Coronet Casuals, Inc.

304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Coronet Casuals, Inc. and Upper South Department, International Ladies' Garment workers union, AFL-CIO. Case 5-CA-5549 November 14, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On March 14, 1973, Administrative Law Judge Sidney J. Barban issued, the attached Decision in this proceeding. Thereafter, the Respondent, the General Counsel, and the Charging Party filed exceptions and supporting briefs." 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, as modified, and to adopt his recommended Order, as herein modified.2 Based on the facts set forth in the attached Decision, we agree with the Administrative Law Judge that the Respondent violated Section 8(a)(5) and (1) of the Act in that since on or about October 4, 1971, the Respondent has failed and refused to bargain in good faith with the Union by (1) its dilatory actions in respect.to scheduling bargaining sessions and meeting with the Union, (2) its refusal to provide a bargaining representative sufficiently advised concerning the Respondent's operations and pay practices to permit fruitful and informed discussions of working conditions and employee pay, (3) its refusal to submit information to the Union concerning the operation of its piece rate system which information is necessary to enable the Union to effectively carry out its bargaining responsibilities under the Act, (4) its refusal to negotiate with the Union concerning piece rates paid to its employees, and (5) its insistence that it would not agree that piece rates be covered in a bargaining agreement. We also agree that the strike by the Respondent's employees, which occurred on March 1, 1972, was caused and prolonged in- substantial part by the Respondent's conduct which was in violation of the Act and that, therefore, the strike was an unfair labor practice strike. We further agree with the Adminis- trative Law Judge, for the reasons stated in the attached Decision, that the Respondent violated Section 8(a)(1) of the Act by refusing to reinstate the following unfair labor practice strikers: Geraldine Bashay, Charlotte Breeden, Renva Canady, Shirley Deramus, Connie Hardy, Catherine Owens Powell, Pauline Queen, Jane Shelton, Frances Smith, and Helen Vick. - Unlike the Administrative Law Judge, we find3 that the Respondent also violated Section 8(a)(1) of the Act by refusing to reinstate unfair labor practice strikers Juanita Harris, Madeline Spigener, Susan Waldrop, Lee A. Whitfield, and Mary Whitfield within 5 days after an unconditional offer to return to work made on their behalf on July 17, 1972. In so concluding, we have, in the following analysis, considered alleged misconduct on the part of each of the five foregoing strikers in terms of applicable legal precedent and in light of the factual context in which such conduct allegedly occurred. Sections 7 and 13 of the Act grant employees the right to strike, picket, and engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. It is true, of course, that not all forms of conduct literally within the terms of Section 7 and 13 remain entitled to statutory protection. In deference to the rights of employers and the public, the Board and the courts have acknowledged that serious acts of misconduct which occur in the course of a strike may disqualify a striker from the protection of the Act. Thus, strikers have been deemed to lose the Act's protection when they seized the employer's property,- or engaged in acts of "brutal violence" against a nonstriker.5 At the same time it is true that not every impropriety committed in the course of a strike deprives an employee of the protective mantle of the Act. Thus, absent violence, the Board and the courts have held that a picket is not disqualified from reinstatement i The Respondent's request for oral argument is denied since, in our opinion, the record, including the transcripts, exhibits, and briefs, adequately presents the issues and positions of the parties. 2 Following the submission of exceptions and briefs herein the Respondent submitted decisions of the Virginia Employment Commission to be made a part of the record in the case before us. Since the authenticity of these documents is not questioned we hereby receive them into evidence. However, after having considered the documents, we accord them no weight but rather base our decision on the relevant litigated facts developed at the hearing held before the Administrative Law Judge. 3 Chairman Miller does not join in these findings of his colleagues and would instead adopt in their entirety the findings, conclusions, and recommendations of the Administrative Law Judge, all for the reasons set forth by him. 4 N L. R B v Fansteel Metallurgical Corp., 306 U.S. 240 (1939). N L R B. v Kelco Corp.. 178 F.2d 578 (C.A. 4. 1950) 207 NLRB No. 24 CORONET CASUALS, INC despite participation in various incidents of miscon- duct which include using obscene language,6 making abusive threats against nonstrikers,7 engaging in minor scuffles and disorderly arguments,8 momenta- rily blocking cars by mass picketing,9 and engaging in other minor incidents of misconduct.1° Consistent with these cases, the Board and the courts have long held that minor acts of misconduct must have been in the contemplation of Congress when it provided for the right to strike and that this right would be unduly jeopardized if any misconduct, without regard for the seriousness of the act, would deprive the employee of the protective mantle of the Act.11 Thus, in the words of one decision, ... not every incident occurring on the picket line, though harmful to a totally innocent employ- er, justifies a refusal to reemploy a picketing employee for acts that exceed the bounds of routine picketing. Impulsive behavior on the picket line is to be expected, especially when directed against non-striking employees and strike breakers.12 Each striker's eligibility for reinstatement must be judged solely upon incidents in which the striker in question is alleged to have participated. Unauthor- ized acts of violence on the part of individual strikers are not chargeable to other union members in the absence of proof that identifies them as participating in such violence.13 Upon proof that strike miscon- duct on the part of a particular striker has occurred, the burden of proving the innocence of the striker shifts to the General Counsel who, in order to gain reinstatement for the striker, must show that the conduct was not sufficiently serious to justify the employer's refusal to reemploy the striker in ques- tlon.14 In determining whether reinstatement should be ordered for unfair labor practice-strikers, the severity of the employer's unfair labor practices which provoked the industrial dispute must be balanced 6 See, e.g., Terry Coach Industries, Inc, 166 NLRB 560, 562-563, enfd. 411 F.2d 612, 613 (C.A. 9, 1969); and see Linn v United Plant Guard Workers, 383 U.S. 53, 60-61 (1966). 7 See, e.g., Terry Coach Industries, 166 NLRB 560, 563, and cases cited therein, enfd. 411 F.2d 612, 613 (CA 9, 1969), and NLRB. v. Efco Manufacturing, Inc, 108 NLRB 245, 250, 261 (employee Arnold), enfd. 227 F.2d 675, 676 (C.A. 1, 1955), cert. denied 350 U.S. 1007 (1955). 8 See, e.g., Buitont Foods Corporation, 126 NLRB 767, 782-783, enfd. 298 F.2d 169, 174-175 (CA, 3, 1962). 9 See, e.g., Terry Coach Industries, supra, 562-564; Golay & Company, Inc_ 156 NLR$ 1252, -1,260, 1263-64, enfd. in pertinent part 371 F.2d 259, 262-263 (CA: 7; 1966), cert.: denied 387 U S. 944 (1966); Elmira Machine and Specialty Works, Inc., etc., 148 NLRB 1695, 1699, 1707-8 (1964). 10 See,'e.g„ Thayer Company and H. N. Thayer Co, 99 NLRB 1122, 1133, 1212 (employee Leger), remanded on other grounds 213 F.2d 748, 752-757 (C.A. 1, 1954); Kansas Milling Company, 86 NLRB 925, 927-928, remanded on other grounds 185 F.2d 413 (C A. 10, 1950), cert. denied 348 U.S. 883 (1954); Berkshire Knitting Mills, 46 NLRB 955, 1002-3, enfd. as modified 139 F.2d 134 (C.A. 3, 1943). 305 against whatever employee misconduct may have occurred in the course of the strike.15 Only one specific act of misconduct is directly attributed to unfair labor striker Juanita Harris. Concerning this incident, James Thompson, the Respondent's parking lot attendant, testified that Harris went over to a construction site near the Respondent's parking lot, picked up a board with nails in it, ran across the entrance of the driveway to the Respondent's parking lot and placed the board in front of a car driven by a pipe cutter who was working at the construction site. The driver got out of his car, picked up the board, put it in the back of his car and took it to Thompson. Although we do not approve of her act, we do not agree with the Administrative Law Judge that Harris forfeited her right to reinstatement by the foregoing conduct. In so holding, we note that at the time of her act she was on strike because of the Respondent's unfair labor practices, that no other misconduct is specifically attributed to her during the strike which lasted for approximately 4-1/2 months, and that the circumstances of this case indicate that her miscon- duct was not of such a serious nature as to tend to incite the nonstriker involved to engage in violence or physical retaliation. Concerning unfair labor practice striker Madeline Spigener, the Administrative Law Judge credited the testimony of Sharon Martin, a nonstriking employee, who testified that Spigener stood in front of her car as she attempted to enter the Respondent's parking lot and that Spigener stated that she did not intend to move. However, as the Administrative Law Judge found, Spigener did step back and Martin proceeded into the parking lot: Although the Administrative Law Judge noted that Martin stated that the foregoing incident lasted about 10 minutes, he also noted that the Respondent's witnesses `tended to greatly exaggerate the length of time involved in getting through the picket line. He further noted that such incident occurred after an incident wherein 11 See, e.g.. Republic Steel Corporation . v. N.L.R.B. 107 F.2d 472. 479 (CA. 3, 1939). 12 Montgomery Ward & Co., v. N.L. R.B., 374 F.2d 606, 608 (C.A. 10, 1967). 13 Sea-Land Services, Inc., 146 NLRB 931. 949, enfd. 356 F.2d 955, 966 (CA. 1, 1966), cert. denied 385 U.S. 900 (1966); Wichita Television Corporation d/bla KARD-TV, 122 NLRB 222.226-227. enfd. 277 F.2d 579, 585 (C.A 10, 1960), cert. denied 364 U.S. 871 (1960). 14 N_L R.B. v. Burnup and Sims, Inc., 379 U.S. 21. 23 (1964); Farmers Co- operative Gin Association, 161 NLRB 887, 911, affil. 389 F2d 553, 554 (C.A_D.C, 1968); Industrial Cotton Mills, 102 NLRB 1265. 1269. enfd. as modified 208 F.2d 87. 90-93 (C.A. 4, 1953), cert. denied 347 U.S. 935 (1953). 15 Golay & Company, Inc.. 156 NLRB 1252, 1263, enfd . in pertinent part 371 F.2d 259, 262-263 (C.A. 7. 1966). cert. denied 387 U.S. 944 (1966); Kohler Co., 148 NLRB 1434. 1444-45. enfd. 300 F.2d 699, 703-704 (C.A.D.C, 1967), cert. denied 370U.S.911 (1961); Thayer Company and H. N. Thayer Company, 99 NLRB 1122, remanded 213 F.2d 748, 752 757 (C.A. 1, 1954), cert. denied 348 U.S. 883 (1954). 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Martin had come through the picket line in her car in an apparently reckless fashion and had almost hit striker Susan Waldrop. The Administrative Law Judge also credited the testimony of nonstriker Sophie Johnson who testified that as she was entering the Respondent's parking lot one morning she was delayed by Spigener for 3 minutes when Spigener stood in front of her car and dared Johnson to hit her. The Administrative Law Judge further credited the testimony of nonstriker Mildred Redditt who testified that one evening as she was leaving the Respondent's parking lot, Spigener, Waldrop, and Mary and Rosalee Whitfield were picketing in a moving circle so that she was unable to leave. She further testified that after she "sat there a few minutes," she got out of the car to "get help to get out," whereupon the Respondent's parking lot attendant came up, made an opening in the picket line for her, and she left. While noting the three foregoing incidents, the Administrative Law Judge also noted that there is no evidence that any car was completely prevented from entering or leaving the Respondent's parking lot, that the nonstrikers were able to come to work and leave every day through normal breaks in the picket lines or as the pickets gave way, and that the impediment to the flow of traffic into and out of the Respon- dent's 'parking lot for short periods of time was a natural incident to the maintenance of the picket line. In addition to these findings, we note that only three incidents are attributed to Spigener during the strike which lasted approximately 4-1/2 months, that such incidents involved delays in the ingress or egress of nonstrikers for only "a few minutes," "about 3 minutes" and about 10 minutes at the most. We also note that incidents involving Spigener involved no actual or implied threat of harm despite, the provok- ing conduct of nonstriker Martin. In addition, we note that Spigener would not have been on the picket line but for the unfair labor practice of the Respondent. In these circumstances, we conclude, unlike the Administrative Law Judge, that the misconduct attributed to Spigener is not of such a serious nature to cause the forfeiture of her right to reinstatement. With respect to Mary Whitfield, the Administrative Law Judge credits Redditt who testified that Mary was one of four strikers who delayed her departure one evening, as discussed, supra, and that on another occasion she was one of several pickets who delayed her,entrance into the Respondent's parking lot "for a short while" before they let her through. When the picket line opened she testified that she "kind of stepped on [the] gas and went through" whereupon Mary Whitfield shouted "That's right, Mildred; hurry up, you're going to need it." Redditt explained that Whitfield "knew I was a little bit nervous-type of person, and so she told me when I got in to take a nerve pill." She was identified only generally by Thompson, Silver, and Rock as participating in picketing at the Respondent's parking lot and by Martin and Patterson as picketing at the Respon- dent's loading area. Rock, Patterson, Johnson, and nonstriker Dorothy Bledsoe testified that Mary Whitfield directed language at nonstrikeo which included the words "fat pig," "tramp," "whore," "dumb-bastard," "son-of-a-bitch," and "bitch." We note the applicability to Mary Whitfield of the foregoing discussion involving delays in the ingress and egress of nonstrikers, and that Mary Whitfield was involved in only two such incidents which lasted for only "a few minutes" and "a short while." In addition, we note that but for the unfair labor practices of the Respondent, Mary Whitfield would not have been on the picket line. While we do not condone either of the two delays caused by Mary Whitfield, or the abusive and intemperate language which she used, we note that neither the incident in question nor the language used involved an actual or implied threat of harm to the persons to whom the misconduct was directed. In these circumstances, we conclude, unlike the Administrative Law Judge, that the misconduct of Mary Whitfield was not of such a serious nature as to disqualify her from her right to reinstatement. Concerning unfair labor practice striker Lee Whitfield, the Administrative Law Judge credits the testimony of Redditt who identified Lee as one of four strikers who delayed her departure one evening, as discussed, supra. She was identified only generally by Thompson, Silver, and Rock as participating in picketing at the parking lot and by Martin and