Precision Castings Co.

PRECISION CASTINGS CORPORATION Precision Castings Company, Division of Aurora Corporation, a wholly owned Subsidiary of Allied Products Corporation and Metal Polishers, Buf- fers, Platers and Allied Workers, International Union, Local 500, AFL-CIO Precision Castings Company, Division of Aurora Corporation, a wholly owned Subsidiary of Allied Products Corporation and International Associa- tion of Machinists and Aerospace Workers, AFL- CIO, Local 1825, District 54. Cases 8-CA-8135, 8-CA-8279, 8-CA-8420, 8-CA-8494, and 8-CA- 8848 November 3, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On December 21, 1976, Administrative Law Judge William F. Jacobs issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respon- dent filed an answering brief to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions 2 of the Administrative Law Judge as modified herein. 1. We reverse the Administrative Law Judge's finding that the 3-day suspensions accorded Union Shop Stewards Charles Clock, Walter Finley, James Leahy, Josianne Bitonti, and Elizabeth Phifer for their participation in the March 1974 walkout did not violate Section 8(a)(3) of the Act. On March 11, 1974, the employees of the second shift at Respondent's Cleveland facility walked off their jobs in protest of a number of working I The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. The Administrative Law Judge found that the February 1974 strike was not an unfair labor practice strike. We agree for the reasons he sets out. However, in the 17th paragraph under the heading "February Strike," the Administrative Law Judge engaged in admitted speculation concerning the further possible causes motivating the walkout. We find such conjecture by the Administrative Law Judge inappropriate. Consequently, we disavow that portion of his Decision. We also note that in the paragraph in the Administrative Law Judge's Decision titled "Jackson's Threat To Close the Plant," he finds that Jackson 233 NLRB No. 35 conditions. The majority of the employees on the remaining shifts shortly followed suit, resulting in the near shutdown of Respondent's operations. The strike was neither authorized nor subsequently sanctioned by the employees' union. The Adminis- trative Law Judge found the walkout to be in violation of a no-strike clause. The Administrative Law Judge also noted that a corollary clause to the no-strike provision provided that the Union shall "take all reasonable steps to restore normal opera- tions" in the event of a work stoppage. After weighing all the evidence, the Administrative Law Judge further concluded that the walkout was not an unfair labor practice strike. We adopt this finding. Following the termination of the strike, however, Respondent decided to discipline selected strikers by invoking certain authority, set forth in its collective- bargaining agreement with the Union involved, which entitled Respondent to take disciplinary action against any employee involved in an unautho- rized walkout. Respondent thereafter handed out 3- day suspensions to employees Clock, Finley, Leahy, Bitonti, and Phifer. Respondent admits that the above employees were suspended because of their status as union shop stewards and because they supposedly failed to abide by their contractual responsibility, as union officials, to take reasonable steps to terminate the work stoppage. In light of his prior conclusion that the March walkout was not an unfair labor practice strike, the Administrative Law Judge found that Respondent lawfully invoked its rights, set forth in the no-strike clause, in suspending these employees and that singling them out because of their status with the Union did not render Respondent's decision unlawful. We disagree. The fact that the disciplined employ- ees participated in an unauthorized strike in breach of a valid contract provision does not legitimize Respondent's action in this situation. Respondent's freedom to discipline anyone remained unfettered so long as the criteria employed were not union-related. In the case before us, however, Respondent admits that the reason for selecting these five employees for did not participate in the contract negotiations in issue. While the record reveals that Jackson's participation was, at most, minimal, it does indicate that Jackson was present during the initial negotiating session on Apnl 23. 1974. The correction of this error does not affect our decision herein. We also note that in the paragraph titled "Subcontracting" the Administrative Law Judge relies on the Board's Decision in George Webel d/b/a Webel Feed Mills & Pike Transit Company, 217 NLRB 815 (1975), in reaching the conclusion that the subcontracting out of castings work was not unlawful. While we agree with his conclusion, we choose not to rely on the above case but rather on the Board's Decision in Westinghouse Electric Corp., Betis Atomic Power Laboratory, 153 NLRB 443 (1 965). 2 In the absence of exceptions thereto, we adopt, pro formna, the Administrative Law Judge's recommendations that certain allegations of violations of Sec. 8(aX I) and (5) be dismissed. Similarly, we adopt proformna. in the absence of exceptions, his findings of certain 8(aX I) violations. 183 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discipline was that each held the position of shop steward and, therefore, under the terms of the contract, could assertedly be held to a greater degree of accountability for participating in the strike. However, discrimination directed against an employ- ee on the basis of his or her holding union office is contrary to the plain meaning of Section 8(a)(3) and would frustrate the policies of the Act if allowed to stand.3 Accordingly, we find Respondent's disciplin- ary action violative of Section 8(a)(3) and (1) of the Act.4 2. We also do not agree with the Administrative Law Judge's finding that Foreman Dick Gamin's comment to employees Phifer and Anderson in May 1974, concerning the Union's adverse effect on potential overtime, did not fall within the proscrip- tion of Section 8(a)(1) of the Act. The Administrative Law Judge in essence found that Gamin's comment, "if there wasn't a union we'd have more overtime than we could work," was an ambiguous and isolated comment and therefore no violation of the Act. We fail to discern the ambiguity described by the Administrative Law Judge in Gamin's statement. In agreement with the General Counsel, we view the comment as a simple declarative statement which conveyed a single meaning: abandonment of union efforts would result in the authorization of additional overtime. In our view, Gamin's remark posited but a single idea, i.e., that the Union's continued presence was an obstacle to improved benefits and working conditions. Consequently, we find that the statement was an attempt to induce employees to forsake the Union in exchange for increased benefits and thus it constituted a clear violation of Section 8(a)(1) of the Act. AMENDED CONCLUSIONS OF LAW 1. Add the following phrase to the Administrative Law Judge's Conclusion of Law 3, after the phrase "thereby implicitly threatening them:" "and by attempting to induce employees to abandon the union by a promise of increased overtime," 2. Insert the following as Conclusion of Law 4 and renumber the following paragraphs accordingly: "4. By suspending employees Walter Finley, James Leahy, Charles Clock, Josianne Bitonti, and Elizabeth Phifer for participating in the March walkout solely on the basis that each held the 3 J P. Wetherby Construction Corp., 182 NLRB 690 (1970). relied on by the Administrative Law Judge in support of his result, is not on point. In that case the steward was discharged for having fomented a strike in violation of a no-strike clause and for his leadership role in the work stoppage. He was not discharged simply because he was a steward. In the present case the suspended stewards had not been active in either calling or position of union steward, Respondent violated Section 8(a)(3) and (1) of the Act." 3. Substitute the following for Conclusion of Law 5: "5. Respondent has not violated Section 8(a)(5) of the Act nor violated Section 8(a)(3) or (1) of the Act except as indicated in Conclusions of Law 3 and 4 above. THE REMEDY Since we have found that Respondent engaged in violations of Section 8(a)(3) of the Act by suspending Shop Stewards Charles Clock, Walter Finley, James Leahy, Josianne Bitonti, and Elizabeth Phifer each for a period of 3 days, we shall order Respondent to cease and desist therefrom, and to make these employees whole for any loss of earnings they may have suffered as the result of the suspension, with backpay and interest thereon to be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).5 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Precision Castings Company, Division of Aurora Corporation, a wholly owned Subsidiary of Allied Products Corporation, Cleveland, Ohio, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Threatening employees with disciplinary action and more onerous working conditions because they filed grievances. (b) Threatening to excessively reprimand or make examples of employees because they are stewards. (c) Interrogating and threatening employees con- cerning their having offered affidavits in support of union charges filed with the National Labor Rela- tions Board. (d) Interrogating employees concerning their visits to the Regional Offices of the National Labor Relations Board or interfering with said visits. (e) Suspending employees who participated in the March walkout solely because they held positions as shop stewards. (f) Attempting to induce employees to abandon the Union by promises of increased overtime. conducting the strike, and concededly were disciplined solely because they failed to urge the strikers to return. 4 See Pontiac Motors Division, General Motors Corporation, 132 NLRB 413 (1961). 5 See. generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 184 PRECISION CASTINGS CORPORATION (g) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Make whole employees Walter Finley, James Leahy, Charles Clock, Josianne Bitonti, and Eliza- beth Phifer for any loss of earnings they may have suffered as the result of Respondent's unlawfully suspending them for 3 days in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Mail a copy of the attached notice marked "Appendix A" 6 to each employee who was employed during the time the unfair labor practices were committed. (d) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 6 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board has found that we have violated the law and has ordered us to mail this notice to each employee. WE WILL NOT threaten employees with disci- plinary action and more onerous working condi- tions because they filed grievances. WE WILL NOT threaten to excessively reprimand or make examples of employees because they are stewards. WE WILL NOT interrogate or threaten our employees concerning their offering affidavits in support of union charges filed with the National Labor Relations Board. WE WILL NOT interrogate employees concern- ing their visits to the Regional Offices of the National Labor Relations Board or interfere with said visits. WE WILL NOT suspend employees, who engage in strikes or any other concerted activity, solely because they hold positions as union shop stewards. WE WILL NOT attempt to induce employees to abandon the Union by promises of increased overtime. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their Section 7 rights. WE WILL make whole employees Walter Finley, James Leahy, Charles Clock, Josianne Bitonti, and Elizabeth Phifer for any loss of earnings they may have suffered as the result of our unlawfully suspending them for 3 days due to their strike activity, plus interest. PRECISION CASTINGS COMPANY, DIVISION OF AURORA CORPORATION, A WHOLLY OWNED SUBSIDIARY OF ALLIED PRODUCTS CORPORATION DECISION STATEMENT OF THE CASE WILLIAM F. JACOBS, Administrative Law Judge: This case was heard before me in Cleveland, Ohio, during the periods November 4-7 and 11-12, December 9-12, 1975. and January 26-28 and March 1-3, 1976, pursuant to the following: 1. Case 8-CA-8135 filed on January 22 and amended on May 13, 1974, by Metal Polishers, Buffers, Platers and Allied Workers, International Union, Local 500, AFL- CIO, herein called Metal Polishers, and a complaint which issued on May 31, 1974. 2. Case 8-CA-8279 filed on March 29 and amended on May 13 and June 25 by Metal Polishers and a complaint which issued on July 9, 1974. 3. Case 8-CA-8420 filed on June 6 by Metal Polishers and a complaint which issued on July 18, 1974. 4. Case 8-CA-8494 filed on July 16 by Metal Polishers and a complaint which issued on August 13, 1975. 5. Case 8-CA-8848 filed on January 3, 1975, by International Association of Machinists and Aerospace Workers, AFL-CIO, Local 1825, District 54, hereinafter called Machinists, and a complaint which issued on August 13, 1975. All complaints were consolidated on August 13, 1975, for the hearing which was held on the dates indicated above. 185 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Issues The issues are framed by the following substantive allegations which are denied by Respondent: l General Counsel contends that the allegations named in the complaint [in the attached Appendix B], if proved, constitute violations of Section 8(a)(l), (3), and (5) of the National Labor Relations Act, as amended. At the hearing, all parties were represented and afforded full opportunity to appear, to introduce evidence, to examine and cross-examine witnesses, and to file briefs. Upon the entire record, the briefs filed by the General Counsel and Respondent and upon my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent, an Illinois corporation with its principal office located in Chicago, Illinois, and facilities at Cleve- land, Ohio; Redkey, Indiana; Rockford, Illinois; and Fayetteville, New York, is engaged in the production of aluminum castings. On or about July I, 1974, the assets of the Cleveland Precision Castings plant were transferred for purposes of liquidation to the Erie Die Casting Corpora- tion, a Delaware corporation which is a subsidiary of Aurora Corporation of Illinois, a subsidiary of Allied Products Corporation. During the 12-month period imme- diately preceding issuance of the complaint and notice of hearing herein. a representative period, Respondent shipped products valued in excess of $50,000 directly from its Cleveland facility to points located outside the State of Ohio. Upon the foregoing facts Respondent concedes and I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Metal Polishers, Machinists, and the Die Casting Workers Federal Labor Union No. 23487 are now, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Facts Precision Castings Company, Division of Aurora Corpo- ration, in turn a subsidiary of Allied Products Corporation, during the period preceding July 1974, operated four plants located at Cleveland, Ohio; Redkey, Indiana; Rockford, Illinois; and Fayetteville, New York, all engaged in the manufacture of metal castings. Headquarters was located in Cleveland and, whereas the Rockford and Fayetteville plants each had its own sales organization, Redkey and Cleveland were serviced by a single sales organization located at the Cleveland facility. Labor relations for all four plants was controlled through the director of labor I [The allegations in the complaint have been attached hereto as an Appendix. For the sake of clarity. precision. and completeness, the paragraph numbers have been retained as they appear in the complaint. relations of the parent Allied Corporation, William Hensge. In the 1960's when Allied acquired the Precision Casting plants in Cleveland, Rockford, and Fayetteville, all were represented by unions. The Federal Labor Union repre- sented the majority of the approximately 400 production and maintenance employees at the Cleveland plant and the Machinists represented approximately 30 employees at Cleveland. The Machinists represented the Rockford employees and the United Automobile Workers represent- ed the Fayetteville employees. At the time of acquisition, Allied assumed all existing labor agreements and subse- quently negotiated successive agreements thereafter. In early 1972 Allied acquired a fourth plant in Redkey, Indiana, which in May of that year was organized by the Metal Polishers. Following certification by the National Labor Relations Board, a 3-year collective-bargaining agreement was executed on July 10, 1973. On June 1, 1971, a labor agreement was executed between the Die Casting Workers, Federal Labor Union No. 23487, and Precision Castings Company, Cleveland, said agreement to run 3 years. On August 15, 1973, however, the Die Casting Workers affiliated with the Metal Polishers. Shortly thereafter a series of incidents occurred which gave rise to strained relations between the Metal Polishers and Respondent and eventuated in the filing of the charges in the instant proceeding. The OSHA Incident (Case 8-CA-8135, par. 17(A)) Howard Jackson was appointed plant manager at the Cleveland plant of Precision Castings about November 10, 1973. The plant at the time was in terrible physical condition with holes in the floor, oil and water leaks, and broken or bent safety rails. It had been the practice at the plant to dry up the oil and water by using sawdust or a commercial product called Speedy-dri. Jackson decided, however, to undertake a program of renovation, to attack the problem at its source by fixing the leaks rather than to continue to treat the symptoms through the use of sawdust and Speedy-dri. Jackson held several meetings with his supervisors and with the Union to advise them of his intentions and to ask for sufficient time to accomplish his aims. Meanwhile, however, he ordered the use of sawdust and Speedy-dri discontinued. Since the repairs which Jackson intended to make were numerous and would take a great deal of time, the discontinued use of sawdust and Speedy-dri resulted in an accumulation of oil and water on the floor. When this matter came to the attention of the president of the Local, James Massingill, he and his chief steward, Rose Baker, confronted Jackson with the safety problem and demanded that he do something about it immediately. Jackson, quite obviously annoyed, told Massingill that the problem was "none of his damned business," that he should "get the hell back" to his job and that he, Jackson, would take care of the matter. Massingill, angry at being told that the oil and water on the floor was none of his business, promptly contacted OSHA and the Ohio state safety inspector and reported the condition of Each issue/allegation will be referred to in this Decision wherever possible by case number and paragraph number.] 186 PRECISION CASTINGS CORPORATION the plant. This resulted in an inspection of the plant by both OSHA and the State with a citation being issued by Osha against the Company for failure to provide guards, failure to maintain the basement floor in a dry condition, and failure to identify electrical switches in the foundry. During the inspection, Union Steward Quentin Johnson accompanied the inspector and Jackson. He heard Jackson state that he had a $30,000 plan to clean up the plant and that Massingill had not given him a chance to clean up the oil and water on the floor before calling the inspector. Later Johnson told Jackson that he should have informed Massingill and the union committee of his efforts to clean up the plant. According to Johnson, Jackson then stated that he had informed Massingill and the union committee of his plan to clean up the plant and that Massingill was lying to him. General Counsel posits the argument that Jackson's false accusation about Massingill to Quentin Johnson was a deliberate attempt by Jackson to undermine the Metal Polishers Union and its president, Massingill, in violation of Section 8(aX)() and (5). 1 view the incident as a minor disagreement engendered by a few injudicious words spoken in anger, hardly serious enough to warrant its inclusion as an allegation in the complaint. I recommend dismissal of the allegation. Threats by Supervisor Worley (Case 8-CA-8135, pars. 20-25, 28) In early January 1974 Ralph Worley, the supervisor in the alloy department, engaged Steward Quentin Johnson in a conversation while in the metal room office. On this occasion Worley told Johnson that as long as he, Johnson, wore a union badge, Worley would ride his back. He explained that he had to do that because, as a union representative, if he let Johnson get away with certain things, it would look bad to the rest of the union people and they would try to get away with the same thing. Worley stated that he had to use Johnson as an example. I credit Johnson with regard to this incident and find that, by threatening Johnson with disparate threatment because of his union stewardship, Worley interfered with Johnson's Section 7 rights in violation of Section 8(a)(1). As supervisor in the alloy department Ralph Worley was responsible for the assignment of overtime and for making certain that such assignments were in accordance with the contractual requirement that overtime be equalized among the employees. On January 3, 1974, Quentin Johnson advised Worley that there would be a grievance filed over the equalization of overtime. The entire second shift was present at the time and Worley asked each employee whether or not he was satisfied with the way overtime was being distributed. Each employee replied that he was satisfied except for employees John Hunt and Quentin Johnson. Hunt said that he wanted all of the overtime he could get. According to Johnson, Worley then stated, "If there is a grievance filed, I will start passing out pink slips" (warning slips). Worley continued, "I want everyone in this department at all times except for lunch and except for break. Mr. Johnson, you are the instigator of this grievance." Later that evening Johnson filed the grievance and in a second meeting with Worley in the metal room office was told by the latter: You know, I can create overtime. I can catch a man when he wants a long weekend and I can ask him to work eight hours on the Friday or 10 hours, whatever I want to. Especially if I know he is wanting to go out of town. I can ask him to work it and if he doesn't want to work it, I can charge him with it. I can stop the overtime that you have been getting on Saturdays. I am cutting second shift's overtime out completely because part of the overtime being worked on Saturday by the second shift is performed at the hours that first shift would normally work. Still later that day Johnson wrote out a note describing what had occurred earlier; he had several of the employees who had been present sign it: We the undersigned feel that statement below is true and correct. On or about 1-3-1974, Mr. Ralph Worley when informed that he would be served a grievance on overtime hours in the Metal Room, did threaten to start cracking down and writing out pink slips in the future if this did happen. He also stated that he wants everyone in this department unless it was lunch or break. He also accused the union steward on second shift in Metal Room of instigating this grievance. This note was given to Massingill who in turn showed it to Worley, who admitted its contents and told him that he could take it as a threat. Worley explained to Massingill that two of the second shift employees had gotten drunk on the previous December 28 and that, although he had been told to take action against them, he had not done so. He pointed out that another employee, Philip Jones, one of those who had signed the note, was in the habit of stopping on the way to work every day to have a few drinks and that he could be discharged for that. Worley also mentioned still another employee who had punched in another employee's timecard when he was not at work. The tenor of Worley's explanation was that he did not run his depart- ment by the book and he could not see why the grievance was filed when he treated the employees fairly. The following day Johnson filed the grievance for equalization of overtime. Worley thereupon called a meeting of the second-shift employees, advised them that the grievance had been filed, and stated, "Somebody is trying to cut my throat. If we are going to play ball, I am not going to play ball and have you score three runs against me and then call the ballgame off." He then told them once again that he wanted everyone in his department at all times except for lunch and breaks, accused Johnson of being the instigator of the grievance, and again threatened to pass out pink slips. Six of the seven second-shift employees had signed Johnson's grievance. Thereafter, Worley held several more meetings with his employees during which he asked them why they were dissatisfied with overtime. He again accused Johnson of 187 DECISIONS OF NATIONAL LABOR RELATIONS BOARD being the instigator and told him, "I think you ought to get back in line and quit stirring up trouble." During one of these meetings Worley stated: "You got your book to go by and I have my warning slips to go by." Worley admitted telling the employees: Well, for example, every day you go on a break, you never take your 15 minutes. You always go over. You come back late, the whole crew, and I never said anything about that, and dinner was the same way, and Philip Jones used to come in with berry juice on his breath, and I never said anything about it. And I said, If you want to play the ball game this way, I can play it with you. Worley's interrogation of and threats of reprisal toward these employees because they filed a grievance are clearly violative of Section 8(a)(l) and coercive within the meaning of Section 7 of the Act. Although Worley demonstrated animus toward the employees who filed the grievance by threatening them with reprisals, he did not actually take any of the actions which he had threatened. On the contrary, after the grievance was filed, Massingill asked Worley if he could do something to give the second shift some of the morning overtime. Subsequently, a plan was instituted whereby the second-shift employees did share in the available overtime. Worley and Johnson worked out the plan together, with the permission of Jackson and the blessings of Massingill. After approximately a week and a half, however, the second-shift employees advised Worley that they were no longer interested in working overtime and the matter seems to have come to rest there, with the assignment of overtime reverting to the system previously used. It is alleged in Case 8-CA-8135, paragraph 28, that Worley in early February 1974 threatened an employee with reprisals. Quentin Johnson testified that Worley about this time asked him, in the presence of several witnesses, "How do you connect me with your statements to the Labor Board?" Johnson replied, "Mr. Worley, I have nothing personal against you, you are a friend. I filed nothing personal against you. I am not at liberty to discuss what I did file." According to Johnson, Worley then said, "It is a hell of a man that will file charges