Montgomery Ward & Co., Inc.

MONTGOMERY WARD & CO. 593 Montgomery Ward & Co., Incorporated and Retail Clerks Union, Local 1364, Retail Clerks Interna- tional Association, AFL-CIO. Case 20-CA-6445 March 20, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On October 24, 1972, Administrative Law Judge Herman Corenman issued the attached Decision in this proceeding. Thereafter, the General Counsel and Charging Party filed exceptions and supporting briefs and the Respondent filed a brief in support of the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the, record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings' and conclusions of the Administrative Law Judge and to adopt his recommended Order.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are 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. 2 As the record and the briefs adequately present the positions of the parties, the Charging Party's request for oral argument is hereby denied. DECISION STATEMENT OF THE CASE unfair labor practice strike and prolonged by unfair labor practices of the Respondent described in the complaint as amended, and that as a consequence thereof the Respon- dent's refusal to reinstate all the strikers on November 14, 1970, violated Section 8(a)(1) and (3) of the Act. The Respondent's answer denies the commission of any unfair labor practices. A hearing was held before the Administrative Law Judge on various dates in January, March, and April 1972, at which all parties were represented and were afforded opportunity to introduce evidence and to call, examine, and cross-examine witnesses, and to make oral argument on the record. Briefs were thereafter submitted by counsel for the General Counsel, counsel for the Respondent, and counsel for the Charging Union on July 31, 1972, and August 1, 1972, and they have been carefully considered.' Upon the entire record in the case and from my observation of the witnesses and their demeanpr, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The pleadings establish, and I find, that Montgomery Ward & Co., Incorporated, herein called the Respondent or Wards, or Company, is an Illinois corporation with a place of business, among many others, located at Redding, California, where it is engaged as a retailer of dry goods and appliances. During the past year, Respondent, in the course and conduct of its business operations, sold and shipped from its facilities in the State of California, goods and products valued in excess of $50,000 directly to customers located outside the State of California, and purchased and received goods and products valued in excess of $50,000 which were shipped to its facilities in the State of California directly from suppliers located outside the State of California; and during the past year Respon- dent received gross revenues in excess of $500,000. Respondent at all times material herein has been an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Retail Clerks Union, Local 1364, Retail Clerks Interna- tional Association, AFL-CIO, herein called the Union, is and, at all times material herein, has been a labor organization within the meaning of Section 2(5) of the Act. HERMAN CoRENMAN, Administrative Law Judge: Pur- suant to a charge filed by the Union on November 20, 1970, and served on the Respondent on November 23, 1970, and a first amended charge filed and served on December 16, 1970, a complaint issued on September 30, 1971, alleging in essence that an economic strike called by the Union on September 29, 1970, was converted into an I Counsel for the Respondent on June 28, 1972, filed with me a motion to correct the transcript of the proceedings consisting of 74 pages and itemizing 864 corrections. As neither counsel for the General Counsel or the III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The only establishment of the Respondent involved in these proceedings is its store at Redding, California, where the Respondent and the Union have had a number of years Charging Union have filed objections to the motion, the motion is granted and it will be added to the exhibits in the record. 202 NLRB No. 100 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of collective-bargaining relations covering a Board-certi- fied unit of the employees at the Redding store. The most recent collective-bargaining agreement for the term Sep- tember 1, 1967, to September 1, 1970, was reopened for negotiations by the Union on June 30, 1970, and was considered terminated by the Respondent on September 1, 1970. Negotiation meetings for a new agreement were held August 27, and September 9, 10, 15, 16, 21, and 28, 1970. During the course of these negotiation meetings, the Respondent agreed to extensions of the expired contract, and that increased wage adjustments would be retroactive to September 1, 1970.2 The Union struck and began picketing the Redding store on September 29, 1970. Unresolved issues at the start of the strike were short-hour premium pay, prorata vacation pay, age discrimination clause, wages, holiday pay, Sunday minimum hours, and union security for short-hour "students". The "student issue," it is fair to conclude, was the crucial issue which sparked the September 29 strike. The expired 1967-70 contract contained the usual union-shop clause requiring all unit employees, including part-time students, to become union members after 30 days as a condition of employ- ment. The Respondent's negotiators, pointed out to the Union that the Union's collective-bargaining agreement with another major department store in Redding exempted part-time students from the union-shop clause require- ments, and that Respondent was entitled to the same exemption for its part-time students. The Union would not agree to the Respondent's proposal. The General Counsel makes no claim that the Respon- dent engaged in bad-faith bargaining at any time, either before or after the September 29, 1970, strike, but he does allege that certain alleged 8(a)(1) conduct by Respondent's supervisors both before and after the strike thereby converted the strike into an unfair labor practice strike and prolonged it, so as to accord to the strikers all of the rights to reinstatement which the law accords to unfair labor practice strikers. After the strike began on September 29, 1970, no more negotiating meetings were held between the Respondent and the Union until November 14, 1970. On that date all contract issues, including the "student issue" were re- solved3 in a meeting between Mr. Chevalier, Respondent's employee relations manager for the western region, and Mr. Cowell, the Union's attorney, at Mr. Cowell's law office in Oakland, California. Also present and represent- ing the Union were International Representative Kiberski, Financial Secretary and Chief Executive Koenig, and Business Representative Robert O'Brien. However, new issues created by the strike prevented settlement of the strike. The Union offered to terminate the strike with the reinstatement of all the strikers. Additionally, it agreed to take no reprisals against any employees who had returned 2 The last 10-day contract extension was granted by Respondent's director of labor relations, Scheidt, on September 25 at the request of Union Attorney Davis. The Respondent's answer alleged that the September 29, 1970, strike breached the no-strike clause in the extended contract, and as a consequence the strikers were engaged in unprotected activity. This defense was abandoned by the Respondent in the course of the trial, and I will therefore give no consideration to it in arriving at a decision herein. 3 It was agreed that full-time high school or college students would be exempted from the union-shop provision, but, before hiring students, to work during the strike and it proposed that the union shop not be effective for nonmembers until January 1, 1971. Chevalier pointed out to Cowell that the Respondent had made a commitment to the strike replacements that they were permanent replacements and he doubted the economic feasibility of reinstating all the strikers, while at the same time retaining the permanent replacements to whom the Respondent had committed itself. Chevalier agreed to submit the Union's proposals to Mr. Scheidt at Chicago. On November 19, 1970, having consulted with Scheidt at Chicago, Mr. Chevalier phoned Mr. Cowell and told him that the Respondent was agreeable to settle the strike as follows: (1) that the Union agree to no reprisals, (2) that the union shop apply on and after January 1, 1971, and (3) that the Respondent would take back all strikers who had not been permanently replaced, the remainder to be placed on a preferential hiring list. Before Chevalier could proceed further, Cowell interrupted him to state that the strike would not be terminated unless all the strikers were returned to work. The strike continued and was still in progress at the time of the hearing in this case. On December 21, 1971, the parties met again at Redding at the request of the mayor and city council of Redding in an effort to settle the strike. Federal Mediator Jerry Finley was also present. A strike settlement could not be reached. The Respondent was willing to take back immediately some but not all the strikers. Following definite word from Chevalier on November 19, 1970, that the Respondent would take back immediate- ly only those strikers who had not been replaced, the Union filed a charge with the Board on the following day, November 20, 1970, alleging that the Respondent had engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act.4 In support of his contention that the economic strike of September 29, 1970, was converted into an unfair labor practice strike and was prolonged by unfair labor practices, the General Counsel called a number of witnesses to testify to remarks allegedly containing threats of reprisal or promises of benefits made by supervisors to rank-and-file striking employees. The Respondent's management, having been advised on September 28, 1970, that the strike would be called the following day, began making preparations to continue operating during the strike with employees who they hoped would not join the strike or who would abandon the strike and with replacements, both permanent and temporary, who they would hire during the strike. Thus, on September 28, Chevalier dictated a statement that management personnel would read to employees concerning manage- ment's position to be stated to employees concerning the strike. The statement read as follows: Respondent was required to offer part-time employees additional hours of work, so that student hiring would not cause a loss of work to the part-time employees. 4 In an amended charge filed in this case on December 16, 1970, the Union also charged that the Respondent had "failed to engage in good faith bargaining since about August 1970-with no intention of signing a collective bargaining agreement," in violation of Sec. 8(a)(5) of the Act. This allegation was dismissed by the Regional Director on September 30, 1971, and the dismissal sustained by the General Counsel on December 8, 1971. MONTGOMERY WARD & CO. 595 It is our intention to keep this store open and running. We will attempt to permanently replace strikers. We will not abandon you as far as being an employee of Montgomery Ward. Merchandise Manager John Gelegan was summoned to Store Manager Hanks' office on September 28 and instructed to read the aforesaid statement to employees. Gelegan credibly testified that he went into the auto service department, the fashion areas, furniture, stereo and TV, carpets and drapes, and the children's departments. In the auto service department, Gelegan called the employees together so he could talk to them in a group. Gelegan testified credibly that he first asked the group if they would cross the picket line in the event of a strike. When the group said they would not, Gelegan then read to them the prepared statement verbatim, above, that had been handed to him by Store Manager Hanks. Operating Manager Philip Ewart also was instructed by Mr. Chevalier to read or show the aforesaid statement about the Company's decision to keep the store open and permanently replace strikers. Ewart also credibly testified that he was assigned by Store Manager Hanks the duty of taking all incoming phone calls from strikers who wanted to return to work, and he was further instructed by Hanks that, in rehiring returning strikers, he should advise them for their own protection to send a registered letter of resignation to the Union.5 B. Statements of Supervisors to Strikers Attorney Cowell testified that at a union meeting held on November 25, 1970, some of the members, whom he could not identify, reported at this meeting that "Wards was never going to sign a contract, that Wards was mad and they were going to break the Union, and that the people had already lost their jobs, had been permanently replaced and there was nothing the Union could do for them." Dean Payne joined the strike on September 29. He had been employed in the service department as a TV repairman and his supervisor was John Reed. On the second night of the strike, Gretchen Girty, a supervisor in the sales and audit department, and who was a good friend of Payne's phoned him at his home. Gretchen Girty asked Payne if he was coming back to work. He replied in the negative, that he would not cross the picket line as he could be fined. Payne further testified that Girty told him that if he did not return to work in 3 days it was the store policy to terminate if no explanation is given. Payne also testified that Girty told him the Union was out and Wards would never sign a contract with the Union-they didn't want the Union when they started and they were glad they were out. Girty further asked what Payne was doing about retire- ment, savings, and insurance, and told him the Company was going to replace everybody who did not return with permanent replacements. Payne further testified that Girty told him Wards would not sign a contract requiring all employees to belong to the Union. Payne testified that he reported this conversation with Girty to other striking employees and on the following night at a union meeting attended by the striking employees as well as Union Representatives Bob O'Brien and Bob Koenig. Gretchen Girty describes the phone conversation as follows: Girty said "Dean, come on back to work" and he says, "I can't Gretchen because the Union will fine me," and I told him, "Yes, they could; that Julie and Jim had come to work but before they came to work, they had sent a registered letter to the Union resigning from the Union. Therefore, the Union could not fine them if they didn't belong to the Union." Payne asked Girty if she thought it would work and she said she knew that Wards would back anybody that crossed the picket line to return to work. Girty testified she told Payne if he didn't come to work within 3 days, he would be permanently replaced and if he were permanently replaced when the strike was over, he wouldn't have a job to come to-and he could lose his retirement, his leave, and his insurance. Girty testified further that she told Payne that she didn't think Wards would ever sign the contract the way it was presented. Girty testified that Payne said he was afraid he would have to stick with the Union. Then Girty testified that she cried and told Payne she would think about his family at Christmas and maybe send him a Christmas package. Girty denied that she told Payne that Wards would not sign a union contract, but she did concede that she told Payne that she didn't think Wards could sign the union contract with the 15-hour clause for part-time help. Girty also denied that she told Payne that Wards did not want the Union when it was started and that it was glad that they were out now. Girty also denied that she told Payne it was Wards' policy to terminate within 3 days. She testified she had heard around the store that they were going to give the strikers 3 days before they would replace them, and she called Payne because he was her friend. I find that the above-described telephone call made by Girty to Payne was privileged under Section 8(c) of the Act as the expression of views, argument, or opinion from one good friend to another. Girty was not Payne's supervisor. She had learned that Wards intended to operate the store with permanent replacements and was passing this infor- mation to her friend, and in the course of the discussion expressed her views and opinions on the prospects of an immediate contract settlement. It is clear that Girty had no part in contract negotiations and Payne was fully aware that she was expressing her own views on the matter. The Respondent's determination to operate the store with replacements during the strike is permissible and legitimate under the Supreme Court's Mackay case; hence, Girty's conduct in passing this information on to Payne was proper and lawful under the circumstances. I do