Patterson as picketing at the Respondent's loading area. Lee Whitfield was specifically identified by Rock as the person who called another employee a "shit head"; however Rock was unable to specify the occasion or identity of the worker involved in the conduct in question. Nonstriker Robert Larivee testified that Lee Whitfield threw something that was probably a rock at his car as he was departing from work on a particular occasion and caused "a few scratches, maybe one scratch" on the rear fender of his car. Although the Administrative Law Judge noted this alleged incident, he found that the incident involving Redditt was, alone, sufficient to disqualify Lee Whitfield from reinstatement. Howev- er, the Administrative Law Judge did note that Larivee testified that he did not see Lee Whitfield make a forward motion with her arm and that a criminal charge based thereon was dismissed after a court hearing, for insufficient evidence. In consider- ing the foregoing alleged misconduct to the extent CORONET CASUALS, INC 307 that he did, the Administrative Law Judge noted that the Respondent had failed to show any particularly violent conduct at the picket line during the strike. We note the applicability to Lee Whitfield of the discussion, supra, with respect to delays in the ingress and egress of nonstrikers and concerning abusive and intemperate language, and further note that Lee Whitfield is shown to have been involved in only one incident which lasted for "a few minutes" and to have uttered only one objectionable word during the course of the strike which lasted approximately 4-1/2 months. In addition, we note that the testimony of Larivee fails to show that Lee Whitfield was, in fact, responsible for the scratch, if there was one, on the fender of Larivee's car. Moreover, and in any event, we agree with the Administrative Law Judge that the alleged incident involving Larivee is not an incident of serious misconduct. In these circumstances, and in light of Lee Whitfield's status as ' an unfair labor practice striker, we, unlike the Administrative Law Judge, conclude that the misconduct attributed to Lee Whitfield is not of such a serious nature as to disqualify her from her right to reinstatement. As to unfair labor practice striker Susan Waldrop, the Administrative Law Judge credited the portion of Martin's testimony to the effect that one morning as Martin- was entering the Respondent's parking lot, Waldrop blocked her car for about 5 minutes and then got out of the way. The Administrative Law Judge also credited Redditt who named Waldrop as one of four strikers who delayed her exit from the parking lot one evening, as discussed, supra. In light of the foregoing conduct, the Administrative Law Judge found it unnecessary to consider whether other alleged incidents of misconduct on the part of Waldrop were so serious as to justify the Respon- dent's refusal to reinstate Waldrop. Although the Administrative Law Judge men- tioned Thompson''s testimony, to the effect that while picketing Waldrop would jump back as a car was passing behind her and would kick or stop cars as they left the Respondent's parking lot, he also noted that Waldrop denied the conduct in question, that Thompson's testimony was not directed to any particular occasion and that kicking or stopping a car is not such serious misconduct as to disqualify a striker from, reemployment. While he further noted Martin's testimony that Waldrop would jump out in front of Martin's car, he credited Martin only as to the 5-minute delay, discussed supra, and found that the conduct in question was apparently unknown to the Respondent at the time it refused reinstatement to Waldrop. The Administrative Law Judge further noted that, on one occasion, Martin cut in back of the picket line and almost hit her with a car. Also, he noted that while Waldrop admitted calling Martin a "chicken," she denied calling her a "bitch" He credited Waldrop's testimony that Martin mouthed the same language on-one occasion as she went through the picket line. The Administrative Law Judge noted that Waldrop did not recall a confronta- tion during which she allegedly stood in front of Hedgepeth's car one morning and dared Hedgepeth to hit her, but that Waldrop did remember calling Hedgepeth a "bitch" after Hedgepeth entered the Respondent's parking lot at a high rate of speed and shouted to Waldrop "you bitch, if you don't get out of the way." He further noted that Waldrop admitted that she did state on one occasion that "she wouldn't touch [Rock} with a 10 foot pole," but denied calling him an "ugly jew," an epithet which the Administra- tive Law Judge did not find disqualifying with respect to unfair labor practice striker Shelton. Although Waldrop was identified by the Respon- dent's plant manager, Rock, as one of several strikers who picketed behind a transport company truck and thereby prevented delivery, the Administrative Law Judge found that the picket did not, in fact, prevent the ingress of the truck, that there was no forcible bar to the truck, and that the evidence shows no more than the normal operation of a picket line. Waldrop is named by Martin and a fellow nonstriker, Albert Patterson, as one of several strikers who picketed in back of a rental truck as Patterson tried to back it into the loading area. However, the Administrative Law Judge found no evidence that Patterson was completely prevented from entering the Respon- dent's plant and that any difficulty that was encountered was solved by having a fellow employee, Larry Hand, get out of the truck and direct its movement backward- The Respondent's president, Ashinoff, accused Waldrop of throwing mud on his wife's car, but the Administrative Law Judge noted that Waldrop, supported by other witnesses, denied the alleged incident. Thompson testified that on one occasion Waldrop took a handful of gravel and tossed it underhanded at him and that on another occasion Thompson suspected Waldrop of throwing eggs at his car, but did not see her do so. The Administrative Law Judge noted that Waldrop denied the first two alleged incidents and admitted throwing two or three eggs at the back door of Patterson's truck while he was present because he dared her to do so and she did not think that it was important. In considering to the extent that he did, the alleged incidents involving the throwing of mud and gravel and the incident involving the throwing of eggs, the Administrative Law Judge found, as noted supra, that the Respondent had failed to show any particularly violent conduct at the picket line during the strike. In considering whether the foregoing conduct, if it 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occurred, is of such a serious nature as to disqualify Susan Waldrop from reinstatement, we find that the discussion, supra, with respect to delays in the ingress and egress of nonstrikers and concerning abusive and intemperate language, is applicable not only to Spigener and the two Whitfields, but also to Waldrop. In this regard, we note that Waldrop is shown to have been involved in only two or, at the most, three incidents of delaying ingress or egress of nonstrikers and that these incidents lasted for "only a few minutes" and for "about five minutes." We also note that the two or three incidents involved no actual or implied threat of harm by Waldrop despite nonstriker Martin's provoking misconduct. Also, we note that while Waldrop may have used abusive and intemperate language, such language was also used by nonstrikers and that such language involved no actual or implied threat of harm. Concerning deliveries which were allegedly blocked by Martin, we note that there is no evidence that she or any other picket forcibly prevented ingress, egress, loading, or unloading of the trucks involved. As to Waldrop's alleged acts of misconduct in kicking or slapping cars, jumping in front of cars, throwing mud on the car of Ashinoff's wife, and throwing a handful of gravel underhanded, we find that the record fails to definitely establish that such conduct occurred. In any event, we find that such incidents, and the incident involving two or three eggs that were thrown by Waldrop, are not so serious or violent as to deny to Waldrop, an unfair labor practice striker, her right or reinstatement. 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 as modified below and hereby orders that the Respon- dent, Coronet Casuals, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order as herein modified: 1. Insert "Juanita Harris, Madeline Spigener, Susan Waldrop, Lee A. Whitfield and Mary Whit- field" after "Helen Vick" in subparagraph 2(c) of the recommended Order of the Administrative Law Judge. 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER_ OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL bargain collectively upon request with Upper South Department, International Ladies' Garment Workers Union, AFL-CIO, as the exclusive bargaining , representative of all our employees in the appropriate bargaining unit described , below, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and if agreements are reached, embody such agreements in a signed collective-bargaining contract. The appropriate bargaining unit is: All production and maintenance employees employed by the Company at its Ports- mouth, Virginia, location, excluding all office clerical employees, salesmen, guards, watchmen, and supervisors as defined in the Act. WE WILL, upon request, furnish to the Union information pertaining to the wages paid employ- ees, and the basis upon which such wages are paid, and such other data as may be relevant for the purposes of collective bargaining. WE WILL offer the following employees imme- diate and full reinstatement to their former jobs or, if their jobs no longer exist, to substantially equivalent jobs, without, loss of seniority or other rights or privileges, discharging if necessary any replacements for these employees who have been hired, and WE WILL make each of the following employees whole for any loss of earnings that they may have suffered by reason of the Compa- ny's refusal to reinstate them in accordance with the Order of the National Labor Relations Board: Geraldine Bashay Pauline Queen Charlotte Breeden Jane Shelton Renva Canady Frances Smith Shirley Deramus Madeline Spigener Connie Hardy Helen Vick Juanita Harris Susan Waldrop - Catherine Owens Powell Lee A. Whitfield Mary Whitfield CORONET CASUALS, INC. (Employer) Dated By (Representative) (Title) CORONET CASUALS, INC This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Building, Room 1019, Charles Center, Baltimore, Maryland 21201, Tele- phone 301-962-2822. DECISION STATEMENT OF THE CASE SIDNEY J. BARBAN, Administrative Law Judge: This matter was heard at Norfolk, Virginia, on October 24, 25, 27, 30, and 31, 1972. The complaint, issued on June 28, 1972, as amended on August 28, 1972, and, at the hearing, based on a charge filed and served on April 4, 1972, alleges that the Respondent, Coronet Casuals, Inc., violated Section 8(a)(5) and (1) of the Act by refusing to bargain in good faith with the above-named Charging Party, Upper South Department, International Ladies' Garment Work- ers Union, AFL-CIO (herein the Union) in that the Respondent since about October 4, 1971, (1) refused to meet at reasonable times and arrange promptly for negotiations, (2) refused to furnish the Union employee payrolls and wage data, and timestudies and other information relating to the formation of piece rates paid to employees, and (3) refused to discuss piece rates paid to its employees. The amended complaint further alleges that a strike of Respondent's employees, which began on March 1, 1972, was caused and prolonged by Respondent's alleged unfair labor practices, and that Respondent violated Section 8(a)(1) of the Act by failing and refusing to reinstate all of the strikers upon their unconditional offer to return to work made on or about July 17, 1972. Respondent's answer, as amended,- denies the commis- sion of any unfair labor practices, alleges that certain strikers were not reinstated because of serious acts of misconduct, and admits allegations of the complaint sufficient to justify the assertion of jurisdiction under current standards of the Board (Respondent, in the manufacture of men's shirts, in a recent annual period, shipped products of 'a value in excess of $50,000 in interstate commerce), and to support a finding that the Union is a labor organization within the meaning of the Act. Briefs have been filed by the General Counsel, the Respondent, and the Union and have been carefully considered. I A separate order has been issued correcting the transcript in this matter. After the close of the hearing, the Umon submitted a copy of a decision of an appeals examiner of the Virginia Employment Commission with respect to whether certain employees of Respondent (some of whom are involved herein) engaged in misconduct during the strike justifying their discharge and thus disqualifying them for benefits. Respondent objects to FINDINGS AND CONCLUSIONS 309 The following findings of fact and conclusions are based on analysis of the record as a whole, the testimony of the witnesses for all parties, and upon consideration of the demeanor of the witnesses as they testified., To the extent that the testimony of any witness is inconsistent with these findings of fact and conclusions that testimony is not credited. I. THE ALLEGED REFUSAL TO BARGAIN After an election conducted on October 15, 1970, the Board, on July 2, 1971, certified the Union as the exclusive collective-bargaining representative of Respondent's em- ployees in the following unit, admitted by Respondent to constitute a unit appropriate for collective bargaining within the meaning of Section 9(a) of the Act: "All production and maintenance employees employed by Respondent at its Portsmouth, Virginia location, excluding all office clerical employees, salesmen, guards, watchmen, and supervisors as defined in the Act:' A. The Scheduling of Negotiations Following the certification of the Union, Sol Hoffman, associate director of the Union, located at Baltimore, Maryland, attempted to call Larry Ashinoff, president and owner of Respondent, on several occasions at Respon- dent's locations in Portsmouth and New York City, but received no response.2 When Hoffman wrote Ashinoff on July 6, 1972, requesting a meeting for the purposes of negotiations, Ashinoff replied, by letter dated July 15, advising that he had retained Mr. Edgar A. Tugman to handle Respondents labor relations, and suggesting that Hoffman contact Tugman, whose offices are at Virginia Beach, Virginia. When Hoffman had difficulty in reaching Tugman by phone, he wrote Tugman on July 20, requesting a meeting to begin- negotiations and further requested Irene Chapman, an organizer for the Umon working in the Norfolk, Virginia, area, to attempt to contact Tugman for the same purpose. Chapman was unable to make contact with Tugman from July 20 until July 28, at which time a meeting for negotiations was arranged to be held in Portsmouth, on August 6. This meeting was confirmed by letter to Tugman from Hoff- man, enclosing a copy of a standard bargaining contract of the Union for his consideration before the meeting. At the meeting on August 6, Respondent was represent- ed by Tugman alone, while the Union was represented by Hoffman, Chapman, and another union representative, Angelo Giordano. At the end of this meeting, the Union requested that a date be set for the next meeting. Tugman said that he didn't have his appointment calendar with him, that he would try to get in touch with the Union, but that, in any event, they were to call him in 2 weeks. When its receipt on grounds of irrelevancy and the fact that the decision is not binding on me. The authenticity of the document is not questioned. The objection is overruled and the document is hereby received in evidence as Union Exh. 1. 2 As Hoffman's credited testimony shows, prior to the strike he had considerable difficulty in contacting-Ashinoff by phone since the latter did not respond to Hoffman's calls. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chapman had not heard from Tugman by August 20, she called him. Tugman suggested that she can him back the following week. After some effort, Chapman got in touch with Tugman on September 3, at which time a second meeting was set up for September 16, which was changed to September 17 at the Union's request. The September 17 meeting was attended by the same representatives of the parties as the previous meeting. At the close of this meeting, the parties made arrangements for another meeting to be held on September 30. A few days prior to that date, Tugman called Chapman and said he couldn't make that date. Tugman requested that Chapman call him in a few days to set a new meeting date. Chapman tried, unsuccessfully, to call Tugman at the beginning of October. When she had to leave the Norfolk area, she called Tugman from New York City and from her home in Connecticut. She finally reached him on October 22, at which time a meeting was arranged for November 4. The November 4 meeting was attended by the same union representatives; Tugman was joined by an associate, Ammons. At the end of this session, the Union again sought a date for another meeting. Tugman again requested that the Union call him in about 2 weeks. Chapman called him on November 21, 22, and 23. On the latter date, the parties made arrangements for a meeting on December 7.3 The December 7 meeting was attended by Hoffman, Chapman, and Martin Vest, another labor union official, representing the Union, and Tugman and Ammons representing the Respondent. During the course of this meeting, Hoffman complained that Respondent was stalling, the meetings were too far apart, and the negotia- tions weren't getting anywhere. At the conclusion of the meeting, Chapman requested Tugman to set a date for another meeting, which he declined, on the basis that he had a very busy schedule and was planning a trip. When Chapman had not heard from Tugman by the 21st of the month, she attempted to get in touch with him. She succeeded on the 23rd of December, at which time Tugman told her that he was leaving in a few days on a trip to the Orient and would be gone most of January, that she should call him the latter part of that month. After trying for about 2 days, Chapman reached Tugman on January 28, 1972, at which time he agreed to call her back. A meeting was arranged for February 2, which was changed to February 7 at the request of the Union. Tugman and Ammons attended the February 7 meeting for Respondent; Hoffman, Chapman, and Giordano represented the Union. At the conclusion of this meeting, Chapman sought to have Tugman agree to the date for the next meeting. Tugman said that they could meet in a month. It is not clear whether a firm date was Set .4 As discussed more fully hereinafter, Respondent's employees met on the evening of February 29, and voted to go on strike. On the morning of March 1, a number of the employees, more than 70, went on strike and began picketing. Hoffman sought to speak to Ashinoff on the telephone the day the strike began, but was unsuccessful. About March 2, Hoffman, without prior arrangement, visited Respondent's New York showroom, where he met and spoke with Ashinoff. In essence, Hoffman advised Ashinoff of the difficulty the Union was having in negotiating in respect to piece rates with Tugman whom the Union thought was not informed as to the matter, and suggested that the negotiations would proceed more satisfactorily if Ashinoff would attend the meetings. Ashinoff expressed himself as satisfied with Tugman's representation of Respondent and, as noted more fully hereinafter, stated that he (Ashinoff) was, in fact, opposed to any reference to piece rates in the bargaining agreement being negotiated. Ashinoff, however, stated that he was impressed with Hoffman's manner and would attend negotiation meetings with the Union. When Hoffman returned to his office on March 3, he received a call from Tugman arranging a meeting in Portsmouth on the following Monday, March 6. The March 6 meeting was attended by Ashinoff, Tugman, and Respondent's plant manager, Arthur Rock, for Respondent, and Hoffman, Chapman, Giordano, and apparently an employee committee for the Union. It was agreed that a further meeting would be held the next day. Prior to the March 7 meeting, Hoffman had a breakfast discussion with Ashinoff. There is no evidence of what attempts, if any, were made to schedule another meeting. It is indicated that the parties had some difficulty in this respect, inasmuch as the next meeting was set up with the aid of a Federal mediator. The next meeting, held on April 3, was attended by Tugman representing the Respondent. Ashinoff did not attend. Hoffman, Chapman, Giordano, and an employee committee represented the Union. Again there is no indication as to the basis on which the meeting concluded. About June 8, when Hoffman discovered that a complaint would be issued in this matter, he called Ashinoff, and a meeting was arranged between the two at the Norfolk airport. While at the airport, Ashinoff called Tugman to join them. At the end of that session, Hoffman was further advised that Ashinoff would consider the matters discussed there and advise him of Respondent's position. Hoffman did not thereafter hear from the Re- spondent with respect to this. Respondent has not met with the Union for the purpose of negotiations since that time. There is no evidence that the Union has made any further requests for bargaining. B. Requests for Information; Negotiations With Respect to Piece Rates 5 There was no attempt at the hearing to set forth the course of bargaining in full detail, but rather a selective 3 Chapman states that on this occasion she was finally successful in 4 Respondent contends that a meeting date of March 8 was set. The reaching T-ugman by calling him at his home before 7 a in. Tugman testified point is not significant in the resolution of the issues in this case. that he told Chapman that this was a good way to reach him and was 5 The factual situation with respect to these two points are so intertwined satisfactory to him that they will be considered together. CORONET CASUALS, INC 311 presentation' was made with particular emphasis upon the issues herein considered.s This evidence has been consid- ered and will be analyzed herein in connection with the separate issues. It should be noted, however, that, in general, the negotiations until March 6 were primarily based upon the Union's standard agreement submitted to Tugman prior to August 6, as amplified and discussed by the union representatives. A number of union proposals, not involving economic matters, were agreed to as modified by Respondent or as proposed by the Union. Much of this was accomplished at the second meeting of the parties on September 17. Respondent presented written proposals with respect to management prerogatives, grievances, strikes, and lockouts, and union plant visitation privileges on November 4, and submitted a complete written contract proposal at the meeting on March 6. All of these have been considered. Certain of these proposals particularly relevant to the issues will be set forth hereinafter. 1. Respondent's incentive pay system The bargaining here involved cannot readily be under- stood without some acquaintance with piecework (incen- tive) pay systems generally, and Respondent's incentive pay methods in particular. So-called piecework pay systems have been common in the garment industry (the "needle trades") for a very long period of time. See, e.g., Kennedy, "Union Policy and Incentive Wage Methods" (Columbia U. Press 1945) p. 52; National Planning Association monograph (1949), Case Study No. 4, in its series on "Causes of Industrial Peace," detailing the bargaining history between Hickey-Freeman Company and Amalgamated Clothing Workers of America since 1919. Such incentive systems involve the payment of employ- ees in accordance with the amount of work they produce, as distinguished from wage and salary systems which pay according to the time the employee spends at work. Since, under an incentive system, the worker's pay is usually determined' by his output, the point at which the employ- ee's incentive earnings start is a matter of legitimate concern. "To the worker this is logically the point at which his output begins to exceed the minimum task or standard of output expected." 7 Further, logically, such "minimum task or standard of output" should be set at a level which may be reasonably attained, or exceeded, by the average worker working under the normal conditions which were anticipated, in setting the standard in the first place. It appears that this was the basis upon which Ashinoff attempted to set his minimum task standards also. Of course, since the incentive worker's pay is immediate- ly affected by the rate of pay established for the "minimum task or standard of output expected," this factor, and whether it is properly established, is also of legitimate concern to the employee, as it is to the employer whose unit costs are directly affected, fi Thus Respondent's brief advises that its position is that "whereas the Company has not been charged with what is commonly referred to as `surface bargaining,' the substance of the negotiations is not relevant here other than to demonstrate a reasonable basis for the time between bargaining sessions." (Br. p. 13) Both counsel for the Respondent and the Union in their briefs refer to Respondent's incentive wage system as "unique." Whether or not this is so, even Ashinoff, who established the system, had difficulty in explaining the operation of the system at the hearing. According to Ashinoff, some 18 years ago, when he began business, with four to six workers, he made a determination of how long it should take one of his workers to perform each of several operations involved in manufacturing each of the garments he was making, e.g., 13 minutes to perform the operation of setting collars on a bundle of 24 garments. Depending on the garment, there may be from 17 to 40 such operations, each with its own set time within which that operation should be completed on 24 garments. It appears to be Respondent's position that Ashinoff no longer remembers what factors led him to assign any particular time factor to any operation at that time, or since that time, other than his personal observation of the operations, and, perhaps, what he may have learned from a friend in the business 18 years ago. Ashinoff's testimony is that each year he compares current garments he is manufacturing with those Respondent made in the previous year, and assigns time factors to current operations from those of the previous year which are similar. It appears that he makes little or no adjustments based on changes of fabrics or styles. Ashinoff made a rather general claim that he averages these things out. So far as can be determined, Respondent's piecework pay system makes no allowances for downtime, interrup- tions to work not the employee's fault, or other similar occurrences or situations normally considered in setting piecework rates. See, e.g., Michael, supra, 227-235. Howev- er, as noted below, an allowance is made for 20 minutes allotted to daily rest periods. In Respondent's system, the incentive worker retains a ticket for each operation she performs on a bundle of 2 dozen garments, showing the time allowed for performing that operation on that bundle (e.g., 13 minutes for setting collars on a 2 dozen bundle). From these tickets it may be determined at the end of each day, and at the end of each week, how many work minutes the worker has accumulat- ed to her credit: She is paid on the basis of these accumulated work minutes at whatever rate Respondent has set as the value of a "work minute." Thus, where 13 minutes is allotted for setting collars on a 2 dozen bundle, if the worker can consistently complete this operation on such bundle in less than 13' minutes (the minimum task standard), and has no other interruption's at her work, she can accumulate more "work minutes" in a day than there are actual minutes in that workday, and thus earns more than minimum pay .8 Employees who make less than the minimum task standard are paid the minimum (guaran- teed) wage. Up until April 1972, Respondent paid its incentive workers on the basis of $1.60 an hour. On the basis of a 460-minute workday, it calculated that each of the "work minutes" earned by the incentive workers was therefore worth 2.8 cents. r See Michael. "Wage and Salary Fundamentals and Procedures (McGraw-Hill 1950) p. 194. a There are 480 minutes in an 8-hour workday. Respondent gives credit for 20 minutes each day for rest, so its workday is actually 460 minutes. It is assumed that there is an unpaid lunch period. 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During this period, there was a poster in the plant advising the employees with respect to their rates as follows: $1.60 Hour x 40 hours = $64.00 480 min. x 2.8 $I3.44x5days -67.209 It is important to note at this point that Tugman, who was the only representative of Respondent at almost all of the bargaining sessions, was, admittedly, unaware that Respondent was paying a considerable number of its employees on the above-described incentive basis.10 Indeed, he testified that when he offered the Union certain increases in the minimum rate (e.g., from $1.60 to $1.65), it was his understanding that each worker would get'that wage increase (e.g., 5-cents) for each hour worked, "across the board," as if all the workers were on a straight wage, rather than an incentive, pay basis. Ashinoff, who was not present when these offers were made, testified that he intended these to be increases in the minimum, or guaranteed, wage rate, only. Further, though the Union was not informed by Respondent as to any of the details of the system by which Respondent's incentive workers were paid, Chapman was aware from the employees that Respondent assigned minute standards for the completion of operations on bundles of 2 dozen (though apparently not the exact number of minutes assigned to every operation performed on every garment), that the rate of pay per minute was 2.8 cents, and that the rate was derived by dividing 460 (minutes) into $12.80 ($1.60 x 8 hours). 2. Contract proposals Certain of the Union's contract proposals, particularly noted by Respondent in its brief, are of importance in connection with the bargaining between Respondent and the Union over piece rates. These are the following (to the extent applicable): ARTICLE VII: WAGES AND STANDARDS 1. All employees who are employed for ... ( ) months or more shall receive a craft minimum wage of no less than the following rates computed on a daily basis: [The requested minimums were left blank on the original proposal. At the first meeting, the Union requested a minimum of $2.35 for all incentive workers. At later meetings, the Union modified this to a requested minimum of $1.80 for the first year of the agreement, $2 the second year, and $2.35 the third year.] 2. With respect to operators and all other piece workers, the piece rates for each separate operation or section shall be set so that the actual average straight time earnings of the workers on that operation or section are no less than twenty-five (25%) above the foregoing applicable craft minimum. In computing said average, workers with less than six (6) months' 9 Though Respondent seems to contend that this poster makes the incentive pay plan clear, it obviously was intended only to persuade the workers that Respondent's rate of 2.8 cents per minute was better than $1.60 per hour on a 40-hour week. experience in the industry may be excluded. Where workers have demonstrated their ability to earn more than this, piece rates on new work shall be set to yield no less than their previously demonstrated straight time hourly earnings during a representative period. , - ARTICLE XXII: ACCESS TO SHOP-EXAMINATION OF BOOKS-,PAYROLL RECORDS 1. Representatives and employees of the Union, including engineers and accountants, shall have access to the shop of the Employer during working-hours to take up complaints or to determine compliance with the terms of this agreement. 2. The Employer shall, upon request, submit to such representatives and employees of the Union the payroll books and records and all other pertinent books and records for examination for the purpose of determining compliance with the terms of this agreement, and the data including time study records employed in setting wages and piece rates. 3. The failure of the Employer to permit access to the shop or to submit such books, records or data shall be presumptive evidence of the violation complained of and shall justify sustaining the Union's complaint. Moreover, in the event of such failure by the Employer, the Union at its option may consider that the Employer has forfeited its rights under the agreement. 4. The Employer shall send to the Union office monthly a copy of its payroll for thelast work week of the preceding month, which shall include for each employee his name, date of employment, craft, opera- tion and section, straight-time hours and wages and overtime hours and-wages. 3. The negotiations The parties are in basic conflict with respect to whether the Union sought the information with respect to piece rates that the General Counsel contends, and as to the nature of the bargaining on this subject. Set forth below is a summary of the course of bargaining on this subject as given by the union representatives at the negotiations (chiefly Hoffman; Chapman's testimony was in substantial accord), and by Tugman, for the Respondent, as to those meetings at which he was in attendance, and Ashinoff for those meetings with the Union at which Tugman was not in attendance. a. The testimony of Hoffman and Chapman At the initial meeting on August 6, Tugman advised the Union that he had not had time to read , the union proposal as yet. The Union gave Tugman its economic proposals, including a guaranteed minimum of $2.35, a 12-1/2 percent contribution to the Union's proposed health, to Ashmoff estimated that 50 percent of Respondent's employees are paid by piecework. Other evidence indicates that the percentage was greater. Thus, it is indicated that the employees listed on G.C. Exh. 9 at $1.60 (a large majority) were pieceworkers CORONET CASUALS, INC 313 welfare, and vacation fund (later reduced to 6.5 percent), and a general wage increase of at least 20 percent, based on the Union's request that piece rates be set to yield at least 20 percent above the guaranteed minimum (a decrease from the Union's written contract proposal for piece rates of 25 percent over the minimum). Hoffman explained, .., we have to know what your piece rates are .. . before we would know exactly what kind of general increase we would need . . . we would need information from you . . . how many holidays you are paying, what your vacation procedure is, what your guaranteed rates are on the different jobs that-you have . . . the piece rates that you have and the data that you have in setting them ...." He told Tugman that he needed this information since if most of Respondent's employees were presently making at or over the requested $2.35 minimum, the guarantee would not effect an increase for them. Tugman stated that he would discuss this with Ashinoff. At the next meeting, on September 17, Tugman request- ed that the parties concentrate on the noneconomic issues,'1 and the parties went over the union proposal in detail. Hoffman repeated his requests for information, in his words, for "the names of the people, the rates, the vacation plans and the piece rate data, piece rates and all that goes into makeup of the piece rates." At the following meeting, November 4, the Union was furnished a list of Respondent's employees with their "operations," and their "rate of pay." Of the 112 employees listed, 95 were listed as receiving $1.60 per hour, the 17 others were listed as receiving rates in excess of that figure (from 1.70 to 2.90). There was no indication that any of the employees were paid on an incentive basis. Hoffman states that he tried to explain to Tugman that this information didn't do the Union any good, since they were compelled to bargain on the piecework basis that the employees were paid, and, since the information submitted did not show what the individual earnings were, it was thus impossible to negotiate increases for the employees. Tugman replied, according to Hoffman, that he had taken this matter up with Ashinoff, and that "Ashinoff said it's none of the union's business the way he sets piece rates or the piece rate data,", and Tugman refused to give this data to Hoffman. The two men then had a discussion as to whether Respondent was legally required to give the information requested. Hoffman testified that he was never told which employees were on piece rate and which were not. On December 7, Tugman offered the Union an increase on the- minimum guarantee of 5 cents for each year of a 3- year contract (raising the minimum to 1.65-1.70-1.75). Hoffman again complained that this meant no increase for those employees who were making more than $1.65 per hour at present on piece rates, or for those who were being paid on an hourly basis.12 Hoffman told Tugman that the Union didn't want to, negotiate benefits for just a few people, that the increase offered might affect none of the employees, or possibly a few, that the Union had "no way of evaluating [the economic effect of the offer] because I don't know what your earnings are, what each individual earns and this is -what I have been insisting on, I don't know what the piece rates are, what they can make... . Hoffman asserted that he didn't think he was getting across to Tugman, and requested that Ashinoff be brought into the negotiations, on the basis that he would have a better understanding of the need for the information. After an accusation by Hoffman that the Respondent wasn't negotiating in good faith in failing to supply the informa- tion,- that there was too much time between meetings and the negotiations weren't getting any place, Tugman stated that he would go over the matter with Ashinoff and see if a different offer were available. At the next meeting, on February 7, Respondent offered to increase the minimum guarantee in the third year of the contract to $1.80. Hoffman argued that with respect to employees paid on piece rate, "you can"t negotiate this way," that the Union couldn't evaluate the cost of this offer because "I don't know what the earnings are of the individual people who are working." About March 3, after the inception of the strike, Hoffman met with Ashinoff at New York. Hoffman advised Ashinoff that he thought that much more progress could be, made at the negotiations if Ashinoff would attend. Hoffman expressed the opinion that Ashinoff wasn't well represented by Tugman, explaining "the situation with the piece rates, what he offered and what we thought was needed and the kind of contract that we had." Ashinoff replied that Tugman represented him, had kept him advised, and had done exactly as directed by Ashinoff, that "as far as [Ashinoff] was concerned, piece rates was something that he would set, it is none of the union's business and as far as he was concerned they have no say in the setting of piece rates and there should be nothing in the contract that says anything about that" Hoffman argued in response that if the Union couldn't "negotiate piece rates and if we don't know what the piece rates are and if we don't know what their earnings are, then there is no use in having a contract because this was the heart .. . of any sewing factory." Ashinoff agreed that he would attend the next bargaining negotiations. As previously noted, Ashinoff and Respondent's plant manager attended the next meeting, on March 3, together with Tugman. At this meeting Respondent offered a complete written agreement to the Union. With respect to employee wages, the proposal provided only that the "Minimum Rates of Pay" would be: during the first year of the agreement, $1.70 for the first 90 days of employ- ment, and $1.80 thereafter; during the second year, $1.80 for the first 90 days of employment, and $1.90 thereafter; and during the third year, $1.90 for the first 90 days of employment, and $2 thereafter. Hoffman remonstrated that Respondent was again proposing minimum rates of pay, there was nothing in the proposal with respect to piece rates, and no-provision that the piece rate workers should receive any sort of increase. Hoffman complained, "I don't even know what the piece rates are.... You've refused to give them or the piece rate'data, so we would know how to evaluate this." Ashinoff stated, that "he Would have nothing in the contract that [had] anything to do with piece 11 Tugman' asserts that this was occasioned by the wage freeze announced by the President on August 15. 12 Hoffman asserts that. in response to his query, Tugman'stated that the offer was merely on the minimum, not an increase for every employee. 314 DECISIONS OF NATIONAL LABOR , RELATIONS BOARD rates, he was not going to give ,any information about piece rates, that is something that was strictly up to management and it's not any of the union's business, it [was] something that he didn't want the union or the employees to have anything to do with." At the meeting the following day, Respondent main- tained its previous position, stating that "this was the final offer, take it or leave it." At the meeting in April set up by the Federal mediator, Hoffman tried to persuade Tugman that Respondent should contribute into the Union's health and welfare fund the money that the Respondent agreed to pay for a Blue Cross-Blue Shield program for the employees , on the basis that the Union could provide better benefits for the same money. Respondent refused . The Union again raised the issue of piece rates, and restated its problem with the guaranteed minimum, and Respondent again refused to have anything in the contract dealing with piece rates, reiterating its previous position. b. The testimony of Tugman and Ashinoff According to Tugman, "There was little, if any, discussion of piece rates at Coronet Casuals [during the negotiations ]. The only discussion we had centered on their demand in their contract, as I understood it, that an individual would have to earn twenty-five percent [later reduced to twenty percent] more than the minimum; as set by' their engineers. They were going to gratuitously send their engineers in and work up a piece rate system for Ashinoff, and I said, `No, we are not interested in that' " Tugman testified that he told the Union that he could not agree to the Union's proposal that the employees earn 25 percent (or 20 percent) more than the minimum, because, as he interpreted the union proposal, that would require Respondent to permit union engineers to come into the plant to set the piece rates, which he rejected . In fact, Tugman testified that his reply to any discussion raised by the Union with respect to piece rates was that he "didn't want the union engineers coming into the plant." He further denied that the Union at any time requested information as to the earnings of employees on piece rate, or that he was asked to furnish the number of minutes which Respondent had set for performance of the various operations performed by piece rate employees. Tugman asserted that the list of employees, withjob classifications, and minimum hourly rates given the Union was what the Union requested, and that it was not thereafter discussed. He denied that the Union raised any questions about it, or asked that the pieceworkers and the timeworkers on the list be identified. Indeed, he stated that he was unable to make the distinction among the employees listed. The record, in fact, is convincing that Tugman was unaware, during the bargaining, that there was a distinc- tion among the employees as to the manner in which they were paid. He testified that during the negotiations he did not know how the piece rates worked in Respondent's plant or how they were set. He apparently first became aware of Respondent's piece rate system when Ashinoff, at the March 6 meeting, stated that the pieceworkers "were on a minutes system," but "didn't go into detail as to how it worked." There was no explanation of Respondent's 2.8- cent incentive wage factor, or how it was derived. Even at the hearing, Tugman insisted that Respondent's wage offers (though clearly stated to be increases in the minimum pay guarantees only) were in fact offers to increase the hourly wages of all the employees "across-the- board," by the precise amounts offered, a concept clearly incompatible with an incentive wage system. Ashinoff's testimony, on the other hand, shows clearly that he intended the offers to be increases in the minimum guarantee only. Inasmuch as he was aware of the method by which his incentive rates were computed, he was also presumably aware that this increase in the minimum would also be reflected, under his system, in the piece rates paid the employees. However, neither Tugman nor Ashinoff ever explained this to the Union. Tugman asserted that there wasn't any discussion between the parties as to the effect of the Respondent's wage offer on the employees because it was his understanding that the offer "was an across-the-board offer." 13 Tugman testified that Hoffman expressed no interest in what kind of increase the pieceworkers might get and denied that Hoffman made the point that, since Respondent was offering only increases in the minimum, most of the employees would not be affected by the offer. According to Tugman, Hoffman was principally interested in having Respondent contribute to the Union's health and welfare fund. Ashinoff had few meetings with the Union at which Tugman was not present, principally the meeting with Hoffman in New York, in March, and the meeting at the Norfolk airport, in late June, before Tugman arrived. With respect to the New York meeting, Ashinoff asserts that Hoffman told him that the parties were fairly close together on contract terms, and that the Union "would go along with 10, 10 and 10 over a three year contract," with Respondent also contributing the money it was going to spend on a hospitalization plan to the Union's health and welfare plan (or 6.5 percent of its gross weekly payroll, Ashinoff could not remember which). With respect to the piece rates, Ashinoff testified that Hoffman "asked me for data, he asked me for time studies, he asked me for engineering procedures about our piece rate and I told him at that time, `I don't have anything like that. I don't have engineers, I don't have piece rate data, I don't have graphs, I don't have things like that.' " Ashinoff said that he decided by looking at the garments how long it should take an employee to complete a work operation. Ashinoff also asserted that Hoffman wanted to send down some engineers "to participate in our piece rate." Nevertheless, Ashinoff conceded that, on this occasion, Hoffman did ask Ashmoff "to explain to him the system [Respondent's] piece work [operations]," but that he (Ashinoff) did not do so. Later, Ashinoff agreed that Hoffman, on this occasion, "was attempting to find out as much information as he could about [Respondent's] piece rates," but that he "never made such a big issue out of it." 13 At one point, Tugman testified that he "certainly" explained to the "across-the-board" offer on the pieceworkers because Hoffman "never Hoffman that each employee was going to get the same increase under asked me." Hoffman's testimony to the contrary has been previously noted. Respondent's offer, but thereafter said that he did not explain the effect of CORONET CASUALS, INC 315 Ashinoff stated that he was also aware of one occasion when Hoffman also discussed this matter with Tugman.14 Ashinoff denied that the Union ever requested informa- tion on the time allowances he had set for the various operations, or for the earnings of specific employees under the piece-rate system. In fact, Ashinoff asserted that it was his impression that Hoffman was interested only in the minimum guarantee, not in what the people were making, although at another place he agreed that Hoffman, in his discussions with Ashinoff, "might have" "pointed out to [Ashinoff ] that [Respondent's] offer was on the minimum and not on the earnings." Notwithstanding, Ashinoff stated that he never informed Hoffman that Respondent's offer to raise the minimum guarantee was built into the incentive system and thus would result in an increase for all pieceworkers, asserting that Hoffman never asked him. Ashinoff stated that he never informed Hoffman of the information on Respondents job tickets that accompanied the various piecework operations, or explained the denva- tion of the piece rate pay factor, or gave the Union the pieceworkers' accumulated weekly earnings data, because they were never asked for.15 It was conceded that, if the Union understood Respondent's incentive system, it would be necessary to know the individual's usual earnings under the system in order to evaluate how Respondent's offers would affect that individual.16 At the meeting at the airport, Ashinoff states that Hoffman asserted that the Union would accept a 1-year contract, if Respondent would contribute to the Union's health and welfare fund the money Respondent was paying for hospitalization, and "forget anything and everything about piece rates," or, as Ashinoff stated at another place, "forget the piece rates, forget the participation in helping us get the new piece rates. In other words he wanted to forget the whole item completely." This was specifically denied by Hoffman. c. Summary of the negotiations on piecework On the basis of the entire record, observation of witnesses, and my convictions as to the reliability of their testimony with respect to the negotiations, I credit the testimony of Hoffman and Chapman. Inter alia, I find it inconceivable that expert union negotiators in the garment industry, involved in a situation in which a substantial part of the employees are paid on a piecework basis, should be as little concerned with piece rates as Respondent here contends- This would be the equivalent of a union in an industry paying by the hour having no interest in the 14 At another place Ashinoff's testimony with respect to this point was as follows: "Q. (Rubenstein) And at the very first meeting after the strike one of the points that he asked you was for whatever data that you could give him concerning the piece rates? A. Yes. He asked me for the data. Yes " 15 With respect to the work minutes allotted to the various piecework operations, which were contained on the job tickets, Ashinoff did agree that Hoffman was trying to get from him "information about the method in which [he] arrived at the number of items that an employee was to make in a certain period of time," but denied that this request included the minutes allotted to the operations. 16 The point seems well illustrated by Resp. Exh . 4, put into evidence to show how the pieceworkers' pay was computed, which reveals the employee earnings for the week ending "10/14/72." Thus, of the 85 pieceworkers listed, at least 23 (who worked exactly 40 hours in that week) were paid on a hourly wage rates actually being paid to individual workers. There is no question but that the Union could not negotiate properly without knowing the factors upon which Respondentropaid its pieceworkers and the actual earnings of the pieceworkers and, as indicated by Hoffman, was "fumbling in the dark" without the information. I am satisfied that the union representatives made adequate requests for this information. Of particular concern is Respondent's failure and refusal to advise the Union that it was Respondent's intent to increase the incentive pay factor when it offered to increase the minimum guarantee. Respondent was put on notice that the Union did not understand this by Hoffman's consistent complaint that by raising the minimum Respondent was not doing anything for pieceworkers who regularly made more than the minimum guarantee.17 Respondent's failure to respond adequately was due in part, of course, to the fact that Tugman was unaware of how Respondent was paying its pieceworkers and was, thus, unaware of the significance of the Union's arguments and requests for information about piecework, but, more importantly, was caused by Respon- dent's clearly demonstrated decision not to bargain about piece rates or to have any reference to that subject in the collective-bargaining agreement. Hoffman's testimony to this effect is confirmed by the fact that when Respondent submitted its only complete contract proposal in March, that proposal, in fact, contained no reference at all to the piece rate system under which the employees were being paid, and which Respondent intended to continue. I do not credit Respondent's testimony to the effect that it was opposed to discussing piecework with the Union because the Union was assertedly asking that union representatives be permitted to set 'the piece rates in the first instance. The Union's written contract proposal does not so provide, and I am satisfied, on this record, that this was not amended by the Union at the negotiations. I further do not credit Respondent's testimony to the effect that Hoffman stated that the Union would accept increases in the mimmums without provision for increases for all the pieceworkers, or that the Union would forget about provisions for pieceworkers in the bargaining agreement if Respondent would contribute to the Union's health and welfare fund. C. Conclusions The law clearly requires that an employer, upon request, must bargain in good faith concerning issues such as piece rates, and upon agreement include these matters in the basis that exceeded the minimum guaranteed wage rate Respondent was then paying ($1.80 per hour for employees with 90 days' service). Some of these were paid at an actual rate per hour that week that far exceeded the minimum rate (e.g., Bullock-approx $2.46. Hedgepeth-approx. $2.25, and Rivenbark-approx. $2.62 per hour). 17 Though Chapman appears to have realized that Respondent's piece rate pay factor of 2.9 cents had a relationship to Respondent 's original minimum of $1.60, the record is convincing that the Union did not realize that Respondent might increase that pay factor when it increased the minimum. Not only do Hoffman's complaints on the subject during the bargaining make this clear, but one of the matters discussed at the employees' meeting prior to the strike was their understanding that Respondent, by raising the minimum , was not offering any increase for the workers making more than the minimum. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining agreement, see, e.g., Tex Tan Welhausen Company v. N.L.R.B., 419 F.2d 1265 (C.A. 5, 1971), and that an employer must furnish relevant information concerning wages and earnings, including piece rate information, sought by the employees' bargaining repre- sentative in aid of its bargaining responsibility. See, e.g., The Royal Himmel Distilling Company, 195 NLRB 39; Skyland Hosiery Mills, 'Inc., 108 NLRB 1600. As found hereinabove, Respondent consistently refused to negotiate with the Union in respect to piece rates, insisted that it would not agree that piece rates be covered in a bargaining agreement, and refused and failed _ to submit relevant information concerning the operation of its piece rate system to the Union, which information was necessary to enable the Union to effectively carry out its bargaining responsibilities under the Act. Respondent further ob- structed the negotiations and prevented constructive and effective collective bargaining by its failure to provide a bargaining representative sufficiently advised with respect to Respondent's operations and pay practices to permit fruitful and informed discussions of working conditions and employee pay at the negotiations. The duty to bargain in good faith is not fulfilled by sending an uninformed messenger to the negotiations, while those with knowledge and decisional authority absent themselves from the discussions.15 See, e.g., The Royal Himmel Distilling Co., supra, F. & J. Wire Products Co., 174 NLRB 340; Miami Swim Products, 145 NLRB 1348. It is further found that, in the context of this case, Respondent improperly impeded and prevented the free and effective functioning of the collective-bargaining process by its dilatory actions in respect to scheduling bargaining sessions and meeting with the Union. Clearly the bargaining process in this case was unduly attenuated, with few bargaining sessions and long periods between sessions (particularly prior to the strike). The individual sessions themselves were not extended. Respondent argues that the, Union did not appear to object to the fact that no more than one meeting a month was held after the first meeting. (Br. pp. 15-16) To the contrary, however, the record shows that the Union constantly took the initiative in seeking to have meetings scheduled, but that lack of cooperation or availability on Tugman's part caused difficulty. There is evidence that the Union protested the delays. Indeed, it appears that a principal reason for the delays in setting meeting dates was the refusal of Tugman to agree to a date for a new meeting at the close of the current meeting. No reason for this tactic appears (other than Tugman's asserted failure to bring his appointment is Asbinoff testified that he employed Tugman because he (Ashinoff) was unaquainted with the process of collective bargaining. However, it is nowhere explained why Ashinoff, or his plant manager, could not have attended these bargaining sessions to assist and inform Tugman Since it is a fairly normal practice to have management officials present at negotiations when outside negotiators are employed , and on the basis of the record as a whole, it is inferred that the absence of Respondent's management from the negotiations in this case prior to the strike was deliberate. 19 Respondent suggests, in reliance on certain hearsay statements in a letter of Ashinoff (Resp. Exh.10), that on this occasion the Union agreed to a date of March 8 (br. p. 15). Hoffman denied that this date was set. Tugman testified that it was. However, it would appear, as indicated by Chapman, that this was a date offered by Tugman as available, rather than a date suggested or desired by the Union. I place no reliance on Ashmoff's calendar to the first meeting). Two exceptions to this procedure of leaving open subsequent meeting dates do appear prior to'the strike: At the close of the September 17 meeting Tugman agreed to meet again on September 30, but prior to that date he called and canceled the meeting, and the usual difficulty in obtaining a new date from him ensued, with the next meeting finally taking place on November 4; and at the end of the February 4 meeting, Tugman told the Union that they could meet again in a month.19 Another major interruption in the bargaining was occasioned by Tugman's extended vacation, after the fourth bargaining session, with no date set in advance for the resumption of bargaining upon his return. While the bargaining tempo picked up after the strike, Respondent's opposition to bargaining about piecework, previously noted, was not abated, and bargaining finally ended when, after a meeting at the end of June, Respondent failed to further contact the Union, as it stated it would do. Collective bargaining, particularly for a first contract, is a difficult procedure in most cases. It can be especially impeded by the failure or the refusal of the parties to cooperate in setting prompt and timely negotiation sessions. The obligation to bargain in good faith required by the Act is not met by appointing negotiators who are too busy, or are otherwise prevented from meeting promptly and at timely intervals. For the reasons stated, and upon the record as a whole, it is found that Respondent failed and refused to bargain in good faith in violation of Section 8(a)(5) and (1) of the Act as alleged in the complaint 20 In coming to the conclusion that Respondent failed and refused to bargain in good faith in violation of the Act, I have given full consideration to the contentions of Respondent that the negotiations were impeded by the character of the Union's demands and by the Union's conduct during the negotiations. I find these contentions to be without merit.21 II. REFUSAL TO REINSTATE STRIKERS A. The Strike During the bargaining negotiations, the employees were kept informed of progress at the bargaining table by reports from Chapman. On February 29, 1972, a general meeting of the employees was held by the Union at which the long delays between meetings, failure of Respondent to offer any increases to the pieceworkers earning more than the guaranteed minimum, and general lack of progress was discussed. The employees voiced dissatisfaction and voted letter (Resp Exh. 10) 20 I have considered Respondent's conduct prior to October 4, 1971 (6 months prior to the filing of charges in this matter), only for the purposes of background in assessing Respondent's course of conduct since that date. 21 Respondent requests particular consideration of art. XV(lXa) of the Union's proposal under which employee vacation benefits would be paid from a fund to which Respondent was requested to contribute . Counsel expressed some surprise at this provision during the hearing. However, it is not unusual in this field . Indeed, Sec. 302 of the Labor Management Relations Act was amended in 1959 to legalize employer contributions to funds properly set up and administered for such purposes. See Sec. 302(c)(6). The record further indicates that, prior to the end of the negotiations, the Union withdrew its request for contributions for this purpose. CORONET CASUALS, INC 317 to strike over these matters. Approximately 74 employees in the unit represented by the Union went on strike on March 1, 1972. On July 17, 1972, the striking employees made an unconditional offer to return to work. After some communication with the Union and the employees, all of the strikers with the exception of 15 were afforded an opportunity to return to work.22 The issues involved in Respondent's refusal to reinstate the 15 strikers is consid- ered hereinafter. Respondent argues that the strike was not caused by Respondent's conduct, even though that conduct be found to be in, violation of the Act, but rather was due to union conduct which Respondent asserts prevented consumma- tion of a contract. As previously noted, I have found this latter contention to be without merit. Contrary to Respon- dent's contentions, Respondent's contract proposals were not, per se, improper, or likely to obstruct negotiations for a contract. The Union's conduct at the negotiations further evidenced a willingness to reasonably compromise and adjust its positions. Respondent's conduct, on the other hand, was of a character that normally leads to disruption and breakdown of bargaining negotiations, employee discontent, and industrial strife. It is for this very reason that such conduct violates the Act, which has as its purpose the avoidance of such consequences. On the basis of the facts found hereinabove, and upon the entire record, it is found that the strike in this case was caused and prolonged in substantial part by Respondent's conduct which was in violation of the Act, and therefore the strike was an unfair labor practice strike. B. Related Litigation During the course of the hearing in this matter, there was received into evidence certain papers relating to Respon- dent's petition for an injunction during the strike from a Virginia state court, the judge's ex parte order, continued by consent, and a motion that certain strikers be found in contempt, which was never acted upon by the judge. As previously noted, I have also received in evidence the decision of an appeals examiner of the Virginia Employ- ment Commission relating to the alleged misconduct of strikers during the strike. I have considered these matters and have accorded them no weight. The parties were given full opportunity to litigate the relevant issues and to adduce the relevant facts in this proceeding, and I prefer to decide the issues on the facts developed in this record. During the course of the hearing in this case (but not in its brief) Respondent vigorously and repeatedly asserted that it was deprived of a fair hearing because General Counsel settled, against Respondent's wishes and over its protest, a charge filed by Respondent with the Regional Office of the Board against the Union, assertedly based on the same misconduct here involved. Respondent appears to complain that it was thereby deprived of the advantage of having General Counsel "on its side" in this litigation. The contention obviously falls of its own weight. As noted, Respondent was given full opportunity to adduce the facts 22 There is evidence that some of these strikers were not promptly reinstated because their jobs were held by replacements hired during the strike. This issue was not alleged in the complaint or fully litigated and therefore will not be further considered herein. on which it relies to show that the strikers engaged in misconduct, and on which it assertedly relied, in denying the strikers reinstatement. We shall proceed to consider those issues. C. Alleged Misconduct 1. The evidence Respondent and the General Counsel adduced testimony with respect to certain activity engaged in by the strikers generally and specifically, as set forth below. On the basis of the record as a whole it is inferred that, with two exceptions, this conduct was known to Respondent at the time it refused reinstatement to the strikers involved. 1. Through a number of witnesses it was shown that as a regular practice, during the course of the strike, a small number of picketers (the record indicates 8 to 10) sometimes picketed in a circular fashion across the entrance to the plant parking lot at times in the morning when employee cars would be entering and at times in the evening when employee cars would be leaving. On other occasions picketing at this entrance would be in a straight line. On some occasions, considered hereinafter, some individuals are identified as standing or jumping in front of cars for brief periods. Because of the restricted nature of the driveway, these activities had the inevitable effect of impeding the flow of car traffic into and out of the parking lot at these times, for periods estimated from 20 seconds to 10 minutes.23 There is no evidence of any car prevented completely from entering or leaving the lot. On some occasions cars went through when a normal break in the line occurred, on others the line voluntarily broke to let cars through, and in other instances the line was broken at the request of the police or a guard who was present. Much of Respondent's testimony involved identification of certain strikers as having been seen on such picket lines generally during the course of the strike, but, except as noted hereinafter, without identification of a specific picket as engaged in a specific act 'of ' misconduct barring ingress or egress. Some of the pickets identified as participating in these picket lines were shown to have been reinstated by Respondent. No' attempt was made at the hearing to explain why some were considered to have engaged in misconduct by this activity, and thus refused reinstate- ment, while others who were identified as engaging in the same conduct were reinstated. One of the supervisors of these employees, Allie Silver, who testified for Respondent, stated that this conduct would not render these employees unemployable so far as she was, concerned. 2. Other evidence establishes that a picket line was maintained also at an entrance to the plant loading area. Picketing there was in a straight line, by smaller numbers than at the parking lot. Because several large transport companies refused to come into the plant during the strike, much hauling was done by a plant employee, Albert Patterson, in a rented truck. He testified to certain difficulty in backing into the loading area while there was a 23 On the whole, I am convinced that Respondent's witnesses tended to greatly exaggerate the length of time involved in getting through the line. On the other hand, General Counsel's ' witnesses undoubtedly tended to underestimate the duration of these incidents. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD picket line, or pickets, at the entrance to the area. This was solved by having a helper, Larry Hand, get out of the truck and motion Patterson backward so that he did not hit any of the pickets. There is no evidence that Patterson was prevented completely from entering the plant property on these occasions. Certain pickets were identified by Patter- son and others as being on this picket line during the strike. Certain specific alleged instances of misconduct in relation to this line are considered hereinafter. The plant manager, Rock, asserted generally that outside trucks were prevented from coming into the plant property by,pickets walking in back of the trucks as they were backing in, but he was able to recall but one specific instance, involving a Wilson truck. 3. Respondent claims that certain language used by pickets should be held disqualifying. These will be considered in connection with individual strikers hereinaft- er. The language used was of a character generally known to the employees and used in the plant. On at least one occasion, some of these epithets were mouthed at a picket as a nonstriker drove by in her car. 4. The record shows the following with respect to alleged misconduct of the 15 strikers refused reinstate- ment: (1) Geraldine Bashay: The only evidence with respect to Bashay is the general testimony of Supervisor Allie Silver identifying her as 1 of approximately 15 pickets she had seen on the picket line at the parking lot (at least 4 of whom have been reinstated), and similar testimony of Plant Manager Rock identifying Bashay as I of 6 pickets he had seen at the parking lot picket line. Other than the general, conclusionary testimony of these witnesses, Bashay is not identified as having engaged in any misconduct. Bashay denied that the pickets jumped back or stood in front of cars seeking to enter or leave. (2) Charlotte Breeden: Breeden was identified only generally by Rock as being one of the pickets he saw at the truck loading area. He was unable to identify her as participating in any specific misconduct and, in fact, did not identify her in respect to the only specific instance he recalled involving a truck at that picket line. (3) Renva Canady: Canady was identified generally by Silver as one of the pickets observed at the parking lot picketing, and by Rock as participating in picketing at the loading area. Rock related an instance in the early part of the strike, when a Wilson truck was attempting to back into the plant area; one of the union organizers jumped up to the cab of the truck and spoke to the driver; the driver got out of the truck and called his dispatcher and thereafter left; Rock testified that "several girls," including Canady, Shelton, and Smith, during this episode, "got in back of the truck and prevented him from coming in." 24 Nonstrikers Sharon Martin and Patterson testified that Canady was one of the pickets who picketed in back of Patterson's truck as he was backing in. Canady testified that she never picketed at the time fixed by Martin and did not stand behind Patterson's truck because she did not trust his driving that much; she further testified that, though she did not recall an instance involving a Wilson truck, on those occasions when trucks would back in the pickets moved aside, Canady stating that, "I'm not about to stand behind a truck." (4) Shirley Deramus:25 Patterson identified Deramus generally as one of about seven pickets who picketed in back of the rented truck as he was attempting to back in. As previously noted, Patterson was able on these occasions to back in across the line with the assistance of his helper, Hand, who would let him know when the way was clear. Rock and a guard hired by Respondent, James Thompson, also identified Deramus as picketing at the parking lot on the evening shift. Thompson stated that she was on this picket line one evening when the police opened up the picket line. Nonstriker Catherine Wood testified that one evening during the strike, as she was walking to her car, Deramus called that she was going to get Wood, and, the next afternoon, Deramus said she was going to get Wood, if she had to go to Wood's house to do it. Patterson, who regularly talked with the strikers at the picket line and asserted that he maintained a good relation with them, states that on one occasion Deramus sought to persuade him to join the strike or get a job elsewhere; when Patterson replied that he needed this job, Deramus said that her husband had killed in the war and that 'he didn't mind killing again; and Patterson says that he replied that if Deramus' husband killed anyone it would likely be Deramus. Deramus denied that she told Patterson that her husband had killed in the war and wouldn't mind doing so again, but states that she tried to persuade Patterson to go to work for her husband who owned a truck. She also denied Wood's testimony, stating that Wood couldn't have heard anything Deramus said, in any event, since it was Wood's habit in leaving the parking lot to come "zooming out," "spinning rocks and mud" on the pickets. Deramus further denied that she walked back and forth behind trucks, asserting that she "wouldn't walk in back of a truck." Deramus stated that she picketed in front of the trucks. With respect to the parking lot, Deramus testified that employees' cars were not delayed, "no more than just for us to walk across. Sometimes we would back up and let them come across, but we were constantly walking across, but we never stopped anyone." (5) Connie Hardy: Hardy was one of the several pickets generally identified by Silver as participating in the parking lot picketing. (6) Juanita Harris: Harris was generally identified by Rock, Thompson, and Silver as participating in picketing at the parking lot. On one occasion, Thompson saw Harris place a board with nails in it in front of a car entering the parking lot. On another occasion, when Thompson's car was hit by eggs, he got out and ran around a nearby truck (over which he felt the eggs had come), and found Harris and striker Susan Waldrop. Each of them made suspicious gestures with their hands. Thompson, however, denied seeing any eggs thrown. About this time, Thompson states, eggs were being thrown at other places on the parking lot, 24 Respondent's witnesses rather consistently described the activities of have a particular affinity for the words "block" or "blocking." the pickets in such conclusionary fashion, with little or no factual detail, 25 This is the spelling in the transcript. Respondent's records show except where the witness was personally involved. Most of them appeared to "Doremus." CORONET CASUALS, INC 319 and one worker told Thompson that Harris had thrown eggs at her, but Thompson did not see this. Thompson also testified that Harris was convicted in state court for throwing eggs, but the record does not show on whose complaint, or on what evidence. (7) Catherine Owens Powell: Powell (nee Owens) - was identified generally by Silver and Rock as participating in picketing at the parking lot. Powell testified that, while some cars might be held up one-half minute, the line would stop to let them out. She denied blocking any cars. (8) Pauline Queen: Queen was generally identified by Rock and Silver as participating in the picketing at the parking lot. Thompson, in describing picketing at that lot, asserted that while the pickets were crossing the entrance to the lot in an orderly fashion, on occasion he had seen the last girl in line jump back or turn and slap or kick a passing car. The only picket he identified as engaging in such conduct was Queen. Nonstriker Barbara Hedgepeth identified Queen as kicking the bumper of her car in such fashion. Patterson named Queen as one of eight named pickets who picketed in back of the rental truck as he was attempting to back it into the loading area. Respondent developed two related matters from non- striker Martin for the first time on her redirect examination from an affidavit used by General Counsel in cross- examining Martin. The circumstances are convincing that Respondent's counsel did not know of these at the time of Martin's direct examination on Respondent's behalf and therefore that Respondent did not know of them prior to that time. In one instance, Martin states that Queen ran from another place to jump in front of her car as she was leaving the parking lot, but stepped aside "in a couple of minutes," and let Martin out. From the same affidavit, on redirect, Martin also testified that Susan Waldrop and "another girl named Pauline" "used to jump right out in front of the car." Respondent appears to rely also on some rather vague testimony of Patterson that at some time during the strike Queen sat or fell in the roadway as showing that Queen interfered with ingress or egress of trucks. Queen stated that she didn't recall kicking the bumper of Hedgepeth's car, and doesn't think she did. She denied blocking Hedgepeth's car. She denied kicking or slapping any car, except that she slapped the bumpers of some cars. She also denied jumping in front of Martin's car or any other. (9) Jane Shelton; Shelton was identified by Silver as picketing at the parking lot, and by Rock generally as picketing at the entrance to the plant loading area, and specifically, together with strikers Canady and Smith, as picketing in back of the Wilson truck attempting to back into that area (see Canady, above). Martin and Patterson identified Shelton generally as picketing in back of the rental truck as Patterson sought to back it in to the loading area. Ashinoff testified that during the strike Shelton called him a "dirty jew." Shelton denied making the statement attributed to her by Ashinoff. Shelton denied that a truck was blocked while she was (picketing at the loading area, stating that if a truck came up, the pickets didn't run to get out of the way, but continued walking in a straight line to the other side of the road. She testified that rather than blocking Patterson's truck, he would stop at the picket line and converse with the girls, and often after proceeding to the loading dock, Patterson would return to the picket line and talk to the girls further. (10) Frances Smith: Smith was identified by Rock generally as picketing at the loading area, and specifically, together with Canady and Shelton as picketing in back of the Wilson truck (see Canady, above). (11) Madeline Spigener: 26 Spigener, often referred to in the record as "Madge," was identified generally, by Silver and Rock as picketing at the parking lot entrance, and by Rock generally as picketing at the loading area. However, Patterson testified that "Madge" "never got in back of the truck" at that area. Both Martin and Thompson testified to an incident at the parking lot, in which Spigener stood in front of Martin's car as it was attempting to enter the lot and stated that she did not intend to move. However, Spigener did step back after some time- (Martin states 10 minutes), Martin backed up somewhat and proceeded into the lot, apparently around Martin. During this incident, Thomp- son states that he saw Spigener push on Martin's car with her hands. Martin had previously come through the line in her car in an apparently reckless fashion and hit striker Waldrop. Nonstriker Sophie Johnson testified that as she was entering the parking lot one morning during the strike, Spigener stood in front of her car and dared Johnson to hit her.27 Johnson said she was stopped for 3 minutes. Nonstriker Mildred Redditt stated that when she was leaving the plant late one evening "they wouldn't let me out." She states that the pickets were walking in a circle and she couldn't get through. She sat there until she "got tired," and got out of her car to get help. At that point the guard came up and opened the picket line for her. Redditt had difficulty with the names of the pickets present at the time, but among those present she named Spigener (whose last name was again supplied by counsel), a picket named "Susie," Mary Whitfield, and Rosalee Whitfield. Spigener testified that she did not recall getting in the way of Redditt's car at any time, and that, except for a short period at the end of the strike, she picketed on the morning shift, not the evening shift. Spigener denied Martin's testimony, stating that the only time she recalls an encounter with Martin, the latter came through at a high rate of speed and stopped just at Spigener's leg; Spigener moved on, and Martin accelerated by her, throwing gravel in every direction. With respect to Johnson's testimony, Spigener reacted by stating that anyone seeing Johnson coming would automatically get out of the way because of the way she drove. (12) Helen Vick: Vick was identified by Silver generally as one of the pickets at the plant parking lot. (13) Susan Waldrop: Waldrop was identified by Silver, 26 Spelling as in the transcript. Company records show "Madge this remark to her at the picket line; at the hearing, she stated that she now Spigner." knew it was Spigener. It is also noted that, at the hearing, Johnson did not 27 In a previous affidavit, Johnson said she did not-know who had made know Spigener's last name until supplied by counsel. 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rock, and Thompson generally as. picketing at the entrance to the parking lot. Thompson asserted that he had seen Waldrop, like Queen (see above), when picketing in an orderly straight line across the driveway, turn or jump back as a car was passing behind her. Martin testified that Waldrop "used to jump out in front of me" (but see Queen above). Martin stated, that Waldrop "blocked" her car for about 5 minutes one morning, and then got out of the way. As Martin got out of her car on the parking lot, Martin states that-Waldrop called her "a bitch," and "chicken." Nonstriker . Barbara Hedgepeth testified that Waldrop stood in front of her car one morning and dared Hedgepeth to run over her. Hedgepeth asserts Waldrop called her "a little bitch" one morning. Redditt named Waldrop as one of the group that prevented her from leaving the plant one evening (see Spigener, above). Patterson and Martin named Waldrop generally as one of the strikers who picketed in back of the rental truck as Patterson attempted to back it into the loading area, and Rock identified her as one of those who picketed behind a Wilson truck as it was attempting to back in (see Canady, above). Rock asserts that Waldrop called Patterson "a bitch," and on one occasion said to Rock that she "wouldn't touch [him] with a 10 foot pole, you ugly jew." Ashinoff accused Waldrop of throwing mud on his wife's car. Thompson testified that Waldrop threw gravel at him on one occasion. Patterson stated that on one occasion, when he was standing outside the rental truck, he saw Waldrop throw two or three eggs at the back of the truck.28 As previously noted, on another occasion (see Hams above), Thompson suspected Waldrop and Harris of throwing eggs, but did not see them do so. Waldrop admitted throwing eggs at Patterson's truck as "a joke," but stated that she did so only because he dared her to do so, and she did not think it was an important matter. Waldrop, supported by other witnesses, denied throwing mud on Ashinoff's wife's car. She further denied throwing gravel at Thompson, and denied that she threw eggs on the occasion in which she was suspected by Thompson. Waldrop admitted calling Hedgepeth a bitch on an occasion when Hedgepeth first told Waldrop, "you bitch [I'll hit you] if you don't get out of the way." Waldrop asserts that Hedgepeth drove "fast" through the line and didn't give the pickets time to get out of the way. Waldrop recalled no other confrontation with Hedgepeth during the strike. With reference to Redditt's testimony that Waldrop had gotten in her way as Redditt was leaving one evening, Waldrop denied that she ever performed picket duty in the evening. Waldrop recalled no incident involving Martin except one occasion when Martin, cutting in back of the picket line, swung around and almost hit Waldrop. Waldrop admitted calling Martin "chicken," although she did not recall the cause. Waldrop states that Martin swore at her through the closed car window, mouthing the words, "you bitch."29 Waldrop also denied slapping or kicking cars. Waldrop testified that on an occasion during the strike when Rock objected to her touching him with her hand, she told Rock that she wouldn't touch him with a 10-foot pole. Waldrop denied calling Rock an "ugly jew." (14) Lee A. Whitfield- This striker, also identified in the record as "Rosalee," or the daughter Whitfield, was named by Thompson, Silver, and Rock generally as participating in the picketing at the parking lot. She was also identified by Redditt as one of the pickets who prevented her departure one evening (see Spigener, above). Lee Whitfield was also identified by Martin and Patterson as picketing at the loading area. She was identified by Rock as calling an unidentified worker, a "shithead." Nonstriker Robert Larivee testified to an occasion upon which he asserts Lee Whitfield hit his car with a rock as he was leaving work. Larivee was making a right turn out of the parking lot. In Larivee's words, "I saw her arm go in a backward position, and I saw this because I was looking both ways to see if there was any traffic. There were people walking, and I heard something hit the car. It was probably a rock." Larivee did not see anything in Whitfield's hand and he did not see her arm make a forward motion. Whitfield was apparently charged with assault. The charge was dismissed after a court hearing for insufficient evidence, according to Larivee. (15) Mary Whitfield. This striker, also identified in the record as the mother Whitfield, was named by Thompson, Silver, and Rock generally as participating in the picketing at the parking lot. Martin and Patterson identified her as picketing at the plant loading area. Redditt named her as one of the pickets who prevented her departure, as previously noted (see Spigener). Redditt also named Mary Whitfield as on a picket line at the parking lot one morning when Redditt was held up shortly; when Redditt drove in, she states that Whitfield called to her to hurry up, and to be sure to take her nerve pills when she got, in the plant. Rock, Patterson, Johnson, and nonstriker Dorothy Bledsoe testified that Mary Whitfield used language and epithets to nonstrikers such as the following: "bitch," "son-of-a- bitch," "dumb bastard," "whore," "tramp," "fat pig." 2. Analysis and conclusions The right to strike in protest of unfair labor practices, or with respect to working conditions, is guaranteed by Section 7 of the Act. Employer conduct which interferes with, restrains, or coerces employees in the exercise of that right-as by discharge or refusal to reinstate strikers without just cause-violates Section 8(a)(1) of the Act, whether or not such conduct may also violate Section 8(a)(3) of the Act. See N L R.B. v. Burnup and Sinzs, Inc., 379 U.S. 21 (1964); cf. N.L.R.B. v. Union Carbide Corp., 440 F.2d 54 (C.A. 4, 1971); Virginia Stage Lines, Inc., 441 F.2d 499 (C.A. 4, 1971). Respondent's contention that the issues raised by Respondent's refusal to reinstate 15 strikers must be dismissed because General Counsel did not allege that action constituted violation of Section 8(a)(3) of the Act in addition to 8(a)(1) is therefore rejected. 28 Patterson also stated that Queen "was standing there," but does not in respect to another matter. I do not find that Queen was a participant in otherwise identify her as a participant in the incident. For this reason, and this incident. because at another place Patterson admitted erroneously identifying Queen 29 Martin stated that she did not recall directing this epithet at Waldrop. CORONET CASUALS, INC 321 Where, however, the employer has a good-faith belief that an individual striker has engaged in serious miscon- duct disqualifying the striker from further employment, the employer may refuse to reinstate, that individual, unless it can be shown that the striker did not participate in such misconduct, or that the activity involved was not suffi- ciently serious to justify the striker's termination from employment. See Burnup &_ Sims, supra; Dallas General Drivers, etc., Local 745 v. N.L.RB., 389 F.2d 553 (C.A.D.C., 1968). It has been also long established, however, that, in order to disqualify a striker from further employment there must be proof that the individual accused did, in fact, participate in the disqualifying conduct. In the absence of an organized plan of action to which the striker was a party, or some other evidence of agency, counselling, or ratifica- tion, the asserted misconduct of some identified, or unidentified, strikers is not to be imputed to other strikers not shown to have specifically, engaged in the misconduct alleged. See Sea-Land Service, Inc., 356 F.2d 955 (C.A. 1, 1966). As the court in that case stated, quoting from ILGWU [B. V.D. Company] v. N.L.R.B., 237 F.2d 545, 550 (C.A.D.C., 1955): In a long line of cases ... the courts have without exception adhered to the principle that individual wrongdoing is a prerequisite to disqualification and back pay. See also N.L.RB. v.- Wichita Television Corporation, Inc., d/b/a/ KARD-TV, 277 F;2d 579, 585 (C.A. 10, 1960). Respondent's major contention is that the 15 pickets whom it refused to reinstate engaged in misconduct by interfering with free ingress and egress from Respondent's property during the strike. In this connection it must be kept in mind that the right of strikers to picket and the right of others to access to the picketed property are equal rights. One does not take precedence over the other. As in many situations in normal life these rights frequently come into conflict, and adjustments must be made.30 In addition, because these conflicts are much sharper and more intense in strike situations, the adjustments to be made-on both sides-are the more difficult. Where, as here, the strike itself was caused by Respondent's own misconduct in violation of the Act, the law provides that further allowance should be made for certain conduct of the strikers, particularly where that conduct may be fairly said to be "incidental to the maintenance of [the] picket line." See Oneita Knitting Mills, Inc. v. N.L.R.B., 375 F.2d 385, 389-391 (C.A. 4, 1967). In full consideration of the factors set forth, some of the specific instances, in which one or more of the 15 disqualified strikers engaged in interdicting access to or egress from Respondent's property during the strike, clearly justify Respondent's action in refusing to reinstate those individuals shown to have engaged in that conduct. Thus, Juanita Harris was identified as placing a board with nails on it in front of a car proceeding on the parking lot. I further credit nonstrikers Redditt, Johnson, and Martin 30 The analogy of two pedestrians meeting on' a narrow sidewalk comes to mind. The legal obligation of one to give way to the other is not clearly defined 31 While I have reservations concerning the reliability of Martin as a witness generally, and do not credit her except as specifically found herein, I that pickets Madeline Spigener, Susan Waldrop, Lee A. Whitfield, and Mary Whitfield engaged in specific inci- dents, described previously, in which one or more of these strikers specifically blocked one of these nonstrikers who was attempting to enter or leave the parking lot 31 Respondent's guard during the strike, Thompson, testi- fied generally that he had seen Pauline Queen, Susan Waldrop, and Madeline Spigener, when at the end of a picket line crossing the parking lot driveway, step orjump back quickly and slap or kick vehicles moving in the driveway. However, the only specific testimony, that of nonstriker Hedgepeth, indicates that Queen engaged in such a manuever only after Hedgepeth's car had passed out of the parking lot. Whether Queen kicked Hedgepeth's back bumper or slapped it I find immaterial. I find that this incident was not a serious incident of misconduct and not disqualifying. I credit Queen's denial that she jumped in front of cars entering or leaving Respondent's property. I also credit Queen's denials of Martin's testimony that on certain occasions Queen attempted to block her. In any event, since it has been found that Respondent was unaware of these incidents attributed to Queen by Martin until the time of the hearing, these incidents cannot form a basis for Respondent's asserted good-faith belief at the time it refused Queen reinstatement that she had engaged in misconduct. As previously noted, Respondent also seems to rely on some vague testimony of Patterson that on one occasion Queen fell or sat in the street outside the plant as evidence that she engaged in misconduct. This is obviously insufficient. Thompson identified Shirley Deramus as being on the picket on one occasion (possibly two) at a time when the picket line was opened up by the police. In the absence of any other detail as to the circumstances of these incidents, I do not find this sufficient to disqualify Deramus. Deramus is also identified as having said to nonstriker Wood on one' occasion that Deramus was "going to get" Wood, and on another occasion that she was going to get Wood even if she had to go to Wood's home for the purpose. I credit Wood's testimony that she was on the parking lot on her way to, her car when she heard this, as against Deramus' denial which was based in part on the claim that Wood couldn't have heard anything Deramus said because Wood exited from the parking lotso violently. I 'infer, however, that Deramus' remarks to Wood were provoked at least in part by Wood's violent conduct at the picket line. There is no assertion that Deramus otherwise engaged in name calling or epithets, or in any acts of violence, or threats, except in respect to one disputed incident involving Patterson. In that instance, I' credit Patterson's testimony that after attempting to persuade Patterson to goon strike, or leave Respondent's employ, on the ground that the black employees should stand together, Deramus told him that she had a husband who had killed in the war (in fact her husband had been in a supply, not a combat unit), and he wouldn't mind killing again, to which do credit her testimony with respect to being blocked by Sp[gener and Waldrop. Inasmuch as I find that, by the conduct set forth above, Spigener, Waldrop, and the two Whitfields are disqualified, I find it unnecessary to discuss other incidents and conduct asserted against them. ' 322 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD Patterson replied that if anyone were killed it would probably be Deramus because her husband knew her best. Although Patterson claimed to have been affrighted by this remark, I do not credit that. The tenor of the remarks and his reply indicate that they were not meant, nor were they taken seriously. Though Patterson was apparently the butt of a number of uncomplimentary comments because he did not join the strike, the record is convincing that he maintained cordial relations with the pickets generally during the strike. These two incidents give me 'considerable concern. These kind of remarks are not to be condoned or encouraged. Nevertheless, Deramus' remarks to Wood had relation to Wood's conduct during the strike, and there is no indication that these remarks caused Wood concern at the time. Remarks of the character attributed to Deramus have been characterized as "picket line rhetoric" not disqualifying in contexts similar to that which prevailed during the strike.32 See N.L.J B. v. Hartmann Luggage Co., 453 F.2d 178, 185 C.A. 6, 1971); Stewart Hog Ring Company, Inc., 131 NLRB 310. On thebasis of the above, it is found that these remarks, in this context, were not sufficiently serious to disqualify Deramus from employ- ment. There is one other occasion on which individual pickets are identified as engaging in a specific act of impeding, preventing, or blocking ingress to or egress from Respon- dent's property during the strike. That instance involved a Wilson truck making a delivery one day. However, on that occasion, the pickets who were identified (Renva Canady, Jane Shelton, Frances Smith) are described only as being in back of the truck, in the driveway, for an undefined period of time, after the union representative talked with the driver of the truck, but while the driver called his dispatcher, and finally drove away. Although Plant Manager Rock asserted that the pickets "prevented" the driver from going into the plant, it does not appear that the driver made any effort to actually enter the plant after approaching the picketed area, or that the pickets forcibly prevented him from entering, or otherwise engaged in any activity, other than that normally incidental to the maintenance of a picket line. The facts admit equally of the conclusion that the driver did not attempt to enter because he and his dispatcher decided to honor the picket line, as many unionized trucking lines customarily do. Thus there is evidence in this case that other major truck lines also refused, to pick up and deliver at Respondent's plant during the strike. I find that the pickets' conduct on this occasion was not disqualifying. Respondent asserts one other , specific instance of asserted misconduct, involving striker Jane Shelton, which, while not related to the issue of ingress to or egress from the property, will be considered at this point. Ashinoff 32 It is noted that there was no showing of any particularly violent conduct at the picket line during the strike-some egg throwing at standing vehicles, one alleged instance of mud thrown at a standing car, an alleged instance of gravel thrown at the guard, and one alleged instance of a car hit by some hard object, none of which was attributed to Deramus-and no such conduct alleged away from the picket line. 33 Plant Manager Rock asserted that, in a conversation that he had with Waldrop during the strike, she also used this epithet to him. Waldrop denied this. This has not been discussed because I have found Waldrop disqualified on other grounds. testified that during the strike Shelton referred to him as a "dirty jew."m This was denied by Shelton. I find it unnecessary to resolve this conflict. While I would find the comment censurable, if made, I do not find it disqualifying in the circumstances of this case , and particularly in light of the fact that the strike was in protest of Respondent's unfair labor practices . Such epithets are not uncommon in the emotional atmosphere of a strike situation. See, e.g., Oneita Mills, supra, 391, fn. 7. However, Respondent further argues with respect to all the strikers (including those not identified as engaging in any specific act of misconduct), that the mere identifica- tion of any picket as appearing on the picket line at the parking lot or the loading area at any time during the strike should be held disqualifying, even though the specific striker cannot be shown to have participated in any specific conduct barring ingress or egress, or in any other misconduct. I find this contention to be without founda- tion in the law or the facts of this case. In support of its position Respondent relies particularly on the decisions of the court in Oneita Mills, supra, and N.L.R.B. v. Communi- ty Motor Bus Company, Inc., 439 F.2d 965 (C.A. 4, 1971). However, in Oneita Mills, the pickets disqualified were identified as engaging in specific acts of interference with ingress to the property (see the incident involving McKen- zie and Potson), while in Community Motor Bus, the court found the pickets disqualified on the basis that they had participated in specific acts of mass picketing, "planned and organized by Union leaders" (439 F.2d at 968), which forcibly stopped the exit of buses attempting to get out while the pickets were on the line. In this case there was no showing of planned, organized action to prevent ingress or egress, or any conspiracy among the strikers to that purpose. Further there is no showing that any person or vehicle was blocked while strikers (other than Spigener, Waldrop, and the two Whitfields) were picketing. Indeed, it is to be assumed that, if there had been any such incident, it would have been shown 34 In the circumstances, I do not credit the testimony of Respondent's witnesses to the effect that persons and vehicles were impermissibly impeded or blocked every time a picket line was set up at the plant. The strike lasted approximately 4-1/2 months. It appears that Respondent operated during this entire period. There seems to be no question but that the nonstrikers were able to come to work and leave every day, and Respondent's rental delivery truck apparently made pickups and deliveries every day. Nevertheless, there were only a few specific instances shown in which the picket lines, or the pickets, engaged in conduct which could be held to have forcibly prevented ingress to or egress from the property, although Respondent's witnesses generally refer to the line and 34 The guard. Thompson, who was hired for the purpose, kept the picket line under constant observation, and took pictures of the activities of the pickets, which he stated would show what they were doing and who was involved. It is inferred that this firsthand, direct evidence was not produced because it did not show picket line misconduct. See McCormick on Evidence (West 1954), p. 409 (Quoting Thayer: "... The fact that any given way of proof is all that a man has must be strong argument for receiving it if it be in any fair degree probative : and the fact that a man does not produce the best evidence in his power must always afford strong ground for suspicion.") CORONET CASUALS, INC 323 pickets as consistently blocking or preventing cars and trucks from entering or leaving.35 I have no doubt that the picket line created a certain degree of anxiety, and traffic was impeded as a natural incident to the maintenance of the picket line, but the evidence shows, and I find, the nonstrikers and trucks were able to enter and leave Respondent's property generally through normal breaks in the picket lines, or as the pickets gave way. In the circumstances, and on the record as' a whole, I find that the pickets, except as heretofore found, did not engage in misconduct by picketing at Respondent's plant premises 36 Further, as has been noted, Respondent reinstated a number of pickets who were identified as participating in exactly the same general picket line activities as the pickets it here seek to disqualify. While Respondent did not necessarily condone the activities of some by the reinstate- ment of others, in the absence of the explanation of the basis (if any) for distinguishing among those whose picketing Respondent , considered misconduct and those whose similar picket conduct Respondent chose not to consider misconduct, this apparently arbitrary differentia- tion by Respondent casts considerable doubt upon Respondent's good faith in now claiming that mere identification of a striker as participating in a picket line during the strike should be considered in and of itself disqualifying. In the circumstances of this case, and upon the record as a whole, I find that, except as heretofore found, the pickets did not engage in misconduct by strike and picket activities. It is therefore found that Respondent, by failing and refusing to reinstate Geraldine Bashay, Charlotte Breeden, Renva Canady, Shirley Deramus, Connie Hardy, Catherine Owens Powell, Pauline Queen, Jane Shelton, Frances Smith, and Helen Vick, violated Section 8(a)(1) of the Act. It is further found that Respondent did not violate the Act as alleged by refusing to reinstate Juanita Harris, Madeline Spigener, Susan Waldrop, Lee A. Whitfield, and Mary Whitfield, and it will be recommended that the allegations of the complaint relating to them be dismissed. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act and was at all material times, and continues to be, the exclusive representative of Respondent's employees in the appropriate unit set forth below for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 3. All production and maintenance employees em- ployed by Respondent at its Portsmouth, Virginia, loca- tion, excluding all office clerical employees, salesmen, guards, watchmen, and supervisors as defined in the Act, 35 In one such example, that of Rock's statement that the pickets prevented the ingress of the Wilson truck, it has been found that the evidence shows no more than the normal operation of a picket line and no forcible bar to the truck. constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. By failing and refusing, since October 4, 1971, to bargain in good faith with the Union in the above- described unit, and by failing and refusing to supply the Union, upon request, data concerning the wages and wage rates paid its employees,' and the basis upon which they are paid, Respondent - has engaged in, and is engaging in, unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. 5. By failing and refusing to reinstate Geraldine Bashay, Charlotte Breeden, Renva Canady, Shirley Dera- mus, Connie Hardy, Catherine Powell, Pauline Queen, Jane Shelton, Frances Smith, and Helen Vick within 5 days after the unconditional offer to return to work made on their behalf on July 17, 1972, Respondent violated Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. Respondent did- not violate the Act by refusing to reinstate Juanita Harris, Madeline Spigener, Susan Wal- drop, Lee A. Whitfield, and Mary Whitfield. THE REMEDY It having been found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that the Respondent unlawfully refused and failed to reinstate Geraldine Bashay, Charlotte Breeden, Renva Canady, Shirley Deramus, Connie Hardy, Catherine Powell, Pauline Queen, Jane Shelton, Frances Smith, and Helen Vick within 5 days after July 17, 1972, it will be recommended that Respondent offer each of these employees immediate reinstatement to her former job or, if such job no longer exists, to a substantially equivalent job, without loss of seniority or other rights or privileges, discharging if necessary any replacements hired, and make each of these employees whole for any loss of earnings each may have suffered by payment to each of them a sum of money equal to the amount she normally would have earned as wages during the period from July 24, 1972, to the date of Respondent's offer of reinstatement, less the employee's net earnings during that period, in accordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: 36 In making this finding I have fully considered the fact that it was stated that Respondent called the police, and complained that even with the police, it was difficult to get in and out of the property. However , this does not provide proof as to what actually did-or did not-happen at these times. 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER37 Canady, Shirley Deramus,' Connie Hardy, Catherine Respondent Coronet Casuals, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Upper South Department, "International Ladies' Garment Workers Union, AFL-CIO, as the exclusive representative of its employees in the appropriate unit set forth hereinabove with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. (b) Discharging or refusing to reinstate its employees for engaging in concerted activities protected by Section 7 of the Act. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the purposes of the Act: (a) Upon request, bargain collectively with Upper South Department, International Ladies' Garment Workers Union, AFL-CIO, as the exclusive representative of the employees in the appropriate unit set forth hereinabove and embody any understandings reached in a signed contract. (b) Upon request, furnish the said Union with data pertaining the wages paid its employees, and the basis upon which such wages are paid, and such other data as may be, relevant to collective bargaining for rates of pay, wages, hours of employment, or other conditions of employment of Respondent's employees. (c) Offer Geraldine Bashay,'Charlotte Breeden, Renva 37 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. Owens Powell, Pauline Queen, Jane Shelton, Frances Smith, and Helen Vick immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without loss of seniority or other, rights or privileges, discharging if necessary any replacements for these employees, and make them whole for any loss of earnings, they may have suffered by reason of Respondent's refusal to reinstate them, in accordance with the provisions of the section entitled "The Remedy," above. (d) Preserve and, upon request, make available to the Board or its agent payroll and other records to facilitate the effectuation of the Order herein. (e) Post at its operations at Portsmouth, Virginia, copies of the attached notice marked "Appendix."38 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondent's authorized representative, shall be posted by it immediate- ly upon receipt-thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any material. (f) Notify the Regional Director for Region 5, in writing, within 20, days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed as to any alleged violation of the Act not found hereinabove in, this Decision. 38 In the event that the 'Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "