absence ,52 it is also true that she refused -to do so at that time, indicating that when her mother came home from the hospital she would then apply for a leave of absence. Further, that Finnegan was on leave of absence rather than in voluntary layoff status during her absence from work finds support in the omission of her name from Respondent's list of all the laid-off employees during August, which is in evidence as General Counsel's Exhibit 11. I note, too, that although Puhl did not dispute Finnegan's testimony as to the reason for her request for a leave of absence, he insisted that one of the reasons that he took into consideration in connec- tion with her request was that "she was going to try to protect some man who needed a job more than she did." However, even granting that this was so, the fact remains that the reason behind Finnegan's request for a leave of absence was illness in her family, the same reason given by Kufahl to Zabawa herein, and that this reason was an operative factor in Puhl's granting her request. In these circumstances, I am satisfied, and find, that Respondent's denial of a leave of absence to Kufahl on the grounds stated to her by Zabawa, constituted disparate treatment. And this is so notwithstanding the testimony by Hill that he refused employee Willamina Grier Stano's request for a leave of absence due to the fact that she was having personal problems at home with her husband, because there, unlike in the case of Kufahl, the validity of the reason for the request was questioned by management. 4. Respondent's claim of substantial absenteeism by Kufahl The record discloses that Kufahl had a substantial absentee record. Thus, Respondent's Exhibit 2, in evidence, shows that in each month since January 1970, up to March 1971, Kufahl was off from work either for a day or days at a time, or for part of a day, or for part of an hour. However, it is clear, and I find, from the admission of Zabawa that her record of absences was not an operative factor in her termination. In this connection, Zabawa testified that he wanted Kufahl back to work on March 4, 1971, notwithstanding her record of absences and that, when he told her that she was through, it had nothing to do with these absences. 5. Concluding findings as to the termination of Kufahl As I have heretofore rejected Respondent's contention that Kufahl quit her employment on March 4, there remains for consideration Respondent's alternative conten- tion that she was discharged for cause. As already noted, in support of its position, Respondent asserts, in its brief, that it carried Kufahl for 2 weeks while allowing her to try to work out her personal affairs, and "faced with ever increasing stalling" by her, exercised its right to terminate her. However, while it is true that Kufahl had a substantial record of absences since January 1970, the record fails to establish that these absences were not for bona fide reasons. And with particular reference to the 2 weeks before her discharge, there is uncontradicted testimony by Kufahl that her two sons were seriously ill during that period and that the need to care for them during the day prompted her to ask for a transfer to the night shift, and, failing that, to seek a leave of absence. Such conduct, particularly in light of the fact that Respondent did not dispute Kufahl's claim that her sons were seriously ill and needed such care, can hardly be termed stalling. Furthermore, Zabawa admitted at the hearing that Kufahl's prior absences were not an operative factor in her discharge. Nor can I find that Kufahl's failure to comply with Zabawa's claimed instruc- tions to her on March 2 to call him before March 4 to tell him whether or not she would report to work on that date constituted stalling in the light of her credible testimony that, as of March 3, she had no problems because she then had a commitment from a babysitter to take care of her 12 As heretofore found, Respondent was asking employees during August to take voluntary leaves of absence as business was slow 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD children beginning on March 4, but that the babysitter disregarded prior arrangements and did not appear on March 4. Moreover, even assuming contrary to this finding, that Kufahl was stalling between March 2 and 4, it is apparent from the record that this stalling was not an operative factor in her termination. Thus, the record shows that Hill was the one who effected her discharge and that he did so, without discussing his course of action with anyone, on March 4, shortly after 7:15 a.m., upon learning that Kufahl, whose scheduled starting time was 7 a.m., had not yet reported for work. Significantly, too, Hill then noted on her timecard that she had quit and not that she was being discharged for stalling. It is thus apparent, and I find, that the aforesaid reason for her termination has not been sustained by the record and that the reason lies elsewhere. I have heretofore found, inter alia, (1) that Kufahl was active in the Union throughout her tenure of employment, serving on its shop committee and its bargaining commit- tee, and as shop chairman; (2) that Respondent was aware of her being in the forefront of the Union's activities; (3) that, in October 1970, during the third week of the lockout, Foreman Zastrow told the Rices that "[Kufahl] is going to be the first one to go when we get back to work"; (4) that, about November 13, 1970, Zabawa told Kufahl that, when she returned to work, she would be one of the first ones out of the door; (5) that, on December 16, 1970, about the third day after her return to work following the lockout, Foreman Peeters, her foreman, singled her out for criticism for going for coffee at the start of the shift and took away that privilege, while allowing other employees to continue doing so; (6) that, on February 15, 1971, Respondent issued a warning slip to her for coercing employees during working hours, without warrant therefor; (7) that Respon- dent's denial of her request on or about February 25, 1971, for leave of absence because of the illness of her two sons constituted disparate treatment when viewed against the background of its having granted a leave of absence to employee Finnegan prior to the lockout because of the illness of her mother; and (8) that Hill acted precipitately in marking her card "quit" on March 4, 1971, because she was not yet at work 15 minutes after her scheduled starting time, and that this is reflected by the testimony of Zabawa that Respondent has never disciplined an employee for not coming in to work and calling at 8 o'clock, as Kufahl did that day, to say that she was not coming in, when the starting time was 7 o'clock, and further that some employees have called in 3 or 4 hours after their reporting time without being disciplined therefor. In view of the foregoing, and in view of the union animus implicit in my other findings herein of violations of Section 8(a)(1) and (3) of the Act by Respondent, I infer, and find further, that the reason assigned by Respondent for Kufahl's termina- tion was a pretext to mask her discharge because of her union activity. Finally, I conclude, and find, that by discharging her, Respondent violated Section 8(a)(3) and (1) of the Act. Upon the basis of the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer, as defined in Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By the following conduct during a bargaining lockout which interfered with, restrained, and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act: (a) Telling an employee that, if the local plant union committee repudiated its grand lodge representative, who was its chief negotiator, the local plant union committee could negotiate its own contract. (b) Telling an employee that it would not bargain with the Union until the employees selected another union committee, albeit it did thereafter bargain. (c) Telling employees that they could get back to work if they repudiated the Union and its Grand Lodge represent- ative. (d) Urging employees to reject the Union in favor of a smaller union, also affiliated with the AFL-CIO. (e) Threatening to move the plant to another city if the locked-out employees did not return to work. (f) Employing and utilizing its supervisory employees and nonunit personnel as temporary replacements to perform the work of locked-out employees of its pro- duction and maintenance unit. 4. By the foregoing conduct described in paragraph 3(f), Respondent has discouraged -membership in labor organizations by discriminating against its locked-out employees in regard to their hire and tenure of employ- ment, in violation of Section 8(a)(3) of the Act. 5. By discharging Marilyn Kufahl on March 4, 1971, because she engaged in union activity protected by the Act, Respondent has also discriminated in regard to the hire and tenure of employment of its employees, in violation of Section 8(a)(3) and (1) of the Act. 6. Respondent has not violated the Act in any other respect alleged in the consolidated complaint, as amended, but not found herein. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and that a broad order issue designed to protect its employees. Having found that Respondent illegally discriminated against its employees with respect to their hire and tenure of employment during a bargaining lockout, which was valid at its inception, by employing and utilizing, after the lockout began on September 18, 1970, supervisory and nonunit employees as temporary replacements to perform the work of its locked-out unit employees, and having further found that Respondent terminated the lockout and unconditionally offered to all locked-out employees full reinstatement to their former positions commencing with WIRE PRODUCTS MANUFACTURING CORP. December 9, 1970, I shall further recommend that it make whole all its locked-out employees, whether they returned or not after the lockout, for any loss of earnings or other benefits they may have suffered by reason of the discrimination against them during the lockout period, less interim earnings, and in a manner consistent with Board policy as prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Having found, too, that Respondent violated Section 8(a)(3) and, (1) of the Act by discharging Marilyn Kufahl, I shall recommend affirmatively that Respondent offer her immediate and full reinstatement to her former job or, if 673 that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered as a result of the discrimination against her by payment to her of a sum of money equal to that which she would have earned as wages from the date on which she was available for work after the discrimina- tion on March 4, 1971,53 to the date of Respondent's offer of reinstatement, less her net earnings during such period, with backpay and interest thereon to be computed in accordance with Board policy as prescribed in the cases mentioned in the prior paragraph. [Recommended Order omitted from publication.] 53 Such availability date can be determined at the compliance stage of this proceeding.