against another man and not tell him what he is filing." Worley emphatical- ly denies ever discussing Board charges with anyone. None of the employees who were allegedly present during this conversation was called by General Counsel to substanti- ate Johnson's story. Inasmuch as Worley freely admitted several other damaging statements and otherwise appeared to me to be genuinely attempting to testify in a candidly truthful manner, I am crediting his denial that this conversation ever occurred and I recommend dismissal of this allegation. Itemization of Union Time Union President James Massingill testified that it was the custom, prior to January 1974, for him and for other union officials to be permitted to leave their work stations to take care of union business. They were merely required to jot down on their time sheets the amount of time spent on union business. According to Massingill, Foreman Lewick- ey called him into his office one day in early January and told him that henceforth, when Massingill was conducting union business, he would be required to write down the time he left his work station, who he talked with, what the subject matter was, and the time he returned. Massingill refused to follow Lewickey's order concerning the new procedure, that day followed the old procedure, and the following day received a warning notice for his insubordi- nation. Massingill filed a grievance as a result of which he was called to Personnel Director Foster's office where Foster allegedly told Massingill that either Plant Manager Howard Jackson or the vice president of industrial relations, Joseph Warren, had a vendetta against him. According to Massingill, Foster then said, "My job is at stake, but I am pulling this warning slip and tearing it up. Will you be satisfied with that?" Massingill replied, "That's all I ask." Foster then told Massingill to go back and conduct his union business as he had before and he tore up the warning slip. During cross-examination, Massingill was shown a copy of his affidavit covering this incident. The affidavit states that Massingill, under the new procedure, would be required only to show the time he left his department, the time he arrived at the department where he was to conduct his union business, how long he was gone, and the time he arrived back in his own department. Massingill admitted that his affidavit stated nothing about having to identify either the subject matter of his union business or the employee with whom it was being conducted. Massingill testified that, although he had in fact told the Board agent to include these matters, the agent had failed to do so. The affidavit also failed to mention any conversation about a vendetta. Massingill struck me as a witness prone to exaggeration and embellishment. The information given to the Board agent by Massingill as reflected by his testimony concern- ing the contents of his affidavit indicates that he was requested only to itemize time, not subject matter or the identity of employees. Foster's testimony was to the effect that this was the sole information sought and that the reason was that Massingill was spending 70-75 percent of his time on union business and, since the Company was paying for the time, he felt it had a right to know where it was being spent. Foster testified that Massingill never complied with the request but he was never given a warning slip. The record indicates that warning slips are issued in triplicate, the Company, the union, and the employee each receiving a copy. Although Massingill testified that Foster tore up his copy of the warning slip, there is no indication what happened to the other copies. None was produced at the hearing. I find this incident, like so many others herein, to have been blown all out of proportion. Massingill was requested to change slightly the procedure for reporting time spent on union business. He refused to comply with this request. Nothing was done about it. I see no indication of a violation with respect to this incident. Massingill's testimo- ny, where in conflict with Foster's, is discredited. 188 PRECISION CASTINGS CORPORATION The Dolly Collins Incident On January 3 or 4, 1974, the recording secretary for Metal Polishers filed a grievance concerning equalization of overtime with her department steward, Walter Finley. Finley passed on the grievance to the foreman, Tony Bednarik, who commented that Collins was not the right person to file a grievance for overtime since she was "off more than she works." Bednarik also commented that he "going to have to discipline some of these people." A few day later Collins received a warning for taking too much time off from work. Collins had lost a great deal of time because of serious illness of which the Company had been made aware. The Union filed a grievance over the warning issued to Collins and the warning was withdrawn. I find an insufficient basis for finding a violation with respect to this incident. Collins had, in fact, been absent a great deal. She was given a warning because of her absences. When, via the grievance procedure, the Compa- ny was reminded of her illness, the warning was promptly withdrawn and her record cleared. Under the circum- stances, I am unwilling to find that the warning was in retaliation for her filing of the original grievance. Vacation Changes (Case 8-CA-8135, par. 13) The complaint alleges that on January 21, 1974, the Company unilaterally instituted changes in the vacation schedule without notifying or bargaining with the Union. Prior to January 1974 employees had been permitted to take their vacations according to seniority at any time it was mutually agreeable to themselves and their foreman. This system in past years resulted in the plant experiencing severe manning problems during the summer because of the grouped vacations. It was therefore determined that most plant operations should be shut down for 2 weeks during the summer of 1974. According to Personnel Manager Foster, the subject was brought up at a regular labor relations meeting with the Union on January 21. Present at this meeting were Massingill, Field Representa- tive Topolski, and members of the union committee. According to the company minutes, as supported by the testimony of Foster, when the Company announced its intention to shut down the plant for vacation during the last week in June and the first week in July, the Union raised no objection. Topolski merely stated that the employees would need time to make arrangements, such as rentals, for their vacations. Plant Manager Jackson agreed to give adequate notice. After the meeting, on the same day, a notice was placed on the bulletin board to the effect that the plant would be closed as announced at the meeting. Massingill testified that he knew nothing of the Compa- ny's intention to close the plant for 2 weeks until he saw the notice on the bulletin board either on January 21 or 22, 1974. Thereafter, according to Massingill, he protested the planned shutdown at a grievance meeting and also personally to both Foster and Jackson but admitted he never filed a grievance. Massingill's testimony on this matter is confused. Baker supported Massingill's testimony 2 Foster testified that Massingill said something about bargaining over the change, but the matter was not apparently pursued. to the extent that she was sure she and Massingill discussed the notice with Jackson the minute it went up. Although the minutes of the meeting of January 21 reflect the presence of Topolski and three members of the union committee in addition to Massingill, none were called to testify that this meeting did not take place or that the vacation shutdown was not discussed as described by Foster. From the totality of testimony, I conclude that the subject of the vacation shutdown was discussed on January 21 at a meeting between the Company and the Union and that no serious objection to the planned shutdown was voiced by the Union at the time. 2 I make this determina- tion based not only on the credited testimony of Foster but also on the fact that the union witnesses did not testify at all concerning the meeting, no grievance was filed concerning the matter, and, although a refusal-to-bargain charge concerning alleged unilateral changes was filed on January 22, 1974, the vacation issue was never mentioned. I therefore conclude that the Union, upon being notified of the Company's intention to shut down for 2 weeks during the summer of 1974, freely acquiesced in the plan and raised no objection to it, until it much later determined to utilize the allegation to support the rest of its case against Respondent. Denial of Union Representation (Case 8-CA-8135, par. 26) Sometime in February 1974 employee William Hunt complained to his foreman, Paul Kuches, that he was receiving too many rejects from a particular inspector. Kuches and Hunt went to Foster's office about the matter. Foster, apparently annoyed, ordered Hunt to return to work or else be fired immediately. Hunt demanded union representation whereupon Foster reiterated that Hunt should get back to work or he would be fired. Foster testified that Hunt and Kuches came into his office raising hell and fighting with each other, with Hunt complaining about another employee who was not per- forming her work properly. Foster did not want to get involved in the argument and asked them both to go back to work. Foster admitted that Hunt may have asked for union representation and, if he had, then Foster denied it because he did not want to get involved with the problem at the time because of their continued arguing. Kuches and Hunt left without further discussion. Later, Foster contact- ed Kuches and told him to contact the department steward and Hunt and follow the proper procedure, if there were going to be a grievance filed. From the testimony of both Hunt and Foster it does not appear that Hunt was engaged in an interview or meeting with Foster which could conceivably result in disciplinary action being taken against him. If that were the case he would clearly have been entitled to union representation. But Foster did not want to meet with Hunt and Kuches at all. More or less, he just wanted to be left alone, free of the argument going on between the two. Hunt had no specific right to an interview at this time nor to union representa- 189 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion under these circumstances where there was no danger of disciplinary action. N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975). Threats by Kuches (Case 8-CA-8135, par. 30) After being denied union representation by Foster as described supra, Hunt informed Kuches that he was going to the National Labor Relations Board. Thereafter, according to the testimony of Hunt, every day Kuches would ask him if he had gone to the Board and each time Hunt would reply that he had not as yet, but he planned to go. Kuches advised Hunt that, if he went, it would get Kuches in trouble. Hunt, about February 22, did finally go to the Board to offer a statement. When, subsequently, Kuches once again asked him if he had gone to the Board and Hunt replied affirmatively, Kuches stated, "I have gotten in some trouble over that from Bob Foster, the personnel manager and Howard Jackson, the plant manager." I find that the repeated questioning of William Hunt by Kuches as to whether he was going to the Board was unlawful interrogation as proscribed by Section 8(a)( ) and that the statements to the effect that, if Hunt went to the Labor Board, Kuches would get in trouble, were threats similarly proscribed by the Act. Clearly, even though the threats were not directed at Hunt, but were rather more in the nature of trouble that Kuches would suffer if Hunt went to the Board, such a forecast could certainly have the effect of inhibiting Hunt's determination to avail himself of the benefits offered by the use of Board processes if such would result in harm to Kuches, admittedly a personal friend. I find Kuches' statements violative of the Act. On January 22 the first of several charges was filed against Respondent by the Metal Polishers. Pursuant to that charge, several employees volunteered to cooperate in the investigation of the charge by visiting the Board's Cleveland office and offering affidavits. Interrogation of Employees by Foster and Jackson (Case 8-CA-8135, par. 27) One of the employees who offered an affidavit during the investigation was Arthur Bryant who visited the Board office in late January or early February. On the same day that he had visited the Board office, Bryant was called into Foster's office. Present, in addition to Bryant and Foster, were Jackson and employees Philip Jones and Bob Peebles. Foster began the conversation by asking Bryant if he liked his job. After some small talk he then asked, "Well, what went on down at the Labor Relations Board?" Bryant told Foster about giving a statement to the Board agent. Foster then repeated his earlier question as to whether Bryant liked his job. Foster also asked the employees present if they were having problems in the metal room. Bryant replied that there were some overtime problems. Foster then asked Bryant if he liked his supervisor, Worley, and Bryant answered in the affirmative. 3 Although Foster testified that the employees had been invited into his office to discuss rumors that Massingill and Worley had been threatening them and they had volunteered the information about the National Labor Philip Jones similarly testified that he too was asked by Foster what he had done at the National Labor Relations Board. Jones replied that he had given a statement. Foster went on to ask Jones how he got along with Worley. Jones replied that Worley was a nice foreman, then recounted that Worley had stated that he would give out pink slips if the employees in his department were going to "play ball like that." As Bryant was leaving Foster's office, John Hunt and Daile Vance were entering. They too had been summoned to Foster's office. Once in Foster's office, they were also interrogated concerning their trip to the Board office. Foster started off the conversation by stating that he had heard that Massingill was going around threatening people to get them to go to the Labor Board. Hunt denied that there had been any threats. Jackson then demanded to know what was going on at the Labor Board. Hunt filled Jackson in on the situation in the alloy department as background and Jackson stated that he did not want the foremen or Massingill threatening anybody. Foster then asked Hunt and Vance if they wanted union representation but they declined the offer. Vance supported Hunt's testimony. Foster denied that employees were asked about their statements to the Board.3 I find that interrogation of these employees as to whether they had gone to the National Labor Relations Board and why constitutes violations of Section 8(aX)(1) of the Act. This type of interrogation, when coupled with the question, "Do you like your job?" implies that, if they liked and wanted to keep their jobs, they should not be visiting the Labor Board offering statements. Foster's Threats of February 8, 1974 (Case 8-CA- 8135, par. 29) On or about February 8, Massingill and his chief steward, Rose Baker, confronted Foster and Jackson in the office of the personnel manager and asked them why they were interfering with the Union's witnesses. Foster replied that the employees had been questioned to determine whether Massingill had threatened the employees in order to get them to go to the Labor Board and that the employees, in the process, had volunteered what happened at the Board. After Jackson left, according to Massingill, Foster said, "You better not go back down to the Labor Board any more. If you want to go down there, you will have to go after working hours, and you better not take no more witnesses down there during working hours." General Counsel asserts that these statements by Foster directed at Massingill are violative of Section 8(aX)(I). I do not agree. It appears that Foster was advising Massingill that, if he intended to visit the Labor Board offices for the purpose of filing charges or carrying witnesses to the Board offices to furnish support for such charges, he should do so on his own time. Though General Counsel argues in his brief that the established practice was for the union president and chief shop steward to be permitted to leave the plant during working hours to carry out union business, I do not believe that section 11.5 of the contract (cited by Relations Board. I credit the union witnesses and find that the interview occurred basically the way they were described by the union witnesses. 190 PRECISION CASTINGS CORPORATION General Counsel) contemplated that the Company should be required to finance its undoing by paying the president of the Local for time spent in filing charges. Where other union business, e.g., the processing of grievances or the conducting of labor negotiations, is at least arguably beneficial to both parties inasmuch as its purpose is the maintenance of labor peace, the filing of the instant charges does not have that immediate purpose. Rather, the charges are accusations that the employer is violating the law. Foster's request that the filing of charges by Massingill against the Company be done on his own time seems a reasonable one. I find no violation here. Change of Payday (Case 8-CA-8135, par. 14) Prior to February 21, 1974, the day shift was normally paid on Thursday night. The Company was, however, admittedly encountering a substantial amount of employee absenteeism and it was felt by Foster that, if payday were moved to Friday, it might induce more people to work that day. On or about February 17 or 18, Foster broached the the subject with Massingill. According to the latter, Foster spoke to him about the possibility of paying everyone on Fridays in order to cut down on absenteeism and suggested that they start the second or third week in March.4 Massingill advised Foster that he did not think that the second-shift employees would appreciate the change. Foster suggested that Massingill check with them to find out their feelings on the subject. Massingill promised to bring it up at their next scheduled meeting which was on March 10. Massingill testified that, the next thing he knew, the Company had posted a notice dated February 18 that, effective Friday, February 22, 1974, and thereafter all employees would be paid on Friday. Upon seeing this notice Massingill and either Baker or Forinash, another committee member, complained to Foster that the contract could not be changed without the approval of the people. Foster argued that the contract did not prevent the Company from making this change. Baker testified that she and Massingill discussed the proposed change with Jackson after the notice was posted. They told him that the employees would object and that they opposed it because of the difficulty of cashing checks and doing the shopping if employees were paid on Friday. Foster testified that it was a few days before the posting of the notice that he first spoke with Baker and Massingill about changing paydays to Friday because of the absentee- ism on Fridays. According to Foster, he told them that he desired to make the change immediately and denied that he said that he intended to wait several weeks before making the change. Foster testified that Massingill did not say anything about taking the idea back to the membership and that no one complained when the notice was posted on February 18, 1974. No grievance was filed concerning the change in paydays. In the face of this fact and in consideration of the existing situation as it stood in the early months of 1974 at the plant, where grievances were filed in large numbers, at the drop of a hat, it is difficult to believe that Massingill 4 Elsewhere Massingill testified that Foster mentioned that he intended to institute the new payday during the first or second week in March. took serious issue with Respondent for its decision to change the payday from Thursday to Friday. I believe, rather, that, as Foster testified, Massingill agreed to Foster's suggestion that the payday be switched from Thursday to Friday and that it was only much later, when the employees took serious umbrage at the move, that Massingill decided to take a firm position on the matter in opposition to the proposal. Therefore, since the change in payday was not protested by the Union at the time it was made, the change was not unlawful. Schnell Tool & Die Corporation, and Salem Stamping & Manufacturing Co., Inc., 144 NLRB 385, 411-412 (1963); Betty Brooks Company, 99 NLRB 1237, 1247 (1952). Refusal To Negotiate with Massingill (Case 8-CA- 8135, pars. 17(C) and (D)) Massingill testified that, on February 16, he sent to Foster s a letter advising him of the Metal Polishers intention to modify its existing contract, the date of termination being June 1, 1974. The letter suggested a meeting date to open negotiations of March 11, 1974, and the plant as the place to meet. Massingill further testified that, in April, he reminded Foster of the letter and of the fact that he had never received an answer but Foster replied that Hensge would take the matter up with Field Representative Marty Topolski. According to Massingill, he then informed Foster that he, Massingill, was spokes- man for the Union and that Foster had been told this before, down at the injunction hearing. Massingill added that Topolski was only his advisor. Foster replied, "You mean Topolski will not be in on it," whereupon Massingill stated, "He will be in on it, if I want him in on it, as an advisor, and not as a spokesman for the Union." Foster rejoined that Hensge would take care of it. On April 5, Massingill sent a second letter offering to commence negotiations on April 22. The day after it was received, Foster, both in writing and orally, confirmed arrangements with Massingill. Prior to this time the Company, through its director of labor relations, William Hensge, had dealt with the Union primarily through its field representative, Marty Topolski. Topolski had been its chief spokesman in final-step grievance procedures and, although Massingill was often present at these procedures, he had never protested Topolski's role as spokesman. Moreover, when negotiation sessions were scheduled in early 1974, the scheduling was done through Topolski who also acted as spokesman until he himself advised Hensge on June 6 that henceforth Massingill would be spokesman. Despite Massingill's claim that he was not afforded proper recognition during the negotiations there is no indication that the Company did not pay him the deference required under the circum- stances, even though Topolski up until June 6 was regarded as the Union's chief spokesman. Following the injunction proceeding before Judge Thomas following strike action discussed infra, a number of meetings were held in an attempt to resolve outstanding grievances. These meetings were held at the Mediation and 5 The letter was in fact addressed to Jackson. 191 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Conciliation Service offices. It was understood that, since the meetings concerned the processing of grievances and Massingill was most knowledgeable in that field, he would be chief spokesman for that purpose. Respondent's representatives acknowledged without hesitation Massin- gill's position in these matters. All in all, it would appear that, if Respondent's representatives failed to accord Massingill his proper due as spokesman for the Union, it was through misunder- standing rather than any attempt on their part to undermine his position as union president. I cannot therefore find a violation in this respect. The February Strike On February 21 employees John Hunt, William Hunt, Arthur Bryant, Daile Vance, and Dan Witherspoon walked off the job after obtaining sick leave passes from the nurse. John Hunt testified that, earlier during the second shift, having apparently become frustrated by the poor physical condition of his working area, he met Howard Jackson and Foster and asked them to accompany him back into the alloy department where he and Daile Vance pointed out the unsatisfactory condition of the equipment and facili- ties. They indicated the lack of windshields on the tow motors, holes in the ladles, bad tires, and holes in the floor as well as the grease and water accumulated thereon. Jackson said that he would see what he could do, left, and the employees went to work. John Hunt further testified that at or about 6 p.m., at breaktime, he heard that there was a meeting in the lounge. When he arrived there, he found 75 to 100 employees gathered. The meeting appeared to be spontaneous. There was discussion among the employees about various gripes. Topics discussed included the issuance of pink slips and the fact that certain foremen had called some of the employees names to which they objected. The complaining was general and nobody seemed to want to take action so John Hunt announced, "I think the whole thing makes me sick, I am going to go home." He then went into the nurses' office and obtained a sick slip. The other employees from the alloy department mentioned above did the same. The slips were handed to the foreman and the five employees walked off the job. The reasons given by John Hunt for walking off the job was that he was tired of being scared of losing his job and was tired of being burned. William Hunt testified that he and certain other employees tried to schedule a meeting of employees in the cafeteria in order to see what the people wanted to do because, as he described it, "We were tired of being pushed, we were in the corner, and we had to start coming out fighting." This testimony is imcompatible with John Hunt's testimony that the meeting in the lounge/cafeteria was spontaneous although John Hunt did indicate that there had been some talk over the previous few days, implying that employee action was being planned. Those that met included the alloy department, foundry, and first inspection department. According to William Hunt, "the people started chickening out to walk out, so six of us decided we would be the ones to start it." When asked specifically why he walked off the job, William Hunt stated that he had been threatened, he was afraid of losing his job, the employees were getting heavier workloads, and the Company wanted to change the paydays. He also men- tioned that he thought it was at that time that the Company was locking the gate so that the employees could not get out for lunch or during breaks. William Hunt also indicated that safety conditions-grease on the floor, holes in the floor, and defective equipment that caused burns- also were reasons for the walkout. William Hunt, like the others, obtained a sick slip from the nurse and left the plant. He admits that he was not sick, just "sick of being shoved around." On cross-examination William Hunt stated that there had always been water and grease on the floor and holes in the floor. He described this strike as "probably the most disorganized strike there was" noting that "you had half of them down at the bar half of the time, you had half running around with women, it was a very unorganized strike, nobody led nobody out." Arthur Bryant testified that the decision to go out on strike was made from a couple of days to a week before the strike during a discussion among those who initiated the walkout. The reasons listed by Bryant for the walkout were Foster's calling him into his office, asking him how he liked his job and why he went to the NLRB; Worley's threat to hand out pink slips; the safety problems with the equipment; and changes in vacations and the payday change. Bryant also noted his dissatisfaction with the fact that the Company wanted to change his shift which would have interfered with his going to school. Daile Vance testified confusedly about the strike, mistakenly identifying the day of the strike as the same day Worley had threatened the alloy department employees with pink slips-an incident that occurred several weeks previously. Vance vaguely reported that the reasons he walked off the job were because the Company was not keeping its promises and because of the threats about his losing his job. He, like the others, obtained a sick slip from the nurse before leaving because he was "sick and tired" and because he "wanted to go home." After leaving the plant, the five employees walked across the street and waited in the parking lot. About half an hour later Worley came out with the assistant plant manager and asked them what it would take to get them back to work, indicating he would talk to Foster and Jackson about it. The strikers stated that they wanted things straightened out. Worley then went back into the plant. Shortly thereafter, Quentin Johnson came out and joined the strikers after also obtaining a sick pass from the nurse. According to his testimony he was, in fact, ill and was on the way home when asked by the strikers to be their spokesman. He stated that the strike had nothing to do with his leaving work, that he did not know that the five had walked off the job. When he asked them why they had walked off the job, John Hunt replied that he was tired of being threatened for coming down to the Labor Board. Johnson agreed to act as their spokesman, as they requested. He was their steward. Johnson testified that, after the five employees walked off the job, he was asked to drive the hot mule, a job ordinarily performed by one of them. He refused because he did not have a safety hat or high top shoes. He was then 192 PRECISION CASTINGS CORPORATION ordered to run the hot mule, whereupon he decided he was too sick to perform the job. He then left and joined the strikers in the parking lot. Shortly after Quentin Johnson joined the five employees in the parking lot, Worley came out of the plant again. He advised the strikers that Foster refused to talk to them until they returned to work. They replied that they would not return until Foster talked with them. By 9 p.m. half the second shift had walked off the job. By 11 p.m. almost all of the second shift was out and the third shift refused to go into the plant. Massingill was at home at the time the strike started and testified that he did not know how it started. He was called at home by Assistant Plant Manager Payne who advised him that, at the time, 15 to 20 employees were out on the street and he wanted Massingill out at the plant as quickly as possible. When Massingill arrived, he asked the strikers what had happened. According to his testimony, they replied that they were tired of being threatened for filing grievances, that filing unfair labor practices did no good. Massingill advised them that the strike was unauthorized, addressing the employees who by then had formed a picket line. They replied that they might as well walk out and get fired all at once rather than get fired one at a time. They stated that they would not return to work until matters were straightened out. Massingill advised them to return to work, that the Union and the Company would try to get things straightened out. Massingill then entered the plant and met with Jackson and other members of management. He told them that the Union was not behind the strike whereupon Jackson told him to go out and talk to the people. When he did so, the strikers requested that Johnson be present when Massingill went in to talk to Jackson. Jackson agreed to this and called in Worley to be present also, in order to discuss the problems that had erupted in the alloy department. They fully discussed the incident involving Worley threatening employees with pink slips when the equalization of overtime grievance was filed the previous January 3. Worley defended his action and Jackson, after first defending Worley, stated he was wrong for threatening the employees with pink slips. Jackson told Massingill to tell the strikers that, if they would return to work, management would sit down and straighten things out. Foster came in at that time and stated that there would be no more talking until the employees returned to work. The meeting lasted about half an hour. Nothing was resolved and the strike continued through the weekend. To summarize, the reasons given by the union witnesses for calling the strike are as follows: 1. The poor physical condition of the working area, and defective equipment. 2. The threat of termination based on the February 6 meeting in Foster's office where the involved employees were interrogated about their offering affidavits at the NLRB offices. 3. The threats of more onerous working conditions, issuance of pink slips, and a general cracking down on the employees involved as manifested by Worley's statements of January 3 and 4. 4. The change in payday from Thursday to Friday for second-shift employees. 5. The change in vacation schedule. I. With regard to the physical layout at the plant the record is fully documented and Respondent has freely admitted through its own witnesses that the physical condition of the facilities and equipment left much to be desired. The frustration felt by the employees forced to work under these conditions most certainly contributed to their decision to walk off the job. Failure of Respondent, however, to maintain the facilities and equipment in good order does not convert a strike by employees protesting such conditions into an unfair labor practice strike. Moreover, since the unsatisfactory conditions to which the employees objected were of longstanding duration, I would conclude that said conditions were perhaps a contributing consideration in their decision to strike, but were not the immediate cause thereof. 2. With regard to the February 6 meeting at which Foster interrogated the employees concerning their trip to the National Labor Relations Board, I have already found the interrogation and implied threats engendered by the interrogation violative. But that meeting had occurred 2 weeks before. The testimony of the strikers that they struck on February 21 because of threats from Foster and Jackson during a meeting 2 weeks prior thereto, I find incredible. Not only was the February 6 meeting too remote in time to be considered a cause of their February 21 job action ( Winn-Dixie Stores, Inc. v. N. LR. B., 448 F.2d 8 (C.A. 4, 1971)), but it must be remembered that, during the meeting on February 6 during which the employees were questioned about their visiting the Board's offices, they were also asked if they wanted union representation during that interview and they declined Foster's offer. If there were any real fears of reprisal from Respondent because of their offering statements to the National Labor Relations Board, they certainly would have accepted management's offer to have union representation during the February 6 interviews. Clearly, they had no fear of losing their jobs on February 6, although management's actions on that day were clearly violative, and nothing occurred between February 6 and February 21 whereby they should suddenly fear for their employment. The causal connection between the unfair labor practices and the allegedly resultant strike is not substantially proved as required. Typoservice Corporation, 203 NLRB 1180 (1973). 3. With regard to the threats by Worley in early January that pink slips would issue and a general cracking down would occur because of the filing of the grievance, it is again noted that that incident occurred approximately a month and a half prior to the strike and is not only too remote in time to warrant the conclusion that it was the cause of the February 21 walkout, but the record reveals that Worley, since that time, had been on good terms with those who initiated the strike. The grievance that occa- sioned Worley's disproportionate reaction on January 3 and 4 concerned equalization of overtime among the employees who eventually struck. But at Massingill's urging Worley got together with Quentin Johnson and formulated a plan to equalize overtime among the employees who filed the grievance. Subsequently these employees decided that they did not want the overtime after all. They signed a statement to that effect and the 193 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whole thing was apparently forgotten. I can see no legitimate reason why the strikers would plausibly harken back to an incident which had occurred 6 or 7 weeks previous, to a problem which had long since been solved, to use as a reason for the strike on February 21. Again, I find no causal connection between the January 3 incident involving Worley and the decision of the alloy department employees to strike on February 21. 4. & 5. I have found that neither the change in vacation pay nor the change in payday were unfair labor practices and they cannot therefore have the effect of making the wildcat strike of February 4 an unfair labor practice strike in the eyes of the law. I am not unmindful of the fact that the individuals who initiated the strike on February 21 discussed these incidents which preceded it at the time they went on strike and so I am not concluding that the alleged reasons for the strike are afterthoughts as is so frequently the case in similar fact situations. Rather, I consider the fact that the strikers had previously been acting frequently in concert with each other in the alloy department when dealing with management, and at the same time with the support of both Quentin Johnson and James Massingill, of more than mere passing interest. During this period, throughout January and February, the Union and the Company were constantly at odds and it would be an understatement to say that the relationship was abrasive. The Union had filed in the neighborhood of 100 grievances and the Company was constantly attempting to make changes in operations which the Union fought tooth and nail. Under the circumstances it is equally plausible in the face of the entire congeries of circumstances to conclude that the five alloy department employees who planned the walkout deter- mined in advance to dredge up stale, if not ancient, pretexts with the help, perhaps, of certain more knowledge- able union officers to support their planned job action, though that job action was most probably motivated by the sole circumstance of importance to them that was of a timely nature. Thus, when the Company announced on February 18 its intention to postpone paydays from Thursdays to Friday and advised Massingill that the purpose was to put a halt to Friday absenteeism, those employees adversely affected might very well have decided on Thursday, February 21, the first payless Thursday, not to work on Friday, just to show the Company that they could not be pushed around. The point was to show the Company that if it was going to move payday from Thursday to Friday to insure attendance the disgruntled employees in the alloy department were prepared to insure that the plan would not work. Though the evidence of union complicity in the wildcat is not concrete in nature nor of such probative value as to support such a charge against the Union, the possibility that the strike was called solely because of the shift in paydays is strong enough to balance out whatever preponderance General Counsel claims to support its theory that the wildcat was a legitimate reaction to the unfair labor practices which had 6 Inasmuch as the memorandum of understanding does not refer to reprisals foir filing grievances or filing affidavits in support of unfair labor practices. the indication supports the conclusion that these matters had little or nothing to do with the decision to strike. The first substantive demand contained in the memorandum. it should be noted, requires that second- occurred several weeks before. I am therefore unwilling to find that the February 21 strike was, in fact, an unfair labor practice strike. Inasmuch as it was not an unfair labor practice strike, the wildcat was in violation of the no-strike clause of the contract, section 7.1, and the participants therein are unprotected. Moreover, granting, arguendo, that the strike was called because of the January 3 and early February incidents as the Metal Polishers contends, the question arises as to whether the unfair labor practices which occurred on those dates were serious enough to convert a protest strike into an unfair labor practice strike, at a time when the contract contained an operative no-strike clause. Considering the remoteness in time of these two incidents, plus the fact that their immediate impact was on a very few employees located in a single department, I find that the calling of a strike of an entire plant employing approximately 400 employees because of said incidents was unjustified and insufficient to warrant the conclusion that the protest strike was an unfair labor practice strike. Arlan's Department Store of Michigan, Inc., 133 NLRB 802 (1961). By the following day, February 22, the strikers had been joined by almost the entire employee force on the picket line. Massingill, acting as go-between, obtained demands from the strikers and presented them to management. As a result of the negotiations which followed, the following memorandum of understandings was entered into by the Company and Union: MEMORANDUM OF UNDERSTANDING It is agreed between the Company and the Union that the following matters discussed on this date were agreed to as follows: (1) There will be no reprisals and/or disciplinary action taken against any employee as a result of the recent work stoppage. (2) Second shift employees will be paid on Thursday night. However, the union agrees to work with the Company in implementing an equitable program to curb absenteeism. (3) The union requests that the case of Horace Miller be submitted directly to arbitration, provided the grievance is filed timely. Inasmuch as the union has complied with the terms of the grievance procedure by meeting with the top company officials whereby the company has absolutely refused to reinstate said employee [sic]. (4) The company agrees to correct any hazard detrimental to the safety of the employees, as safety is everybody's business. (5) The company agrees to correct any discrepancy in the piece work rates for the Trim and Foundry departments. (6) The company agrees to follow the provisions of the contract in posted jobs. These jobs will be awarded shift employees he paid on Thursday nights. Though not conclusive, this would tend to support the above hypothesis that the second-shift alloy department employees struck in retaliation for their failure to be paid on Thursday, February 21. 194 PRECISION CASTINGS CORPORATION to the employees with the greatest seniority pursuant to the contract. (7) Vacations will be granted as provided for in the contract. (8) In consideration of the above, the union will not engage in any unauthorized work stoppage. The memorandum, dated February 26. 1974, was executed by the union negotiating committee and by Foster and Jackson. Demotion of Alloy Department Employees (Case 8-CA-8135, par. 32) On March 4, the Company demoted three alloy depart- ment employees to lower paying jobs. General Counsel alleges that the demotions were in reprisal for their role in the February strike. The three employees were Daile Vance, Calvin McKenzie, and Louis Screen. Vance, according to General Counsel's theory, was laid off because of his direct participation in the strike which participation is fully documented in the record. McKenzie and Screen, according to General Counsel, were laid off because they had less seniority than Vance, and in order for Respondent to work its way up the seniority list to get to Vance. Ralph Worley, however, testified with regard to the demotions that in an early March meeting Jackson announced to all foremen that the Company was carrying too many employees and that there would have to be cutbacks in each department, in Worley's department because of a drop in production from 120,000 pounds of metal per day to 80,000 pounds per day. Worley was directed to cut down by five employees. After some discussion, it was agreed that Worley would only have to cut back by three employees. After checking the seniority list, Worley advised Louis Screen, his youngest employee in seniority, that he would be laid off. Screen was offered a job in the casting department and transferred there. Vance was second from the bottom and was therefore laid off but chose to utilize his bumping rights by bumping into the trim room where he had departmental seniority. McKen- zie, who was the third from the bottom in seniority, after some delay, bumped into the first inspection department. Thus, according to Worley's uncontradicted testimony, none of the three was laid off. Rather, those employees who were bumped by Vance and McKenzie, or other unidentified employees further down the seniority line, were laid off. Those who were hurt most by the layoff were not apparently involved in the strike. Others, identified in the record as initiators of the strike action of February 21, were not demoted. There appears little to support General Counsel's allegation concerning discriminatory demotions, Massingill's testimony to the effect that he was told by Worley that Vance had been demoted because of his role in the strike notwithstanding. I do not credit Massingill and I recommend dismissal of this allegation. Unilateral Wage Increase (Case 8-CA-8135, par 6.) In early March Personnel Manager Foster spoke to several employees in the alloy department concerning the possibility of upgrading the alloy melters job. The only other job classification in the department-the hot metal dispatcher's job-paid 14 cents per hour more. However, when the hot metal dispatchers were absent from work the alloy melter's inability to perform the hot metal dispatch-. er's job adversely affected production, both as to efficiency and safety. After first discussing the problems with Plant Manager Jackson, Foster talked the problem over with the employees in the alloy department and advised them that the Company intended to upgrade their jobs by training them to do the hot metal dispatcher jobs so as to permit greater flexibility among the employees in the department. The reclassification would entail a 14-cent-per-hour wage increase. During the discussion with the employees only the section steward, Quentin Johnson, was present to represent the Union. No one objected to the plan during the meeting. A day or two later at a meeting between the Union and the Company, called to discuss other matters, Massingill questioned the fact that the Company had bypassed the Union in its decision to grant the 14-cent-increase to the alloy department employees. An argument ensued with Massingill faulting the Company for bypassing it and going directly to the employees about the raise and the Company accusing the Union of not caring for the employees' welfare. The upshot of the meeting was that Jackson ordered the plan implemented with the statement that he, personally, would take full responsibility. Meanwhile, Massingill approached Foster on the subject, pointed out that it was improper under the labor agreement for the Company to be training employees on the hot metal dispatcher job while one of the regular hot metal dispatch- ers, Vance, was on layoff from that classification. Foster agreed that Massingill's point was well taken and the plan was abandoned. No one received a wage increase or reclassification and the training for the hot metal dispatch- ers job amounted to only a few hours of on-the-job training performed sporadically by Arthur Bryant under the direction of a fellow employee; it was shortly discontinued. Although the Company's plan should have first been cleared with the Union, and its failure to do so may be viewed technically as a violation, I do not consider it, in light of its eventual outcome, to be of such import as to be dignified with the appellation "unfair labor practice." Rather, the incident is a reflection on both parties of their constant bickering over matters which, with a little bending on both sides, could have resulted in some benefits for all but, because of a preference for confrontation rather than cooperation, resulted in one more occasion for dispute. I recommend dismissal of the allegation as unworthy of serious consideration. Issuance of Warning Slips (Case 8-CA-8135, par. 18) During a meeting between union and management on March 11, 1974, a discussion arose concerning chronic absenteeism in the plant. It was agreed by the parties that chronically absent employees could be required to submit doctor's slips. The question then arose as to what was meant by chronic and both parties zeroed in on the figure 10 as indicating chronic absenteeism. Jackson then told the 195 DECISIONS OF NATIONAL LABOR RELATIONS BOARD foremen present to start correcting the chronic absentees. The meeting adjourned at this point and, as the union representative left, Jackson requested his foremen to remain. He then instructed the foremen to crack down on the chronic absentees and anyone with 10 or more absences should be watched and given warning slips. Sometime after the meeting was over, Worley noticed that some of the other foremen were in their offices going through their records and writing warning slips for all employees who had already accumulated 10 absences. Later, upon meeting Chief Steward Baker who had attended the meeting earlier with Massingill, Worley 7 informed her of his concern that he thought the other foremen had misunderstood Jackson when he discussed warning slips with them. He told her that they were in the process of writing up employees with 10 or more absences. He also told her that Jackson had not given such an order but that Turback and Lewicky had misinterpreted Jack- son's orders. An hour or two after Worley's warning of what might happen, Baker was advised by one employee that he had been given a verbal warning about an absence by his foreman, Lewicky. Baker went in to talk to Lewicky. Lewicky confirmed the warning and stated that he intended to give a lot more warning slips. Baker said she would see Jackson about the matter after Lewicky stated that "he had his orders." But neither Baker nor Massingill, who was aware of the volatile situation, attempted to straighten the matter out because, when they went to talk with Jackson about the matter, they found him in conference and decided it could wait till morning. General Counsel alleges this incident as a violation of Section 8(a)(l) and (5) in that Respondent unilaterally instituted changes in the method of issuing warning notices to employees. In actuality, aside from the one verbal warning there is no evidence that any warning notices for absenteeism were issued in March. Company records reflect that none were issued and no witnesses were produced to contradict the content of those records. It is clear that some of the overzealous foremen intended to issue such notices but apparently were dissuaded from doing so once it was made clear that their interpretation of Jackson's orders was incorrect. I find that the incident was a matter of inepitude on the part of Jackson and his foremen in communicating with each other, for if it were a deliberate plan to unilaterally change8 the warning notice system without bargaining with the Union, Worley would not have advised Baker of what was happening. I also feel that, inasmuch as it was only about 2 weeks since the last wildcat strike, Massingill should not have ignored the potential problem and gone home without first attempting to clarify the situation before it could get out of hand. The circumstance appears to be no more than an unfortunate failure of communication, not a deliberate refusal to bargain. I recommend that the allegation be dismissed. T Where Worley's testimony is inconsistent with Baker's and Massin- gill's. I credit Worley. I Moreover, it is doubtful that this action was in fact a unilateral change Jackson's Alleged Misstatements to Employees (Case 8-CA-8135, par. 17B) Sometime after the February strike terminated, employee Charles Clock, a union steward, engaged Plant Manager Howard Jackson in conversation about the February strike. According to Clock, during this conversation Jackson made the remark that "it [the strike] didn't cost him a dime to get the employees back to work, that he just made a lot of promises, and they all came back to work so it didn't cost him a penny." Clock testified that Jackson also stated that Jackson "would tell Massingill one thing and Massingill would tell the people something else." General Counsel contends that Jackson's statement to Clock about Massingill constituted an attempt by Jackson to undermine the union president in violation of Section 8(a)(1) and (5) and his statement concerning the February strike settlement indicated bad faith on his part. I find, however, that Clock's testimony was confused and unreliable. Whereas, in his direct testimony Clock said that the above statement was made, in his affidavit it came out that "Massingill would tell the Company one thing and the employees something different." During cross-examination Clock testified that both statements had been made, then testified that his "statement was given from memory, from an incident that was two or three weeks beforehand, it was to me rather irrelevant at the time." Thus, Clock called into question his own testimony as being unreliable. Since whichever way the statement was supposedly phrased by Jackson, it still called Massingill's unreliability and credibility into question, I am unwilling to rely upon such vague testimony to find a violation. On the evening of March II another strike 9 was called and, at the end of the second shift when employees once again began picketing the plant, Howard Jackson called a meeting in the cafeteria. Massingill arrived at the cafeteria meeting from home after being summoned by management and advised of the wildcat. During the meeting, certain employees criticized Jackson, charging him with lying to them and not living up to the memorandum of agreement signed in settlement of the February strike. Jackson, in turn, complained that Massingill was lying to the employ- ees. Clock then brought up his earlier discussion with Jackson wherein Jackson had said that Massingill had misrepresented facts by telling Jackson one thing and the people another. General Counsel charges that the statements made by Jackson about Massingill during this meeting constituted an attempt by Respondent to undermine the union president in violation of Section 8(a)(l) and (5). However, cases are myriad wherein, during the conduct of labor relations, one side or the other has made accusations similar to those here involved. Indeed, if a violation were found each time the accusation of misrepresentation were made or the term "liar" was used during the heat of argument, the volumes of labor case law would be tenfold what they are. Deeco, Inc., 127 NLRB 666 (1960); Kay Provision Company, 203 NLRB 706 (1973). It is unlawful inasmuch as the record indicates that the Company had long been issuing warning slips for absenteeism. 9 Discussed more fully, infra. 196 PRECISION CASTINGS CORPORATION for one party to refuse to bargain with the other because of intemperate language or charges made during negotiations or while conducting labor relations. It is not that such action is condoned by the law, but it is, nevertheless, understood to be such a part and parcel of the give and take of labor management relations that it is generally overlooked. Gerhard Landgraf d/b/a Bay Standard Prod- ucts Mfg. Co., 167 NLRB 340 (1967), affd. 79 LRRM 2098, 66 LC Para. 12,188 (C.A. 9, 1971). No violation is ordinarily found and I find none here. Unilateral Change in Starting Time (Case 8-CA- 8135, par. 15) General Counsel alleges that on March 18, 1974, the Company unilaterally instituted changes in the starting time of employees without notifying or bargaining with the Union. The record reveals no evidence to support this allegation and I shall recommend its dismissal. The March 11-19 Strike and Reprisals against Strikers (Cases 8-CA-8135 and 8279, pars. 7 and 8) As noted above, the employees of the Cleveland Precision Castings plant walked out on their second wildcat strike the night of March 11.'0 Following the meeting in the cafeteria described above, after union and management officials accused each other of misrepresenta- tion, the majority of employees left the plant to join in the strike. General Counsel alleges that the March 11 strike was an unfair labor practice strike which resulted from the various unfair labor practices alleged to have occurred prior thereto, as discussed supra, and because Respondent failed to abide by the memorandum of agreement which settled the February strike. Respondent contends that the March I I strike, like the one in February, was another unprotect- ed wildcat strike in breach of the existing contract. Similarly, General Counsel further contends that, during the strike and after it was settled, Respondent took reprisals against a number of employees for participating in the strike and, inasmuch as the strike was an unfair labor practice strike, the reprisals were also unfair labor practices. Specifically, the reprisals allegedly consisted of: a 3-day suspension of all union stewards observed on the picket line-Josiane Bitonti,.l Walter Finley, James Leahy, Charles Clock, and Elizabeth Phifer; the discharge of the leaders of the strike-John Hunt, William Hunt, and Daile Vance; and the discharge of Idel Quinones, James Gallagher, and Jackie Bragg for alleged picket line misconduct. Respondent counters that the March strike was not an unfair labor practice strike; that the contract in effect at the time contained a no-strike clause, section 7.1; that similarly the contract provided for disciplining of any employees participating in an unauthorized strike, section 7.2; and therefore the discharges and or suspensions of the participants were warranted. i' On March 19. the U.S. Distnct Court for the Northern Distnct of Ohio issued an injunction ordering the strikers back to work. With regard to the suspensions of the five union stewards, Respondent admits that it suspended them and in fact did so because they were stewards who participated in the strike. Respondent argues that, under the existing collective-bargaining agreement, the Union had specifical- ly pledged that, in the event of any work stoppage, the Union would notify employees that they were in violation of the agreement and would take all reasonable steps to restore normal operations. Respondent further argues that, under the contract, stewards were authorized to function as representatives of the Union. It is not contested that, immediately prior to the strike, the five suspended employees held positions as stewards in the Metal Polishers Union. When the strike began, the five did little or nothing either to prevent it or to stop it once it began. On the contrary, all of them joined the picket line at the outset or participated in the picketing shortly thereafter. The General Counsel charges and the Respondent freely admits that the five employees were suspended because they were union officials who participated as pickets during the strike. There is no factual question on this point, merely a legal one. The threshold question is first whether the March strike was a protest strike unprotected in the face of the no-strike clause or an unfair labor practice strike as General Counsel contends. As noted above, I have found that the incidents enumerated above which occurred prior to the February strike were insufficient to warrant the conclusion that the February strike was an unfair labor practice strike. The question then is, what occurred subsequent to the February strike that could conceivably be considered an unfair labor practice upon which the strikers based their job action in March and which would therefore be determinative as to whether the March strike was, in fact, an unfair labor practice strike or merely an unprotected job action which subjected its participants to discipline as called for under the terms of the existing contract. The incidents which occurred between February 26 and March 12, relied upon by General Counsel to support the theory that the strike was an unfair labor practice strike, include the offer of the 14-cent-per-hour wage increase or reclassification of the alloy department employees, and the alleged change in the system of issuing warning slips to employees with records of chronic absenteeism. But I have already found that neither of these incidents was an unfair labor practice. The General Counsel adds the failure of Respondent to live up to the memorandum of agreement which settled the February strike as an additional basis for finding the March strike to be an unfair labor practice strike. This contention requires a close look at the memorandum and an analysis of what occurred with regard to its provisions subsequent to its execution. The memorandum was executed in settlement of the February wildcat strike. Its provisions are listed, supra. General Counsel attempted to show that there were reprisals taken against certain employees because of their participation in the February strike. I have found, contrary to General Counsel, that evidence is insufficient to warrant such a conclusion. With respect to the other provisions of "I Bitonti was a member of the board of trustees. 197 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the memorandum the record is similarly deficient of evidence warranting the conclusion that Respondent breached the agreement. On the contrary, the one provi- sion which clearly was breached was point 8, that there would be no work stoppage. Testimony as to the reasons for the strike came mostly from the strikers themselves. In toto, it reflects a general dissatisfaction with conditions at the plant. The type of work required at a castings plant is always difficult, back breaking, dirty, manual labor. It has a tendency to frustrate under the best of conditions. It is a rare employee who looks forward with anticipation to 8 hours or more of working with molten metal in a plant where the air is dusty, smokey, and hot. When the natural discomforts connected with the work are accompanied by substandard working conditions, where there is water and grease on the floor, defective equipment, broken safety railings, and holes in the floor, it is difficult for a worker simply to live out his working life in quiet desperation. Rather, the frustrations tend to build up to the point where any incident, major or minor, might trigger a reaction which is all out of proportion to the immediate cause thereof. Testimony in the instant case convinces me that the conditions at the Cleveland plant were as I am discussing herein, and that the strike on March II was caused by a buildup of numerous frustrations, of poor working conditions, of poor communications between management and labor, of failures on the part of management, the Union, and the employees fully to understand the position of the others and an accumulation of frustrating experiences which eventually culminated in the walkout. During the meeting in the cafeteria which immediately preceded the walkout, Jackson asked employees why they were walking off the job. Reasons given included trouble in the metal room (the incidents discussed above), longstand- ing safety problems, l2 and the combining of various jobs which resulted from the Company's efforts to reorganize the plant to make it more economically efficient. The combining of jobs exacerbated the employees' bitter feelings and increased their fears that they were going to lose their jobs. Indeed, there had been 43 layoffs a few months earlier about which the Union had complained bitterly and, on January 22, filed the instant charge in Case 8-CA-8135. The threatened handing out of warning slips for absenteeism that very evening by the second-shift foremen was apparently the immediate cause, the final straw that prompted the job action and, when the discussion in the cafeteria degenerated into charges and countercharges by Massingill and Jackson as to who was mispresenting the facts, the employees sided with Massin- gill, decided that Jackson was not being honest with them, and walked off the job. As I have found above, the threatened issuance of warning slips by the second-shift foremen never came to fruition, but the mood of the employees was not such as to have patience win out over frustration. Massingill determined that it was more impor- tant to prove that Jackson intended a crackdown on absenteeism than it was to calm down the employees and have them return to work. By reading the minutes of the 12 Not so severe, immediate, or cntical as to come within the precepts enunciated in N.L.R.B. v. Washington Aluminum Company, Inc., 370 U.S. 9 (1962). meeting to the employees he proved that Jackson intended a crackdown on absenteeism, which was true. His doing so convinced the employees that Jackson was lying and that he had ordered the immediate issuance of large numbers of warning slips, which was not true. The way Massingill handled the situation was as much to blame for the walkout as any other single factor, and was most immedi- ate in effect. I conclude therefore that the March strike was the result of an unfortunate conglomerate of the circum- stances described above, but not a direct result of unfair labor practices sufficient in scope or impact to warrant the conclusion that the protest strike of March 11 was, in fact, an unfair labor practice strike. Arlan's Department Store of Michigan, Inc., supra. Having found that the suspended employees had partici- pated in a protest strike that was not an unfair labor practice strike at a time when the current contract contained a valid no-strike clause, I find that the suspen- sions were not unlawful. The fact that Respondent chose to single out the stewards for punishment because, as stewards, they had a higher degree of responsibility does not render Respondent's decision unlawful. J. P. Wetherby Construction Corp., 182 NLRB 690 (1970). In addition to suspending the stewards who appeared on the picket line for 3 days, Respondent admittedly dis- charged John Hunt, William Hunt, and Daile Vance because they led the strike. The leadership of these three employees is not only admitted by General Counsel but also documented throughout the record. Inasmuch as it has been found that the strike was not an unfair labor practice strike and there existed at the time a valid no-strike clause, Respondent was within its rights when it terminated John Hunt, William Hunt, and Daile Vance for the reasons stated. J. P. Wetherby Construction Corp., supra. Finally, it is alleged that Respondent terminated Idel Quinones, James Gallagher, and Jackie Bragg because they engaged in the March strike, an unfair labor practice strike, in violation of Section 8(a)(1) and (3). Respondent contends that these three employees were terminated because they engaged in violence on the picket line during the wildcat strike. With regard to what occurred on the picket line as it concerned the actions of these three employees, Quinones testified that he was never involved in any violence on the picket line whatsoever but that about the third day into the strike he arrived at the site to find that a fight had apparently taken place. He noticed policemen talking to James Gallagher and the alleged victim, Chuck Stomper, who was leaning up against the fence. He also noticed Jackie Bragg with a bloody mouth. Quinones testified that it was probably a case of mistaken identity, that he was not involved in the fight but, since he is about the same size as Bragg, someone mistook him for Bragg, who apparently had been involved in the fracas. Gallagher testified that it was on the second day of the picketing at or about 6 a.m. when he noticed a noise at the end of the driveway. When he turned around he saw that Chuck Stomper was holding another employee, Jackie Bragg, with one arm and striking him with his fist. 198 PRECISION CASTINGS CORPORATION According to Gallagher, he ran toward the combatants and grabbed Stomper by the arm that he was using to strike Bragg and tried at the same time to pull him loose. Bragg got away and Gallagher and Stomper continued "to tussle for a while." After about 20 seconds Gallagher pushed Stomper away. Stomper then came back after him, swung at him, after which they wrestled some more until Stomper fell to the ground with Gallagher on top. After Gallagher got up, Stomper kept trying to get up but kept falling down again, or running into people, according to Gallagher's testimony. Bragg and Gallagher were strikers. Stomper was one of the employees going through the picket line to work. Bragg did not testify. Stomper died several months after the incident. Kenneth Veil, the management official assigned to investigate the violence incident which led to the termina- tion of Quinones, Gallagher, and Bragg, gave the informa- tion that Stomper identified two of his assailants when Veil interviewed him on March 27 and took a written statement from him. He identified Quinones as the one who grabbed him from the front while another unseen employee grabbed him from the back. He broke loose after being struck several times in the head and recognized Gallagher as the man who was hitting him. After being knocked to the ground, Stomper got up in a dazed condition and was helped into the plant. He named two other employees as possible witnesses who preceded him through the gate- employees Clarence Griggs and Robert DeLorenzo. Veil was aided in the investigation by Personnel Manager Foster. Foster took DeLorenzo's statement on April 1, 1974. DeLorenzo in his statement identified Jackie Bragg, an employee on the picket line, as an assailant of Stomper and noted that Stomper had in no way provoked the attack. DeLorenzo noted the name of another possible witness-John Rodriguez, another employee who was going through the gate at the same time as Griggs, Stomper, and DeLorenzo. Rodriguez was interviewed by Foster on the same day as DeLorenzo. He testified that as he crossed the picket line he heard someone say, "You got in yesterday but today you have to go over me." Although Rodriguez could not identify any of Stomper's attackers he did state that Stomper was a victim of an unprovoked attack. On the same day Griggs was also interviewed and a statement obtained from him. He stated that Stomper, without provocation, was attacked by Jackie Bragg and James Gallagher. The security guard service report, signed by Captain DeMarco, indicated that at 6:20 a.m. a fight broke out and Stomper was beaten by Bragg and Gallagher. Veil, after seeing DeMarco's report, interviewed him also. He did not speak to Quinones, Bragg, or Gallagher. Based upon the information received from Stomper and the above witnesses, Veil recommended termination of Bragg, Quinones, and Gallagher for engag- ing in violence on the picket line. His recommendations were adopted by Foster. General Counsel argues that Veil's investigation was little more than a sham, that the Company fired any employee whose name appeared on the statements offered and, since the Company's investigation was inadequate, it proves its motives pretextual. Emphasis is placed by General Counsel on the inadequate nature of the investiga- tion by pointing out Veil's failure to interview the dischargees. Under other circumstances General Counsel's argument would deserve serious consideration. In the instant situa- tion, however, certain facts are of particular significance. First, the strike was not an unfair labor practice strike. therefore those who struck in the face of the no-strike clause could be terminated without resort to pretext. Secondly, Gallagher, Bragg, and Quinones played little or no part on behalf of the Union. They were no more important than any other striker insofar as union activity or support is concerned. Therefore there was no reason to look for a pretext. Finally, the statements of the witnesses were adequate to determine what had occurred. Since there was no apparent reason for Griggs, Rodriguez, DeLorenzo, DeMarco, and Stomper to name Quinones, Bragg, and Gallagher rather than some other three employees, there was no reason to doubt their statements as to what had occurred. After all, it is not as though they had named Massingill, Johnson, and Baker. Although I do not consider Veil's investigation complete by any means, I find it adequate under the circumstances to believe that it was sufficient to enable him to arrive at the conclusion he did, without suspicion that his decision to terminate Quinones, Gallagher, and Bragg was based on facts other than those presented by the witnesses. Their terminations were not based on considerations violative of the Act. Threats by Foreman Dick Gamin (Case 8-CA- 8420, par. 14(a); Case 8-CA-8494, par. 14(a); Case 8-CA-8279, par. 6; Case 8-CA-8848, par. 14(a)) General Counsel alleges that, after the March unfair labor practice strike was resolved, Foreman Dick Gamin told employees Elizabeth Phifer and Pat Anderson that "if there wasn't a union there we'd have more overtime than we could work." This allegedly occurred sometime in May and constituted an attempt by Respondent to undermine the Union in violation of Section 8(a)(l) and (5). Similarly, Gamin, between the dates of May 5 and 17, allegedly threatened employees with closing the plant unless employ- ees got rid of the Union and the union president. With respect to the former statement Phifer testified to the fact that the statement, as alleged, was made in fact; with respect to the latter statement, Gallagher, an exem- ployee terminated 6 weeks previously, testified that Gamin made the statement to him, "Well once they get rid of the Union and Mr. Massingill, the Company is going to do like they want to do." With regard to the remark allegedly made to Phifer by Gamin, there is no context in which to judge what the remark might have meant. In the abstract it cannot be said to constitute either a promise of more overtime if the employees abandoned the Union or a mere opinion that overtime is worked more in shops that are nonunion than shops that are unionized. Gamin does not appear otherwise to have played any significant role in the overall picture of what occurred at Cleveland's Precision Castings Plant and I am not prepared to give any weight to the statement. Whatever it might have meant, it appears to be an isolated casual comment snapped up by General Counsel as makeweight for its case. 199 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The statement purportedly made to Gallagher is of little significance in that Gallagher was not an employee at the time, there were no witnesses, and, at any rate, I would not credit Gallagher in any case. The Bargaining Sessions; April 23, 1974, MPU Meeting The last collective-bargaining agreement between the Metal Polishers and Respondent was due to expire on June 1, 1974.13 The first negotiation session was held on April 23 following a request by Massingill dated April 5. At the meeting the Union passed out copies of its contract proposals. Among those present for the Company were Director of Labor Relations of Allied Products William Hensge and Vice President for Industrial Relations Joseph Warren who advised those present that the Company was in the process of making a decision as to whether or not to close the Cleveland Precision Castings plant. Both Warren and Hensge acted as spokesmen for the Company. They noted that the plants in Cleveland, Redkey, and Rockford were all in financial trouble and that one of them would close. They stated that they would advise the Union before the next meeting which plant would close and they asked the Union to make suggestions as to how Cleveland could be kept open. The Company was specific in detailing the problems at Cleveland, not limited solely to pure economic troubles. It was noted that the Cleveland plant in 1973 enjoyed the largest sales year in its history-$10 million yet lost $155,000. In 1974 to date, sales were $3 million yet losses amounted to $125,000. Hensge explained that there was $4 million invested in the Cleveland plant and that the return was nil; that unless a solution were found the plant would have to close. Massingill asked how the Company could be losing money when sales were so high. Hensge replied that in part it was due to old equipment, a large amount of scrap, and poor management. He noted that recently customers were losing confidence in the Company's ability to produce and were asking for their dies back. Hensge stated that the Company would listen to any suggestions the Union might have. Union participants asked if this was a tactic to get an extension of the contract without increases in wages but the Company denied this. Warren explained that the Company was not asking the employees to do without wage increases. He noted that he did not know if that would help. There were problems with productivity, problems with labor, such as absenteeism and the high cost of production per unit, and lack of space. He denied that the losses were due to the recent labor problems because the Company had been losing money even before the labor problems erupted. The Company requested that the Union advise the International and its membership of the possibility that the plant would close to see if there would be suggestions forthcoming from those sources. The Company promised to have a definite decision one way or the other by the next scheduled meeting. 13 A request to bargain dated February 16 sent by Massingill appears to have been somewhat premature. Massingill in his testimony emphasized that company spokesmen during this meeting complained that part of the problem in Cleveland lay in the fact that, whenever changes were attempted to increase efficiency, the Union would protest, file grievances, take cases to arbitration, or file unfair labor practices. Massingill testified that compa- ny spokesmen implied that the Union was to blame for its economic problems and brought up the subject of someone going down to the Redkey plant to organize it. Massingill replied to this charge that the Company's problems could be solved if the Company would bargain and live up to the contract by first notifying, then bargaining with, the Union before initiating any changes. Massingill accused the Company of first making changes unilaterally, then telling employees that the Union had agreed to the changes when, in fact, it had not done so. Topolski testified in support of Massingill to the extent that he recalled the company spokesmen criticizing the lack of cooperation on the part of the Union and the Company's mentioning the grievances and unfair labor practice charges filed by the Union against the Company as being one of the reasons why the Company might not continue to operate. The chief shop steward for the Metal Polishers testified that the Company gave "tight money" as the reason for possibly closing the Cleveland plant. She also testified, however, that Warren stated that the Company had good relations with the die casting workers but that the Metal Polishers Union was objecting to a lot of changes that the Company was trying to effect such as the combining of jobs. She recalled Warren mentioning the grievances, arbitration cases, and unfair labor practice charges. The acting recording secretary, Quentin Johnson, testi- fied in a similar vein that Warren complained that, when the Company tried to initiate changes in order to make money, the Union had fought them on every hand by filing grievances and charges with the Labor Board. Johnson recalled that Warren did, however, admit that the Compa- ny also had some management problems, that all of the problems were not just because of the Union. Johnson supported the testimony of Massingill by recalling Warren stating: "We initially opened up Redkey to help take up the slack [sic] from Fayetteville and Cleveland, and somebody stuck their nose in something that wasn't their business and went up there and organized it." Massingill acknowledged at that point that he had been the one who had gone to Redkey to help organize it. Warren testified at length about the economic reasons given during the April 23 meeting for the possible necessity for closing the plant. He acknowledged that there was mention that management had been unable to solve the day-to-day problems, the union problems, and the griev- ances that were filed but denied that poor union leadership was mentioned or that unfair labor practice charges were mentioned. For the most part the witnesses for both sides were in agreement as to what was said. The exceptions were that the union witnesses claimed that Warren criticized the Union for filing unfair labor practices and for organizing 200 PRECISION CASTINGS CORPORATION Redkey while company witnesses denied that either subject was discussed. In support of the testimony of its witnesses, the Respondent supplied notes and minutes taken at the meeting. Foster's minutes appear to be fairly complete, authentic, and accurate. They support the testimony of the company witnesses that they attempted to assure the union representation that recent labor relations problems would not determine whether or not the plant stayed open-that the decision would be made strictly on economics. These minutes reflect that at one point Massingill asked if the Company would discuss the Union's proposals and Hensge replied that it would because if it did not do so the Union would go to the Board. This is the only indication in Foster's notes that the Labor Board was mentioned. Veil's notes likewise support the testimony of manage- ment witnesses though quite a bit sketchier than Foster's minutes. In one place, however, Veil's notes indicate a conversation between Massingill and Hensge wherein certain changes in plant operations had been undertaken by management which Massingill termed unilateral and therefore wrong. These changes, Massingill apparently charged, reflected a failure to bargain in good faith while Hensge maintained that such changes could rightly be made without first consulting the Union, based upon the management rights provision of the contract. Without determining at this point whose contention was correct, I am satisfied that Veil's notes reflect that there was a discussion at the April 23 meeting concerning unilateral changes in operating procedures, grievances, arbitration, and unfair labor practice charges. I therefore credit Massingill and other union witnesses to the extent that management representatives did complain about the Union's failure to cooperate, its filing of grievances and charges, and that the labor relations situation at the plant was one of the reasons maintained for possibly having to close the plant. I find also, however, that Warren and Hensge attempted to put these labor relations problems in perspective by indicating that it was not the labor relations situation, as such, which was a reason for possibly closing the plant, but rather the adverse economic impact engen- dered by the failure of the Union to cooperate with the Company's plans to implement new procedures that was one of the bases for the decision to possibly close the plant. Management, I find, took special pains to assure the Union that it was not the labor relations problems as such but economic considerations which would be the basis for the final determination. The Union also took notes at this meeting but offered testimony to the effect that these notes were somehow lost or misplaced. Since the Union did offer notes or minutes for other meetings, I find the failure of Quentin Johnson to produce his notes for April 23 a bit too convenient, especially when considered in light of his own admission that he denied having any minutes when asked by Respondent's counsel and produced them only after 14 I also find that objective considerations do not favor crediting Massingill's testimony that Warren objected to his organizing activity at Redkey. Thus, Massingill had been given time off at Cleveland to go to Redkey to organize with thi full knowledge of management that he was going to do just that. Moreover, Massingill's organizational work at Redkey was minimal. He arrived for the first time a couple of days before the counsel for General Counsel learned that he had minutes and urged him to produce them for the use of Respondent's counsel. In light of the fact that I find Respondent's witnesses generally more reliable than the Union's and that Respondent's supporting minutes and notes made no mention of the organizational efforts at Redkey, I credit Respondent's witnesses that Redkey was never mentioned by Warren. The testimony by Massingill and Johnson to the contrary is rejected as untrue.14 At the end of the April 23 meeting management advised the Union that a decision would be made before the next meeting as to whether or not the Cleveland plant would be closed, that if it were decided to close Cleveland, the Company would negotiate a shutdown agreement, but if it were decided to keep it open, the Company would negotiate toward a new labor agreement. In the meantime the Company urged the Union to discuss the matter with its membership and seek out suggestions on how to keep the plant open. The Meeting of May 9, 1974 Between April 23 and May 9,15 the decision to close down the Cleveland plant was finalized through a series of meetings and telephone calls involving top management and divisional management personnel. At the May 9 meeting the Company announced its decision to close. According to company witnesses, Hensge reiterated the economic plight of the Company, mentioning most of the economic problems discussed at the previous session. He announced that the plant would close and the $4 million in buildings assets, stock, etc., would be redeployed. Hensge stated that the Company would review any suggestions that the Union might have but if none were forthcoming the plant would close, that there was no alternative. The union representatives offered no suggestions and Hensge an- nounced that the Company was then ready to negotiate a shutdown agreement. Both parties then entered into a discussion concerning the effects of closing. Topolski asked about severance pay and Hensge replied that severance pay was a consideration but was contingent upon an orderly shutdown which would not result in a great loss of money, that is, that the phaseout would avoid a large number of unfilled or partially completed orders. The Company wanted to continue a staff of employees sufficient in number to close the plant properly. Therefore, employees who quit would receive no severance pay. The question then arose as to how long it was contem- plated the phaseout would take. Hensge replied that it would take at least past June 1 when the current labor agreement was due to expire but that he was not certain as to a specific date. He stated that at any rate the shutdown would begin fairly soon. The subject of a negotiated shutdown agreement was discussed but little work was accomplished toward such an agreement. Topolski proposed severance pay of I-week's election, long after the organizational work had been completed by International Representative Holt and others who were otherwise not involved with the Cleveland plant. 15 The Company on or about May 14, 1974, advised the Secunty and Exchange Commission of its decision to close the Cleveland Plant. 201 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pay each year of service. The Company found this proposal too high. Topolski also proposed that the cost of living, holiday, and certain automatic wage increase provisions of the contract continue. He also indicated a desire that I week's notice be given to each employee before layoff and that pro rata vacations be given to employees with less than 5 years' service. Hospitalization, life insurance, and pensions were also discussed without any agreement being reached. All topics were thoroughly discussed. The Union inquired as to what would occur with regard to pending grievances. Hensge replied that he was trying to contact the Union's attorney with the intention of expediting griev- ances going to arbitration. Along with the economic reasons blamed for the closing of the plant Hensge also used the term "union problems" in connection therewith. With regard to the use of this terminology, Hensge testified that by "union problems" he meant collectively: there had been a great deal of absenteeism at the Cleveland plant and that local manage- ment had tried unsuccessfully to obtain the cooperation of the local union committee to reduce absenteeism; an unfair labor practice had been filed by the Union some years before that had been "Colyerized" and had gone to arbitration which the Company had won; there were general production and quality problems; a decertification petition had been filed in late 1973 or early 1974 which was dismissed (the petition would have had the maintenance employees withdraw from the Metal Polishers and join the Machinists); there had been shutdowns and slowdowns in the alloy department over the years; there had been two wildcat strikes in February and March 1974 during which all the stewards resigned in order to walk the picket line; there had been threats and violence during the wildcat strikes; there had been sabotage in the plant during the strike-electric cables cut, ladles overturned; the Company had been forced to arbitration in 1973 on the issue of rotation of jobs where the Company was trying to implement new procedures; and, finally, there were over 100 grievances outstanding as of May 9 including 50 grievances on the combining of jobs issues. Hensge denied that when he used the term "labor problems" he had in mind either the two charges with the Labor Board which were outstanding at the time or the grievances filed over the discharges of the several wildcat strikers. As of May 9, no complaints had issued regarding these matters. The union representatives inquired as to how conditions were at the other Precision Castings plant. Hensge replied that the Fayetteville and Rockford plants were making some money but were not fulfilling the return on invest- ment expected. The Company felt that, since the other plants were in better financial shape than the Cleveland plant, the Company should close Cleveland and try to save the other plants. Redkey was not mentioned. The Union inquired as to the possibility of a preferential hiring agreement. Hensge replied that the Company was opposed in principle to preferential hiring but then agreed that it would entertain a list of employees who might want to transfer to other Allied plants. He agreed to schedule interviews for such employees with the caveat that local management had the right of refusal. Topolski stated that he had heard rumors that the Company was blaming the Union for the shutdown and requested that a notice be posted to the effect that the shutdown was not the Union's fault. Hensge replied that he had not heard such a rumor but at any rate the Company did not blame the Union. He did not, however, initially agree to comply with the Union's request. One of the allegations contained in the consolidated complaint concerns General Counsel's contention that Respondent refused to deal with Massingill as the repre- sentative of the Union and insisted on dealing with Topolski. Both Massingill and Topolski were present at the May 9 meeting and both were apparently free to offer as much input as they chose. Company witnesses testified that both Topolski and Massingill did some talking but that Topolski spoke more than Massingill. In any case there is no evidence that the company spokesman ignored Massin- gill or his contributions at this meeting. The testimony of union witnesses with regard to the May 9 meeting did not differ substantially from the testimony of company witnesses with regard to what was said concern- ing the financial and economic situation as reasons for closing the plant. Massingill, though he did not believe what Warren and Hensge had to say about the plant closing, nevertheless asked if there were not some way to keep it open. Topolski inquired as to whether an extension of the contract would help but Hensge replied in the negative. Massingill, in his testimony, emphasized Warren's criticism of the Union, in particular the grievances, the arbitration, and the Board charges. He testified that Warren said that the Company had been considering closing the plant for 3 or 4 months and that the two strikes might have been the straw that broke the camel's back, and might have decided the issue in favor of closing. Warren, according to Massingill, also criticized the Union's protest- ing the Company's making changes for the sake of efficiency, in particular, the combining of jobs. Massingill agreed that the Union had protested every time the Company made such changes unilaterally without first bargaining with the Union. He considered such changes as unilateral changes in the contract. His position was that each change first should have been negotiated and, if there was no agreement, the Company could institute the change and the Union could then file a grievance. Where the testimony of union and company 'witnesses differ substantially, it is with regard to whether or not Massingill, after being told once again the economic reasons for the shutdown, demanded to see the Company's books, whether he stated that if the Cleveland plant closed, he would have to go down and organize Redkey and whether he was told by the Company that if he did so he would have to wear a steel vest. In each case, Massingill testified that these things occurred. Massingill also testified that, when the Union requested special hiring rights at other plants for employees laid off at Cleveland, Hensge stated, "No, we have got enough problems right here, and we don't want to transfer our problems to the other place." Union witnesses Collins, Topolski, and Baker all testified that Massingill did, in fact, ask to see the Company's records or books and was shown a profit-and-loss state- 202 PRECISION CASTINGS CORPORATION ment which Topolski rejected as valueless. Company witnesses deny that Massingill requested to see the Company's books on May 9. They likewise deny any mention of steel vests, organizing Redkey, or transferring troubles. Supporting documentation indicates no mention of a request for books in Foster's minutes covering the May 9 meeting,' 6 nor in Collin's notes. Massingill and Baker admitted under cross-examination that there was no mention in their affidavits to the Board of a request for books. On May 13 Massingill filed an amended charge against Respondent but did not charge it with refusal to supply the requested records. Similarly, there is no mention anywhere in his affidavits that Massingill stated that he would go down and organize Redkey or that there was any reply forthcoming concerning his having to wear a steel vest. Further, there is no supporting documentation concerning the alleged statement by Hensge concerning the transfer of employees to other plants, to the effect that the Company did not want to transfer its trouble. Consequent- ly, I find that, in all of these respects, the Company witnesses should be credited and no discussion took place with regard to those disputed statements. With regard to the claim by General Counsel that the Company was attempting to avoid bargaining with Massin- gill in favor of Topolski, I find that both union representa- tives had much to say during the May 9 meeting and that, far from being ignored, Massingill's participation was not only tolerated, and all his questions answered, but also his comments appear to have been well received. The minutes of the meeting indicate that Massingill fully participated in the negotiation. Arrangements were made at the end of the meeting to meet once again the following day. The Meeting of May 10, 1974 The following day the effects of the shutdown were again discussed. Both sides made proposals. In accordance with the request made the day before and perhaps again on May 10, Hensge supplied the Union with a copy of a notice absolving the Union from all blame for the Company's decision to close down the plant. The notice had already been posted and simply stated that the reasons for the shutdown were economic. The specifics of the shutdown agreement were again discussed. With regard to severance pay Topolski contin- ued to propose I week's pay for each year of service. Hensge again rejected this proposal, stating that it would cost $600,000 to $700,000. The Union subsequently modified its demands. Severance, holidays, pensions, hospitalization, and vacations were also discussed as well as the possibility of a limited extension of the existing agreement until the shutdown was completed, Hensge speculated, in September or October. There were no written proposals forthcoming. The Union also suggested that the entire union commit- tee remain employed until the phaseout was completed. The Company wanted some union representation until the 1' Inasmuch as Massingill. Baker, and others sometimes confused the May 9 and 10 meetings, the same findings hold true for both sessions. end but also wanted employees who could do the work remaining to be done. The Company suggested that it could live with the contract language which provided that 180 hours of experience would qualify an employee to remain on the job during the phaseout. Topolski suggested that laboring type jobs could be performed by male committeemen. Topolski requested that all employees be given a good recommendation. Hensge countered that recommenda- tions would be based on individual merit. Later the parties agreed that a good recommendation would be given where deserved; otherwise, nothing would be said at all concern- ing poor employees. It was determined that layoffs were to begin immediate- ly. The Union wanted severance pay for all employees, even those to be laid off immediately. The Company, however, took the position that there should be no severance pay for quit employees unless they were leaving for immediate employment elsewhere. No decision was made at this time on this matter. At one point during the meeting the economic problems which were the basis for the shutdown were once again mentioned. Hensge testified that he believed that the Union again offered an extension of the contract but he stated that he was not interested. Topolski testified that Massingill requested a 3-year contract stating that claims concerning intentions to shut down a plant had been used before in order to gain advantage during contract negotia- tions. Massingill clearly was still not convinced of the Company's intention to close down. Baker testified that she recalled Foster showing the union committee members a rectangular sheet of paper contain- ing a large number of figures, probably a profit-and-loss statement. She also recalled a discussion between Massin- gill and Hensge concerning discrepancies between the contents of that statement and figures offered earlier by the Company. Hensge supposedly replied that the discrepancy had something to do with inventory. According to Baker, Topolski commented that the profit-and-loss statement was not the company books and was not sufficient but did not elaborate as to what else he wanted. Quentin Johnson testified in support of Baker's testimony. Company witnesses denied that there had been any demand to see the Company's books on May 10 or that a profit-and-loss statement was shown on that day. Foster's minutes and Veil's notes, upon analysis, indicate no mention of such a request. Inasmuch as I would credit Foster and Veil over the testimony of union witnesses, and the former's records reflect no mention of this matter and the Union has not made its notes available for analysis, I find that no request was made by the Union for company books or records during the meeting of May 10 and none were shown. 203 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The May 15 Meeting Between Massingill and Jackson (Case 8-CA-8494, par. 14(C); Case 8-CA- 8848, par. 14(C)) The next negotiation session was scheduled for May 16. Massingill testified that at a private meeting between Jackson and himself, in Baker's presence in Jackson's office, Jackson stated, "You are the man. It all lays on you. You are the only man that can keep the plant open." When Massingill asked how, Jackson replied, "If you will go up there and make a proposal to extend the contract for I year with a little added hospitalization the plant won't close ... because they want to give me a chance to continue to run the place and keep it operating." On cross-examination, however, Massingill testified that he was not certain this conversation took place on May 15 and he also admitted that, in his conversation with Jackson, Jackson stated only that he thought that the Company would accept such an offer. I conclude from the above that the conversation between Massingill and Jackson, if it occurred at all, reflected only the personal opinion of Jackson and was not an indication that Respondent was seriously considering keeping the plant going. I make this conclusion based not only on the nature of Massingill's testimony but also on the record itself which indicates that the Company had already been offered a contract extension and had rejected it as a means to save the plant. I believe that, if Jackson made the statement attributed to him by Massingill, the statement reflected a personal opinion of Jackson, not an indication of higher management's willingness to accept such an offer to keep the plant open. The May 16 Meeting On May 16 Hensge orally presented the Company's first shutdown proposal providing for the extension of the existing labor agreement to October I, including the cost- of-living, holiday, and automatic increase provisions thereof; severance pay of $25 per year of service (after first offering $15 per year); preferential hiring for Cleveland employees applying at other plants; hospitalization contin- ued to the end of the month of employment with the possibility of its continuance by the employee; continued employment of union representatives for as long as they could do the jobs available; and I week's notice before layoff. According to Massingill, all of these matters were discussed as well as the pending grievances, arbitration, and pay for union representatives participating in griev- ance meetings after the plant was closed. Massingill continued to voice disbelief that the plant was closing and only reluctantly discussed the effects of the shutdown. He told Hensge that the Company on previous occasions had pulled out dies only to get the employees to accept their contract proposals and this time he did not believe the Company was closing, nor did the employees. He complained that management was telling the employees that it was the Union that was responsible for the plant's closing but that, if the Union would take certain steps, the plant would stay open. Hensge insisted on bargaining the shutdown agreement. Finally, Massingill agreed to take the Company's offer back to the membership. There was, however, nothing yet in writing. According to Dolly Collins, Massingill asked for proof of losses at this May 16 meeting but then she stated that she was not sure she even attended this meeting. I cannot rely on her testimony. Baker testified that at the May 16 meeting Hensge criticized the Union's opposition to the changes the Company had been trying to effect, especially the changes in final inspection and the changes concerning the combining ofjobs. She also stated that Hensge accused the Union of filing National Labor Relations Board charges and grievances and bringing them to arbitration. She also stated that Hensge complained that the Company had only so much money to work with and, if it had to get outside lawyers to help them fight or process the arbitration cases and the labor charges, there would be still less than they had at the time. According to Baker, at one point Hensge stated that the Company had to have the right to make certain changes in operations without first giving notice to the Union but Massingill insisted that the Company and the Union should sit down and straighten out these problems together. Hensge then tried to discuss the shutdown but the union representatives were reluctant to talk about the shutdown because they did not believe that the Company really intended to shut the plant down and Massingill told Hensge as much. Baker testified that May 16 was the first time that the Union seriously entered into the shutdown negotiations. The company witnesses denied that anything at all was said on May 16 about National Labor Relations Board charges or the cost of hiring outside lawyers. They also denied that union leadership was criticized. Finally, there was an emphatic denial that there was any request on May 16 to see company books, company records, or a profit- and-loss statement. In support of the testimony of the employer's witnesses, Foster's minutes were offered and received. Veil did not attend this meeting. Baker's notes for that day were also received. Although Baker testified that Quentin Johnson also took minutes for the Union as well as possibly Forinash and Topolski, these were not offered. Foster's notes reflect the shutdown proposals of the Company as testified to by the various witnesses, as well as the counterproposals proffered by the Union and the Company's reply to the counterproposals. Both Foster's minutes and Baker's notes reflect only discussions about the shutdown-nothing about National Labor Relations Board charges, grievances, arbitration, lack of union leadership, or a request by Massingill to see company records. In accordance with the testimony of the company witnesses and the written documentation supplied to support it, I find that only the shutdown proposals were discussed at this meeting and the other matters described by Baker, namely ch- Ages in operation, the Union's opposition to them, grievances and charges, were all discussed at other meetings, probably the one on May 23. It is noted that even Massingill himself did not support Baker's description of the May 16 meeting. 204 PRECISION CASTINGS CORPORATION The May 23 Meeting On May 23 Massingill made an offer to extend the existing contract I year in return for keeping the plant open in accordance with the suggestion made by Jackson on May 15. According to Massingill, Hensge was extremely receptive to the offer and indicated that, although he could not promise anything at the time, he would take it back to the board of directors and get back to the Union with its decision. The meeting broke up for a short period of time while Hensge tried to make contact with members of higher management. When he returned to the meeting he announced that he was unable to reach some of the board members but would try again that evening and would let the Union know the outcome the following day. According to Hensge, he was surprised that an offer was made to extend the contract after 2-1/2 days had been spent on a shutdown agreement. He informed the Union that there was little hope because the offer was too little and too late but he would review the offer. Massingill informed Hensge at this time that Jackson had told him that he thought the plant could make money if it could stay open another 6 months or so. Hensge replied that the economic evidence did not support Jackson's optimism but, out of courtesy to the Union, he would take the offer back to higher management and get back to the Union with an answer later in the day or later in the week. He emphasized, however, that the Company was not really interested in the Union's offer as an answer to the existing problems because those problems were too severe for an extension of the contract to cure. Hensge reviewed the economic problems that the Company was facing just as had been done at previous meetings. He also reviewed the problems involving the Company's attempts at making changes in operations to which the Union filed grievances resulting in arbitration and occasional charges with the National Labor Relations Board. Despite these problems Hensge agreed to take the offer back to higher manage- ment for consideration. Later that day Hensge tried to contact members of the Board of Directors but, inasmuch as he could not reach all of them, he advised the Union that he would inform them of the Company's answer at their next meeting, after he had contacted all of the directors. Baker testified briefly in support of Massingill's testimo- ny as did Collins except that the latter acknowledged that Hensge had noted that he was not at all optimistic that the Union's offer of an extension of the contract would be accepted. Foster's minutes reflect fairly accurately the testimony of all of the witnesses. The next meeting was scheduled for May 24. The May 24 Meeting On May 24, Hensge reported that he had been able to reach two or three directors with the Union's offer but was unable to contact the rest. He stated that he wanted to meet with them in Chicago to discuss the matter and he would have an answer for the Union at the following meeting. Discussion centered around the possibility of the plant operating on a pared down basis. Hensge stated that he did not believe the Company could make money on a pared down production basis. Moreover, he felt that paring down operations would require changes in operations which would in turn result in further discontent and the filing of additional grievances. Hensge stated that he would contact Topolski to set up the next meeting. Massingill did not object to this procedure but indicated that they might meet without Topolski if he otherwise was unavailable. Hensge stated that he preferred to have Topolski present if possible, but that was, of course, up to the Union. Massingill did not object. Hensge testified that he was used to dealing with Topolski and other business representatives during negoti- ations. During the next few days following the May 24 meeting Hensge contacted the various directors to determine whether the Union's offer of a 1-year extension of the existing contract would be acceptable in return for keeping the plant open. Members of higher management refused, however, to give the offer serious consideration because the Company was losing money at the time and there was no way of turning the situation around economically to make a profit. Demand for Withdrawal of Board Charges (Case 8-CA-8420, par. 14(B); Case 8-CA-8494, pars. 14(B) and (C); Case 8-CA-8848, pars. 14(B) and (C)) Between May 27 and 29, depending on the testimony of Topolski or Hensge, Hensge telephoned Topolski to advise him of top management's decision. Topolski and Hensge gave different versions of this conversation. According to Topolski, Hensge advised him that he had been unable to reach all of the members of the board of directors and that he should so advise Massingill. He added that, neverthe- less, he felt that they would not accept the Union's offer of a 1-year extension of the existing labor agreement, that "it didn't look good." Topolski testified that after some further conversation Hensge remarked that it would be a lot better if the Union dropped the unfair labor practice charges and settled the issues involved in those charges at a later date. Topolski testified further that he declined Hensge's invitation to drop the charges and countered that the Company should first bargain over the issues involved in the unfair labor practice charges and, if the bargaining were successful, the charges would be withdrawn. Hensge then asked Topolski if he did not want to keep the plant open, to which Topolski replied affirmatively that he not only wanted to keep the plant open, but also that he was ready to bargain a 3-year contract. He then asked Hensge why he did not place the unfair labor practice charges on the bargaining table, to which Hensge replied that he could not do this because, if he should bring the unfair labor practices up, it would be an unfair labor practice. He stated that, to discuss settlement of the unfair labor practices, the Union would have to bring up the subject. Topolski thereupon agreed to introduce the subject at the next meeting. 205 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hensge's version of the telephone conversation was somewhat different. According to Hensge, he called Topolski to schedule another meeting to negotiate further on the shutdown agreement because the Union's I-year extension offer had been rejected by top management. During the conversation which ensued Topolski told Hensge that he had heard that the charges filed with the Labor Board were the reasons that the Company had decided to close the plant. Hensge replied that this was not the case. Topolski then asked whether the Company would consider the Union's proposal if the Union withdrew its unfair labor practice charges. Hensge replied in the negative, stating that the Company's decision was based solely on economic considerations. Topolski then confided that he was having trouble getting Massingill to negotiate a shutdown agreement but hoped, nevertheless, to arrive at such an agreement. Both Topolski and Hensge agreed that it would be nice to have the National Labor Relations Board charges out of the way but no conditions were attached to any withdrawal. Hensge emphasized that under no condition would the Company bargain with respect to an ongoing contract or with respect to a severance and shutdown agreement based upon withdrawal of the charges, that, if the Union wanted to drop the charges, it would be nice, but it had no bearing on whether or not the plant would remain open or on negotiating the effects of the shutdown. Between Hensge and Topolski I find the former more credible and therefore credit his version of the telephone call.' 7 Consequently, I find that Hensge did not attempt to get the Union to withdraw its charges in return for concessions of any sort, at the bargaining table or elsewhere. The May 31 Meeting The parties met once again on May 31. According to Massingill, Hensge advised the Union that the Company appreciated the offer of the Union to extend the contract but that the offer was too little and too late, he had to have more. Massingill testified that Hensge told the union ,representatives that the Union had filed grievances, arbitration cases, and labor charges and had protested every efficiency move that the Company had ever made, that the Company felt that there was no use in prolonging the misery and it might as well shut down the plant and get rid of the liability. According to Massingill, Hensge explained that the Company had to have the right to make job changes such as had been made in the inspection department or trim room or with respect to combining job classifications in order to operate?. Hensge then requested that they return to discussing the shutdown but the union representatives objected that they did not believe that the Company really intended to shut down the plant but rather was using the threat of a shutdown to gain concessions i7 I find Hensge more credible not only because of his general demeanor and forthrightness but also because. at one point during his testimony, Topolski claimed to have read certain minutes given to him by Dolly Collins, that subsequently Collins testified that his testimony was false and that he had admitted to her that he had given false testimony. Topolski was never recalled to the stand to reestablish his credibility. I therefore find him unworthy of belief. from the Union. The Union wanted to negotiate either a new agreement or an extension of the old agreement. At this point, according to union witnesses, Massingill demanded to see the Company's books and Hensge asked why, after the eighth bargaining session, the Union should suddenly be asking to look at the Company's books. He also stated that the Company was not pleading poverty, and implied that for that reason there was no requirement for the Company to show its books. Company witnesses denied that any request for the Company's books was made on May 31. Inasmuch as none of the minutes or notes taken by company or union witnesses on May 31 reflect that such a request was made and affidavits submitted within the next few days are silent on the subject, I conclude that no such request was made on that date. A union caucus was called during which Topolski's May 29 telephone conversation with Hensge was discussed, Toplski giving to the committee his version of what was said. They discussed the Labor Board charges and decided to put them on the table and try to bargain withdrawal of the charges in return for a 3-year contract. When the parties met again after the union caucus Massingill stated once again that he did not believe that the Company intended to close the plant and he now realized what the Company wanted. He stated that the Union was now going to lay the labor charges on the table and wanted to bargain for a 3-year contract. According to Massingill, Hensge replied that Massingill should call Nora Friel 19 at the Labor Board and tell her that the Union was dropping the labor charges, and then the parties could begin bargaining. Massingill countered that bargaining for a contract should come first, then he would withdraw the charges.20 Nothing having been accomplished by the exchange, the parties went back to a discussion concerning the shutdown agreement. Hensge testified that when Massingill broached the subject of negotiating the labor charges Hensge replied simply that the Company was not there to negotiate the labor charges, that the Board was properly deciding those. Massingill insisted that the charges could be worked out and the plant made to operate profitably. Hensge then asked Massingill if, by working out the charges, he meant reinstatement with full backpay for the dischargees. Massingill replied in the affirmative whereupon Hensge commented, "Well, then forget it and let's negotiate a shutdown agreement." Hensge denied that he told Massin- gill to call Nora Friel although her name did come up in the discussion. According to Hensge, Massingill stated that he was in control over the charges and indicated that he could call Nora Friel and have them withdrawn. Hensge replied to this that calling Nora Friel would not do any good because the charges were before the Board.21 In explanation, Hensge testified that he had already been informed that the complaint was going to issue and felt that matters were beyond the point where the charges could be IN Massingill's testimony on these points was supported by Baker. iS The Board's attorney handling the case. 20 Topolski, Baker, and Collins support Massingill's testimony with regard to the discussion concernng withdrawal of the charges. 21 Veil's testimony supported that of Hensge. 206 PRECISION CASTINGS CORPORATION withdrawn. Both Hensge and Veil emphatically denied that at any point they sought to exchange keeping the plant open or more severance pay in return for a withdrawal of the charges.22 The Company then orally presented a 13-point proposal for shutting down the plant. Massingill requested that the 13 points be put in writing after which he would take it back to the membership but without a recommendation. The meeting temporarily adjourned while the Company had the proposals typed. When the parties met again the Company provided the Union with several typewritten copies of the proposals made orally earlier. The union representatives read over the proposals and voiced objections to the addition of a 14th point which had not previously been discussed. This proposal stated: The employment status of the employees shall termi- nate on the date of the closing of the Company or on the date an employee is terminated whichever occurs first and no further claims or rights of the employees or union against the Company shall accrue except to the extent provided in this agreement.2 Hensge explained that this type of provision was always included in any of the Company's shutdown agreements. Massingill replied that he would recommend against it when presented to the membership, stating that the Union would not give up its rights or the unfair labor practices. Hensge explained that the zipper clause had nothing to do with existing outstanding issues such as the Labor Board charges, but was needed as a means of taking care of everything else since the contract will have been terminated and the phaseout will have already been effected pursuant to the shutdown agreement. Again Massingill stated that he would take the Company's shutdown proposal back to the membership but would recommend against acceptance. The June 6 Meeting On June 1, the 14-point shutdown proposal of the Company was rejected by the membership of the Union. On June 6, the union representatives advised the Company of the membership's rejection of the Company's shutdown proposal by a vote of 194 to I and of its decision to 22 Topolski on cross-examination admitted that at one meeting, possibly the May 31 meeting, Massingill said that the Union still feels that it had some power because of the Labor Board charges and that Hensge could have replied, "We don't see that the Labor Board charges make any difference in our negotiations." I find that Topolski's testimony indirectly supports Respondent's position on this matter. 23 General Counsel alleges in Case 8 CA-8494, par. 14(1), and Case 8- CA-8848, par. 14(1), that the introduction of point 14 at the end of the May 31 meeting was, because of the onerous nature of the proposal, an attempt to avoid a final agreement in that it would have required the Union to waive its right to file charges alleging unfair labor practices which might arise out of the closing of the plant and to withdraw pending unfair labor practice charges. I find. however, that Hensge specifically stated that that proposal had nothing to do with pending unfair labor practices, that the Union made no attempt to bargain on point 14 in order to negotiate language which would be acceptable to it. and that, in any event, no tentative understanding had been reached on the rest of the shutdown agreement; e.g., severance pay. Moreover, Massingill stated that he would not recommend it to the membership. Under the circumstances. I recommend dismissal of the allegation. continue work without a contract rather than strike. Massingill also advised Hensge that the membership did not believe that the Company intended to shut down and told him to negotiate a 3-year contract. A great deal of time appears to have been wasted with Massingill telling Hensge that he did not believe that the Company intended to shut down and Hensge trying to convince Massingill that he was there just for that purpose. At this meeting Topolski specifically advised Hensge that Massingill would be the Union's chief spokesman.2 4 Both Massingill and Topolski, however, continued to participate in the negotiations, each to a large extent, if not equally. The parties discussed the 14-point proposal and Topolski advised Hensge that the membership was hung up on point 14, the zipper clause, and on the amount of severance offered. Massingill said that since he was convinced that the Company was not going to shut down he was not going to negotiate a shutdown agreement. He said, however, that he would discuss it. Massingill then stated that he wanted 15 cents per hour more for nonincentive employees and 12 cents per hour more for incentive employees during the shutdown period. Hensge refused the demand for the raise, stating that he did not want to assume the added liabilities in the face of the shutdown. Massingill then asked to see the Company's books 25 and records if the Company was claiming an inability to pay the increases. Hensge replied that he was not pleading poverty, just that the Company did not want the added liability. Massingill then demanded $120 per year of service as severance. This likewise was rejected. Massingill then accused Hensge of wanting a strike but Hensge denied this and stated that the Company wanted only an orderly phasing out of operations and a shutdown agreement to insure it. Massingill asked if the Company was shutting down for economical reasons and stated that the Union did not believe it was. Hensge stated that the Company was shutting down for economic reasons and not noneconomical reasons, had been trying to tell the Union this for 2 years and had spent seven bargaining sessions trying to negotiate a shutdown agreement. The parties then discussed the various company proposals and union counterproposals without reaching any agreement, the primary hang-up being point 14, the zipper clause. The parties were at impasse on this point, the Union maintain- ing that its inclusion would mean that it would have to 24 I have found that pnor to this date Massingill participated full) in all negotiations and the Company negotiated with him in good faith in all respects. I recommend all allegations to the contrary be dismissed. 25 This is the first time the Company admits being asked by the Union to show its books and emphasizes that the request was made in the context of a demand for a wage increase, not in connection with the reasons for the shutdown. I credit Hensge as supported by Foster's minutes. Since I have found that June 6 was the first time that a request for books was made, there should be some reason why such a request was made at this time rather than during one of the earlier meetings. I find in conjunction with Hiensge's testimony that for the first time the Union demanded a wage increase for employees engaged in the shutdown and, when Hensge refused this demand. it was to this refusal of the wage increase that Massingill directed his demand to see the books. But when Hensge stated that it was not that the Company could not afford to pay it but that it chose not to do so, as I find he did, the Union did not pursue the request and the crucial demand for books became irrelevant. I find no violation in the employer's refusal on June 6 to show the Union its books. Centru O Electric Motor Cornpanry. 192 NLRB 941 (1971). 207 DECISIONS OF NATIONAL LABOR RELATIONS BOARD withdraw all grievances and Labor Board charges, Respon- dent maintaining that it would have no such effect. The June 7 Meeting The parties met again on June 7, Respondent attempting to reach an agreement on a shutdown and severance, the Union attempting to obtain a new contract. Point 14 was again the main point of discussion. The Union argued that, in the event the plant reopened, it would have lost all of its rights if it agreed to point 14. In reply Respondent offered a recognition and reemployment provision. The Union then requested a wage increase of 12 cents per hour and 8 cents per hour for incentive employees during the shut- down period, after earlier in the meeting abandoning this demand. There was little movement on either side and it was decided that Mediation should be contacted. At this meeting the Company advised the Union that certain machinery had been moved out of the plant. Jackson's Threat To Close the Plant (Case 8-CA- 8420, par. 14(C); Case 8-CA-8494, par. 14(C), and Case 8-CA-8848, par. 14(c)) James Massingill testified that on or about June 15 he was at his work station when Harold Jackson approached him and engaged him in conversation. Jackson had already been transferred to Redkey and was just visiting the Cleveland plant. According to Massingill, he asked Jackson if there were not some way to keep the plant open. Jackson supposedly replied, "The only way you can keep it open is to drop the labor charges." Massingill replied that he could not do this. Jackson then allegedly stated, "If the Company will get you an attorney and show you how you can do it, will you do it?" Massingill objected that he could not give the rights of the discharged employees away. Then Jackson replied that the plant was closed because the Company would never put the dischargees back to work. Unfortunately, Harold Jackson died during the hearing. He never completed his testimony nor addressed himself to this alleged conversation. I have serious doubts that this conversation ever took place but, if it did, I am not willing to attribute to the Respondent anything that Jackson might have said concerning ways to keep the plant open. First of all, Jackson was no longer employed at the Cleveland plant. Secondly, even when he was, he did not participate in contract negotiations, and as far as the record is concerned he apparently had little or no input at this stage as to whether or not the plant would remain open. Jackson undoubtedly had a personal interest in keeping the plant open because of his previous connection with it and I conclude that if, in fact, he did discuss this matter with Massingill, he was doing no more than engaging in wishful thinking. The many attempts by Massingill to use the charges as bargaining chips during negotiations with Hensge prior to June 15 convinces me that, if the Company were at all interested in trading a contract for the withdrawal of the charges, it would have long since manifested such an interest. The June 26 Meeting Although negotiations toward a shutdown agreement were stalemated by late June the physical shutdown of the plant was well underway. As pieces of equipment were sold or transferred to other plants, Foster would advise Massingill of this fact, frequently identifying the machine by number, where it had been located in the plant, and to what destination it was being shipped. Though it should have been apparent that the plant was actually in the process of shutting out, the meeting of June 26, even with the presence of a mediator, resulted in no movement. Severance, the zipper clause, and a recognition clause in case the plant reopened were discussed to no advantage. As the machinery and equipment were being shipped out, the Company simultaneously was laying off employ- ees. To accomplish the layoffs with proper regard for seniority, Foster showed Massingill a list of employees to be laid off, advising him that certain of them could be transferred to other jobs in the plant, if they had seniority and could do the work. He asked Massingill to help make certain that everything was done in accordance with the contract. During one of these discussions, Massingill testified, Foster told him not to let the Company scare him into thinking that it was closing the plant, that the intention was only to scale down operations. Supposedly, Foster advised Massingill to keep the people from walking out because if there were a strike the plant would close immediately. Massingill then asked why the Company would not bargain if it intended to keep the plant open. To this Foster purportedly replied that the Company needed time to see if it would work. I cannot give any credence at all to this story. With Foster and Hensge meeting every few days with the committee and insisting that the plant was in the process of closing and vehemently denying Massingill's insistence that it was not, I cannot conceive of such a conversation taking place. I can, however, believe that Massingill's suspicions might well have gotten the better of his imagination. Similarly, in another conversation between Massingill and Supervisor Worley, Massingill advised Worley that he had heard that Worley had made a statement to the effect that Warren had stated that, as long as Massingill had anything to do with the Union, the Company would never sign another contract. Worley, according to Massingill, admitted saying something like that but stated that he was only expressing an opinion. I feel certain that Warren would not have expressed such a determination to Worley, a low-line supervisor who was not otherwise involved in negotiations. If Worley expressed such an opinion, I consider it to be just an opinion, isolated and of little consequence. Conclusions - Negotiations After analyzing the negotiations which occurred throughout April, May, and June, I conclude that they were marked by a legitimate desire on the part of Respondent to arrive at a shutdown agreement acceptable to both the Company and the Union which would assure a 208 PRECISION CASTINGS CORPORATION proper orderly closing of the facility, and a cynical disbelief on the part of the Union that this was, in fact, the object of Respondent. This cynicism permeated the various meetings and prevented the parties from concluding any worthwhile agreement. It appears patent that, throughout these negotiations, Massingill attempted to take advantage of every little minor incident to build a case against the Company and, ultimately, to use this collection of miscellaneous trivia, suspicions, unfortunate happen- stances and legitimate, if somewhat outdated, well-founded charges to mold a theory upon which to have complaints issued against Respondent, thereafter to use Board pro- cesses as leverage either to prevent the shutting down of the Cleveland plant or, if that should fail, to make Respondent pay the price. I find, however, that throughout the negotiations Respondent attempted to deal fairly with the Metal Polishers and did not at any time try to barter concessions in return for the withdrawal of the charges. I also find that not until June 6 did the Company refuse to open its books to the Union and that it was, at that time, a legitimate refusal, as found above. The July 9 Strike On July 9, the employees of Precision Castings-Cleve- land struck. Massingill testified that the strike was not called by the Union although it sanctioned the action later, about July 11. He also testified that he did not know why the employees decided to strike although several of them had voiced their feelings that they did not want to help the Company close down peacefully since the Company had done nothing for them. They preferred that the Company should be forced to take the equipment out through the strikers. The Closing of the Cleveland Plant (Case 8-CA- 8494, par. 13(A); Case 8-CA-8848, par. 13(A)) On July 12 the Company advised the Union that the plant was officially and permanently closed but that the Company stood ready to bargain further over the effects of the closing. When Massingill received word that the plant had been closed, he called off the strike in order to permit the employees to apply for unemployment compensation. General Counsel alleges that the Cleveland plant was closed by Respondent in order to avoid its collective- bargaining obligation with the Metal Polishers, to avoid negotiations with Massingill, and for the purpose of chilling unionism at its Redkey, Rockford, and Fayetteville plants. The economic history of the Cleveland plant indicates that, in 1970, on gross sales of approximately $7 million the Company made a profit of about $460,000; in 1971 on gross sales in excess of $8 million the Company lost $56,000; in 1972 on gross sales of just under $10 million the Company lost over $400,000; and in 1973 on gross sales in excess of $10 million the Company lost approximately $155,000. In 1974, the Company's records indicate the following for the first 6 months: 26 The Metal Polishers contends such changes were made unilaterally. Respondent denies this charge. Gross Sales $1,059,855 843,514 1,016,251 1,201,040 1,160,140 971,821 Profit or Loss $ 23,412 (46,296) (82,251) 53,065 5,925 23,296 In the first 6 months of operation in 1974 the Cleveland plant lost almost $35,000. These figures compare unfavor- ably with the Fayettville and Rockford plants where company records indicate substantial profits were enjoyed during the same periods. The poor showing of the Cleveland plant was due in part to the heavy production of scrap and low quality produc- tion. The plant was old, the equipment antiquated, and the facilities poor so that material flow was unsatisfactory. The same problems which gave rise to poor production likewise resulted in employee dissatisfaction and unrest. Mainte- nance costs were excessive because of the condition of the equipment, further eating into potential profits. Over and above the economic problems peculiar to the Cleveland plant, management witnesses credibly testified to the fear of an impending recession reflected by a decrease in and postponement of orders from the automotive industry which the Cleveland plant serviced. Moreover, interest rates were high while the return on investment in the Cleveland plant was nonexistent. Besides the purely economic considerations, upper management was aware of the labor problems existing at Cleveland. Outstanding grievances were in excess of 100, over 50 filed because of management's attempts at combining jobs and making changes in production opera- tions in order to cut costs. 26 Two wildcat strikes, one in February and one in March, not only disrupted production but resulted in serious damage to plant facilities and equipment amounting to in excess of $100,000. According to company witnesses, these were the consid- erations upon which management relied in deciding to discontinue the Cleveland operation. General Counsel did not attempt to refute the existence of these considerations but rather relies on the evidence adduced at the hearing to prove considerations violative of the Act as the true motive for closing the plant. The evidence, more particularly relied upon by General Counsel, consists of the myriad of instances of personal abrasive clashes between local management and local union officals, primarily between Jackson and Massingill, over matters frequently giving rise to grievances, arbitration hearings, complaints to OSHA, and charges with the Board, well or ill founded. These incidents have been fully discussed above and found for the most part to have been considerably overemphasized in importance. When considered separately, these incidents 209 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were clearly minor in impact and ephemeral in effect and would never, but for the personalities of the individuals involved, have resulted in the troubles which eventuated. But granted, arguendo, that the relationship between Massingill and local management was such that local management would prefer to go out of business rather than continue that relationship, I find nothing in the record to convince me that Jackson or Foster had that much input into the decision to close the plant. Rather, it would appear that the decision was made by the board of directors of Allied rather than by the management of the Cleveland plant directly involved with the Metal Polishers. Moreover, in every instance where Jackson or Foster commented to Massingill on their attitude toward the closing of the plant, indications are that they wanted to keep it open. I conclude that the shutdown of the Cleveland plant was based solely on economic considerations and not to avoid the Company's collective-bargaining obligations with the Metal Polishers or with its local president. Moreover, between January and March 1974 Respondent took special care to inform the Metal Polishers Union that it was in economic difficulty. At the April 23 meeting it advised it that it was seriously contemplating closure of the plant and asked for suggestions on how to keep it open. No suggestions were forthcoming and in May the decision to close was made and announced. I find that the Metal Polishers was given ample opportunity to bargain over the decision to close the Cleveland plant. The July 16 Request for Books (Case 8-CA-8494, pars. 14(C), (D), and (E); Case 8-CA-8848, pars. 14(C), (D), and (E)) On July 16 Massingill sent a letter 2 7 to Respondent asking to see the Company's books inasmuch as he had learned that the Company had advised the media that it had closed for economic reasons. On July 27 Attorney Marcus replied on behalf of the Company to the effect that since the Metal Polishers had been advised as early as March of the financial plight of the Company and had participated since April in negotiations toward the shut- down of the Cleveland plant, and inasmuch as the plant was now already closed, an examination of the books at that time could serve no purpose. Marcus closed his letter with the following offer: If, despite all the facts noted above, you believe that there is some legitimate purpose which could be served by your receipt of this financial data, we would suggest that you correspond directly with the undersigned and set forth such purpose. You may rest assured that your reply will be given prompt and full consideration. It should be noted that on July 16, the same day Massingill made his first request in writing to see the Company's books, he also filed a charge in Case 8-CA- 8494 alleging a failure upon request to furnish relevant data concerning the financial status of the Company. Although previous 8(a)(5) charges were filed, even as late as June 6, none of them contained any allegation of a failure to 27 At a meeting on July 18 Topolski asked if the Company intended to reply to this letter. Hensge assured him that it would. produce requested economic data. Nor did any of the numerous affidavits or minutes of union witnesses mention the demand for books until the conveniently rediscovered June 6 minutes of Quentin Johnson were produced, all other minutes allegedly somehow having been lost. I find that the belated demand made on July 16 to see the Company's books was not made for any legitimate purpose in order to enable the Metal Polishers to pursue any rights vested by virtue of the National Labor Relations Act but rather as a makeweight effort in that union's continued attempt to build a case against Respondent. It is noted that Marcus' invitation to Massingill to contact him if he still wished to pursue the production of books went without response. This fact convinces me all the more that Massingill was more interested in obtaining legal leverage than in gaining access to the information requested. Inasmuch as I have found the July 16 request for books was not made in good faith for legitimate reasons and in any event was never pursued thereafter, despite the Company's invitation to Massingill to do so, I recommend dismissal of this allegation. The Manitowoc Company, etc., 186 NLRB 994 (1970). Postshutdown Meetings At the start of the July 18 meeting the Company withdrew its 14-point proposal. Hensge indicated that the Company's proposal had been based upon an orderly timetable to phase out the plant, that the phaseout of the plant was now complete, in part through replevin action of customers to remove their dies through the picket line, and that there was no longer an economic basis for offering the proposals previously placed on the table. Hensge stated that those proposals were consequently withdrawn, includ- ing the offer of severance pay. Massingill asked Hensge what the Company's proposal was now, and Hensge replied that the Company had no proposal. Massingill took the position that the Company's proposals should still remain the basis for negotiations. Hensge stated he would continue to meet to bargain concerning the effects of the shutdown but not on the basis of the 14-point proposal. Nothing was achieved at this meeting nor at subsequent meetings on July 26 and in August. Subcontracting (Case 8-CA-8494, par. 14(J); Case 8-CA-8848, par. 14(J)) The Cleveland plant had always subcontracted some work but, in February 1974 because of a backlog of $6 million in orders, amounting to 6 months work, it undertook to subcontract a greater amount of unit work in order to avoid a loss of customers. The record does not indicate any adverse effects on unit employees during this period. On the contrary, it appears that the plant had more work than it could handle and the subcontracting cannot therefore be found to have been violative. George Webel d/b/a Webel Feed Mills & Pike Transit Company, 217 NLRB 815 (1975). But General Counsel limits the allegations concerning subcontracting to the period July through October 1974, presumably to that period of time 210 PRECISION CASTINGS CORPORATION following closure of the plant. Inasmuch as I have found the closing of the Cleveland plant to have been effected for legitimate economic reasons, I can see no possible interest which the Union might have in work that was subcontract- ed after plant closure. Since the plant was already shut down and employees terminated, these employees would not have any occasion to perform the work in any event. I therefore recommend dismissal of the allegations. The Machinists Bargaining Sessions (Case 8-CA- 8848) The Machinists represented approximately 35 employees in a unit of tool-and-die makers and repairmen at the Cleveland Precision Castings plant. On March 4 the Machinists notified Respondent of its intention to termi- nate the contract and to open negotiations toward a new one. The first meeting was scheduled for April 23. The April 23 Meeting At the April 23 meeting, the Machinists offered its contract proposals. The company representatives then advised the Machinists that it was contemplating closing down the plant for the reasons enumerated to the Metal Polishers earlier in the day and described supra. As with the Metal Polishers, Hensge asked the Machinists representa- tive, Bill Jennings, if he had any suggestions but Jennings had nothing to say on the matter. Hensge stated that the Company would make a final decision on whether or not to close the plant and advise the Machinists of its decision at the next meeting. Jennings testified that during the discussion Hensge commented about problems with the Metal Polishers, including the two strikes which had caused customers in the area to lose confidence in the Company's ability to produce and deliver parts. Hensge testified only that he told Jennings that the recent labor problems with the Metal Polishers had nothing to do with the decision possibly to close the plant. Jennings' own affidavit, however, supports Hensge and I therefore credit the latter. The May 10 Meeting Once again at the May 10 meeting Hensge asked Jennings for suggestions on how to keep the plant open. Jennings declined to offer any. According to Jennings, Hensge again complained that the Company was not making money and, when it tried to make changes, it was met with grievances, arbitration cases, and unfair labor practice charges and the problems remained. Jennings commented that the Metal Polishers felt that its grievances, arbitration cases, and unfair labor practice charges were all legitimate and that it was too bad that the problems remaining were causing a loss of jobs. Hensge then suggested that the parties negotiate a shutdown agreement, the shutdown to occur on or about October I, with some layoffs to be effectuated before that date. Hensge offered to extend the existing contract to October I or until closing, whichever occurred first. According to Hensge, he advised the Machinists that the Company had decided to shut down the plant, that the problems that existed were a long time in the making. He reviewed the economic problems as he had on April 23 and assured the Machinists that the shutdown really had nothing to do with labor problems. He advised Jennings that the Company desired to negotiate a shutdown agreement with severance included but would entertain suggestions on how to keep the plant open. Discussion about the contents of a possible shutdown agreement followed but there was no agreement reached. Hensge specifically denied that there was any discussion of National Labor Relations Board charges, grievances, or arbitration. Although Foster's minutes did not refer specifically to labor problems, grievances, arbitration, or unfair labor practices, there were references to "management prob- lems" and to problems "that his [Jennings] union could mediate." These references in Foster's minutes convince me that the labor relations problems which Jennings stated Hensge had referred to were, in fact, discussed and the Company did blame a part of its economic troubles on the Metal Polishers refusal to permit the Company to make operational changes to improve its production. The May 17 Meeting At the May 17 meeting the Machinists asked if there was not some way to work out the problems and keep the plant open since there had been good relations between the Company and the Machinists. Hensge replied that the problems were many but that management was not blaming either the Union or the workers. He stated that the only way the Company could change things would be by a thorough housecleaning, but that it took a lot of courage to come in and clean house when people have been with a company many years. He said that Allied top management did not like to do things that way. Hensge then noted that the Company realized that there were serious problems with supervision and management and that some changes had been made. He stated that for the past 2 years the Company had tried to make changes and were resisted in every way (referring to the Metal Polishers Union). Hensge then stated that the Company and the Metal Polishers had come to loggerheads when discussing changes and that resistance to the changes had manifested itself in the form of grievances, Board charges, and wildcat strikes. Hensge then emphasized that these problems did not, however, lead to the decision to close the plant and stated that, if the changes had been made 2 years before, then the plant might have been able to survive. Jennings offered to do whatever possible to keep the plant open but, if the Company had definitely made its decision to close, he was ready to negotiate a shutdown and severance agreement. Jennings then presented the Machinists proposal and Hensge countered with a shutdown proposal similar to the one previously offered to the Metal Polishers. Among the proposals exchanged was the Machinists request for severance amounting to I week's pay for each year of service while the Company offered $25 for each year of service. No agreement was reached and it was decided that the parties would meet again during the week of May 27. That meeting never took place, however, but on June 6 Hensge and Jennings discussed the shutdown by telephone. Jennings asked Hensge what was happening insofar as the 211 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shutdown agreement was concerned. Hensge replied that the Company was having problems with the Metal Polishers and did not know where they stood. He stated that the Metal Polishers were still trying to negotiate a labor agreement, they had filed charges against the Company, there were arbitration proceedings also continu- ing, and they were still trying to bargain over discharged employees. Hensge complained that there had been just so much money allotted to shut down the plant and it was all being eaten up, mostly by NLRB charges and other labor problems. Hensge promised to call Jennings back later. On June 10 Hensge wrote to Jennings advising him that the Cleveland plant would close, that the phaseout already begun and would continue, and that the unit employees represented by Jennings would continue to enjoy the benefits of the expired labor agreement. On July 9 the employees went on strike and Jennings advised his membership not to go through the picket line ostensibly because of fear of violence. On July 12 Jennings received a telegram from Hensge advising him that the plant had been permanently closed. The Meetings of July 24 and 30 At the July 24 meeting Hensge advised the Machinists that the Company's proposals had been based on an orderly shutdown and that, since the plant had now been shut down following the strike, there was no longer any justification for payment of severance or certain other items that might go into a shutdown agreement. He stated that the Company was therefore withdrawing its proposals. Hensge also stated that he would continue to bargain over the effects of the shutdown including severance but the economic justification at the moment was gone. He further commented that, if the parties were to bargain a shutdown agreement with severance, it would have to contain a zipper clause in order to define the extent of liabilities of the shutdown agreement and prevent individual employees from taking actions against the Employer which the Union might have taken. Jennings asked what would happen in the event the plant reopened and Hensge offered to include a recognition provision in the zipper clause. Jennings agreed to consider the zipper clause proposal and to meet again with the Company. On July 30 the parties met again. Hensge reiterated that the economic justification for severance was gone but that the Company was still reviewing its moral obligation. He stated that no decision had been made concerning severance pay but that hopefully he would know in 2 or 3 weeks and would keep Jennings informed. Hensge then orally proposed the zipper clause language which had previously been proposed to the Metal Polishers. Jennings wrote it down: The employment status of the employees shall termi- nate on the date of the closing of the company and no further claims or rights of the employees or union against the company shall accrue except to the extent provided in this agreement (Severance Agreement). According to Hensge, Jennings neither agreed nor disagreed with the language of the zipper clause but simply stated that he would check it out. There was no agreement either on the $25 per year of service severance proposal. According to Jennings, after writing down the language of the zipper clause, he called his attorney on the telephone and after proposing some minor changes stated that the Machinists could "live with this language." Hensge replied that he would run it by (top management). Jennings testified that he had accepted the $25 offer in return for the zipper clause and that a tentative agreement had been reached. Hensge denied that Jennings indicated acceptance of either the zipper clause language or the $25-per-year severance proposal which had been withdrawn. I find in accordance with Hensge's testimony that no tentative agreement concerning severance pay was reached on July 30. Not only is Hensge's testimony supported by Foster's notes but also by Jennings' affidavit and notes which clearly indicate that no decision had yet been reached with regard to the matter of severance pay. General Counsel alleges (Case 8-CA-8848, par. 14(A)) that Respondent unlawfully conditioned severance pay on an agreement by the Machinists to waive its rights to file Board charges alleging unfair labor practices which might arise out of the plant closing. But there is no indication that this was the intent of the zipper clause. It does not specifically mention unfair labor practices nor was their testimony that unfair labor practices were mentioned during the various meetings between the Machinists and the Company in connection with the zipper clause. None of the notes of the participants contain any mention of unfair labor practice charges in connection with the zipper clause. Foster's notes mention only grievances. Inasmuch as it was testified that the subject clause was the standard form used in all Allied shutdown agreements, it cannot be considered peculiar to the facts of this case or specially designed for use where there are pending or probable unfair labor practice charges. This fact, plus the lack of any testimony or other evidence connecting the zipper clause to such motive requires rejection of the theory. Moreover, it seems patently clear that any such agreement could not stand in the way of a legitimate filing and processing of an unfair labor practice charge since the public law cannot be abridged by private contract. I am certain that Hensge must have been aware of this. I therefore recommend dismissal of the allegation. General Counsel similarly contends that on July 30 Hensge unlawfully conditioned final severance pay agree- ment on the progress of negotiations with the Metal Polishers (Case 8-CA-8848, par. 15(B)). In support of this contention Jennings testified that Hensge stated on July 30 that he did not want to prejudice his case with the Metal Polishers by paying the Machinists. But Jennings testified elsewhere that it was only his opinion that severance for the Machinists was conditioned on what happened in the Company's negotiations with the Metal Polishers. It was only during challenging cross-examination when counsel inadvertently suggested the answer that Jennings testified as he did: Q. Did he tell you that you (the Machinists) would not get anything unless they (the Metal Polishers) did? 212 PRECISION CASTINGS CORPORATION A. He said he did not want to prejudice his position with, his case with the Metal Polishers Union by paying us. I conclude that it may well have been Jennings' honest opinion that Respondent wanted to complete negotiations with the Metal Polishers before signing an agreement with the Machinists but I cannot believe that Hensge made the statement attributed to him by Jennings. Rather, I conclude that Jennings merely embellished upon his personal feelings about the situation by falsely attributing the statement to Hensge for, throughout all of the meetings between Jennings and Hensge, in all other cases, Hensge assured Jennings that they were not bound in any way by Respondent's negotiations with the Metal Polishers. 28 Other than this one statement by Jennings, which I discredit, the record reflects no evidence supportive of the allegation. No witnesses other than Jennings were called to substantiate Jennings' testimony, despite the fact that there were three other Machinists committee members present when Hensge allegedly made the statement. I find that the reason Respondent refused to pay the Machinists employ- ees severance was that there was no advantage in doing so, economic or otherwise, since the plant was already closed and therefore they did not choose to do so. The Act does not, of course, require the giving of concession during bargaining, and certainly does not require an employer to give away the company's assets where there is no benefit to be obtained in return. Withdrawal from the Severance Pay Agreement (Case 8-CA-8848, par. 14(C)) After the July 30 meeting there were several phone calls between Jennings and Hensge concerning severance pay. Finally, on December 6 Hensge advised Jennings that the Machinists would receive no severance pay, that "they (corporate management) just won't okay it." General Counsel alleges that Respondent first entered into, then withdrew from, an agreement to pay severance. But I have found that the proposal containing the severance agree- ment was withdrawn on July 24 following the plant closing and that the parties thereafter never reached agreement, tentative or otherwise, whereby severance was to be paid. Inasmuch as agreement was never reached by the parties concerning severance, there was nothing from which Respondent could withdraw. I recommend dismissal of this allegation. Postshutdown Events at Cleveland and at Other Plants During the hearing testimony was adduced through witnesses for General Counsel concerning incidents and events at the Rockford and Redkey plants. These incidents were not specifically alleged as unfair labor practices but were introduced as evidence to prove that the purpose and foreseeable effect of the alleged unlawful closing of the Cleveland plant was to have a chilling effect on the 28 For example, at one point Jennings asked if it would be possible, if the parties chose to do so, for the Machinists and Respondent to agree on severance pay of $4 per year of service payable immediately rather than employees' union activities at these other plants. However, I have found that the shutdown of the Cleveland plant was occasioned not by union animus but, rather, by economic considerations and business losses over a long period of time, with no foreseeable possibility of recovery or of profits in the immediate future. The Company's attempts, over the last few months of its Cleveland operation, to turn the operation around, to streamline production, to lower absenteeism, and to increase quantity and improve the quality of its products were thwarted by errors in judgment on the part of lower and middle management at the site which resulted in the filing of hundreds of grievances, arbitration hearings, and the eventual filing of charges with the Board. It was not, however, the filing of grievances and charges, per se, that directly occasioned the closure of the Cleveland plant, but rather the poor economic position of the Company and the even poorer prospects of making improvements to correct its economic situation in the face of the Union's intransigence and unwillingness to accede to the dire need for changes which management felt absolute- ly necessary to save the plant. There is no telling whether or not the plant could have survived even in an atmosphere of mutual trust and cooperation. That, unfortunately, will never be known-the plant is closed and the property sold. But in April 1974 the economic picture facing the Company included a history of constantly increasing losses despite growing sales with no prospects of relief because of the tight money situation and a forecasted recession. These factors, when considered along with the Company's recent unsuccessful attempts at modernizing the operation at Cleveland which resulted in the filing of over 100 grievances and 2 costly wildcat strikes with attendant violence and destruction of company property, appear to me to have convinced corporate management not to continue the Cleveland operation. These reasons, I find, despite the unfortunate state of labor relations at the Cleveland plant, to be economic in nature. Therefore, having found that the shutdown of the Cleveland plant was lawful, the question of any chilling effect on employees at other plants does not require consideration as the theory is inapplicable. See Sequoyah Spinning Mills, Inc., etc., 194 NLRB 1175 (1972). Similarly, the terminations which occurred at Cleveland as a result of the legitimate and lawful decision to close the plant, and which occurred shortly before and at the time of the closing, are not violative of Section 8(a)(3) of the Act. Summary To summarize the findings herein: I have found that General Counsel has failed by a preponderance of the evidence to prove that Respondent has violated Section 8(a)(5) of the Act with respect to those allegations contained in the consolidated complaint. Similarly, I have found that General Counsel has failed to prove violations of Section 8(a)(3) with respect to the various terminations and suspensions as alleged in the complaint. With respect to the numerous alleged violations of Section 8(aX)(I), I have found violations with regard to Supervisor Worley's waiting for the $25 per year of service as was being considered at the time; Hensge replied in the affirmative. 213 DECISIONS OF NATIONAL LABOR RELATIONS BOARD threat to ride Johnson's back and to make an example of him because he was a steward, as well as his threat in January to issue warning slips and generally to enforce the rules more strictly because the employees in his department filed a grievance; with regard to the interrogation of employees by Jackson and Foster concerning their having filed affidavits at the Regional Office of the National Labor Relations Board in support of union charges; and with regard to Supervisor Kuches questioning of employee Hunt concerning his visiting the National Labor Relations Board offices, as well as Kuches' remarks concerning said visit. I have recommended dismissal of all other allegations of violation of Section 8(a)(1) for the reasons noted following the discussion of each of said incidents, supra. In all cases other than the few incidents which I have found violative, I find that General Counsel has either failed to prove by a preponderance of the evidence that the violations have occurred, or the incidents alleged as violations were too trivial in nature or lacking in serious- ness to be dignified with the appellation of an unfair labor practice. CONCLUSIONS OF LAW 1. Precision Castings Company, Division of Aurora Corporation, a wholly owned Subsidiary of Allied Products Corporation, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Metal Polishers, Buffers, Platers and Allied Workers, International Union, Local 500, AFL-CIO, and Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, Local 1825, District 54, are labor organizations within the meaning of Section 2(5) of the Act. 3. By threatening employees with disciplinary action and more onerous working conditions because they filed grievances; by threatening to excessively reprimand an employee and make an example of him because he is a steward; by interrogating an employee concerning his visits to the Regional Office of the National Labor Relations Board and by interfering with said visits; and by interro- gating employees concerning their having offered affidavits in support of union charges filed with the National Labor Relations Board, thereby implicitly threatening them, Respondent has interfered with the employees' Section 7 rights as set forth in the Act and has thereby violated Section 8(a)(1). 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent has not violated Section 8(aX3) or (5) of the Act nor violated Section 8(a)(1) of the Act except as indicated in paragraph 3 herein. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist therefrom, and to take certain affirmative action designed to effectuate the policies of the Act. [Recommended Order omitted from publication.] APPENDIX B Case 8-CA-8135: 13. Respondent, on or about January 21, 1974, unilat- erally instituted changes in the vacation schedule of employees in the appropriate unit named above without notifying or bargaining with the Union. 14. Respondent, on or about February 28, 1974, unilaterally instituted changes in the payday of employees in the appropriate unit named above without notifying or bargaining with the Union. 15. Respondent, on or about March 18, 1974, unilater- ally instituted changes in the starting time of employees in the appropriate unit described above without notifying or bargaining with the Union. 16. Respondent, on or about March 1, 1974, by its officer, agent, and supervisor, Jacob Robert Foster, attempted to undermine the Union by dealing directly with the employees in the appropriate unit named above regarding a pay increase. 17. On or about the dates set forth below, Respondent, by its officers, agents and supervisors, Howard Jackson, Jacob Robert Foster and William Hensge, attempted to undermine the Union as the exclusive bargaining represen- tative of the employees in the appropriate unit named above by the following acts and conduct: (A) During the months of December 1973 and January 1974, the exact dates being unknown, Respondent, by its officer, agent, and supervisor, Howard Jackson, in the plant, falsely told employees that the union president had not given him an opportunity to correct unsafe conditions before calling Federal and State inspectors. (B) On or about March 12, 1974, Respondent, by its officer, agent and supervisor, Howard Jackson, in the plant, falsely stated to employees that the president of the Union had misrepresented to them the conditions agreed upon in settlement of a strike which commenced February 21, 1974. (C) Commencing on or about February 16, 1974, and continuing thereafter, Respondent, by its officers, agents and supervisors, Howard Jackson and William Hensge, attempted to undermine the Union by refusing to answer a letter from the union president concerning bargaining on a new contract and by dealing directly with the Union's international representative and bypassing the Local union president. (D) On or about April 14, 1974, Respondent, by its officer, agent and supervisor, Jacob Robert Foster, in the plant, stated to the Local union president that Respondent would bypass the Local Union and would deal directly with the Union's international representative. 18. Respondent, commencing on or about March 11, 1974, and continuing thereafter, unilaterally instituted changes in the method or manner of issuing warning notices for absenteeism to employees in the appropriate unit named above without notifying or bargaining with the Union. [The above allegations, if proved, constitute violations of Section 8(a)(5) and (1).] 20. Respondent, on or about January 3, 1974, by its officer, agent and supervisor, Ralph Worley, in the plant, 214 PRECISION CASTINGS CORPORATION threatened employees with reprisals if these employees filed a grievance against him and, in conjunction with these threats, unlawfully interrogated employees regarding cer- tain work assignments. 21. Respondent, on or about January 3, 1974, through its officer, agent and supervisor, Ralph Worley, in the plant, threatened an employee with discharge and other reprisals because of his union activities, sympathies, membership and/or affiliation, and because a grievance had been filed. 22. Respondent, on or about January 10, 1974, and January 11, 1974, through its officer, agent and supervisor, Ralph Worley, in the plant, threatened employees with reprisals because of their union activities, sympathies, membership and/or affiliation and because they had filed a grievance with the Union. 23. Respondent, on or about January 10, 1974, by its officer, agent and supervisor, Ralph Worley, in the plant, interrogated employees with respect to their union activi- ties, sympathies, membership and/or affiliation and with respect to a grievance which had been filed. 24. Respondent, on or about January 11, 1974, by its officer, agent and supervisor, Ralph Worley, in the plant, met with employees, solicited their agreement to withdraw their names from a grievance and threatened an employee with reprisals if he did not withdraw his name from the grievance. 25. Respondent, on various dates between July 24, 1973, and January 3, 1974, the exact dates being unknown, by its officer, agent and supervisor, Ralph Worley, in the plant, threatened an employee with reprisals because of his union activities, sympathies, membership and/or affilia- tion. 26. Respondent, on or about February 14, 1974, by its officer, agent and supervisor, Jacob Robert Foster, in the plant, refused to permit an employee to have union representation when he was taken to Foster's office because he had complained about certain working condi- tions. 27. Respondent, on or about February 6, 1974, by its officers, agents and supervisors, Howard Jackson and Jacob Robert Foster, in the plant, interrogated employees with respect to their union activities, sympathies, member- ship and/or affiliation, and with respect to certain other protected activities. 28. Respondent, between February 4, 1974, and Febru- ary 8, 1974, through its officer, agent and supervisor, Ralph Worley, in the plant, threatened an employee with reprisals because of his union activities, sympathies, membership and/or affiliation and because he had engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. 29. Respondent, on or about February 8, 1974, by its officer, agent, and supervisor, Jacob Robert Foster, in the plant, threatened an employee with reprisals for his union activity, sympathies, membership and/or affiliation and because he intended to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. I [With regard to par. 31 of the complaint, Respondent acknowledged that its employees engaged in a strike on or about the dates set forth but denied that the strike was a protected unfair labor practice stnke.] 30. Respondent, on or about March 5, 1974, by its officer, agent and supervisor, Paul Kuches, in the plant, threatened an employee with reprisals because of his union activities, sympathies, membership and/or affiliation and because he had engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. 31.1 Commencing on or about February 21, 1974, and continuing through on or about February 26, 1974, employees of Respondent concertedly engaged in a protected unfair labor practice strike against Respondent because of the unfair labor practices of Respondent as set forth above in paragraphs 13, 17(A), 17(C), 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, and 29. 32. On or about March 4, 1974, Respondent transferred from the job classifications set forth opposite their names, to lower paying job classifications, the following-named employees, who engaged in the unfair labor practice strike referred to above in paragraph 31, and at all times since such date, it has failed and refused, and does continue to fail and refuse, to reinstate them to their former or substantially equivalent positions of employment, because they had, or Respondent believed that they had, joined or assisted the Union, and/or engaged in other protected concerted activities for the purpose of collective bargaining and other mutual aid or protection, including, but not limited to, their participation in said unfair labor practice strike: Daile G. Vance - Hot Mule Driver Calvin McKenzie - Metal Alloy Department Employ- ee Louis Screen - Metal Alloy Department Employee 33. Commencing on or about March 12, 1974, and continuing through on or about March 20, 1974, employees of Respondent concertedly engaged in a protected unfair labor practice strike against Respondent because of the unfair labor practices of the Respondent as set forth above in paragraphs 13 through 30, and paragraph 32, and because Respondent failed to abide by the terms of the Settlement Agreement reached with respect to the protect- ed unfair labor practice strike described above in para- graph 31. [General Counsel contends that the allegations, if proved, constitute violations of Section 8(a)(1), the allega- tions set forth in paragraph 32, if proved, constitute violations of Section 8(aX3) and (1); and the allegations set forth in paragraphs 13 through 18, if proved, constitute violations of Section 8(aX5) of the Act.] Case 8-CA-8279: 6. Respondent, on various dates between approximate- ly May 5, 1974, and May 12, 1974, the exact dates being unknown, through its officer, agent and supervisor, Dick Gamin, in the plant, threatened employees with closing the plant unless the employees got rid of the Union and the union president. 215 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7. On or about the dates set forth opposite their names, Respondent terminated or suspended the following named employees, who engaged in the unfair labor practice strike referred to in paragraph 33 of the complaint issued in Case 9-CA-8135, and at all times until March 25, 1974, it failed and refused to reinstate them to their former or substantial- ly equivalent positions of employment, because they had, or Respondent believed that they had, joined or assisted the Union and/or engaged in other protected concerted activities for the purpose of collective bargaining or other mutual aid and protection, including, but not limited to, their participation in said unfair labor practice strike: Josiane Bitonti - March 19, 1974 Walter Finley - March 13, 1974 James Leahy - March 13, 1974 Chuck Clock - March 14, 1974 Elizabeth Phifer - March 12, 1974 8. On or about the dates set forth opposite their names, the Respondent terminated and/or permanently suspended the following named employees, who engaged in the unfair labor practice strike referred to in paragraph 33 of the complaint issued in Case 8-CA-8135, and at all times since such date, it has failed and refused, and does continue to fail and refuse, to reinstate them to their former or substantially equivalent positions of employment, because they had, or Respondent believed that they had, joined or assisted the Union and/or engaged in other protected concerted activities for the purpose of collective bargaining and other mutual aid or protection, including, but not limited to their participation in said unfair labor practice strike: John A. Hunt - March 12, 1974 William Hunt - March 19, 1974 Daile Vance - March 19, 1974 Idel Quinones - March 19, 1974 James Gallagher - March 19, 1974 Jackie Bragg - March 22, 1974 [General Counsel contends that the above allegations, if proved, constitute violations of Section 8(a)(1) and that the allegations contained in paragraphs 7 and 8, if proved, constitute violations of Section 8(a)(3) and (1) of the Act.] Case 8-CA-8420:2 13. Commencing on or about February 16, 1974, the Union has requested, and is requesting, Respondent to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, as exclusive bargaining representative of all employees of Respondent in the unit. 14. Commencing on or about the date set forth below, and continuing thereafter, to the present, Respondent has refused to bargain collectively with the Union as exclusive bargaining representative of all the employees in the unit it represents by the following acts and conduct: (A) On numerous occasions between approximately May 5, 1974, and May 17, 1974, the exact dates being unknown, Respondent, by its officer, agent and supervisor, Dick Gamin, in the plant, threatened employees with closing the plant unless the employees got rid of the Union and the union president. (B) Respondent, on or about May 29, 1974, and May 31, 1974, by its officer, agent and supervisor, William Hensge, in the plant, threatened to close the plant and refuse to bargain with the Union for a collective-bargaining agree- ment unless the Union withdrew unfair labor practice charges against Respondent pending with the National Labor Relations Board. (C) Respondent, on or about June 28, 1974, by its officer, agent and supervisor, Howard Jackson, in the plant, threatened to close the plant unless the Union withdrew unfair labor practice charges against Respondent pending with the National Labor Relations Board. (D) Respondent, since on or about approximately May 5, 1974, and continuing through the present, has refused to bargain with the Union over a new collective-bargaining agreement and has insisted that unless the unfair labor practice charges against Respondent pending with the National Labor Relations Board are withdrawn it will only bargain over the closing of the plant. (E) Respondent-commencing on or about May 5, 1974, the exact date being unknown, and continuing thereafter, by its actions outlined in the above subparagraphs, has engaged in a course of conduct constituting bad-faith bargaining, including dilatory, evasive, obstructive, and other similar action, having for its real objective the avoidance of any agreement with the Union with respect to rates of pay, wages, hours of employment and other terms and conditions of employment of the employees in the unit. [General Counsel contends that the allegations contained in paragraph 14, if proved, constitute violations of Section 8(a)(5) and (1) of the Act.] Cases 8-CA-8494 and 8-CA-8848: 13. (A) On or about July 12, 1974, Respondent closed its facility located at 12600 Berea Road, Cleveland, Ohio, in order to avoid its collective-bargaining obligation with the Metal Polishers, in order to avoid negotiating with the president of the Metal Polishers, and for the purpose of chilling unionism in its Redkey, Indiana, Rockford, Illinois, and Fayetteville, New York, facilities. Moreover, a foreseeable effect of Respondent's closing of its Cleveland, Ohio, facility was the chilling of unionism in its Redkey, Indiana, Rockford, Illinois, and Fayetteville, New York, facilities. (B) In preparation for this unlawful plant closure referred to above, and as a direct result of this unlawful shutdown, Respondent terminated and/or laid off and/or contructively discharged the following named employees on the dates set forth opposite their names and at all times since such date, it has failed and refused, and does continue to fail and refuse, to reinstate them to their former or substantially equivalent positions of employment, 2 [Pars. 5, 8, 9. and 10 of the complaint were admitted at the hearing.] 216 PRECISION CASTINGS CORPORATION because of Respondent's unlawful plant closure referred to in paragraph 13(A): Name Gary Holloway Eugene Long Clifford Mclntosh Denver Franklin Paul Ellison Larry Marshall James Pierson Marshall Downs Patricia Anderson Elizabeth Shestina Hope Delisse Fernando Eslaquit Ruth Foreman Dennis Neuman Paul Osterman Michael Perry Raymond Dancy Anna Marie Miller Richard James David Addicott Gerald Bess John Gibson Paul Menhart William Pearce Joseph Bojdys Luminita Marijan Kenneth George Ralph Piece David Dawson, Jr. Gloria Gungl Florence Waner Anne Brindza Stephen Basch John Friedrich Gary Caudill Louis Screen Robert Hamm Richard Reese Timothey Lockhart Charles Hardy Robert Sauls Timothy Hamblen Joe Jones Ethel Williams Elizabeth Phifer Julius Gucwa Robert Barron Mary Irby Anthony Bednarik Allen Angyal Lewis Bolger Mary Smith Margaret Kovelik Date, Dept. 4/29/74, shipping 5/16/74, trim 5/16/74, trim 5/16/74, trim 5/17/74, trim 5/17/74, trim 5/17/74, die shop 5/20/74, casting 5/20/74, inspection 5/20/74, inspection 5/20/74, inspection 5/20/74, inspection 5/20/74, inspection 5/24/74, casting 5/28/74, casting 5/28/74, casting 5/28/74, casting 6/28/74 6/14/74 6/12/74, trim 6/13/74, inspection 6/10/74, mach. rpr. 6/10/74, mach. rpr. 6/10/74, mach. rpr. 6/10/74, maint. 6/10/74, maint. 6/10/74, maint. 6/10/74, maint. 6/10/74, maint. 6/10/74, inspection 6/10/74, inspection 6/10/74, inspection 6/10/74, maint. 6/10/74, mach. rpr. 6/17/74, inspection 6/17/74, alloy 6/17/74, trim 6/17/74, casting 6/18/74, maintenance 6/18/74, alloy 6/24/74, trim 6/24/74, trim 6/24/74, trim 6/24/74, trim 6/24/74, trim 6/24/74, trim 6/24/74, trim 6/24/74, trim 6/24/74, inspection 6/24/74, casting 6/24/74, casting 6/28/74 6/17/74 (C) On or about July 12, 1974, Respondent terminated the remainder of its employees in the bargaining unit referred to in paragraph 7(A), approximately 300 in number, as a direct result of its unlawful plant closure referred to above in paragraph 13(A), and at all times since such date, it has failed and refused, and does continue to fail and refuse, to reinstate them to their former or substantially equivalent positions of employment. (D) On or about July 12, 1974, Respondent terminated approximately 30 employees represented by the machinists in the unit of employees it represents, as a direct result of its unlawful plant closure referred to above in paragraph 13(A), and at all times since such date, it has failed and refused, and does continue to fail and refuse to reinstate them in their former or substantially equivalent positions of employment. 14. Commencing on or about the dates set forth below, and continuing thereafter, to the present, Respondent has refused to bargain collectively with the Metal Polishers, as exclusive bargaining representative of the employees in the unit it represents by the following acts and conduct: (A) On numerous occasions between approximately May 5, 1974, and May 17, 1974, the exact dates being unknown, Respondent, by its officer, agent and supervisor, Dick Gamin, in the plant, threatened employees with closing the plant unless the employees got rid of the Metal Polishers and its president. (B) Respondent, on or about May 29, 1974, by its officer, agent and supervisor, William Hensge, in the plant, threatened employees and Metal Polishers representatives with closing the plant and with a refusal to bargain with the Union unless the Metal Polishers withdrew unfair labor practice charges against Respondent pending with the National Labor Relations Board. (C) Respondent, on or about May 31, 1974, by its officer, agent and supervisor, William Hensge, in the plant, refused to bargain with the Union regarding its decision to close the plant and refused to bargain with the Union regarding the effects of the closure of this facility by reneging on an offer originally made by its officer, agent and supervisor, Howard Jackson, on May 15, 1974, to keep the plant open if the Metal Polishers would agree to a I-year extension of the present contract, by insisting that the Metal Polishers withdraw unfair labor practice charges filed with the National Labor Board in order to keep the plant open, and by refusing the Metal Polishers' request for information concerning Respondent's asserted economic justification for closing its Cleveland facility. (D) Commencing on or about May 31, 1974, and continuing to date, Respondent, by its officer, agent and supervisor, William Hensge, refused the Metal Polishers' request for information concerning Respondent's asserted economic justification for closing its Cleveland facility, thereby precluding the Metal Polishers from meaningfully bargaining over Respondent's decision to close this plant. (E) Commencing on or about July 16, 1974, Respondent reiterated in writing its refusal to provide the Metal Polishers with information concerning Respondent's as- serted economic justification for closing its Cleveland plant, thereby precluding the Metal Polishers from being able to meaningfully bargain over Respondent's decision to close this facility. (F) Commencing on or about April 29, 1974, and continuing to on or about July 12, 1974, Respondent, while ostensibely bargaining with the Metal Polishers over its 217 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decision to close the plant, terminated and/or laid off approximately 50 employees named above in paragraph 13 (B) pursuant to a decision it had already made to close its Cleveland, Ohio, facility, notwithstanding any asserted willingness to bargain over this decision. (G) Respondent, on or about June 28, 1974, by its officer, agent and supervisor, Howard Jackson, in the plant, threatened employees and Metal Polishers representatives that it would close the plant unless the Union withdrew unfair labor practice charges against Respondent pending with the National Labor Relations Board. (H) On or about July 12, 1974, Respondent permanently closed its Cleveland, Ohio facility, and unilaterally termi- nated its business operations at this facility, and it did refuse, and continues to refuse, to bargain collectively with the Metal Polishers over its decision to close said plant, which is a part of a single, integrated operation consisting of Respondent's Cleveland, Ohio, facility, its Redkey, Indiana, facility, its Rockford, Illinois, facility and its Fayetteville, New York, facility. (I) On or about May 31, 1974, Respondent, by its officer, agent and supervisor, William Hensge, after reaching tentative understanding with the Metal Polishers concern- ing major portions of an agreement regarding the effects of the pending shutdown of Respondent's Cleveland facility, introduced an onerous bargaining demand to avoid final agreement which would have required the Metal Polishers to waive its right to file charges alleging unfair labor practices which might arise out of the closing of the plant and to withdraw pending unfair labor practice charges. Respondent conditioned any agreement regarding the effects of the shutdown to acceptance by the Metal Polishers of this proposal. (J) Commencing at some time in July, August, Septem- ber, or October 1974, the exact date being unknown, and continuing thereafter, Respondent unilaterally subcon- tracted bargaining unit work which has previously been performed by employees in the unit represented by Metal Polishers without notification to, or bargaining with, the Metal Polishers. (K) Respondent, commencing on or about April 29, 1974, and continuing thereafter, by its actions outlined in the above subparagraphs, has engaged in a course of conduct constituting bad-faith bargaining, including dila- tory, evasive, obstructive and other similar actions, having for its real objective the avoidance of any agreement with the Metal Polishers with respect to its decision to close its Cleveland, Ohio, facility and with respect to the effects of the closure of said facility, and other terms and conditions of employment of the employees in the unit represented by the Metal Polishers. 15. Commencing on or about the dates set forth below, and continuing thereafter, Respondent has refused to bargain collectively over the effects of closure of its Cleveland, Ohio, facility with the Machinists as the exclusive bargaining representative of all employees in the unit represented by that labor organization by the following acts and conduct: (A) Commencing on or about July 24, 1974, and continuing to the present, Respondent, by its officer, agent and supervisor, more particularly, William Hensge, condi- tioned a severance pay agreement on the Machinists' agreement to waive its right to file charges with the National Labor Relations Board alleging unfair labor practices which might arise out of said plant closure. (B) Commencing on or about July 30, 1974, and continuing to the present, Respondent, by its officer, agent and supervisor, William Hensge, unlawfully conditioned reaching a final severance pay agreement with the Machinists on the progress of negotiations with the Metal Polishers, a matter extraneous to the Machinists' unit. (C) On or about December 6, 1974, Respondent, through its officer, agent and supervisor, William Hensge, withdrew from a tentative agreement and/or understanding reached with Machinists regarding the effects of the impending shutdown of Respondent's Cleveland, Ohio, facility and informed the Machinists that no final agreement regarding that matter could be reached. (D) Commencing on or about July 24, 1975, and continuing thereafter, Respondent, by its actions outlined in the above subparagraphs, has engaged in a course of conduct constituting bad-faith bargaining, including dila- tory, evasive, obstructing and other similar actions, having for its real objective the avoidance of any agreement with the Machinists with respect to severance pay and/or a shutdown agreement, and other terms and conditions of employment of the employees in the unit it represents. [General Counsel contends that the above allegations contained in paragraphs 13, 14, and 15, if proved, constitute violations of Section 8(a)(1) and (5) and that the allegations contained in paragraph 13, if proved, constitute violations of Section 8(a)(1) and (3).) 218