not credit Payne's testimony that he was told by Girty that Wards would never sign' a contract with the Union, that Wards did not want the Union in there in the first place or now, that they were out and they would never get in, or words to that effect. Aside from the fact that this language does not appear in Payne's affidavit given to an NLRB agent, it is refuted by the physical facts which show that Respondent and the Union have had contractual relations for years and 5 Since the Supreme Court decision in Allis Chalmers, 388 U S 175, picket lines have avoided union fines by resigning from the Union before validating the right of unions to fine union members who cross a lawful crossing the picket line See Boeing Co, 185 NLRB 380 picket line, employee members of the Union who desire to cross union 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the further fact that subsequently on November 14, 1970, Wards was willing to agree to a union shop effective January 1 , 1971, to cover the strike replacements as well as present union members. Pearl E. Sizemore was employed in the credit depart- ment, and her supervisor was Mr . Fraser, the credit manager. On September 28, 1970, the day before the strike, Fraser called Sizemore into his office and inquired of Sizemore what she planned to do if the strike were called. Sizemore told Fraser she would not cross the picket line. Fraser then showed Sizemore the prepared paper stating in substance that Wards would stand behind those people that wanted to continue working while those who remained away from work would be permanently replaced . Sizemore told Fraser she would not cross the picket line. Sizemore testified that Fraser then said to her, "You know, Pearl, the company will not sign a contract. There's no way." Sizemore testified she reported this conversation with Fraser to other striking employees on the picket line. Mrs. Sizemore also testified that 3 or 4 days after the strike had begun and while she was walking the picket line, she had another conversation with Fraser as he was returning to the store from lunch . Sizemore testified that Fraser remarked, "It's kind of hot, why don'i you come inside the store," to which she replied, "Why don't you sign a contract," and Fraser replied, "There's no way." Sizemore further testified that about I week after the strike's beginning, Fraser told her that he had just received word from the store's attorneys, and that if we wanted to come back to work, they just had to send a certified letter to the Union requesting a withdrawal. Again, according to Sizemore, Fraser said, "The company would not sign the Union contract, there's no way." Sizemore testified that she reported these conversations with Fraser at the first union meeting after the strike 's commencement which was held at the union hall , and was attended by all the striking employees and the union officials. On cross-examination, Sizemore conceded that the slip of paper shown to her by Fraser on September 28 read as follows: "It is our intention to keep the store open and running. We will attempt to permanently replace strikers . We will not abandon you as an employee of Montgomery Wards." Sizemore conceded that when she went out on strike on September 29, she did not strike because of any statements that Mr. Fraser had made to her on September 28, nor was she striking at any time because of any statement that Fraser at arty time had made to her. Fraser's version of his conversations with Sizemore are as follows: Fraser testified that early in the day on September 28, 1970, Mrs. Sizemore asked him what position the Company would take regarding those employ- ees who chose not to strike . Fraser replied he did not have an answer, but he would try to find out. He went to Store Manager Hanks' office and spoke to Mr . Hanks, who gave Fraser a small strip of paper that he had prepared for distribution to staff members. Hanks told Fraser that the language on the strip of paper was the Company 's position, and that Fraser was to read it or show the paper to any employee who asked . After receiving the strip of paper he called Mrs. Sizemore into his office and handed it to her to read, which she did. Fraser testified that having read it, Sizemore inquired, "Does this mean that we are fired?" And he replied that she would have to make her own interpretation , that he had to go by the writing. Fraser denied that when he talked to Sizemore on September 28, that he said in words or effect, "You know, Pearl, the company will not sign a Union contract . There is no way." Fraser testified further that he had had previous conversa- tions with Pearl Sizemore about 2 weeks before the strike began when there was general conversation in the credit office regarding the demands the Union was making on the Company, at which time the question was then asked by Pearl Sizemore if Fraser thought the Company would sign a union contract . Fraser testified that he then answered Sizemore, "Don't you think the company would be pretty silly to sign a contract based on the Union's demands?" Fraser denied that in this conversation that he said the Company would not sign a union contract . Fraser testified that he saw Sizemore daily while she was on the picket line and he usually exchanged pleasantries with her. He recalls the incident above testified to by Sizemore about 2 weeks after the strike started and he recalls the conversation as follows: First Sizemore spoke the words "Boy it's hot," as he came out the door and he said , "Gee, it's nice and cool inside, why don't you all come back," and Sizemore replied, "Why don't you settle the strike," to which Fraser replied, "Well, Pearl, you know I don't settle anything." Pearl then said "Why don't you tell Freddie Hanks [the store manager ] to settle it." Fraser testified he then laughed and said, "You know, I don't tell anyone to sign anything." Fraser denied that he told Sizemore that the Company would never sign a union contract. Fraser denied that he ever had a conversation with Sizemore after the strike began in which anything was said about the store's attorney and the judgment, or that if employees wanted to come back to work, they just had to send a certified letter to the Union requesting withdrawal. There is little disagreement between Pearl Sizemore and Fraser concerning their conversations . On the whole, I am persuaded that the conversations were friendly in which each was expressing his opinion of the merits of the contract issues. Sizemore was saying, "Why doesn't the company sign the contract ," Fraser replies "No way." I credit Fraser's denial that he ever told Sizemore that Wards would never sign a contract with the Union . Fraser played no significant part in the contract negotiations, and was nothing more than an interested bystander . Concern- ing the matter of withdrawal from the Union , I credit Fraser's denial that the remark was made. Moreover, I am satisfied from the entire record, including conversations that occurred in union meetings where fines were discussed for those who crossed the picket line, that employees were aware that union resignation was not a company-imposed condition for returning to work but was a device to preclude the possibility of a union fine for crossing the picket line to return to work. I see nothing unlawful in the Respondent's advising employees for their own protection against union fines to resign from the Union as a means of preventing the imposition of a union fine. The fact that the Respondent in its November 14, 1970, negotiation meeting with the Union agreed to a union shop clause effective January 1, 1971, is convincing evidence that the Respon- MONTGOMERY WARD & CO dent was not out to destroy the Union but was merely exercising its right under the Supreme Court's Mackay case, 304 U.S. 333, to keep its store in operation during a strike. I find that all of Fraser's remarks in conversation between himself and Sizemore were privileged by Section 8(c) of the Act and did not violate Section 8(a)(1). Robert W. Whitmore was employed in Wards' shoe department. His supervisor was Don Paper, manager of the shoe department. Whitmore and Paper were good friends. On the Saturday before the September 29 strike, Whitmore and Paper became involved in a discussion concerning the possibility of a strike. Whitmore testified that he told Paper that if the Union did go on strike, it could break Wards. According to Whitmore, Paper replied that there were stores in the Wards chain that had broken the Union. On direct examination, Whitmore testified that Don Paper said Wards would not sign a contract with the Union, and that once the Union was out, it would never get back in again. Whitmore testified he replied that Paper was wrong and that he would find out if the Union did strike .6 On cross-examination by Respondent's counsel, Whit- more conceded that he and Paper were good friends both at work and socially and he does not remember who spoke first in his conversation with Paper in the store. Whitmore testified on cross-examination that he remembered Paper saying that Wards would not sign a contract with the Union as far as what the Union wanted, and he further conceded on cross-examination that Paper did not tell him that Wards would never sign a contract with the Union. Donald E. Paper, no longer employed by Wards and appearing as a witness for the Respondent, gives his version of the conversation between himself and Whitmore as follows: On this occasion before the strike, Whitmore called Paper to the back of the store and asked to talk to him. Whitmore had some papers about the union contract proposal and he came to the page about wage rates where the Union was asking for a rate of $3 50 per hour in the shoe department. Paper testified he said to Whitmore, "Bob, you are crazy; if you ever think they are going to sign an agreement like that because it's approximately 50 cents an hour more than what I'm making." Whitmore replied, according to Paper's testimony, that "We will just have to see; we will just wait until Monday and see." And Paper testified that he replied, "Well, that's fine but there were instances in Wards that I had heard of certain stores that they had gone on strike and they hadn't got back in " Paper denied that he told Whitmore in that conversation that if the Union once went out on strike in Redding that it would never get back in. He also denied telling Whitmore that Wards would not sign a contract with the Union for the Wards' Redding store. I find that under all the circumstances, the foregoing conversation between Paper and Whitmore a few days prior to the strike represented nothing more than an exchange of views and opinions between friends, and was privileged by Section 8(c) of the Act. I find that the statements made by Paper during the course of the conversation did not violate Section 8(a)(1) of the Act. 6 Whitmore was a member of the Union's employee negotiating committee and he attended the September 24 union meeting where Wards' 597 Whitmore describes an incident on October 2, 1970, involving himself, Don Paper, and Frances Rupert, a striker who returned to work on the second day of the strike. On this occasion, Whitmore, being disturbed because Frances Rupert had crossed the picket line and returned to work, followed her to her home to talk about it. On the sidewalk in front of her home, Whitmore testified he asked Rupert why she had returned to work, especially since she had been a member of the negotiating committee and was one of the first employees who wanted to go on strike. Paper, who had driven Rupert home, was present and participated in the conversation. Rupert explained to Whitmore that some of Wards' personnel had contacted her and asked her to come back to work. In this conversation, Whitmore testified that Rupert said she returned to work because certain of Wards' personnel had notified her and told her that she could come back to work at a higher paying job and that the strike would never be settled anyway. Whitmore further testified that at this point, Don Paper said, "She's right, the strike will never be settled. Wards will never sign with you guys and it's going to be a long walk. Why don't you come back to work too?" Whitmore testified that he replied that he would never cross the picket line, would never come back to work. Whitmore further testified that Paper told him that he could send in a resignation to the Union and be perfectly able to work if they did settle afterwards. Whitmore testified that on the following day he reported this sidewalk conversation between himself, Paper, and Rupert to other strikers picketing in his group. Concerning this incident in front of Rupert's home, Paper, who has since married Rupert, testified that on this occasion he had driven to Rupert's home and had alighted from his car in front of Rupert's apartment when Whitmore drove up and was honking his horn to gain their attention. Whitmore pulled up in front of Paper's parked car. He was angry and upset. He approached them on the sidewalk and immediately stuck his finger out and shook it in Miss Rupert's face and said in an angry voice, "Fran, you were one of the first ones to raise your hand at the Union meeting to go out on strike and now before even the first day of picketing is over, you are back at work." Paper testified that he then stepped in between the two and said, "Bob, I don't care how high she had her hand in the air or what she had done, but she's back at work; and as far as that goes, you can have your job back in the morning if you want it." Paper testified that Whitmore replied, "I wouldn't have that god-damn job back for anything. I'm going to prove to you and to Wards that we are going to get back in under our conditions." Paper testified "that was the end of the conversation and Fran [Rupert] and I turned around and started walking toward the house and he left." Paper denied that at any time during this conversation he told Whitmore the strike would never be settled or that he said in substance that "Wards will never sign with you guys." I find the statements made by Paper to Whitmore in the sidewalk conversation in front of Fran Rupert's apartment were privileged by Section 8(c) of the Act. Paper was a contract proposals were rejected Whitmore recalls that at that meeting, comments were made by employees about the store going self-service 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD minor supervisor who had no part in the negotiations for a contract. I credit Paper's denial that he told Whitmore the strike would never be settled or that Wards would never sign a contract with the Union. There is no evidence that the Wards' negotiators were divulging their bargaining strategy to Paper, a minor supervisor. Moreover the record shows that on November 14, 1970, Wards reached agreement on all outstanding issues with the Union, including agreement for a union-shop clause in a new agreement. The only issue which prevented agreement was Wards' refusal to take back all the strikers including the replaced strikers. I find therefore that Paper's remarks to Whitmore during the sidewalk conversation in the presence of Fran Rupert did not violate Section 8(a)(1) of the Act. Dorothy Rouillard was employed at Wards in the children's clothing department. Her supervisor was Electa Foote, department manager of children's wear. Mrs. Rouillard joined the strike on September 29. On September 30, Mrs. Foote came to her home in the evening and asked her if she would return to work. Mrs. Rouillard testified that Foote told her that there had been a meeting that day and if she returned to work she would not be affected by the Union; however, if Rouillard were to go to work some place else that was a union shop at another time, she would have to pay her initiation fees over again. Rouillard testified that she told Foote she would not consider crossing the picket line, and that Foote then told her, "This is going to last a long time because we're going to break the Union"-"I hold nothing against you; I'm just following instructions." Rouillard testified that she replied, "That if it lasted too long and I got tired of walking I would quit. But I would not cross the line to go back to work." Rouillard testified that Foote made no response other than the fact that Wards was "going to break the Union and that it would last a long time." Rouillard testified she related this conversation to other striking employees the next morning on the picket line Mrs. Rouillard also testified that she and Foote were good friends and that nothing said to her by Foote caused her to continue striking Mrs Foote conceded that she went to Mrs. Rouillard's home and told her that she had come to ask her if she would like to return to work through the picket line. She testified that she told Rouillard that there had been a management meeting and that Mr. Hanks had suggested that "we ask them if they wanted to work." 7 Foote testified that she did not ask other employees to return to work. Mrs. Foote said Mrs. Rouillard told her she did not want to go through the picket line after seeing some of the women there who were supporting their families. Foote testified that she told Rouillard "it would make no difference to her whether she did or didn't; that it was her right to come or not whichever she felt she wanted to do." Foote testified further that something was said about whether it would be a long strike or not and "I said it will probably be because the one before in Redding was a long strike." Foote denied that in this conversation with 7 Mrs Foote conceded on cross-examination that at a meeting Mr Hanks said "he thought if we would like to have our employees come back, he thought it would be all right if we asked them ' Rouillard she said in substance or effect "this is going to last a long time because we are going to break the Union." Foote said nothing to Rouillard about resigning from the Union. In the face of the undisputed facts that the Respondent was willing to grant a union-shop clause for all employees except a limited number of students after January 1, 1971, I credit Foote's denial that she told Rouillard that Wards was out to break the Union. I find that there was nothing unlawful in Foote's asking Rouillard if she wanted to return to work, in the absence of any evidence that it was accompanied by promises of benefit or threats of reprisal. I find that Foote's remarks to Rouillard were privileged by Section 8(c) of the Act, and hence were not violative of Section 8(a)(1) of the Act. Alan Rink was employed in the automotive department at Wards. He joined the strike on September 29. While picketing in late October or early November 1970, he had a conversation with George Rogers in front of the garden shop. Rogers is supervisor of the garden shop. Rink testified that Rogers told him that the Union had sold them out; that Wards was not going to sign a contract with the Union and that the strikers "were never getting back to work." Rink testified he reported this conversation on that same day to other pickets but does not remember who they were. Rogers testified that the conversation referred to by Rink occurred in the spring of 1971 after the strike had been in progress for 4 or 5 months. Rogers testified that he and Rink were friends; that Rink walked up to the fence and they exchanged greetings. Rogers testified that Rink, who is a "tire buster," said, "Boy, you know, when we get back to work-I am going to make $4.00 an hour," to which Rogers replied, "Alan, think about it. You know, how can they pay a tire buster $4.00 an hour. They would have to sell every tire at $100 a piece in order to pay you guys to stand around and do a job that's menial labor, so to speak." Rogers testified he told Rink that he didn't think the Company would sign that type of a contract where they would pay a tire buster $4 an hour. Rogers further testified that he didn't think the other unions were supporting the Retail Clerks strike, because he had received telephone calls from good union members where they would call him and say, "Listen, I really need a roto-tiller, the one that's advertised in the newspaper, but I can't come down and cross the picket line," and Rogers went on to state to Rink, "So I would either make arrangements to have it delivered cash on delivery, or if they had an account at the store, I would write up the credit form." Rogers denied that he told Rink that the Union had sold the strikers out or that Wards was not going to sign a contract with the Union, or that the strikers were never going to get back to work. Rogers testified that he remembers Rink asking him about "this permanent replacement thing," to which Rogers replied, "Alan, all I know is what you know permanent replacements meant." Rogers testified he told Rink that members of other unions were buying things from Wards and he did not think they were supporting the Retail Clerks strike at the store. I credit Rogers' denial that he told Rink the Union had sold the strikers out or that Wards was not going to sign a MONTGOMERY WARD & CO. contract with the Union, or that the strikers were never going to get back to work. Rogers was a minor supervisor who took no part in the contract negotiations or the formation of Respondent's labor relations policy. His conversation with Rink was a friendly noncoercive exchange of views, argument, and opinion privileged by Section 8(c) of the Act which included among other things the fact that the Respondent had made permanent replacements which are permissible under the Supreme Court's Mackay doctrine. I therefore find that the comments made by Rogers in the aforesaid conversation with Rink did not violate Section 8(a)(1) of the Act. Jack Littleton was a service technician under the supervision of John Reed in the service department. He joined the September 29 strike and picketed. Within 4 or 5 weeks after the start of the strike, Littleton was one of a group of pickets consisting of himself, Herman Skillman, Tim Howard, Bud Foster, and Bill Sealander, who were engaged in a conversation with Credit Manager Fraser outside the automotive shop. Littleton testified that Fraser told the group that Wards was going to replace the strikers, that the replacements were going to stay, and Wards was not going to hire "any of the other people," but maybe in the future selected people may come back but without a union contract. Littleton testified further that Fraser said that not all the people would be brought back, that there was a group of people that they wanted back in, only selected individuals would be brought back in. Littleton testified further that in about the fourth or fifth week of the strike, he had a conversation alone with Fraser on the picket line in which the two talked about the idea of permanent replacements, the legality of it, and Fraser came back with the same basic idea that the strikers were going to be permanently replaced and Wards was not going to sign a contract. On cross-examination, Littleton recalled that in the conversation near the automotive department and the group there was something said about betting by Herman Skillman. Skillman and Fraser were betting steak dinners as to when the strikers would be back to work, Skillman contending they would be back to work and have a contract in 10 days and Fraser betting "no." Fraser concedes he had a conversation with the automotive department group earlier referred to above in Littleton's testimony Fraser testified that the group consisted of Herman Skillman, Bud Foster, Jack Littleton, Bill Sealander, and possibly others. Fraser testified that on this occasion as he came out of the door of auto service, the group walked toward him, and someone in the group said, "Hi, what's new?" and Fraser said, "Nothing, what's new with you?" and they said "nothing." And Fraser testified he said, "Well there's one new thing. Fred tells me you are going to be in by the weekend"; and Herman Skillman said, "That's right. We will be back in within the week, all of us." Fraser testified that he replied, "Now you are beginning to sound like Bud; he bet me a steak dinner on it, and do you want to get in on the same deal?" Fraser testified further that to the best of his recollection, Bud Foster spoke up and said, "I'll take you on that," and Fraser asked, "How about you, Herman?" and he answered, "No, I don't have any money to bet, and we laughed about the thing, and Bud Foster and I shook 599 hands and the bet was off." Fraser testified nothing else was said in this conversation. He denied that anything was said about the Company not taking certain people back after the strike was over; nothing was said that the Company would not sign any contract with the Union; nothing was said that the Company would spend up to $1 million to break the Union; or that the Company would break the Union. Fraser testified that he recalled having one particular conversation with Littleton regarding the strike matter which he recalls took place possibly in the second week of the strike on the parking lot outside auto service. He believes Bob Shaw was also present at this conversation but not certain. Fraser described this conversation with Littleton as follows: After a casual greeting, Littleton asked Fraser if he had heard that Littleton had been replaced, had he heard that the store was going to permanently replace the strikers. Fraser testified he told Littleton he had no knowledge as to whether or not he had been replaced. Littleton then said that he felt the store's position on permanent replacements was illegal. Fraser testified he told Littleton that it was his understanding that the procedure was based on a court decision as the result of a labor case. Littleton thanked him for the information and said he would look into it further. Fraser testified he had no recollection of saying directly or indirectly, and was quite positive he did not say, that the Company was going to go ahead and keep replacements and not hire any of the other people, but maybe in the future selected people might come back but without a union contract. I find that the remarks made by Fraser were privileged by Section 8(c) of the Act as mere statements of views, argument, and opinion made in a friendly and noncoercive atmosphere, which differed with the arguments, views, and opinions expressed by the picketing strikers. Fraser was not significantly involved in the contract negotiations and was not determining the labor policy of the Respondent. I therefore find that the remarks made by Fraser above set out did not violate Section 8(a)(1) of the Act. Littleton also testified that he had a conversation with Marvin Wittner, department manager of the white goods in November 1970, while he was picketing near the garden shop. Littleton testified that after the usual greetings he asked Wittner how things were going and Wittner replied, . . real good because the month of October was $7000 ahead" of the previous October. Littleton testified further that Wittner told him the strikers were wasting their time carrying the picket signs, because, since a lot of the people had been replaced inside, the Company didn't have to sign the contract. Littleton testified that he replied, "I might as well carry the picket sign since there was no chance to get back in and Wittner replied, "No, I don't think that you have been replaced yet." Littleton also testified that he had another conversation with Wittner in the office of the Department of Motor Vehicles in the first week of February 1971, while they were standing in line to have their automobile licenses renewed. According to Littleton's testimony, Wittner told him at that time there wasn't going to be a contract signed, and "we could get back into work by signing a letter, send it to the Union stating that we resigned and the Company would rehire us." 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wittner, called by the Respondent, testified that he had two conversations with Littleton concerning the strike, but that he frequently casually greeted him. Wittner places the first conversation near the garden department about 3 weeks after the strike started. Wittner testified he wasjust going out the door when Littleton asked if he could talk to him. Wittner testified that Littleton told him that he had heard that he had been fired, and Wittner replied he had not been fired, in fact that none of them had been fired, but the Company was making a few permanent replace- ments. Wittner testified that he told Littleton, who was an appliance repairman, that in fact nobody had been replaced yet, because they were bunging in other service managers from other stores into those positions to do the service work the appliance repairmen normally do. Wittner testified further that Littleton said he had heard business was pretty bad and that he replied that "no, it wasn't. In fact my department was good. I had about a $7,000 increase going for that month." Then, according to Wittner's testimony, Bob Shaw walked up to greet them, and Littleton then said that some of Wards' customers were calling him to do some of Wards' service work, and that he and Bob Shaw were thinking of going in together to call some of Wards' customers and do their work. Wittner testified he then told Littleton he couldn't understand why he would do something like that after all that Mr. Hanks had done for him, and Littleton replied he had to make a living. Wittner testified further that Littleton said there wouldn't be any problems if they signed the contract and everybody could go back to work, and he replied, "there would be no way that we could sign a contract for the demands that the Union wanted." According to Wittner's testimony, Littleton replied, "Well the only issue is the student issue," and there wasn't any way that he could come back to work. Wittner testified this was a friendly conversation, and he denied that he told Littleton that the Company would never sign a contract with the Union, but would not sign on the issues the Union wanted. Concerning the conversation between himself and Littleton at the Motor Vehicle building, Wittner testified they were both standing in line to get their license plates, and the conversation took place between them outside the building after they had purchased their licenses. Wittner testified that Littleton told him he was wrong in what he stood for and what he did in connection with the strike and that he would get down on his hands and knees and beg for his job back if there was any way they would take him back. Wittner testified he told Littleton that he was man enough to admit that sometimes a person makes mistakes, but there was nothing he could do for him, but he would again go back to Wards and let them know that Littleton wanted to come back to work. Wittner testified he did talk to John Reed, Littleton's supervisor, and he was told by Reed that there were no positions open Testifying further, Wittner denied that he said to Littleton in the first conversation that employees were wasting their time carrying picket signs because with the replacements of the people inside, Wards did not have to sign a contract, and he further denied that he told Littleton 8 On cross-examination, Wittner admitted he doesn't like the Union, and he hopes the Union will lose the case in the first conversation that he wouldn't have a chance of coming back or that the Company would never sign a contract with the Union. Concerning the conversation with Littleton outside the Motor Vehicle Department, Wittner, by his testimony, denied that he told Littleton that there wasn't going to be a contract signed and he testified that there was nothing said at that time as to whether or not a contract would or would not be signed. Wittner also denied that in this same conversation, he told Littleton that they could go back to work by sending a letter to the Union stating they had resigned and that the Company would rehire them.8 I credit Wittner's version of the two conversations he had with Littleton which are described above. I credit Wittner's testimony that the signing of a contract was not discussed at the Motor Vehicle building or that anything was said that Littleton could return to work by sending a letter of resignation from the Union. I further credit Wittner's denial that he told Littleton that the Company would never sign a contract with the Union, and credit his testimony that he told Littleton the Company would not sign the contract the Union wanted. The essential facts disclose that at the first conversation in October 1970, that the appliance repairmen had not been replaced, but the work was temporarily being performed by service managers called in from other stores, whereas the second conversa- tion which occurred in February 1971 was after the strike had been in progress more than 4 months, with the likelihood that replacements had by that date been made and the conversation related to the desperate but hopeless wish of Littleton to get his job back. I find that in the two conversations between Littleton and Wittner, described above, the statements of Wittner were privileged by Section 8(c) of the Act and did not violate Section 8(a)(1) of the Act.9 Littleton testified to a conversation he had on the picket line with Paul Thode, who had responsibility for the accounting functions at the Redding store. The conversa- tion occurred on December 5, 1970, at the entrance of the automotive shop. Littleton was picketing at the time. Littleton testified that it was raining at the time and Thode called him over to stand under the eaves and get out of the rain . Present at the conversation were Bud Foster and Bill Sealander. Littleton testified that when he approached, the conversation was already in progress and Mr. Thode was talking about some of the individuals and groups who would not get back into work and Thode went on to state that he believed the automotive group would be called back eventually, but that he believed the repair department where Littleton worked would never be called back. Littleton testified further that Thode stated the reason was that Reed, manager of the service department, had told him that he was upset and concerned about the extremely long coffeebreaks that the individuals were taking, not filling out the proper route sheets, and selecting trace calls to make their days a little easier. Littleton testified further that Thode said that by rehiring a complete new group, 9 Littleton conceded that he was not sinking because of anything Wittner or Fraser had said to him but because of the student issue MONTGOMERY WARD & CO. Reed could retrain them and make these people to his liking.io Littleton testified he made no response to this, and then Thode went on further to state that the cost of the strike was greatly upon the shoulders of the Umon and all they had to do was wait for the Union to go broke, and when this occurred, the strike would be over and the Company would have won. Littleton testified he made no reply to this statement by Thode but dust turned and left. Littleton testified further that he attended a union meeting a few days after the strike had started, and he recalls that, during this meeting, striking employees made statements regarding things that they were told by their supervisors . Littleton did not recall the identity of the persons making the statements other than the fact they were striking employees. Littleton testified that statements he heard made were that supervisors had stated to striking employees that the Company was never going to sign, that the store was going self-service. Thode, the store's accountant and auditor, has no responsibility in connection with labor relation matters and did not participate in contract negotiations. Thode conceded he had a conversation with Service Technician Jack Littleton some time in December 1970 underneath one of the overhead doors in the automotive service department According to Thode, Littleton , Bill Sealander, and Herman Skillman, who had been picketing, ap- proached him to come out of the rain. Thode testified that at first there was general conversation about the rainy weather, and then Jack Littleton told Thode that he understood Wards was losing a great deal of money because of the strike , and Thode said "that was true but he could take solace in the fact that it was also costing the Union a great deal of money ." Thode testified further that Littleton then asked how Thode knew how much it was costing the Union , and Thode told him that he was in charge of the payroll figures and knew the approximate amount of take-home pay that the strikers were getting, and he understood that they were getting take-home pay to walk the picket line and he understood the cost presently to the Union would be about $5 ,000 a week . Thode testified further that Littleton said that some of the picketers would never be hired by Wards and that Thode then told Littleton that that wasn't true and Littleton said "Yes, it was," for instance, the servicemen would never come back and Thode said that that wasn 't true because the Company had not hired replacements in auto service and if the strike were settled they would automatically come back because no permanent replacements had been hired. Thode testified further that Littleton then said that excluding them, the auto repairs, "the group you worked for would never be hired back," and Thode testified that he acknowledged that the Company had hired permanent replacements for most of the people in "repair service," and why would Wards want to hire them back. Thode testified that Littleton then asked what Thode meant by that type of a question and Thode replied that it was his understanding that at one time Littleton and several other repair servicemen were caught by Mr. Reed at the Royal Inn, at the coffee shop, down the street from Wards having 10 Littleton conceded on cross-examination that Hanks , the store manager, phoned him some time in October or November 1970 and offered 601 a mass coffeebreak, which was something they weren't supposed to be doing. Thode testified further that he told Littleton that the replacements were hitting company standards for jobs completed per day, and that the unit in November for the first time was making money, which was something it had never done with the persons who had gone on strike. Thode testified that Littleton then got a little upset and left. Thode, by his testimony, denied that anything was said about whether the Company would or would not sign a contract. Thode denied that at any time during that conversation he told Littleton that there were some of the groups that would not get back into the store . Thode further denied that at any time during this conversation did he tell Littleton that he believed that the employees in the repair department would never be called back in, and denied also that at any time during that conversation , he in substance or effect told Littleton that the Company was rehiring or hiring a complete new group that could be retrained, and that these people would be to the liking of the Company. Thode conceded by his testimony that he did say "that we were hiring permanent replacements , but I didn't say anything about training them to the liking of the company, or anything like that," and Thode acknowledged that he told Littleton "that permanent replacements in repair service had been doing a better job than the strikers." Further testifying, Thode denied that during that conversa- tion, in talking about the losses and the expense of the strike, he said in substance or effect that all the Company had to do was wait for the Umon to go broke and that when the Union did go broke, the strike would be over and the Company would have won. Thode further denied that other than the $5 ,000 and $7,000 conversation , nothing was said about the duration of the strike or the Union losing the strike because of lack of financial resources. Thode testified that Skillman , a mechanic in auto service, was present during this conversation with Littleton, and other than this conversation with Littleton in Skillman's pres- ence, or than casual greetings, Thode testified he never engaged in any prolonged conversation with Skillman. Thode denied that in this conversation in the presence of Littleton, Foster, and Sealander that he said that not all the people would get theirjobs back and Thode further denied that he said anything about people coming back other than the comment about the service repair department doing a better job than the strikers had done. Testifying further, Thode denied that at any time during this conversation did he refer to how much money the Company would spend with respect to the strike, and further denied that, at any time during that conversation, he said in substance or effect that the Company could spend $1 million if it had to in order to keep from signing a contract and so outlast the Union. Littleton's and Thode's versions of this conversation on this occasion hardly differ in substance . I credit Thode's testimony that he told Littleton that the service department employees had already been replaced, thus precluding the immediate reinstatement of the service technicians whom their supervisor, Reed, had caught taking a coffeebreak him his job back, and he declined it, because he had heard that John Reed said he wouldn't last 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sometime before the strike, contrary to an existing company rule. I find that Thode's remarks on this occasion were privileged by Section 8(c) of the Act. Joan Horne, called as a witness by the General Counsel, was employed at the time of the hearing as stock control supervisor. She was employed as a stock control clerk in September 1970. She joined the strike on September 29 but returned to work on the following day. She was anticipat- ing being promoted to a supervisory position upon the retirement of Mrs. Ray, then stock control supervisor, who retired in March 1971. Mrs. Home testified that, in the weekend previous to the strike, she had a conversation with Personnel Manager Ewart in his office in which he read to her a statement which said something about permanent replacements. After Ewart read the statement, Mrs. Home asked him what it was supposed to mean. She also read the written statement. Mrs. Horne asked if this meant there was going to be a strike and Ewart replied that this was all he was at liberty to say. Mrs. Home testified there was no further conversation. Mrs. Home denied that Mr. Ewart told her that she would not get the supervisory job if she went on strike. Mrs. Horne testified that on the second day of the strike Merchandise Manager Gelegan phoned her at her home and asked her if she wanted to come back to work. Mrs. Home said yes, but she could not afford the fines imposed by the Union" and Gelegan said something about it being a free country and that anything she joined she could resign from. Home asked Gelegan how she could resign and he said to just write a letter to the Union and resign. She resigned on that same day and came to work the next morning. Home testified that Gelegan said nothing about a supervisory job at Wards. I find in accordance with Mrs. Home's testimony that she had been promised Mrs. Ray's supervisory position long before the strike and that neither Gelegan, Ewart, or anyone else from management promised her the supervi- sor's job if she would return to work, or threatened that she would not receive it if she went on strike. It is fair to conclude that one of the factors influencing Mrs. Home to return to work was her expectation that a promotion would be forthcoming, but this expectation was based on statements made to her long before the strike and were in no way related to the strike. It is also reasonable to infer that Mrs. Home was concerned that her possible replace- 11 Home testified that at a union meeting someone asked what they were going to do about people who crossed the picket line and went back to work and Financial Secretary Bob Koenig said they would be fined $500 and a day's pay for every day worked. 12 Mrs Home testified that in a conversation before the strike with Enid Proulx, Don Charles Smith, and other employees around the negotiating table prior to the strike concerning a possible strike , she told them she had talked to Ewart and that he had said or read this letter "that we would be permanently replaced if we went on strike and Blanche was reassuring me that we would be back in the store before Thanksgiving because of the Christmas rush and then she told me that I was being selfish because I would be a supervisor after a short time and that I wouldn't belong to the Union, that I was thinking only of myself Then I told Blanche, I could just see Mr Ewart giving me a supervisor's job after I had been out on strike." 13 The letter is dated October 16, 1970, and appears in the record as G C Exh. 10 It reads as follows Dear [Name ] A number of employees have asked questions about their employment rights at the end of the current strike Although I thought I had already ment if she remained on strike would nullify her chances for the promotion which she was anticipating.12 I find that there is a failure of proof that Joan Home was threatened by either Gelegan or Ewart or anyone else representing Wards' management that she would not receive a promotion if she participated in the strike. Paragraph VII(b) of the complaint is therefore dismissed. Robert Shaw was employed as a service technician in the service department under Supervisor John Reed. He was a member of the Union's negotiating committee and a strike captain. He was present with a group of pickets near the automotive service entrance of Wards consisting of himself, Littleton, and Skillman. Shaw testified that while they were picketing, Credit Manager Fraser approached them and greeted them. Then, according to Shaw, Fraser told the pickets they would be permanently replaced if they didn't return to their jobs which were still open. Shaw also testified that Fraser told them if they did go back to work, it would be an open shop and that Wards was going to break the Union; that Wards "had more money to fight us than we did to fight them, that we would go broke long before Montgomery Ward would." Shaw further testified Fraser said that Montgomery Ward was out to break the Union. Shaw testified that the next conversation with Fraser was about the time Mr. Hanks issued the letter to the replacements in the store guaranteeing them a permanent job. Shaw testified that Fraser explained to them that each of the people that had been hired to permanently replace those on the picket line had been given this letter 13 and there was no way they could lose their jobs no matter what the outcome of the strike. Shaw further testified that the discussion "went into how much it was costing the Union to operate," and that the "Chicago store would spend one million dollars if they had to keep the strike, you know, to break the strikers." On cross- examination, Shaw testified that he had said something about the strike costing the Union more money than it was costing Wards, and that it was possible that the other employees who were present at the conversation with Fraser said that the Company was losing a lot of money because of the strike, and in the context of those statements, Fraser said, "Well the company can lose more than the Union or words to that effect." Shaw conceded on cross-examination that he and Fraser were on speaking made our position quite clear, I am writing this letter so that there can be no doubt in anyone's mind as to the Company position. You have been hired as a permanent replacement of an employee on strike at our store. The law on this issue is very clear You have permanently replaced an employee engaged in an economic strike, and you have an absolute right to stay on your job as long as you want. There is absolutely no legal way that the striking employees or Union can take that job away from you without the Company's consent. I give you my personal assurance that the Company will not consent to bumping you off your job . Montgomery Ward intends to protect your rights. I hope this clears up any confusion which may have existed. If, however, there is still any doubt in your mind , please do not hesitate to come into my office and see me. Sincerely yours, /s/ F. C. Hanks Fred Hanks Store Manager MONTGOMERY WARD & CO. 603 terms and he did not consider the statement by Fraser to be a threat.14 Concerning his conversation with Shaw, or in his presence, Fraser denied that he said Wards was going to break the Union, or that Wards had more money to fight the Union than the Union had to fight Wards, or that the Union would go broke long before Wards would. Fraser also denied that in his conversation with Shaw he said anything by way of explanation about Hanks' letter dealing with permanent replacements, and testified he never had a copy of such a letter. Fraser also denied that he told Shaw that all the people who had been hired permanently to replace those on the picket line had been given a copy of this letter. Fraser further denied that he told Shaw that there was no way that the permanent replacements could lose their jobs no matter what the outcome of the strike was. I credit Shaw's testimony concerning the substance of his conversation in which he was present, among others, with Fraser. I find that discussions were had as to the cost of the strike to the Union and to the Respondent, but I do not credit Shaw's testimony that Fraser said the Respondent would only sign an open-shop contract. In this connection, it is noted that Shaw made no such statement in his pretrial written statement. Additionally the Respondent's contract negotiations at no time during negotiations proposed an open shop, but in fact offered on November 14, 1970, a union shop covering all employees except to a few limited short-hour full-time students. Fraser was the Respondent's credit manager and played no significant role in negotiating the collective-bargaining agreement with the Union. His discussions with Shaw and others such as Skillman, Littleton, and Sealander were on a friendly basis, and the discussions in large part were initiated by the pickets. The comments and remarks by Fraser constituted nothing more than the expression of opinions and views privileged by Section 8(c) of the Act. Remarks made by Fraser concerning the replacement of strikers were nothing more than statements of the Respon- dent's legal right to keep its business in operation by the hiring of permanent replacements under the Supreme Court's Mackay decision. Remarks made by the pickets and by Fraser as to the costs to the contending parties ensuing from the strike and the willingness of parties to undergo costs to win a strike situation give recognition to the fact that the contending parties in a strike situation are locked in an economic battle to compel the opposing party to come to their terms.15 No one contends that the issues which sparked the strike were illegal; it is conceded that the strike was economic; and that being so both Union and Respondent were free to undergo the expense necessary to achieve their collective-bargaining objectives. Therefore, statements made by Fraser that Wards was prepared to 14 Shaw conceded on cross-examination that his written pretrial statement does not mention anything about Wards' spending $ 1 million, or that the Company would only sign an open-shop contract 15 As the Supreme Court said in N L R B v Insurance Agents International Union, AFL-CIO, 361 U S 477 (1960), 489 The presence of economic weapons in reserve , and their actual exercise on occasion by the parties, is part and parcel of the system that the Wagner and Taft-Hartley Acts have recognized Abstract logical analysis might find inconsistency between the command of the statute spend a million dollars constituted nothing more than a statement of the Respondent's legal right to achieve its contract demands which no one asserts were illegal or made in bad faith. I would therefore find that the remarks made by Fraser to Shaw, or in his presence, did not violate Section 8(a)(1) of the Act. Shaw further testified that he had a conversation with Customer Service Manager John Reed in October 1970. On this occasion, according to Shaw, Reed was driving home in a service truck and he stopped near the automotive service department and the two started talking about the strike. Shaw testified that Reed mentioned he needed and had openings for three or four service men, that he had ads in the newspaper at the time, and "if we didn't get back to work, we would be permanently replaced and that some already had been." Shaw went on to testify that Reed said what a "bad deal it was, us going out on strike," and he said that "the store would spend any amount of money to break this Union, that under no circumstances would the store go Union again if they ever hired anybody back, or when this was over with, they would go open shop." In contradiction of Shaw's testimony, Reed testified that he customarily drove Wards' service truck to go to and from work through the picket line. Reed testified he spoke to some of the pickets, stating "we were friends." Reed testified that after the strike began, other than greeting each other, he spoke to Shaw only on one occasion when Shaw asked him as he was leaving the lot if he could have some equipment in a truck. Testifying for the Respondent, Reed denied that he ever had a conversation with Shaw after the strike where Reed told Shaw that he had three or four openings, or that a couple of employees would not be hired under any circumstances, and he denied ever making any statement to Shaw that the store would spend any amount of money to break the strike or words to that effect. Reed further denied making any statements to Shaw to the effect that the store would not go Union again, it would go open shop. He further denied telling Shaw that the strike was creating a terrible economic condition in the area, and denied making a statement to Shaw to the effect that the Chicago office of Wards would spend any amount of money necessary to break the Union or break the strike. I credit Shaw's testimony concerning Reed's statements about the availability of jobs and the possibility of the service technicians being permanently replaced if they did not return to work. The record fully establishes that Store Manager Hanks had instituted a policy of replacing strikers with permanent replacements, but I do not credit Shaw's testimony that Reed told him Wards was willing to spend any amount of money to break the Union, or that they were going open shop. I make this credibility determination because the surrounding circumstances to negotiate toward an agreement in good faith and the legitimacy of the use of economic weapons, frequently having the most serious effect upon individual workers and productive enterprises, to induce one party to come to the terms desired by the other But the truth of the matter is that at the present statutory stage of our national labor relations policy, the two factors-necessity for good-faith bargaining between parties, and the availability of economic pressure devices to each to make the other party incline to agree on one's terms-exist side by side 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD disclose that the Respondent continued to recognize the Union and bargain with it on request and in fact in the November 14, 1970, negotiations offered a union-shop clause which would require all employees, except a few full-time students, to join the Union after January 1, 1971. Herman Skillman is employed in Wards' auto service department. He joined the strike on September 29. Skillman credibly testified that on September 28, the day preceding the strike, Merchandise Manager Gelegan approached him and asked if he was going to cross the picket line. Skillman replied he would not. Then Gelegan told Skillman if he did not cross the picket line and return to work he would be permanently replaced. Skillman testified that approximately 2 weeks after the strike began, he had his first conversation with Credit Manager Fraser. This conversation occurred in front of the auto service building while Skillman was picketing along with other pickets, Foster and Sealander, who were present in the conversation. Skillman testified that on this occasion, he told Fraser that he would be back to work "real shortly" and Fraser replied, "No way." Skillman testified that after this conversation, he had a number of other conversations with Fraser. Skillman testified that on another occasion, in the presence of Bill Sealander and Bud Foster, Fraser said that if there was anybody to come back to work, it would be only those people that the Company wanted back, that the Company did not want some of the people back, that they were bad workers. Skillman testified that he replied that he believed if "we came back, it would be all together" and Fraser said it would not be; and a steak dinner was bet, Skillman betting that they would all come back and Fraser that they would not.16 Concerning this conversa- tion, Fraser testified that present in this group of pickets were Herman Skillman, Bud Foster, Jack Littleton, and Bill Sealander and possibly others Fraser testified that on this occasion, as he came out of the door of auto service, the group of pickets walked toward him, and someone in the group said, "Hi, what's new?" to which Fraser replied "Nothing." Fraser testified he then said, "Well, there's one new thing; Fred tells me you are going to be in by the weekend", and, Fraser testified, Herman Skillman said, "That's right We will be within the week, all of us;" and Fraser testified that he replied, "Now you are beginning to sound like Bud. He bet me a steak dinner on it, and do you want to get in on the same deal?" Fraser testified further that to the best of his recollection, it was not Herman Skillman who took him up on the bet; it was Bud Foster who said, according to Fraser's testimony, "I'll take you up on that"; and Fraser testified he then asked, "How about you Herman?" and Skillman replied, "No, I don't have any money to bet." Then Fraser testified, "We all laughed about the thing, and Bud Foster and I shook hands and the bet was off " Fraser testified that nothing else was said in the conversation. He denied that anything was said about the Company not taking certain people back after the 16 On cross-examination, Skillman conceded that when Fraser said some of the employees would not be coming back, it is possible that he connected that up with a statement of permanent replacements Concerning the steak bet, the strikers present were saying they would be back within a week and Fraser was saying, "No you won't " Skillman also conceded on cross that the bet was that the strikers would all return in a group, or none would return strike was over. He denied that anything was said that the Company would not sign any contract with the Union. He also denied that anything was said that the Company would spend up to $1 million to break the Union, or that the Company would make the Union go broke and therefore lose the strike. I find that the aforesaid conversation between Fraser and the group of pickets, including among others, Herman Skillman, was a friendly conversation in which the pickets, on one hand, contended that the Union would win the strike shortly, and they would all be back to work, whereas Fraser took the opposing position that the strike would not be over shortly and that not everybody would be returned to work, and there was talk of steak dinner bets, much as one would bet on the outcome of a sporting event. The conversation was had in a friendly and noncoercive atmosphere and the remarks made by Fraser, who was not controlling Wards' labor relations policy or participating in contract negotiations, were privileged within the meaning of Section 8(c) of the Act. I credit Fraser's denial that he said that the Company would not sign any contract with the Union or that the Company would spend $1 million to break the Union. I make this credibility determination because the undisputed facts are that the Company did not withdraw recognition of the Union, bargained with it, and offered it a union shop effective January 1, 1971, for all employees except a limited amount of full-time students who would work short hours for Wards. Laverne Nutt was employed by Wards as a clerk in the children's department. Her department manager was Electa Foote. Mrs. Nutt joined the strike on September 29 and she picketed. Mrs. Nutt testified that in a conversation she had with her supervisor, Mrs. Foote, sometime before the strike, she asked Mrs. Foote if she could get off to attend a union negotiating meeting as she was a member of the union bargaining committee. Mrs. Foote gave her permission to go and then, according to Mrs. Nutt's testimony, Mrs. Foote said, "If you guys go out on strike, the store is out to go self-service " Nutt testified that she replied that the store could not run self-service and Mrs. Foote said, "Oh yes it could, we would bring the check- stands back in and put them at the stores and we would run it." Mrs. Nutt testified that when she asked Foote who would wait on the customers, Foote replied, "We [meaning the department heads] would." Foote also said the warehouse people would be called in to stock the counters. Nutt also testified that Foote also said that if the store doesn't do a better business than it is now doing, the store could close and "we could all be out of work." 17 Mrs. Nutt testified she had a similar conversation with Supervisor Georgia Wood who heads departments 16 and 18, on September 12, 1970, before the strike. Nutt relieved Mrs. Wood in the yardage while she was gone to attend a management meeting. Upon Wood's return to her depart- ment, she thanked Nutt for taking care of the department 11 Mrs Nutt conceded that she had previously made a written statement on November 25, 1970, to the Union as follows "Mrs Foote told me about a month before the strike that management told them in a meeting that the store would go self-service if wages became too high, that in order to cut costs, the company would turn the store to self-service, with only department heads to handle the customers " MONTGOMERY WARD & CO. 605 in her absence and inquired how the last contract negotiating went. Nutt said there was nothing new, nothing had changed. Nutt testified that Wood then told her that if the Union called a strike, the store might go self-service, and "I said, well I don't think so, Georgia, but if it does, you would have an awful lot of work to do." Mrs. Nutt testified that Mrs. Wood then said, "Well, if business doesn't pick up, the store might even close and then we would all be out of work." Nutt testified that she reported to the union membership at a union meeting held before the strike her conversation with Electa Foote. As department manager of the children's and girls' department Electa Foote had only one employee, Dorothy Rouillard, under her supervision. Foote identified Laverne Nutt as a part-time employee who was working under direction immediately before the strike. Foote recalls that she did have a conversation with Laverne Nutt which took place in her department about 3 weeks before the strike. Foote testified that Nutt asked what the store would do if the employees went out on strike, and Foote replied that probably she "would be the only one in the department. The department managers would work; we would take care of the customers as far as I knew we would be working alone." Foote testified that Nutt said that she had heard talk of self-service, and she wanted to know what it would be like if they had self-service, and Foote replied she didn't exactly know, she "supposed they would set up registers and people would take their merchandise there, but I didn't know whether they would or not." Mrs. Foote testified that she did not remember anything about Nutt talking about going to a meeting. Foote further denied that she told Nutt, "If you guys go out on strike, the store is out to go self-service." Foote testified that Nutt raised the question about self-service, and she recalls no discussion about stocking of merchandise after the subject of self- service was raised. Foote denied that in her conversation with Nutt, she said to her in substance or effect that, "If the store doesn't do a better business than we are doing now, the store can close and we could all be out of work." Foote testified that she was quite positive that she did not tell Mrs. Nutt that if they went out on strike, that the store was going to go self-service. Georgia Wood, department manager of the yardage and knitting department, testified that Laverne Nutt worked in her department only to relieve on breaks or lunch hour. Mrs. Wood testified that discussions about self-service went on generally in the store about 2 months before the strike, but she had no recollection of discussions with Nutt about self-service. Wood denied that she ever told Mrs. Nutt, that if the Union called a strike the store might go self-service. Wood also denied that she ever told Nutt within a month or two before the strike that "if business did not pick up, they might even close and then we would be all out of a job." It is not disputed that rumors of Wards going self-service had been a subject of coffeebreak discussions for a number of years before the strike. It is clear that both Electa Foote and Georgia Wood were minor supervisors, with only one or two employees under their supervision. They had no voice in the labor relations policy of the Respondent's store in Redding and they were not involved in the contract negotiation. It is clear that both Foote and Wood in their respective conversations with Nutt were voicing only their uninformed speculation on what would happen in the event of a strike, and it is established without dispute that their guesses as to what would occur in the event of a strike were wrong. Thus, the Respondent's strike policy was to continue operating with permanent replacements, whereas Electa Foote hazarded the guess that the store would just operate with its department heads, whereas, according to Nutt's testimony, Georgia Wood hazarded the guess that the store would go self-service. I find that the remarks made by both Foote and Wood to Nutt on separate occasions some weeks before the advent of the strike were made in a noncoercive posture, and were privileged as the expression of views, arguments, or opinion privileged by Section 8(c) of the Act. Mrs. Grace LeClair worked in Wards' TV and stereo department before the strike. She joined the stake on September 29. Mrs. LeClair phoned Operations Manager Ewart in November 1970 and asked to be returned to work. Mrs. LeClair testified that Mr. Ewart said that it was out of his hands, that he had to talk to the lawyer, Chevalier, and promised to call her back. According to Mrs. LeClair's testimony, Ewart phoned her a day or two later and told her that she could come back to work on a part-time job in the service department if she would send a registered letter to the Union resigning membership and having no affiliation with the Union. Mrs. LeClair testified she decided not to return to the part-time job offered her. Mrs. LeClair testified that Mr. Ewart did not give her any reason why she should resign from the Union. Mrs. LeClair testified that she picketed only 1 day, and she conceded that in the union meeting in September there was talk concerning being fined for crossing the picket line. On cross-examination, Mrs. LeClair testified that, in the phone conversations offering her a part-time job, Ewart said that she "must send a registered letter to the Union resigning membership and have no union affiliation in order to come across the line to come to work." She testified she was quite sure nothing was said about protecting herself because of the possibility of union fines. She testified further, however, that she was somewhat concerned that, if she came back to work, she might be fined. She testified that she didn't really know that if one sends a letter of resignation to the Union, then under the law, the Union could not fine one. Ewart conceded by his testimony that he did receive a telephone call from Mrs. LeClair in November 1970. On one occasion, when she called, Mrs. LeClair told Ewart that she understood that she had been replaced, but that she was still interested in coming to work. Ewart told Mrs. LeClair it was true that she had been permanently replaced and he would have to discuss it with Mr. Hanks and that he would call her again. Ewart testified that about 2 or 3 days later he called Mrs. LeClair and told her again that she had been permanently replaced as a commission saleswoman, but that he had a part-time position as telephone solicitor and service clerk. Mrs. LeClair replied she would have to think it over. Mr. Ewart also testified that if Mrs. LeClair decided to come to work, "that for her own protection she would have to send a letter of 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD resignation to the Umon and it would have to be sent by registered mail." Mr. Ewart testified he did not tell Mrs. LeClair that as a condition for her returning to work that she could have no affiliation with the Union. I credit the testimony of Mr. Ewart that he did not tell Mrs. LeClair that as a condition of reemployment she must have no affiliation with the Union . I find that Ewart suggested LeClair's resignation from the Union for her own protection, having in mind that she could be fined for crossing the Union's picket line . Moreover, upon the basis of the discussions which went on in Mrs. LeClair's presence in the union meeting, it must have been apparent to her that her crossing the Union 's picket line as a union member could cause her to be fined. Under all the circumstances, I am satisfied and I find that Ewart did not precondition reemployment upon resignation from the Union, but merely suggested it for the employee's own protection against union fines Anna Cuyler in September 1970 was employed by Wards as a clerk in the service department . Her supervisor was John Reed. Cuyler joined the strike on September 29 and she' picketed. Cuyler testified she had a conversation with Credit Manager James Fraser on the first day of the strike at Grant's coffee shop . Present at this conversation were, in addition to Fraser and herself , also Enid Proulx, Joan Horne, Fran Rupert, and Marv Wittner, appliance depart- ment manager. Cuyler testified that she was picketing at the time and she and the other nonsupervisory employees above mentioned joined Fraser and Wittner for coffee. Cuyler testified that Fraser did almost all of the talking except for a few comments that she herself made, and nobody else said anything. Cuyler testified that Enid Proulx asked if Fraser was going to buy coffee and Fraser replied that "we would have to buy our own coffee from now on and that we had better give good thought to our finances, and we went over to Grant's." There at coffee, Cuyler testified Fraser asked "what we hoped to gain by walking the picket line; the strike would not be settled and what were we planning to do financially." Cuyler testified further that Fraser said that the Company had no intention of settling the strike. Cuyler testified that she interrupted Fraser to say that the Company had offered them very little, and Fraser replied that he was very concerned about the people that really needed their jobs, that was his concern, and that the people who wanted theirjobs should get off the picket line and go right back to work. Cuyler further testified that Fraser said, concerning replacements, that "we should get off the picket line and get back to work because the store was not planning to settle the strike, and the people would be replaced and out of work." Cuyler testified she mentioned these remarks made by Fraser to other pickets on the picket line. Cuyler conceded on cross- examination that she, Enid Proulx, Joan Horne , and Fran Rupert were supervised by John Reed and that Fraser had no supervisory authority over her work. Fraser's version of the coffee shop conversation differs from Cuyler's version. On this occasion of the first afternoon of the strike, Fraser testified, he came out of the company store entrance where there were many pickets, among them, Enid Proulx, Fran Rupert, Joan Horne, Anna Cuyler, and several more. They greeted each other and, Fraser testified, he said, "Boy it's hot out," and the pickets said, "Yeah it sure is" and Fraser said, "But it's sure nice and cold inside." Then, according to Fraser, Enid Proulx said, "Are you going to buy us coffee?" and he said, "I guess so"; so he held the door open and said , "Let's go," and the group laughed and said , "You know we can't go in there. But why don't you buy us coffee at Grant's." So they proceeded to Grant's coffee shop and ordered coffee. Fraser said the people who accompanied him to Grant's coffee shop were Enid Proulx , Fran Rupert, Joan Home, and Anna Cuyler. Fraser testified he really didn't recall much of the conversation because it was dust a lot of laughing about black feet and hot weather. Fraser testified that the only comment he can recall making directly regarding the strike was that he was in sympathy with the individuals who provided support for their families, because he felt this was tough on them. Fraser testified that he had no recollection of and did not believe he told the group that they would have to buy their own coffee, and he had no recollection of telling the group that now that they were on strike, they had better be careful about their finances . Fraser denied asking any of the group what they hoped to gain by walking the picket line. Fraser further denied telling any of the group that the stnke would not be settled, or asking them what they were planning to do financially . Fraser further testified he was quite sure that he did not say that the Company had no intention of settling the strike . Fraser also denied that he said that the people who really needed their jobs, and people who wanted a job should get off the picket line and get right back to work. Fraser testified that the conversation at the coffeebreak was hilarious, it was a joke, and the only serious remark was a parting remark where Fraser testified he said seriously that he felt sympathetic to those who were the sole support of their families, and possibly would suffer financially. Enid Proulx, a rank -and-file employee , called by the Respondent, testified in corroboration of Fraser 's testimo- ny concerning the conversation in Grant's coffee shop. She was among the girls who had coffee with Fraser. Proulx testified that before they went over to have coffee, Joan Home said, "Oh it's sure hot out," and Mr. Fraser answered, "Come on in, it's cold in here." Proulx testified that Fraser was just joking, laughing, and having a good time. Proulx testified that in the coffee shop , Fraser said he "hated to see a strike, that nobody benefits by a strike, and it was just a general conversation. We were all just laughing." Proulx testified further that Fraser did not say anything about the fact that they had to start worrying about finances, and he did not say directly or indirectly that the strike would not be settled . On cross-examination, Proulx testified that she returned to work the second day of the strike with Fran Rupert and Joan Horne, because she was concerned about losing the income as she has children to support. I credit Fraser's denial that he told the group the strike would not be settled or that the Company had no intention of settling the strike . Fraser had no authority in directing Wards' labor relations policy. Moreover subsequent events showed that there was agreement on all issues including the economic and union-security contract issues, and the only MONTGOMERY WARD & CO 607 issue that prevented settlement was the Company's refusal to immediately take back permanently replaced strikers. I do, however, credit Cuyler's testimony that Fraser told the group that the people who wanted theirjobs should get off the picket line and return to work before they were replaced. I make this credibility resolution on the basis of the fact that the Respondent's intention to continue operating with permanent replacements was instituted and announced to many employees by management represent- atives on the day preceding the strike and also in succeeding days after the strike began. I find that the statements made by Fraser in Grant's coffee shop were privileged by Section 8(c) of the Act. I also find that the conduct of Fraser in urging the people who needed their jobs to return to work before they were replaced was no more than a statement of the Company's right to continue operations with permanent replacements under the Supreme Court's Mackay doctrine. I therefore conclude that Fraser's remarks in Grant's coffee shop did ,not violate Section 8(a)(1) of the Act. Tim Howard, appearing as a witness for the General Counsel, is presently employed in Wards' automotive department as a tire mounter. He joined the September 29, 1970, strike and remained on strike for 5 months. He also picketed. Howard testified that about a month after the strike started, while he was picketing, he had a conversa- tion with Garden Shop Supervisor George Rogers outside the garden shop. On direct examination, Howard testified that the two of them were discussing the strike, and Rogers said that he believed that he didn't think Wards would ever sign another union contract, or sign a contract with the Union. On cross-examination, however, Howard affirmed that what Rogers said was in effect that he didn't think that the Company would ever sign a contract for what the Union was asking for, and not that the Company would never sign a contract. On cross, Howard also affirmed that he understood Rogers to be saying that Rogers didn't think the Company was ever going to agree to what the Union is asking for. It is undisputed that Rogers was not Howard's supervi- sor and exercised no authority over him. It also is established that Rogers was a minor supervisor who had no authority in establishing company policy in the matter of its labor relations and he took no part in its contract negotiations with the Union. I find that Rogers' remarks to Howard were mere expressions of opinion privileged under Section 8(c) of the Act and contained neither promise of benefit or threat of reprisal. I therefore find that Rogers' remarks to Howard did not violate Section 8(a)(1) of the Act.18 Dorene Medina, a witness for the General Counsel, was the assistant fashion manager in the fashion department, and the fashion manager was Ada Heidrich. Medina testified that about a week before the strike started, she had a conversation with Mrs. Heidrich in Wards' coffee 18 Rogers testified he had no recollection of having a conversation with Tim Howard concerning the strike, but he did have a conversation with Herman Skillman in the presence of Tim Howard and Bud Foster next to the garden shop about 3 days after the strike started Rogers testified that Skillman opened the conversation by saying, "We are going to have this company on its knees in 7 days," and Rogers testified he replied, "Well, I don't see how you can say that you are going to have the company on its shop in the presence of two other women whose names she cannot remember. Medina testified that Heidrich stated in the coffee shop that if the Union persisted in its demands, the store would go self-service. Mrs. Medina joined the September 29 strike and picketed, and she conceded that Mrs Heidrich's above remarks to her had no bearing on her reasons for going on strike. Medina testified that when the store first opened there was some talk about it going self-service, but nothing since until the incident she related above. Mrs. Medina testified that she would be in charge of the fashion department in the absence of Mrs. Heidrich. Mrs. Heidrich, called as a witness for the Respondent, testified that talk about the store going self-service had been going on for a year or so during coffeebreaks and lunch periods. Heidrich could not recall any conversation with Medina in September 1970 about self-service. Heid- rich also testified that she could recall no conversations in the month or so before the strike in the presence of Medina where the Union or contract negotiations were discussed. Heidrich denied that she ever told Medina that if the Union persisted in its demands, that the store would go self-service. Heidrich conceded, however, that she and Medina had been talking about the new store opening in Merced and, "We could possibly do the same thing, the department managers would have to do it." Heidrich conceded that she did say "that we girls would have to do it if they did go on strike, namely the department managers would have to do the work," at a coffeebreak in the presence of five or six girls at the coffee table which might have included Medina. Again, it is noted that Heidrich was a very minor supervisor who obviously had no say in the Company's labor relations policy or in collective-bargaining negotia- tions. It is clear that the coffee table statements that if the strike occurred the department manager would have to do the work and in a sense the store would become self-service was nothing more than her unfounded opinion or guess, a guess no more correct than the guesses of other people in the store. As a matter of fact, her guess was wrong, as it turned out, that Wards' policy was not to go self-service or have the department managers do all the work, to the contrary the store policy was to continue operations with permanent replacements for the strikers. It is noted that these coffee talks were nothing more than friendly discussions and idle gossip and were privileged by Section 8(c) of the Act. They were carried out in a noncoercive context. I therefore find that Mrs. Heidrich's remarks made in the presence of Medina did not violate Section 8(a)(1) of the Act. Lamar (Bud) Thompson was employed at Wards in September 1970 as a commission salesman in the appliance section. His department manager was Marvin Wittner Thompson was on vacation at the start of the strike on September 29, but he joined it on his return from vacation knees in 7 days How are you going to do that?" Skillman said, "Well, they told us down at the Union that this store cannot take a strike, for in 7 days management is going to be begging us to sign a contract " Rogers testified he replied, "Herm, you have got to be dizzy to imagine that " Rogers then offered to bet $50 and the winner would collect in 8 days And then Rogers testified, "We all laughed and that was the end of the conversation " Rogers denied that he said Wards would never sign a contract 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on October 3. He was a member of the Union's negotiating committee. After Thompson's return from his vacation, he testified he had a conversation with Credit Manager Fraser about October 10, in the Thrifty Drug Store shortly after Thompson arrived that morning for picket duty. Thomp- son testified that, after he and Fraser exchanged pleasant- ries, Fraser told him that Wards was not going to settle, and he said , "Some of you fellows are getting a little bit older and you might have a rough time getting a job .. . perhaps not you because you have something on the ball." Thompson testified further that Fraser said that Wards was prepared to spend $ 1 million to break the strike and that they had redlined the Redding store and were prepared to sit it out. Thompson testified he told Fraser that the strike would be settled and the Company would "take us all back," and Fraser said "No," and then Fraser proposed the standard steak dinner wager. Thompson testified further that Fraser said the Company had no intention of taking us all back but did not specify who they were not going to take back . On cross-examination, Thompson repeated the same testimony as above and added that Fraser told him the Company was prepared to spend $1 million to break the strike and that the Union would soon go broke, and that Wards had redlined the Redding store and intended to sit it out Thompson conceded on cross- examination that he heard from several people on the picket line that the Company was hiring permanent replacements. Fraser testified that he had a conversation about the strike with Thompson after Thompson's return from vacation, but he places it while he was about to drive his car out of the lot to go to the post office. He says he stopped his car at a traffic lane and Thompson was right there and greeted him and then leaned in the window of the car to speak to Fraser . Fraser testified that after he and Thompson had greeted one another , Thompson said, "I hope this thing has not come between us , because I still consider you a very good personal friend ," and Fraser replied, "I don't see why it should. I did not feel it was the responsibility of any individual." Fraser testified further that Thompson said that he heard he had been permanent- ly replaced, and the word of this was going around the store; and Fraser said, "Bud, you couldn't prove it by me. I've been too busy trying to keep up with my own end of the business." Fraser testified further that Thompson then said, "Well, no matter anyhow, because with the loss this outfit is taking, and them being so chintzy , we will be in there by the end of the week." Fraser testified he replied, "You have got to be kidding. This is a billion dollar corporation, and this operation to them is like a pea in the ocean." Fraser further testified that "Thompson then said he would bet me $100 that they would be back in by the end of the week, and Fraser replied, `Don't be silly, whose got $100 to spend on something like that? However, if you want to put your money where your mouth is, I'll take you up on a steak dinner,' and we parted on that deal . He took me up on a steak dinner bet." Fraser denied that during this conversation he told Thompson that the store was not going to settle. He further denied that he said anything about some of the fellows getting a little bit older and might have a rough time getting a job. He also denied saying, "Well, maybe not you because you have something on the ball," but he did acknowledge that he always held Thompson in high esteem. Fraser also denied saying to Thompson about some of the others were not spring chickens on the picket line. Fraser also demed that in this conversation he said directly or indirectly that Wards was preparing to spend $1 million to break the Union. Fraser also denied that in this conversation with Thompson he said that Wards had redlined the Redding store, and was preparing to sit it out. Fraser further denied that in this conversation Thompson said to him in substance or effect that he felt that if the strike was settled, that Wards would take all the strikers back, and that Fraser m reply said, "No." Fraser further testified that "We didn't talk at anytime about them all coming back." Fraser further denied that he at any time during this conversation told Thompson that Wards had no intention of taking all the strikers back. Comparing Thompson's and Fraser's versions of their conversations, I find that in essence Thompson was contending that Wards would capitulate to the Union's demands within a week and the strikers would all be back to work, whereas Fraser was taking the position that Wards would not capitulate and was willing to bet a steak dinner to back his position I credit Thompson's testimony that Fraser told him the Company was prepared to spend $1 million to break the strike and I also credit Fraser's denial that he told Thompson that Wards was preparing to spend $1 million to break the Union. I also credit Thompson's testimony that Fraser told him the Company had no intention of taking all the strikers back and that some of the older fellows would have a rough time getting a job. Reiterating what I have pointed out previously in this decision , Fraser did not determine Wards' labor relations policy and was not involved in the contract negotiations. He was aware , as everyone else was, that Wards was hiring permanent replacements , and pointed out to Thompson the risks of replacements, and under the circumstances, it is highly probable, and I find, that Fraser told Thompson that not all the strikers would return, an opinion expressed on the basis of the Company's commitment to the replacements that they would be permanent. I find that the conversation was initiated by Thompson , who held and expressed the strong opinion that Wards would quickly capitulate to the Union's demands and take back all the strikers, whereas Fraser's opinion to the contrary was expressed by him. I find that Fraser's remarks about Wards' willingness to spend $1 million to break the strike was an expressed opinion concerning Wards' determina- tion to prevail in its collective-bargaining position . The law recognizes that the strike is per se an economic battle between contending forces, and in many cases involves losses on both sides running into millions of dollars, and it is not uncommon for the parties to reach agreement rather than suffer further financial loss. I find that Fraser's remarks to Thompson constituted the expression of views, arguments, and opinion within the meaning of Section 8(c) of the Act and were not violative of Section 8(a)(1) of the Act. Thompson testified he also had a conversation with his MONTGOMERY WARD & CO. 609 supervisor, Marvin Wittner, relating to contract negotia- tions and the strike in the second week of the strike. Thompson testified he was picketing at the time. The discussion began with talk about each other's hunting experiences. Then, according to Thompson's testimony, Wittner asked him what he had said during contract negotiations, and Thompson replied nothing that he knew of and asked why, and Wtttner replied, "Well you are being widely quoted in the store and they are discussing what you had to say." Thompson testified further that Wittner also said, "If you ever get back in, it's going to be hell for you because they are gunning for you because of your attitude in negotiations." Thompson testified he replied that he asked Wittner what he had said that offended. On cross-examination, Thompson conceded that Wittner told him in this conversation that he had not been replaced and that he had asked him to come back to work. Thompson testified on cross-examination that he told Wittner that he would be delighted to return to work when the picket line was down.19 Thompson conceded that he did not remain out on strike for anything that Wittner or Fraser had said to him. Marvin Wittner, appliance department manager and Thompson's supervisor, testified that he had three conver- sations with Thompson concerning the strike after it had been in progress. Wittner places the first conversation in the second week of the strike. Wittner testified when he drove his truck to work that morning, Bud Thompson, who was picketing, approached his truck and engaged him in a conversation. They first talked about hunting and Thomp- son's vacation. Wittner testified he told Thompson that he had not had a chance to go hunting and could not because he was working the appliance department by himself and that he needed Thompson to come back to work. According to Wittner, Thompson replied that he could not come back to work because of what he stood for and believed in, and because he was on the negotiating committee, and he couldn't understand what Hanks and Chevalier had against him. Wittner testified he replied, "Well, Bud, I told you I need you to come back to work; I can't run the department myself-if he didn't, I would have to make a permanent replacement in his position." Wittner testified that Thompson then said, "Are you firing me?" and I said, "No, I'm not firing you-I need you to come back to work." Wittner testified to a second conversation he had with Thompson about a week later while he was on his way to work in his truck and was in the area of Thrifty Drug. Thompson, who was picketing, said, according to Wittner's testimony, "I have heard that you have fired me." Wittner testified he told Thompson he had not fired him, that his job was still open and he needed him back, and Thompson replied that he had heard that when he comes back to work, that the managers were going to make it so rough on them that they'd wish they hadn't come back. Wittner testified he assured Thompson that the two of them could always get along and were frank with each other, and Thompson agreed. Wittner testified he again asked Thompson if he was ready to come back to work and Thompson refused. Wittner testified he told Thompson that he couldn't run the department by himself and he was going to have to make a replacement if Thompson did not come back. Wtttner testified that he had a third conversa- tion with Thompson a week later in which Thompson inquired if he had been replaced yet and Wtttner told him he had not been, his job was still open. Thompson again told Wittner he could not come back, because he could not let his fellow employees down, although he was aware that he could avoid a union fine by resigning from the Union. Wtttner told Thompson he couldn't hold off any longer, that he was going to have to replace him. Wittner testified he replaced Thompson 2 days later with another man. Wittner denied that he told Thompson, "If you ever get back in, it's going to be hell for you because we are gunning for you because of your attitude." Wittner also denied that there was any reference to negotiations in any of his three conversations with Thompson. Wittner also testified that Chevalier's and Hanks' names were men- tioned only in their first conversation when Thompson said he wanted to know what Chevalier had against him because he was on the negotiating committee. I fully credit Wittner's testimony that he had three conversations with Thompson about the strike and that the substance of the conversation was Wittner's entreaties to Thompson to return to work and Thompson's steadfast refusal, even in the face of his knowledge that there was the risk of replacement. Wittner's entreaties to Thompson to return to work contained neither promise of benefit or threat of reprisal. Wittner's statement to Thompson in his third conversation that he could hold off no longer, that he was going to have to replace him was not a threat of reprisal but a statement of the Respondent's legal right to continue operations by replacements in the face of a strike. I therefore find that Wittner's statements to Thompson did not violate Section 8(a)(1) of the Act. William Sealander, called as a witness by the General Counsel, was employed as a mechanic in Wards' automo- tive department. He joined the strike on September 29 and he returned to work while the strike was in progress on March 12, 1971. Sealander testified that about March 1, 1971, he called Operating Manager Ewart and asked to come back to work. Ewart replied that he would be called when he was needed. Sealander testified that about 2 weeks later, Ewart called him at his home and asked him to come to work and "to make sure I resigned from the Union." Sealander mailed a registered letter to the Union containing his resignation. Sealander testified that on September 28, 1970, the day before the strike, Merchandise Manager Gelegan talked to the men in the automotive shop about the impending strike. According to Sealander's testimony, Gelegan was reading from a piece of paper and he said we would be replaced if we didn't resign from the Union. On cross-examination, Sealander, in contradiction of his previous testimony, admitted that in preparing a written statement for the Union, he stated that he was told that, if he went on strike, he would be replaced and that he said nothing in that statement about resigning from the Union. 19 Thompson was discharged during the strike for alleged misconduct on the picket line 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sealander admitted he had previously given a statement to Respondent's counsel that Gelegan never told him or anyone in his presence that the strikers would be permanently replaced if they did not resign their member- ship in the Union. Sealander also admitted on cross- examination that he answered "No," to the question put by Respondent's counsel, "Did Ewart ever tell you or instruct you to resign from the Union as a condition of returning to work?" Sealander conceded on cross-examination that nobody from the Company asked him to produce the post office receipt showing that he had sent a registered letter to the Union. Sealander also conceded on cross-examination that he was present at union meetings when fines were discussed if the union member came through the picket line, and fines were discussed in amounts of $500 plus wages in the presence of Union President Robert Koenig. Sealander testified he understood from attending union meetings that a person might be fined $500, plus whatever he earned if he came through the picket line. Sealander conceded on cross-examination that he was aware that the Union could not fine him if he sent a registered letter of resignation before returning to work, and he conceded he sent in the letter of resignation to the Union to avoid being fined. On redirect, on being shown the affidavit he gave to the Board agent, Sealander testified the statement re- freshed his memory that it was said by Mr. Gelegan that "we would be permanently replaced if we did not resign from the Union." Gelegan denied that he told Sealander and the other employees in the automotive department on September 28, the day before the strike, that they would be replaced if they did not resign from the Union. Gelegan testified he merely read from a slip of paper as follows: It is our intention to keep this store open and running. We will attempt to permanently replace strikers. We will not abandon you as far as being an employee of Montgomery Ward. Concerning the telephone call by Ewart telling Sealander he could return to work, Ewart testified that he told Sealander that for his own protection he should send a letter of resignation to the Union by registered mail, but he never made any attempt to learn whether or not such a letter was sent by Sealander. I am satisfied from the foregoing record evidence, including the self-contradictions of Sealander, that there is no credible evidence that Sealander was told by a supervisor of the Respondent that he would be replaced if he did not resign from the Umon or that his return to work would be permitted contingent on his resignation from the Union. I credit the testimony of Gelegan and Ewart in connection with their conversations with or statements made to Sealander, and, accordingly, allegations of 8(a)(1) violation on the complaint relating to this phase of the case are without merit and are to be dismissed. Michael McCarthy was employed by Wards in Septem- ber 1970 as a salesman in the home improvements department. His supervisor was Vince McGunnihan. McCarthy joined the strike on September 29, 1970, and he also picketed. He never returned to work, although he was offered a job by Store Manager Hanks in October 1971. McCarthy testified he had a conversation with Store Controller Paul Thode in the third or fourth week of October 1970 at the west entrance of Wards' store next to Thrifty Drug, while he and another striker named Bob Husted were picketing, and Husted was present at the conversation. McCarthy testified that Thode came out of the Wards' store with an envelope to be mailed by registered mail to the Umon about insurance. After discussing the insurance matter for a time, McCarthy testified that Thode told him and Husted that it was costing the Union a lot of money every week for the strike, that the Union was spending more money on the picket line than the store was paying payroll in the store, and that Thode didn't see how we could last very long, "and that Wards was willing to stay out for two years and spend $1,000,000 to break the Union, and the old man would never sign the union contract." 20 Thode's account of the conversation in McCarthy's presence is as follows: Thode recalls that in the first 2 weeks of the strike he was going to mail a registered letter to the Union concerning insurance . As he left the store, he had a conversation with one of the pickets named Bob Husted. Some other pickets, including McCarthy were around. At first he talked to Husted about fishing in the river, and in response to Husted's question where he was going, Thode told him he was going down to the post office to return the insurance checks to the Union as he had been told that the strikers would not be eligible under the Company plan for health coverage. Thode testified he pointed out to Husted that he ought to check and make sure he was going to have insurance coverage. Thode testified that ended the conversation and Thode left to mail the letter. Thode testified that Michael McCarthy had nothing to say during that conversation. Thode testified that in this conversation no one, neither he nor anyone else, said that the old man would never sign a union contract, and he denies that there was any discussion in that conversation as to whether a contract with the Umon would or would not be executed or signed. Thode also denied that any time during that conversation did he, in substance or effect, state that the store was willing to spend 2 years and a million dollars to break the Union. Thode credibly testified that he had no responsibility in connec- tion with labor relations matters, and had not participated in contract negotiations, and that he had no responsibility or authority as to how much money the Company might be willing to spend in connection with the strike. I credit McCarthy's testimony that Thode told him and Husted that it was costing the Union a lot of money every week for the strike, that the Union was spending more money on the picket line than the store was paying payroll in the store, and that Thode didn't see how they could last very long and that Wards was willing to stay out for 2 years and spend $1 million to break the Union. I make this credibility determination because McCarthy's testimony is to some extent corroborated by the testimony of Littleton 20 McCarthy conceded on cross-examination that he did not remain on conversation was friendly McCarthy also conceded that Store Manager strike because of Thode's remarks, but remained on strike for the contract Hanks offered him his job back in October 1971 and he declined it, telling that the union members thought was acceptable McCarthy also testified the Hanks he was already working elsewhere MONTGOMERY WARD & CO. 611 concerning similar remarks made to him by Thode. Additionally, McCarthy was frank in conceding that his conversation with Thode was a friendly conversation, and that nothing Thode said caused him to remain on strike, but that he was remaining on strike for a contract acceptable to the Union . McCarthy was also frank in conceding that he might have told Thode that the strike wouldn't last very long. I find that Thode's remarks were made in a noncoercive context and were merely the expression of an opinion as to how long the strike would last, McCarthy stating it would be short and Thode on the other hand stating that Wards was willing to spend $1 million to sustain its contract demands. It is clear that Thode had no voice in Wards' labor relations or in its contract negotiations , and in its context his remark did not constitute a threat of reprisal but merely a statement of Wards' economic power to win the strike. I find that McCarthy's remarks were privileged by Section 8(c) of the Act. William F. Swegart, called as a witness for the General Counsel, is the father of Diana Swegart, one of the strikers who had worked under the supervision of Gretchen Girty, a sale audit supervisor at Wards' Redding store, and who joined the strike on September 29. Mr . Swegart testified that a day or two after the strike started , he received a telephone call at his home from Gretchen Girty, his daughter's supervisor, asking to talk to his daughter, Diana. Swegart offered to take a message. He testified that Girty told him that if Diana didn't report to work by the following morning, then she wouldn't be able to come back to work, that she would be replaced by a woman employee as some of them already had been replaced by permanent employees and then even if the strike was settled she wouldn't have a job to come back to. Swegart testified further that Girty told him his daughter had been doing a good job and was in line for a promotion ; that if she didn't cross the picket line and report to work , that even though at a future date, if she would ever go to work in a Wards' store, she would never be eligible for promotion . Swegart testified he told Girty that he didn't think his daughter would be going to work because he was in the insurance business and wrote insurance on a lot of union members and it might have repercussions on him and some of his customer relations and he didn't want his daughter crossing the picket line. Swegart testified further that he told Girty that if his daughter were to cross the picket line, then it was possible that she would be barred from union membership, and then at a later date, if the strike was settled, his daughter wouldn't be able to go to work because they wouldn't let her become a union member. Swegart testified further that Girty replied that if his daughter would send a letter of resignation to the Union, then there wouldn't be anything the Union could do to her, and also said that it didn't make any difference anyway because the store was not going to be Union any longer, and that this was the beginning of the program that they were going to be nonunion throughout the country. Swegart testified that he repeated this telephone conversa- tion to his daughter that evening. Swegart testified on cross-examination that a year elapsed between the date he received the telephone call from Girty and the date he made a written statement to the Union at the suggestion of Koenig. Swegart also testified on cross-examination that his attention had been called to the case from an article he had read in the San Francisco paper after he had moved to San Francisco , to the effect that striking employees at Wards might receive some backpay from Wards , so he called the article to his daughter's attention and contacted the Union . Swegart conceded on cross-examination that there was nothing in his signed statement that he had given to the Union to the effect that Girty had said to him over the phone that it was the policy of Wards to get rid of unions all over the country and this was the stepping off point . He further conceded that there is nothing in his signed statement to the Union to the effect that Girty told him his daughter could never be promoted if she didn't come back to work. Gretchen Girty, appearing as a witness for the Respon- dent, concedes she had been attempting to contact Diana Swegart by phone at her home and that she had a phone conversation with Diana's father who answered the phone. Girty testified that after identifying herself to Swegart, she told him that she was calling to find out if Diana was coming back to work, and if she is, she wanted to tell Diana to send a letter of resignation to the Union before she came to work so that the Union could not fine her. Girty testified further that Swegart told her he didn't think Diana would be coming back to work , stating as a reason that he was an insurance salesman , selling insurance to a lot of people that belong to the Union , and that he thought his job was more important than that little job Diana had with Wards . Girty testified further that she told Swegart that she was sorry as Diana was a good worker and that "we liked her and we wanted to keep her job for her in case she was going to come back , otherwise we were going to replace her if she didn't come back to work next morning." Swegart's reply was that Diana would not be back to work, and she said thank you and hung up. Girty testified further that she called Diana's house because they were hiring people and Diana had previously told her she didn't want to go out on strike, and for that reason she wanted to contact her to find out if she was coming back to work. Girty denied that in her telephone conversation with Swegart she said anything to him about a promotion for his daughter or that she said to Swegart in substance or effect that if Diana did not come back to work , that even at a future date, if she would ever go to work at another Wards' store, she would never be eligible for promotion . Girty also denied that she said anything during the phone conversa- tion that it wouldn't make any difference because the store was not going to be union any longer. Girty also denied that anything was said by her that this was the beginning of a program at Wards to be nonunion throughout the country, and further denied that she said to Swegart that this was a start to get rid of unions at all Wards stores and this was the stepping off point. Girty testified credibly that she has never had any responsibility in formulating Wards' labor policies and she had no voice as to whether or not Diana would be promoted or whether she would be permanently replaced. Girty admitted on cross-examination that during the first week of the strike that Ewart, operations manager, said 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Company was going to give people 3 days to come back to work before they would be permanently replaced. Girty also conceded on cross-examination that she told Swegart that the Company would have to replace Diana the next day if she didn't come to work. She testified she told Swegart this because "we had to have help and it is common knowledge that one person cannot run the cash office by himself." I fully credit Gretchen Girty's version of her phone conversation with Swegart, and I discredit those portions of Swegart's testimony which are denied by Girty or are inconsistent with Girty's testimony. Swegart testified to several matters that were not contained in his statement to the Union; and, moreover, his bias is admitted because of his dealings with union people and his desire to get some backpay for his daughter. Additionally, it was more than a year after his telephone conversation with Girty that he attempted to recall the conversation when he gave the signed statement to the Union at its request on October 13, 1971. I find, therefore, that Girty's telephone call amounted to a request that Diana return to work as she was needed, otherwise she would be replaced. The statements made by Girty in this phone call conform to the Respondent's right to operate its business with replacements for strikers who do not return to work. Girty's statements in this telephone conversation, I find, did not violate Section 8(a)(1) of the Act. C. Analysis and Conclusionary Findings It is admitted on the record, and there is no claim to the contrary, that the September 29, 1970, strike was an economic strike called by the Union to attain certain benefits in wages, hours, and working conditions and in opposition to Respondent's contract demand excluding students21 from the union-shop clause. The General Counsel's complaint that the September 29 strike was converted into an unfair labor practice strike by the remarks of supervisors made as specified in the complaint are not supported by the evidence. I have already found that such remarks as were made by supervisors to rank- and-file employees were privileged by Section 8(c) of the Act as the expressing of views, argument, and opinion. Additionally, there is an absence of evidence that the strike was in any manner precipitated by, or prolonged by, the remarks of the supervisors made either before or after the strike. Roland C. Davis, one of the attorneys representing the Union in contract negotiations, testified that he had no understanding or information that the employees on September 29, 1970, were striking because of any threats or 21 Students worked less than 15 hours per week and were full-time students in high school or college 22 One handbill distributed by the Union during the strike read as follows O N S T R I K E PLEASE Do NOT SHOP MONTGOMERY WARDS We, the employees of the Montgomery Ward Store of Redding, after several meetings with the Ward's Company, find ourselves unable to reach a contract agreement The issues are Contract Rates, Job Security and Fringe Benefits Therefore, the Company has left us no recourse but to take strike 8(a)(1) conduct by Wards' supervisors, and this was not discussed in his presence on September 28, when he came back to report to the committee that the two major issues were wages and the student question. Additionally, Robert Koenig, the Union's financial secretary and chief executive officer, conceded by his testimony that on September 28, 1970, the consensus of the Union's negotiating committee to strike was not based on any threats of Respondent's supervisors but upon the basis of Attorney Davis's report to the committee of his failure to resolve the outstanding economic contractual issues. Koenig further conceded by his testimony that as of November 14, 1970, the strike was still being conducted to get the contract terms resolved; and that was the only reason for the strike going on to November 14. Koenig also conceded that at the November 14, 1970, negotiating meeting, the Union was taking the position that all strikers had to come back to work or none of them would come back. Moreover, the literature distributed by the Union during the first few weeks of the strike publicized that the Union was striking over contract issues.22 None of the Union's public statements referred to or alleged unfair labor practices by the Respondent or its supervisors as causing or prolonging the strike Additional- ly, the Union's Work Stoppage Report to the U. S. Department of Labor dated October 24, 1970, described the major issues in dispute as "wages and fob security," and no claim was made that the work stoppage or labor dispute was based on unfair labor practices. Moreover, almost without exception, those strikers who were asked the question, conceded that they were not striking on account of any of the remarks made by supervisors. It was after the November 14, 1970, bargaining session where agreement was reached on all contract issues, but where the Respondent refused to immediately take back permanently replaced strikers, instead offering to place them on a preferential hiring list, that the Union for the first time claimed the strike to be an unfair labor practice strike in charges filed with the Board in this case on November 20, 1970. I am convinced and I find that the utterances made by Wards' supervisors were privileged by Section 8(c) and did not violate Section 8(a)(1) of the Act. Furthermore, assuming arguendo that some of the supervisors' remarks were violative of Section 8(a)(1) of the Act, there is a total absence of a causal connection between the remarks and the strike or that such supervisor remarks converted the strike to an unfair labor practice strike or prolonged the strike. The fact that a company commits unfair labor practices does not automatically convert an economic strike into an unfair labor practice strike. It must be proved to the Board's satisfaction that unfair labor practices action to protect our working conditions Please support us by not shopping at Montgomery Wards until our dispute is settled Thank you The Striking Employees of Montgomery Ward R C I A Local #1364, AFL-CIO Sanctioned by Five Counties Central Labor Council AFL-CIO MONTGOMERY WARD & CO prolonged the strike. If it appears that a Company's violation of law was not the reason for calling the strike or the continuation of the strike, the walkout will not be regarded as an unfair labor practice strike.23 It is clear, and I find, that the strike was economic and that it was prolonged on November 14, 1970, by the Respondent's refusal to take back immediately strikers who had been permanently replaced, on the one hand, and on the other hand, the Union's insistence that all or none of the stnkers be returned to work. The Respondent's refusal to take back immediately permanently replaced stnkers is not pro- scribed by the Act. Mackay Radio and Telegraph, 304 U.S. 333, 585 S. Ct. 904. Fuller Products, Inc., 376 F.2d 369 (C.A. 4, 1967); LTV Electrosystems, Inc., 388 F.2d 683 (C.A. 4, 1968); Capital-Varsity Cleaning Co., 395 F.2d 870 (C.A. 6, 1968). In short, I find that the strike has remained economic from its inception and has not been converted to an unfair labor practice strike or prolonged by unfair labor practices. I further find that by refusing on November 14 and on December 21 to reinstate immediately all stnkers, who had been permanently replaced, the Respondent has not violated Section 8(a)(1) or (3) of the Act. See Mackay Radio and Telegraph, supra. Cf. Laidlaw Corp. v. N L R.B., 414 F.2d 99 (C.A. 7). 23 See Winn-Dixie Stores, Inc v N L R B, 448 F 2d 8 (C A 4, 1971), Radiator Specialty Co v NLRB, 336 F 2d 495 (C A 4, 1964), Winter Garden Citrus Products Co-operative v N L R B, 238 F 2d 128 (C A 5, 1956), N L R B v Scott & Scott, 245 F 2d 926 (C A 9, 1957), Rogers Brothers Company, 169 NLRB 830, 834-835, Anchor Rome Mills, Inc, 86 NLRB 1120, Southwestern Pipe Co Inc v N L R B 444 F 2d 340 (C A 5, 1971), Clinton Foods, Inc, 112 NLRB 239, 36 LRRM 1006, Harcourt & CONCLUSIONS OF LAW 613 1. Respondent, Montgomery Ward & Co., Incorporat- ed, is an employer within the meaning of Section 2(2) of the Act. 2. Retail Clerks Union, Local 1364, Retail Clerks International Association, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. The September 29, 1970, strike was not an unfair labor practice strike at any time since its inception, but at all times remained an economic strike. 4. The Respondent, Montgomery Ward & Co., Incor- porated, has not discriminated with respect to the hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization, with respect to the striking employees. 5. The Respondent has not violated Section 8(a)(1) and (3) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 24 ORDER The complaint is dismissed in its entirety. Co, Inc, 98 NLRB 892 24 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes