Rapid Roller Co.

In the Matter of RAPID ROLLER CO., A CORPORATION and LOCAL 120, UNITED RUBBER WORKERS OF AMERICA, AFFILIATED WITH THE C. I. O. Case No. C-1624.-Decided July 19, 1941 Jurisdiction : printer's roller manufacturing industry Unfair Labor Practices Interference, Restraint, and Coercion: addressing employees at meeting and criticizing union ; offering individual employees long-term contracts at increased pay if they would stay out of the union ; inducing employee to act as it "stool- pigeon" and spy on union meetings ; threatening employee with physical injury ; attempt to discharge active union employee. Employer's attempt to induce union shop committee to remove negro member on racial grounds, in connection with general campaign of anti- union activity, held motivated by desire to divide and weaken the union and to constitute a violation of Section 8 (1) of the Act. Discrin nnation: refusal to reinstate unfair labor practice strikers after the union unconditionally offered their return to work ; discharge of non-strikers who refused to give up their regular jobs to replace strikers. Where union, in offering to return strikers to work, insists on return of all the strikers as a prerequisite to return!ng to work, held'the imposition of such a condition did not alter the nature of the offer as an "unconditional" one, since the respondent was under a duty in any event to reemploy Al the strikers upon application Blanket application for reinstatement which the respondent refused, held rendered unnecessary subsequent individual applications of strikers, since they were entitled to feel that this would be fruitless. Where respondent discharged non-striker who did not do production work for refusing to do production work replacing strikers, held alleged discharge of such employee for "insubordination" was not justified and was an unfair labor practice since employee was entitled to engage in such concerted activity which is in the nature of a partial strike. Collective Bargaining: parties stipulated that union represented a majority- employer failed to negotiate with the union concerning the interpretation of an existing agreement with an "open fair mind." Collective bargaining is a continuous process and the obligation to bargain collectively does not cease upon the signing of a collective bargaining agree- ment and where a union claimed that the employer breached a collective bargaining agreement, and the employer denied that its actions constituted a violation of the agreement, held the union's claim that the agreement had been breached was itself a proper subject of collective bargaining. Where an employer and a union disagree as to the interpretation of cer- tain clauses of a collective bargaining agreement, the employer is under a duty to bargain collectively with the union as to the meaning of the clause, and this duty entails an obligation not to enter the discussions with a rigid pre-deterniination not to yield from the position it had taken in the first instance. 33 N. L. R. B., No. 108. 557 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Where the union protested the transfer of an employee to a desirable posi- tion and the employer, whether willingly or not, ultimately acceded to the union's position, held the employer did not refuse to bargain collectively. Remedial Orders : employer ordered to bargain collectively-reinstatement and back pay awarded unfair labor practice strikers-reinstatement and back pay awarded to discriminatorily discharged employees ; as to one employee back pay awarded between date of discharge and date he accepted a university scholarship. Where unfair labor practice striker died prior to Board's order, held al- though problem of his reinstatement is eliminated, his personal representa- tives are entitled to back pay from date of application for reinstatement to date of his death. Unit Appropriate for Collective Bargaining : production and maintenance em- ployees excluding supervisory, laboratory and office employees,_ and truck drivers ; no controversy as to. Mr. Jack G. Evans, for the Board. Sey f arth, d Atwood, by Mr. Karl Edwin Sey f artlt and Mr. Doval Benjamin Williams, of Chicago, Ill., for the respondent. Mr. Leonard Shaw, Mr. Francis Heisler, and Mr. Stanley F. Evans, of Chicago, Ill., for Local No. 120. Mr. Woodrow J. Sandler, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Charges and amended charges having been duly filed by Local 120, United Rubber Workers of America, affiliated with the Congress of Industrial Organizations, herein called Local No. 120, the National Labor Relations Board, herein called the Board, by the Regional Di- rector for the Thirteenth Region (Chicago, Illinois), issued its com- plaint, dated December 1, 1939, against Rapid Roller Co., a corpora- tion, Chicago, Illinois, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Concerning the unfair labor practices, the complaint, as amended at the hearing, alleged in substance : (1) that on or about April and September 1938, March 2, 1939, and at all times thereafter, the re- spondent refused to bargain collectively with Local No. 120, although the latter had at all times since April 23, 1938, been the collective bargaining representative of a majority of the respondent's employees in an appropriate unit consisting of all the production and mainte- nance employees employed at the respondent's plant, excluding super- RAPID ROLLER CO. 559 visory, laboratory and office employees, and truck drivers; (2) that on or about March 17, 1939, and at all times thereafter, the respondent refused to employ 82 named employees who had gone out on strike from March 10 until March 17, 1939, because of the respondent's un- fair labor practices, and that the respondent did so refuse because said employees had joined and assisted Local No. 120 and engaged in other concerted activities for the purposes of collective bargaining and other mutual aid and protection; (3) that on or about March 14 and 24, 1939, the respondent discriminatorily discharged Milton Schnitzer and Ruby Levy, respectively, because they had assisted Local No. 120; (4) that the respondent, since on or about March 1, 1937, had urged and warned its employees to refrain from becoming or remaining members of Local No. 120, threatened to move its plant if its employees joined any "outside" labor organization, offered to contribute a sum of money to an "inside" labor organization if one were formed, and disparaged and condemned members and leaders of Local No. 120; and (5) that by the aforesaid and other acts, the respondent interfered with, le- strained, and coerced its employees in the exercise of the rights guar- anteed in Section 7 of the Act. Copies of the complaint and the accompanying notice of hearing were duly served upon the respondent and upon Local No. 120. There- after the respondent filed its answer, wherein it in substance admitted the allegations of the complaint concerning the character of its busi- ness, denied that it had engaged in the alleged unfair labor practices, and interposed aflirmative'defenses to the allegations of unfair labor practices. Pursuant to notice, a hearing was held at Chicago, Illinois, from December 11, 1939, through January 16, 1940, before Josef L. Hektoen, the Trial Examiner duly designated by the.Chief Trial Examiner. The Board, the respondent, and Local No. 120 were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the close of the Board's case and at the close of the hearing the respondent moved to dismiss the complaint on the ground that the evidence adduced failed to sustain the allegations of unfair labor practices. The Trial Ex- aminer reserved decision on the motions at the hearing, and subse- quently denied them in his Intermediate Report. At the close of the respondent's case the Board's attorney moved to strike from the re- spondent's answer allegations that certain of the respondent's em- ployees, members of Local No. 120, had committed sabotage and had beaten and intimidated netiv employees of the respondent, on the ground that the respondent had failed to adduce evidence to substantiate these allegations. The Trial Examiner granted this motion and his ruling 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is hereby affirmed. At the close of the hearing the Trial Examiner granted motions of the Board's attorney and of the attorney for Local No. 120 to amend the complaint and the charge to conform to the proof. These rulings are hereby affirmed. During the course of the hearing the Trial Examiner made numerous rulings on other motions and objections to the admission of evidence . The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were committed . The, rulings are hereby affirmed. The re- spondent and Local No. 120 thereafter filed briefs with the Trial Examiner. - On June 18,1940, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon all the parties , in which he found that the respondent had engaged in and was engaging in-unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from its unfair labor practices and, in order to effectuate the policies of the Act, that it take certain affirmative action including reinstatement with back pay of the em- ployees who had gone out on strike on March 10, 1939. Thereafter , the respondent filed exceptions to the Intermediate Re- port and to the record, and filed a brief in support of its exceptions. Local No. 120 filed a brief in reply to the respondent's brief, and the Board has considered these as well as the briefs filed by the parties with the Trial Examiner. On October 1, 1940, pursuant to request therefor by the respondent and Local No . 120, and upon notice thereof to both parties , a hearing was held before the Board in Washington, D. C., for the purpose of oral argument. Counsel for the respondent and for Local No. 120 appeared and participated therein. The Board has considered the exceptions filed by the respondent, and, save as they are consistent with the findings, conclusions , and order set forth below, finds no merit in them. Upon the entire record in the case , the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent, Rapid Roller Co., a corporation, is an Illinois cor- poration engaged in the design, manufacture, sale, and distribution of printers' rollers at its plant in Chicago, Illinois. During the first 9 months of the year 1939 the respondent purchased raw materials, consisting of rubber, composition compounds, and other materials, of a value in excess of $65,000, more than 50 per cent of which were trans- ported to the plant from points outside the State of Illinois. During the same period, the respondent sold and distributed finished products RAPID ROLLER CO. 561 valued at over $400,000, more than 50 per cent of which were distributed by the respondent to points outside the State of Illinois, including foreign countries. II. THE ORGANIZATION INVOLVED Local 120, United Rubber Workers of America, affiliated with the Congress of Industrial Organizations, is a labor organization ad- mitting to its membership employees of the respondent. III. THE UNFAIR LABOR PRA C TOES A. Interference, restraint, and coercion Prior to 1937 there was no labor organization in the respondent's plant.' In the spring of 1937 the United Rubber Workers of America, after having conducted organizational activity among the respondent's employees, chartered Local No. 120. On or about March 26, 1937, David Rapport, the respondent's presi- dent, who was then in California, cut short his stay in California by a week and returned to Chicago. He testified at the hearing that he did this because of a letter and long distance telephone call he, had received from Philip Schwartz, the respondent's factory manager, to the effect that there was "dissatisfaction" among the respondent's em- ployees and that some of them had attended a "meeting on the north side." Schwartz testified, similarly, and, also testified that his in- formant, a relief fireniaii named Jackson, had intimated to him that the respondent's employees were "joining a union." Rapport and Schwartz both denied, however, that 'any mention was made of a "union" in either the correspondence or telephone call which caused Rapport's return. In view of Schwartz' admission as to the nature of the information he had received, Rapport's own testimony as to the nature of Schwartz' communications to him, the anti-union atti- tude of Rapport and Schwartz as disclosed by the entire record, and the findings of the Trial, Examiner in this connection, we do not credit the denials of Rapport and Schwartz. We find that Rapport's precipi- tate return to Chicago.was occasioned by information, conveyed to him by Schwartz, to the effect that the respondent's employees were attend- ing meetings of a labor organization. Rapport arrived at the plant on March 29, 1937, and conferred with Schwartz. Later the same day, during working hours, he called all the respondent's employees to the fourth floor of the plant. The re- spondent did not deduct from the employees' pay for their working 1 The International Association of Machinists had made an attempt to organize the respondent 's employees in 1933 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time spent at this meeting. According to Board witnesses,2 Rapport told the assembled employees that he had heard that they were having "trouble in regards to unionism," threatened that if they "joined the union" he would move the respondent's plant to Rockford or Belvi- dere, where he had a "guarantee of no labor trouble," and told them that "the union never got you no place, all you do is pay high dues in order for these here officials to ride around in big cars, and smoke cigars." Board witnesses further testified that Rapport called em- ployees Carl Nielson, Victor Moscato, Gunard Anderson, Clarence 0. Klingler, and George Sevenberg, individually before their fellow em- ployees, and asked them whether they were "ringleaders" and if they had been "approached" by "outsiders," but that they gave him no information.3 Rapport and Schwartz (who, was present at the meeting) denied that Rapport made the statements thus attributed to him. Rapport testified that he merely told the employees that if they had any griev- ances they should "elect a committee" to come to his office for the pur- pose of discussing them. Rapport admitted that at a similar meeting called by him later on in the week 4 he made statements to the re- spondent's employees disaparaging "outsiders" and urging them not to pay dues to "fellows who ride in big cars and smoke cigars." In view of this admission, the circumstances surrounding Rapport's re- turn to Chicago, and the entire record, we do not credit the denials of Rapport and Schwartz. We find, as did the Trial Examiner, that at the meeting of March 29 Rapport made the statements attributed to him by the Board's witnesses substantially, as recited above. Rapport did not deny calling up the individual employees and of- fered no explanation for the apparent coincidence of his having called up four men who were among the leaders of Local No. 120, other than to state that one of them was "standing in front." He also testified that he merely asked them if they "had any grievance." We do not credit this denial. It is difficult to believe that Rapport's calling up of the employee's leaders was merely a coincidence, particularly in view of his explanation for his action, and under the circumstances we find, as did the Trial Examiner, that his doing so must be attrib- uted to his knowledge that these men were in fact leaders in the organizational activity in the plant. James Moore, Local No. 120's shop committeeman in the respond- ent's blanket department, testified that shortly after this meeting he overheard Rapport telling a group of foremen and salesmen that he ' Victor Moscato, James Moore, Carl Nielson and George Sevenberg. a Four of the five men thus called up became shop committeemen in Local No. 120 shortly thereafter and undoubtedly were leaders in the organizational activity at that time. 4 This meeting is described below. RAPID ROLLER CO. " 563 would "get even with those fellows who don't play ball with us. It may take me one year or it may take me five, but I will get even." Rapport did not deny saying this, although he did testify that he had never said anything to anybody in derogation of or opposition to Local No. 120. In view of Rapport's failure specifically to deny Moore's testimony and the fact that his general denial is incredible in the light of our previous findings, we find, as did the Trial Ex- aminer, that Rapport made the statements substantially as testified to by Moore. That same afternoon Rapport gave a $2 per week "raise" to all the respondent's production and maintenance employees. A few days later, according to the testimony of Nielson, Moscato, and Klingler, three of the employees Rapport had questioned indi- vidually at the meeting of March 29, Rapport offered to each of them a long term individual contract of employment at wages of between $35 and $40 per week 5 on condition that they "stay out of the Union," and each refused the offer. Rapport denied that he had ever made an offer of this kind. The respondent contends that since Nielson, Moscato, and Klingler were ordinary factory employees, it is incred- ible that Rapport should have offered, as they testified, to pay them as much as $35 or $40 per week. However, in 1938 each of the three men, although still ordinary factory employees, earned more than $35 per week. Moreover, Rapport must have known that if Local No. 120 succeeded in organizing the respondent's employees it might obtain material wage increases for all of them. In view of these facts, an offer by Rapport to pay three of the most active union merpbers in his plant higher wages than they were receiving at the time, even for a long period of time, provided they repudiated Local No. 120, does not seem incredible as the respondent claims, but on the contrary is consistent with the respondent's effort to halt Local No. 120's organi- zational drive at its very threshold. The Trial Examiner, who saw and heard the witnesses, credited the testimony of Nielson, Moscato, and Klingler and found that the offers were made substantially as testified to by them. We affirm and adopt that finding. On April 2, 1937, Schwartz informed Rapport that he believed that the respondent's employees were going to attend a meeting that night which was being called by the "rubber workers of Akron, Ohio." That afternoon, during working hours, Rapport called the respondent's production and maintenance employees to the fourth floor of the plant. . The respondent made no deductions in its employees' pay for their working time spent at this meeting. According to Rapport's own tes- timony, he addressed them as follows : - s At the time Moscato was earning from $22 to $24 per week, Nielson was earning approximately $30 per week , and Klingler was earning $26 per week. 450122-42-vol 33-37 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fellows, I understand you are going to a meeting tonight. There has been some outsiders talking to you, and wouldn't it be a much better idea to come down and talk this thing over with me in my office. I cannot figure out how anybody on the outside, who have not been factors of our business and don't understand the functions of this institution, can give advice and tell you what to do, after we have been working so many years together in bringing this plant up to its present condition. * * * If you are going to ameeting, these fellows that you will have to pay dues to ride around in big cigars-ride in big cars and smoke cigars, and enjoy themselves with your dues that you pay. Now, why not keep that money? Why not work this situation out among ourselves? If-there is anything wrong, or anything that you think you ought to have, that you think you are entitled to and didn't get, there is not many managers or officers here. We have worked together so many years. Now, why not get together on it?, * * * I also know there is a lot of women organizers that organized other plants. What do they know about the rubber business, or particularly this blanket department of ours, that has cost us a fortune? Board witnesses g also testified, and we find, that Rapport made sub- stantially the above statements at the meeting. In addition they testified that Rapport suggested to' the employees that they form a "little inside organization" and that he offered to contribute $1,000 to it plus the proceeds of certain candy vending machines installed in the plant. Witnesses for the respondent, including Rapport, denied that he made these latter statements and testified that Rapport had offered to contribute the proceeds of the vending machines to an em- ployees' loan fund in 1936. It is apparent from Rapport's own admis- sions as to his other statements at the meeting and from the circum- stances which caused him to call the meeting, that he was opposed to his employees' affiliation with an "outside" labor organization and that he sought at this meeting to dissuade them from taking such action. It is consistent with this attitude that Rapport should have urged the employees at the same time to form an "inside union" and offered to contribute money for its support as a substitute for the "outside" affiliation which he opposed. Moreover Rapport admitted at the hear- "ing that he told the employees at this meeting to "appoint a committee, if they wanted to come down and speak to [him] in [his] office." The Trial Examiner credited the testimony of the Board's witnesses, and concluded, as we do, that Rapport made the statements testified to by them. The meeting ended when Klingler told Rapport before the e Carl Nielson , James Moore, Ralph Coles, George Sevenberg, and Clarence O. Elingler. RAPID ROLLER CO. 565 assembled employees that the idea of a "committee ... going down to your office ... won't work." Board witnesses further testified as follows : Rapport and Schwartz appeared at the front entrance of the plant as the employees were leaving after this meeting and urged them to "go home" and not to go to the union meeting that night. At the same time two female organizers for Local No. 120 were distributing leaflets to the employees as they left the plant, and Rapport sought to block the doorway, telling several of the employees to use a rear exit hitherto forbidden to the employees. Rapport also told Louise Ayres Shadduck, one of the organizers, that she was a "racketeer" and that before he would let Local No. 120 "get in" to the respondent's plant he would "close down ... and move somewhere else." Both Rapport and Schwartz admitted that they were at the door of the plant as the employees were leaving. Each denied, however, that he had urged any employees to "go home" rather than to the union meeting, or to use the rear exit, and Rapport also denied barring the door. He testified that he had merely told one of the organizers not to "make so much noise" and asked her what she knew "about the rubber business anyway." ' We find, as did the Trial Examiner, that the incident occurred substantially as testified to by the Board's witnesses. Chester Nielson, an employee, testified that on the evening of this union meeting, at which time he was employed on the night shift, Schwartz told him that he had no objection to his attending such a meeting but asked why it was necessary to have an "outside union" in the plant and had suggested that a labor organization such as existed in the plant of a competitor of the respondent would be a more desirable one for the respondent's employees. William Novick, another em- ployee, testified that in the spring of 1937 Schwartz refused to allow him, as well as other employees, to attend organizational meetings of Local No. 120 and that Schwartz told them that the employees-"should have a company union instead of joining an outside union," and that the respondent would contribute money to such an organization. Schwartz denied that he,ever told any employees not to join Local No. 120. His denial was general in form, however, and, in the light of his efforts to persuade employee Edward J. Roska to serve as a "stool- pigeon," as hereinafter related, is unconvincing. We find, as,did the Trial Examiner, that Schwartz made the remarks substantially as testified to by Nielson and Novick. Edward J. Roska, an employee, testified that during April 1937 Schwartz invited him to his apartment and that while there Schwartz asked him to become a member of Local No. 120 and to "get all of the conversation, write it down on paper . . let me know everything you hear tomorrow"; and that he [Roska] said that he would do so but 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he did not subsequently give any information concerning Local, No. 120 to Schwartz. Schwartz denied making this proposal, stating that Roska had visited his home on only one occasion, at which time the subject of their conversation was whether Roska should remarry, his wife having died; no mention was made of "union matters," accord- ing to Schwartz. On cross-examination Schwartz stated that this con- versation took place in 1938. When asked whether he had spoken to Roska in the spring of 1937, Schwartz testified, "I would not say I did not, I would not say I did. If you can specify something I might answer more closely." The Trial Examiner found that "on the stand Schwartz was at this point troubled and was obviously seeking to avoid what counsel for the Board was endeavoring to bring out. His denial was not convincing." We find, as did the Trial Examiner, that the proposal was made by Schwartz to Roska substantially as testified to by the latter. Subsequent to the meeting of April, 2, Local No. 120 sought to negotiate a contract with the respondent. During the negotiations Local No. 120 was represented by its shop committee, an attorney, and Sarraine Loewe, an organizer. The respondent was represented by Rapport. During the negotiations, according to Loewe, Rapport stated that he "wouldn't recognize the union under any circumstances ... if it weren't for the fact that he had a 'lot of orders waiting to be shipped out." Loewe further testified, "He said we had him by the neck, and if he ever had the opportunity, why, he would get even with us . . . Mr. Rapport called the entire committee ... rats, dis- loyal rats, and the time would come when he would get rid of the whole committee representing the different departments." Both Loewe and Klingler testified that Rapport informed them during the negotiations that he had given the production and maintenance employees a $2 increase in pay on March 29 "to keep them from joining the union." Rapport denied all the above testimony of Loewe and of Klingler. In view of Rapport's reiterated opposition to Local No. 120, both before and after these negotiations, we find, as did the Trial Examiner, that he made the statements substantially as attributed to him by Loewe and Klingler. On April 23, 1937, the respondent and Local No. 120 entered into a collective bargaining contract wherein the respondent recognized Local No. 120 as the "sole collective bargaining agency" for its employees and granted them substantial wage increases. After the execution of this contract, Rapport, according to Carl Nielson and Victor Moscato, asked the shop committee (James Moore, negro shop committeeman, not being present) to "remove" Moore since Moore was a negro, and the shop committee refused this re- quest. Rapport denied that he made such a request. Moore testified that during June 1937 Rapport said to him, "Why don't you confess, RAPID ROLLER CO. '567 Jim? Weren't you the one that . . . went to college and had your head filled with union ideas and then came here and organized the union? . . . Some day you fellows in this union are going to be sorry you didn't take my advice about these organizations, and you especially, Jim." Rapport added, according,to Moore, "Jim, these fellows made you shop steward only because they wanted to get you into trouble. What you should do is go to the union meetings and absorb everything that is said, and then come to my office or Mr. Schwartz', and let us know, as to anything that has transpired." Rap- port denied Moore's testimony. We credit the above testimony of Nielson, Victor Moscato, and Moore, and find as did the Trial Ex- aminer that Rapport made the statements substantially as testified to by them. Rapport's attempts, in one instance to create dissension within Local No. 120 on racial grounds, in the other to frighten Moore into the role of an informer, viewed in the light of his prior and sub- sequent anti-union conduct, can have been motivated only by his de- sire to divide and weaken Local No. 120. Four Board witnesses 7 testified that on various occasions from 1937 to 1939 William Peters, the superintendent of the composition depart- ment, made remarks to them such as "throw away that (union) but- ton, Mr. Rapport don't like that thing" ; "The union is no good. Shame on you, you go for the union"; and "They (Local No. 120) are a bunch of radicals and Bolsheviks." Peters denied all of this testimony but the Trial Examiner did not credit such denial. We find, as did the Trial Examiner, that Peters made the statements sub- stantially as testified to by the Board's witnesses. From the foregoing and the entire record we find that the respond- ent, beginning in March 1937, engaged in a campaign to frustrate and divert its employees' organizational activity. Rapport's anti- union speeches to the respondent's employees on March 29 and April 2 were clearly intended to dissuade them from affiliating with Local No. 120, as was the $2 wage increase on March 29 and the offer of support to a "little inside organization" on April 2. The, attempt by Rapport and Schwartz to persuade the respondent's employees not to attend the union meeting on the night of April 2; Schwartz' .at- tempt to persuade Roska to serve as a "stoolpigeon," and Rapport's similar attempt with respect to Moore; Rapport's attempts to bribe Nielson, Moscato, and Klingler into repudiation of Local No. 120; the general anti-union activity of Schwartz and Peters; Rapport's at- tempts to divide and weaken Local No. 120 by appeals to race preju- dice; and Rapport's anti-union statements generally, all were part and parcel of such concerted campaign. We find that by the above ac- tivities, and by other acts, the respondent interfered with, restrained, 4 Mike Praninskas, Sam Kisuk, Walter Krupinski , and Roman Joe Lessner. 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The- extent to which the respondent engaged in similar anti-union activities in 1938 and 1939 is discussed below. B. The refusal to bargain collectively and the strike incident thereto The complaint alleges that on or about April and September 1938, and March 2, 1939, and thereafter, the respondent refused to bargain collectively with Local No. 120, and that for this reason and because of the-respondent's other unfair labor practices, the respondent's em- ployees went out on strike on March 10, 1939. The complaint fur- ther alleges that since on or about March 17, 1939, the respondent has refused and continues to refuse to reinstate 84 striking employees. The Trial Examiner found that the respondent had refused to bar- gain collectively with Local No. 120 on the dates alleged, and that the strike of March 10 was caused by such refusal, and recommended that the respondent be ordered to reinstate the striking employees with back pay. The respondent has excepted to such findings and recommendation. 1. The appropriate unit Local No. 120 contends that all the production and maintenance employees of the respondent, excluding supervisory, laboratory and office employees, and truck drivers, constitute a unit appropriate for the purposes of collective bargaining. At the hearing the respondent stipulated that it would introduce no evidence concerning the appro- priate unit and no evidence was in fact offered at the hearing to show that such unit is inappropriate. All the parties further stipulated that the contracts of April 23, 1937,8 and of April 23, 1938,8 which in terms might have been construed as covering all the respondent's employees in fact covered only the employees in the appropriate unit contended for. We find that all the production and maintenance employees of the respondent, excluding supervisory, laboratory and office employees, and truck drivers, at all times material herein constituted and that they now constitute a unit appropriate for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment, and that said unit insures to the employees of the respondent the full benefit of their right to self- organization and to collective bargaining and otherwise effectuates the policies of the Act. 8 See Section III, A, supra. 9 This contract will be described infra. RAPID ROLLER CO. 569 2. Representation by Local No. 120 of a majority in the appropriate unit All the parties stipulated at the hearing that Local No. 120 repre- sented a majority of the respondent's employees in the appropriate unit from April 23, 1937, up to and including March 10, 1939,1° and was their exclusive bargaining agent during that period. There was no showing at the hearing of any change after March 10, 1939, in the desires of the respondent's employees with respect to representation for the purposes of collective bargaining. Upon the basis of such stipulation and the entire record we find that on April 23, 1937, and at all times thereafter, Local No. 120 was and that it is the duly designated representative of the majority of the respondent's employees in the appropriate unit, and that pursuant to Section 9 (a) of the Act, it was, therefore, and is the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The alleged refusal to bargain in April 1938 ("Meskan incident") Local No. 120 claims that in April 1938 the respondent refused to bargain collectively with it concerning the transfer of employee Francis J. Meskan from the maintenance department to the blanket department of the respondent's plant. Meskan had been employed in the machine shop at the minimum pay of $22 per week. On Mon- day, April 21, 1938, the respondent transferred Meskan to the posi- tion of spreader's helper in the blanket department. James Moore, Local No. 120's shop committeeman in the blanket department, testified concerning this transfer as follows : On April 21, 1938, observing Meskan in that department, he asked Superin- tendent James J. Kearns if Meskan was to work there regularly and Kearns said that he was. Shortly thereafter Schwartz told Moore that Meskan was going to work in the blanket department as a spreader's helper.. Moore told Schwartz that the transfer was in vio- lation of the seniority provisions of the contract of April 23, 1937,' and that the respondent should have promoted an employee to the position of spreader's helper who was already working in the blanket department and who had sufficient seniority.- Schwartz answered that he did not agree with Moore but_ that he could not speak with Moore about it, and that Moore would have to "take it up with the 10 The date on which the respondent's production and maintenance employees went out on strike. 1 See Section III A, supra. v Moore was mistaken in this contention . The 1937 contract , which was to expire 2 days later , contained no seniority provision concerning promotions and transfers. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shop 'committee." He added, "so regardless of what you say, the porter 13 will have to stay, on his job and Meskan will work as a spreader's helper." Directly thereafter Moore informed the other shop committeemen of what had happened and returned to the blanket department. Immediately thereafter Rapport came into the department and with Kearns went over to where Moore was working, picking up a crank handle on the way which he brandished at Moore as he advanced. Rapport said to him, "You bastard, you no good son-of-a-bitch, I will bust your head open. You have no right to be telling me how to run my factory." Moore protested that he had merely presented a grievance to Schwartz but Rapport continued, "You no good son-of-a-bitch, you have no right to be a shop steward, you are a janitor, that is all you are, that is all you ever will be. You went to college and come here and you fill these guys' heads full of union ideas and organizing the union. I will get rid of you and the union." Moore answered, "Mr. Rapport, you are acting abso- lutely ridiculous, you haven't got any conception of psychology what- ever. The intelligent thing to do is to speak about this thing if you want to in a quiet manner without calling anyone such names, making such a showing of yourself in front of the men." Rapport replied : "Oh shut up, you talk too much," threw down the crank handle, walked away a few paces and turned around and shouted, "You black bastard." Moore further testified that he (Moore) "became incensed" and told Rapport, ". . . if I wasn't shop steward in this department, and if you were three inches taller and five years younger, I would wring your fat neck." Kearns testified that on the morning of Meskan's transfer Moore asked him (Kearns) what Meskan was "doing up here," that Kearns answered that Meskan had been sent to work in the blanket depart- ment by Schwartz, and that Moore said, "We will see about that." Schwartz testified that on that same morning Moore asked him why Meskan had been given the job of spreader's helper instead of his brother, Harold Moore, since Harold Moore had greater seniority than Meskan; that he (Schwartz) replied that neither he nor Kearns believed that Harold Moore would "be the right man as a spreader man"; and that James Moore threatened Schwartz that he would "cause some trouble and shut down the plant." Rapport's version of the incident was that on the day of Meskan's transfer both Schwartz and Kearns told him (Rapport) that Moore had threatened to "shut the plant down" unless his brother was promoted to the position of spreader's helper; that he asked Moore if this were true and that Moore said it was, and that they "started to swear at each other." '3 Referring to Moore's brother, Harold Moore, who did odd jobs in the blanket depart- ment RAPID ROLLER CO. 571 Both Rapport and Kearns denied that Rapport had brandished a crank handle at Moore, but three Board witnesses 14 corroborated Moore's testimony to the effect that Rapport had done so. Rapport also denied that he had called Moore a "black bastard." Although Kearns denied that Rapport referred to the union during the dis- pute with Moore, Rapport himself did not deny making the anti- union statements attributed to him by Moore. In view of Rapport's antipathy to Moore and to Local No. 120; in view of his failure to deny-much of Moore's testimony, and in view of the corroboration of part of Moore's testimony by three witnesses whom the Trial Ex- aminer found were credible, we credit Moore's version of the incident and find, as did the Trial Examiner, that Rapport threatened Moore with the crank handle and made the statements substantially as tes-' tified to by Moore. . After Moore told Rapport that he would "wring [his] fat neck," Rapport told Kearns to discharge Moore. Moore again stated that he had merely presented a grievance, but Rapport remained ada- mant. Moore thereupon told the employees in the blanket depart- ment that he had been discharged, and at his request they stopped working. He was about to proceed to the lower floors of the plant to inform the rest of the employees of his discharge when Rapport rescinded the order. Moore then informed the employees in the blanket department that they could resume their work and they did so. Later on in the same afternoon Kearns told Moore, "The man- agement has agreed to accept the position of the union," and the respondent removed Meskan from the position of spreader's helper and replaced him with Harold Moore. 'As indicated above, the testimony as to the manner in which Moore complained of the Meskan transfer to the respondent is conflicting. The Trial Examiner, in his Intermediate Report, found that Moore "made it plain to Schwartz and Rapport that he considered the Mes- kan transfer a grievance and that he wanted to discuss it with them as such." We find it unnecessary to resolve the conflict in the testi- mony. Even if Moore's version be believed, we find no basis for holding that the respondent refused to bargain collectively with Local No. 120 concerning the Meskan transfer, since the respondent, whether willingly or not, acceded to Local No. 120's demand that it remove Meskan from the position of spreader's helper. We therefore find that the respondent did not refuse to bargain collectively with Local No. 120 as the representative of its employees in an appropriate unit concerning the transfer of Francis J. Meskan. We find, however, that by Rapport's anti-union statements to Moore, his threats of physical injury to him, and his attempt to dis- u Harold Moore, George Miglore, and Walter Herbig. 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge him, all of which occurred on or about April 21,1938, as recited above, the respondent interfered with, :restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 4. The alleged refusal to bargain in September 1938 ("Ruby Levy incident") In the early part of May 1938 the respondent and Local No. 120 entered into a second contract." In addition to providing for recog- nition by the respondent of Local No. 120 as the "sole collective bar- gaining agency" of its employees, the contract, so far as is here mate- rial, provided that : (10) Promotions shall be made in accordance to seniority so far as practicable, consistent with efficient operation. On Tuesday, September 6, 1938, the respondent transferred em- ployee Ruby Levy from the laboratory to the blanket department. Just prior to his transfer, Levy was earning approximately $20 per week.18 Levy was not a member of Local No. 120 at the time. The testimony is conflicting as to whether or not Rapport or Schwartz conferred with any members of the shop committee con- cerning Levy's transfer before it occurred. Nielson, a shop com- mitteeman, testified that Rapport consulted the shop committee about Levy's transfer prior to the date thereof. We do not credit his testi- mony in this respect, however, since shop committeemen Moore and Sevenberg testified that they knew nothing about the transfer of Levy until after it had been effectuated, and Rapport's own testimony confirmed the fact that he had consulted none of the employees prior to Levy's transfer. We find, as did the Trial Examiner, that Nielson was in error and that the respondent transferred Levy without having previously, consulted the shop committee as a whole. Schwartz, however, testified that he innuired of both Moore and Moscato before the transfer as to whether they would have any objec- tion thereto and that they said that they would not; that he asked them to consult the remaining shop committee members and inform him on the following Tuesday, September 6, if the others had any objection, and that they did not inform him of any objection. How- ever, both Moore and Moscato testified that they did not discuss the Levy transfer with Schwartz prior thereto. The Trial Examiner dis- believed Schwartz' testimony, both because of his previous doubts, as m The contract is dated April 23, 1938, but was actually signed early in May. 10 Since laboratory employees are not production workers, they are not included in the appropriate unit and were not covered by either the 1937 or 1938 contracts . The minimum wage scale of $25 per week, prescribed by the 1938 contract , did not therefore apply to laboratory employees. RAPID ROLLER CO. 573 to Schwartz' credibility and because he found Moscato's denial of Schwartz' testimony ,"convincing." 17 We find further reason for disbelieving Schwartz' testimony in the fact that Local No. 120 strenu- ously opposed the transfer of Levy as soon as it had knowledge of it. We find, as did the Trial Examiner, that Schwartz did not consult Moore or Moscato prior to the transfer, and that the respondent trans- ferred Levy without notice to any individual members of the shop committee. On the day of the transfer the shop committee protested the trans- fer to Schwartz and Rapport, claiming that it was a "violation of the contract" to transfer an employee who was not a member of Local No. 120 to the blanket department. Local No. 120 contended that Levy's transfer was a violation of the 1938 contract because Levy was not a production worker and was not a member of Local No. 120; and because at,the time of his transfer there were two members of Local No. 120 who had been temporarily laid off and were still unemployed, a third who was working part time, and a fourth who had more seniority than Levy, any one of whom should have been given pref- erence over Levy. Rapport told the shop committee that Levy was a "poor orphan boy," that he (Rapport) had been "raised in an orphan home" and that he was "pleading" ,with the shop committee, as a "favor," to allow Levy to remain in the blanket department. Moore testified that Rapport added, "I know it is contrary to the contract, but if you will do me this special favor this time . . . I won't ask you to do it again, and later on, after everything is settled, we will draw up some sort of a plan whereby we can shift the rest of the men from the lesser departments." Victor Moscato also described Rap- port as having said that it was a "bit unusual, it wasn't according to our contract, but it was just a favor to him." Rapport admitted at the hearing that he told the shop committee that "we would get to- gether regarding additional men that would be sent to the blanket department," but denied that he made any reference to the contract.18 In view of the fact that during the Levy dispute Rapport at no time contended that the respondent's transfer of,Levy was a permissible one under the 1938 contract, we find credible the testimony of Moore and Moscato that Rapport conceded the transfer of Levy to be a violation of the contract. In its brief in support of its exceptions to the Inter- 1r He did not discuss Moore's denial. 18Q. Did you say that you knew that it was contrary to, the usual procedure to place Ruby Levy in the department , and that you knew it was contrary to the contract, but if they would do this special favor to you this one time that you won't ask them to do it again and later on after everything is settled that you would draw up some kind of a plan whereby you could shift the other men from the other departments? A. (Rapport.) I did not say anything about the contract clauses or anything except that we would get together regarding 'additional men that would be sent to the blanket department. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mediate Report, the respondent states, "The respondent contends that Levy was transferred to the blanket department after approval of the proposed transfer had been given by members of the shop come mittee ..." (Italics supplied.) The respondent, in seeking to show that it did consult with the shop committee prior to transferring Levy, belies its own contention that such procedure was not within the letter or spirit of the 1938 contract. We.find that Rapport made the, state- ments substantially as testified to' by Moore and Moscato. At a special meeting held on the following day the members of Local No. 120 refused to sanction the transfer of Levy, and the shop committee advised the'respondent of this fact. The respondent did not remove Levy, however, and on Friday, September 9, 1938, the respondent's employees stopped work for 2 hours in protest against the transfer. During the stoppage Rapport called the shop committee to his office, and according to George Sevenberg, told the committee,, What are youse (sic) boys doing, you know you broke my heart, I will never forget this as long as I live, and at my funeral none of the employees or none of the boys of the Rapid Roller Company have-to come to see me. Boys, youse (sic) broke your contract, you have no contract, your contract is in the wastepaper basket, you' have no contract no more with me. Moore and Moscato also testified that Rapport made remarks similar to those quoted above, and testified further that Rapport told Moore that he would never be able to forgive him for having "shut down" the respondent's plant for the, second time. Rapport did not deny this latter testimony of Moore and Moscato, and we find that he made the statements substantially as testified to by them. Rapport's denial of the testimony of Sevenberg, quoted above, was evasive,", and we find, as did the Trial Examiner, that Rapport also made these statements substantially as testified to by Sevenberg, Moore, and Muscato.o The shop committee insisted that Levy be removed and Rapport finally acceded to its demand and transferred Levy back to the laboratory. The employees resumed work and remained 2 hours aftel', closing time that night in order to make up the time lost during the stoppage. 19 Q. Did you tell the shop committee at that meeting that they did not have any contract, that they might as well throw it away or tear it up because they shut the plant down twice ? A. I had the contract and read them a paragraph there that all grievances , if th :re was any, should be brought to the factory manager and from the factory manager if it cannot be settled, should be brought to my office. I said , "This is plain , read it yourselves , I will read it for you again" I said, "We had in the other contract no stoppage of work, but you eliminated that so you could have this happen," I said, "what do you want me to do with the contract , I will live up to my part." They said, "we are sorry, Mr. Rapport, sorry " RAPID ROLLER CO. 575 We find no basis for holding that the respondent refused to bargain collectively with Local No. 120 concerning the Levy transfer, since the respondent, whether willingly or not, discussed the matter with Local No. 120 and ultimately acceded to Local No. 120's demand that it remove Levy from the blanket department. We therefore find that the respondent did not refuse to bargain collectively with Local No. 120, as the representative of its employees in an appropriate unit, concerning the transfer of Ruby Levy. 5. The hiring of the four men on March 2, 1939; the refusal to bargain During the last week in February 1939 the respondent hired four new employees, Hugh F. Kelly, Earl Eby, Arthur Prevost, and Robert Haserodt, to work in the-blanket department.20 The four men commenced work on March 2. At no time before these men went to work did the respondent consult with the shop committee with reference to their hiring.21 Because of this fact Local No. 120 contends that the respondent, by its manner of hiring the four men, violated clause 1 of the 1938 contract, then in effect, which provides as follows : 22 (1) The Employer agrees that its factory employees may join the Union and shall have the right to elect such repre- sentatives as they shall deem necessary to carry out the pur- pose of this agreement. The employer agrees that it will not discriminate against any employee by virtue of his or her Union affiliation or activity, or because of age, race or 'nationality, or for the purpose of evading the spirit and letter of this agreement. The employer further agrees to deal with the said Union and with its representative as above stated in creating a satisfactory industrial relationship between the Employer and its factory employees, in effectuating the provisions contained, in this agreement. Employees further agree that they will cooperate with the Employer to promote the general welfare of the Employer and Employees, and to insure the perpetuation of an amicable relationship between the parties thereto. All applioants for employment shall be referred to the Shop Com- mittee before going to work. [Italics supplied.] 20 Prevost and Haserodt were hired to work at first in the machine shop and ultimately in the blanket department. 21 However, on March 2, the day they began work, Superintendent Kearns Introduced Kelly and Eby to shop committeeman Moore in the blanket department, and Superintendent Charles F Smith introduced Prevost and Haserodt to shop committeeman Sevenberg in the machine shop. 22 Specifically, the italicized portion of the clause. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local No. 120 contends that this clause was intended to afford it the opportunity of objecting to the proposed hiring of an applicant for employment of whom it disapproved. Local No. 120 also contends that in hiring four men from the outside to fill vacancies in the blanket department instead of "promoting" four employees from the ranks to fill such positions, the respondent violated clause 10 of the 1938 contract, which provides as follows : (10) Promotions shall be made in accordance to seniority so far as practicable, consistent with efficient operation. As to clause 1 the respondent contends that it was intended merely to afford Local No. 120 the opportunity to solicit new employees' membership at the inception of their employment, and that its breach, if any, was not a material one; as to clause 10, it contends that the blanket department is not a "promotion" ,over the other departments in the plant, and that in any event the contract does not preclude it from hiring new employees for the blanket department. Local No. 120 contends that the respondent refused to bargain collectively with it within the meaning of Section 8 (5) of the Act concerning its claim that the respondent had violated clauses 1 and 10 of the 1938 contract. Consideration of Local No. 120's claim in this respect necessitates a review of certain prior occurrences, against the background of which the respondent's subsequent actions must be viewed. Background Board witnesses 28 testified that during the negotiations which preceded the signing of the April 1938 contract, Carlton L. Fischer and John Milton Guy, directors of and attorneys for the respondent, and Rapport assured the shop committee' that clause 1 was a "sub- stitute clause for, the closed shop"; and that Rapport also told them, concerning clause 1, that if Local No. 120 objected to the contem- plated hiring of even his "own brother," the respondent would not hire him. Neither Rapport nor Fischer denied the first portion of this testimony (Guy, however, did deny it), and Rapport was evasive and unconvincing in his purported denial of the latter por- tion thereof 24 We therefore credit the testimony of the Board wit- 23 Carl Nielson , James H. Moore , and George Sevenberg. _ 24 He testified as follows : Q. Do you recall any discussion in those meetings with respect to not putting your brother to work if the Union did not want him? A. I remember saying if my Grandmother, never mentioned my brother 's name, if she didn't join the Union , and there is any reason , why I wouldn't employ her. But if there was no reason for it that we wanted harmony and we wanted a shop where everybody would be satisfied RAPID ROLLER CO. 577 nesses and find that the statements were made by Fischer, Guy, and Rapport substantially as testified to by said Board witnesses. Con- cerning clause 10, Nielson testified without contradiction and we find that during the negotiations for the 1938 contract, "the dis- cussion was that employees working for the minimum wage would not have to push trucks all their lives, that they would be given a chance to be advanced, so they, could earn more money and-would not have to be on dirty jobs, or those trucking jobs all their lives, if they were at all capable of doing anything else, that they would be given a, chance to get better jobs." In addition, Fischer, accord- ing to his own testimony, told Local No. 120 at one of the conferences on the 1938 contract: This firm, the Rapid Roller Company, or any other firm that knew anything about running a business would always, without any such provision in the contract, other things equal, give effect to seniority at the time that any promotions were contemplated. After the Levy dispute, Rapport, by his own admission,25 promised Local No. 120 that the respondent would "get together" with the shop committee to devise a plan whereby other employees in the plant would in the future be transferred to the blanket department. Pre- sumably pursuant to this promise, the respondent, in October 1998, submitted to Local No. 120 a plan for future transfers to the blanket department wherein it reserved to Rapport the position of final ar- biter.26 A week later Local No. 120 submitted a reply to Rapport Q. Did you say in those negotiations for the 1938 contract that by including the word "may" in the first paragraph of the contract you will have all you want in a closed shop, just leave the' word "shall" out and put the word "may" in there. A. That was discussed by Mr. Guy. Q. Well, did you say anything to that effect? A. I do not recall. Q. Did you say in those discussions that If the shop committee said "I don't want him," referring to an applicant for employment , "he is no good," for their own reasons, he cannot be hired, but if the shop committee o.k's him, why then he,will be hired? A. No, did not talk about that. Q. Did you say that "if you boys have any trouble in regard to your members or If there is trouble on my side too, you fellows bring it-up to me and that man will be fired?" A. Never talk about firing anybody. 25 See footnote 18, supra. zs See the following : OCTOBna 20, 1939 SYSTEM OF INTER-DEPARTMENTAL TRANSFER TO THE BLANKET DEPARTMENT 1. If blanket department needs one or more men for steady employment, Mr. Kearns will take this up with Mr. Schwartz. 2. Mr. Schwartz will meet with the superintendents of all departments and will try to select as many men as available. 3 The superintendent of each department has to release the man or men spontaneously. It is up to his discretion whether the man or men selected can be replaced without any difficulty and without causing any slowing down of the production. 4. The superintendent will explain the man or men selected that the starting pay in the blanket department is $25.00 per week. After six months he will be increased to $28 00 per 40 hour week. 578 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD wherein it accepted most of the points contained in the respondent's plan and offered counterproposals as to others.27 One meeting was thereafter held between the parties at which Rapport objected to Local No. 120's counterproposal that the grievance- committee should handle any dispute arising between the transferee and the foreman 28 There were no further negotiations, and according to shop committee- man Victor Moscato, "the matter had dropped for a while there, we didn't know whether it had been accepted or not." During the month of January 1939, however, Foremen Peters, Kearns, Smith, and Hibbs 5. He will also explain to them that in case of lay-off in the blanket department, they will retain their seniority rights in their respective old position. 6. After the man or men are selected , the list is put before the committee. 7. If no decision can be reached between the committee-men and Mr . Schwartz, the matter will be submitted to Mr. Rapport for final acceptance 8. All transfers are subject to the approval of the floor superintendent. All transfers are subject -to 90 days trial period. The superintendent Is the sole judge and his decision Is final, and it does not come under the jurisdiction of the grievance committee. 9. If the transferred person does not fill the position in the opinion of the superintendent, he will be returned to his old position without the loss of his seniority rights. 10. If the transferred man for personal reasons of his own wishes to return to his old position before the 90 days trial expires, he may do so 27 To.the management of the Rapid Roller Company At our recent meeting with Mr. Rapport and Mr. Schwartz , we were asked If we intended to co-operate with the company management for the purpose of insuring the successful operation of production In the plant . We assure you that we shall give the continued successful cooperation that has been had in the past. In reference to the system of inter-department , transfer to the blanket department, outlined for our consideration last week , we find that most of the points advanced are satisfactory , however, there are a few points that we suggest you take under consideration. Paragraphs one and two are satisfactory. 3 Selections must- be made according to seniority , as much as possible, and not because of any relationship or Indirect connections with superintendents or management. 4. We believe that this paragraph is not needed , as some spreader-helpers are getting only $27 or $28 'per week at the present time However there are some $26 per week men that may be eligible for transfer . We do not believe the management would cut these men one dollar a week. Also, if the man transferred is an experienced spreader he should receive the wage scale paid for that position , We do not believe there will be any con- troversy on this , due to the fact that the men would be reluctant in accepting the accom- panying cut in salary. Paragraphs 5, 6 and 7 are satisfactory. 8. All transfers naturally will have to be approved by the foremen The ninety day trial period is acceptable . If the transferred man does not execute his duties satisfactorily, the foreman should try to correct him in a fair manner If after given a fair chance, the man is still incapable of doing the work, he should be returned to his old position. If any dispute arises between the foreman and an employee, the grievance committee shall handle the case as well as any other case under similar circumstances The grievance committee is there to try and guard against injustices, arising out of personal feeling or imaginary grievances . An employee must be judged by his ability and not by relationship or connections. Sometimes gossip or personal dislikes might put the employee in an undeserving position . It is the bound duty of the grievance committee to see that no such injustice is done. [Italics supplied.] 9. If the transferred man cannot fill his position after a fair and unprejudiced trial he will be returned to his old position without the loss of his seniority rights. Paragraph ten is satisfactory. May lve again stress the fact that we are sincere in our efforts to do our part to insure the continued success of the Rapid Roller Co. With cooperation from the. management we believe that this can be accomplished in a fair manner without any serious controversies between the management and the Union. Signed. SHOP COM MITTEN). 28 See italicized portion in footnote 27 supra. RAPID ROLLER CO. 579 1 conferred on a few occasions with the shop committee in an attempt to make up a list of future transferees to the blanket department. The shop committee presented the foreman with a list of 12 employees whom it considered eligible for transfer, in the order of their seniority. The foremen objected to the qualifications of several of the employees on the list, but admitted that at least two of them 29 were qualified to work in the blanket department, and Kearns, the superintendent of the blanket department, said at one of the conferences that with the exception of one employee on the list he could "make spreaders 3° out of them all." No agreement was reached on the list of proposed trans- ferees 31 and no more conferences were held with a view to reaching an agreement. Schwartz, the factory superintendent, had been on his vacation dur- ing these conferences, and returned in the latter part of January 1939. He testified, and we find, that, from the time he returned from his, vacation until he hired the four men, he did not consult with the shop committee either to ask them for their own final proposals or to refer the four new employees to them in accordance with clause 1 of the contract. Although Rapport testified at the hearing that he never saw Local No. 120's list of proposed transferees to the blanket department, he made reference to the list sometime during' January 1939 while con- ferring with the shop committee about "overtime." On this occasion, as on occasions thereafter, Rapport characterized Local No. 12'0's list of proposed transferees as "an old lot of colored janitors 32 and old people who aren't capable of doing the work." According to shop. committeeman Moore, Rapport also delivered himself of a long tirade against Local No. 120 on this occasion. Moore testified as follows : Q. Tell us what was said at that meeting. A. Well, Mr. Rapport asked us, and directed the speech to Niel- son, he said, "Neilson, what guarantee can you give me that I won't have any labor trouble? There is a possibility I can get a big order in here, but I must first have some ,guarantee from you men whether or not there will be any more stoppages of work." Nielson stated that we could give him no more guarantee than the contract. z0 A. Pieracci and A. Paull. 80 "Spreaders" work in the blanket department. 81 The shop committee objected to the transfer of Pieracci and Paull on the ground that others on the list, equally capable, had greater seniority. as Only two employees designated "janitor" were on the list of 12 employees Both of these were negroes . Others were designated "booking," "Spotter," "stripper," "oil roller," "cementer," etc . Although both negroes were high on Local No . 120's seniority list, Local No. 120 had agreed , during the conferences with the foremen in January 1939, to withdraw their names from the list temporarily. 450122-42-vol 33-38 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' Rapport stated that, "Well, I don't know about that contract. You fellows stopped work twice when you had a contract before, so I can't put much faith in that. That's why I called you down." So Nielson said, "Well, that's all we have existing in writing, and if you keep your end of it, we will keep ours." Mr. Rapport said, "This union cost me fifty-odd thousand dol- lars, and before there was a union in the plant, we had no trouble even though the men were making-earning less money than they are now, but since we have the union, we have all sorts of trouble. When I used to go through the plant in the morning, why, the men looked at me and smiled and said, `Good morning', but now they don't even do that." He said, "This union has caused all of this." He said, "These outsiders who have put these union ideas in your heads"-he said, "These outsiders have put ideas of unionism in your heads." And Nielson said at that point, "Well, Mr. Rapport, we can't see anything wrong with ideas of unionism." And he said, "Well, this here is a million and a half dollar con- cern. It seems that the union and I can't exist in the same place at the same time; that if you fellows keep on giving me trouble, one of us will have to go." He says, "I have got my investments here, so you can draw your own conclusions." He said further, "I myself might concede certain things to the union, but there is other people to consider. We have stock- holders, and the like,,that might not be so willing to compromise with the union." He said, "Jim there, has shut my plant down twice." . He said, "The next time I have trouble in the blanket department, it is going to be a different story. You fellows-I was forced to take this lying down, but next time it will be a different proposition. I will be prepared, the same as you were then." He said, "You remember that machinery that I had boxed up", he said, "and put into the new addition? Why, I have been around looking for •a site where I might install this blanket de- partment." He said, "This blanket department gives me too, much interference, and I don't have to have it. I can move it out of the factory or move it out of town, or I can just stop production of it altogether." Q. Anything else said at that meeting? A. Well, when the meeting ended, he said, "If you fellows can guarantee me against any more interruptions, I will unbolt all this machinery, put it back in the-install'it in the blanket de- partment. That will make more work for the machine shop, and RAPID ROLLER CO. 581 we will have to hire some more men to run the spreaders, and these men from downstairs can come up and be promoted." Q. Do you remember whether or not any mention was made of the union's answer to Mr. Rapport's ten-point proposal for transfers to the blanket department? A. He stated Q. Who did? A. Well, the discussion come up as to who was to be transferred. Mr. SEYFARTH. When and where-at this same meeting he is testifying to? Mr. EVANS. Yes. The WITNESS. And Mr. Rapport said, "Well, I offered you fel- lows a plan by which men could be brought to the department through others, and you threw it out." By Mr. EVANS. Q. Anything else said? A. Well, Nielson said, "Well, Mr. Rapport all we can say is that we have a contract and you have a contract, which both par- ties have signed, and that's our guarantee." Q. Was any mention made of a list of ten or twelve persons for promotion to the blanket department? A. ' Yes. Q. What was the discussion as to that? A. Victor Moscato stated that he had a list that had been drawn up in conjunction with the foreman, and to that Mr. Rapport said, "Well, look what you give me. You give me an old lot of colored janitors and old people who aren't capable of doing the work." Arid Moscato pointed out that' the names of some of the people he mentioned weren't even on the list, that we were quite in con- junction with him in putting only men in the departments that were capable of doing the work, who could read and write. Rapport did not deny making most of the statements referred to by Moore.33 The Trial Examiner found in substance that Rapport made ' The following are Rapport's only denials concerning all of the above testimony: Q. Did you ever say to the shop committee or to any members of the shop committee that you would not take it laying down, that in 1937 you were not prepared but thereafter you were ready for the union? A. I did not. Q. Did you say to the shop committee or to any one else that the Rapid Roller Company is a million and a half dollar concern and it seems that the union and I cannot exist in the same place at the same time? A. I did not. , Q. Did you ever say to any of your employees that "if you fellows keep on giving me trouble one of us will have to go . I have got my investments here so you can draw your own conclusions"? A. To whom? 582 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD the statements attributed to him by Moore. We therefore credit Moore's testimony and find that Rapport made the statements sub- stantially as quoted above. Rapport's continuing anti-union attitude, as evidenced by these remarks, must be considered in evaluating Local No. 120's contention that the respondent thereafter refused to bargain collectively with it concerning the hiring of the four men. Rapport's brother, an employee in the blanket. department, was a member of Local No. 120 and had always been the first in that depart- ment each month to get his union button. In February 1939, just prior to the hiring of the four men, Meskan asked Rapport's brother why he did not have his union button that month. He replied, "things are going to change around here, I think I will wait." The events following the hiring of the four men On March 2, 1939, Moore and Sevenberg, after meeting the new em- ployees, informed the rest of the shop committee that four new men had been hired to work in the blanket department. The entire shop committee then went to see Schwartz and protested to him that the hiring of the four men was a violation of paragraphs 1 and 10 of the contract. Schwartz replied, "Well we don't think it is. I think you boys are wrong in coming down here at this time, management has seen fit to place these men, management has seen fit to keep them there." The committee asked why the four men had not been referred to the shop committee, and Schwartz answered that they had been referred. Rapport entered the room at this point and the shop committee in- formed him that it desired to discuss with him the "question of senior- ity." According to his own testimony Rapport replied, "I don't think there is anything to discuss, everybody is working, we hired some ad- ditional men, that is all there is." (Italics supplied) Nielson, Moore, and Sevenberg also variously testified that Rapport added that there would be "no negotiations on interpretation of the contract, that it was a problem of management;" (italics supplied) * * * "I don't need to put up with you fellows, if I don't want to * * * You caught me lying down before, and you were prepared, and then I wasn't; * * * There is only you five fellows that is running this union * * * Why, if you fellows went on strike, they wouldn't stick with you; * * * we are telling you all now and whether you like it or not these men are going to remain in the blanket depart- Q To any one, did you say that? A I did not. Q Did you say to any one employed by the Rapid Roller Company or to any one els6 that "I myself might concede certain things to the union but there is other people to consider. We have stockholders and the like that might not be so willing to compromise with the union"? A. I did not. RAPID ROLLER CO. 583 nwnt." (Italics supplied) Moore also testified that Rapport, refer- ring to his prior dispute with Local No. 120 concerning the blanket de- partment, said, "I did not accept anything, you forced me to. You know I had to sign all those contracts and I had to accept your con- teTntions then because I, wasn't prepared and you was. This time it will be a different story." (Italics supplied) Rapport did not deny any of the above except the statement that "I had to accept your con- tentions then because I wasn't prepared and you was. This time it will be a different story." In view of this fact and the nature of Rapport's admission as recited above, we credit the testimony of Nielson, Moore, and Sevenberg, and find that Rapport made the statements substan- tially as testified to by them. Rapport left the room and Schwartz told the committee that the four new employees would remain in the respondent's employ. On the same day Local No. 120 wrote to the United Rubber Workers of America at Akron, Ohio, requesting authorization to strike because of the respondent's hiring of the four men. The letter stated : We feel that our contract was violated on three counts, first when he hired the men without informing the Shop Committee, second when he disregarded our members chances for advance- ment through seniority and third when he absolutely refuses to discuss the matter further with our Shop Committee. In closing the letter added, "We have never had any trouble with the management in the two years we have been organized with the excep- tion of a successful (quickie) several months ago." The following day, March 3, 1939, the members of Local No. 120 voted to go out on strike. The next meeting. between the respondent and Local No. 120 was held in Rapport's office on March 6, 1939, at the request of Local No. 120. Board witnesses variously fixed the date of the meeting as on March 6, 8, or 9, but the records of Rapport and of his attorneys who were present at the meeting indicate that it was held on March 6 and we find, as did the Trial Examiner, that the meeting was held on that date. The respondent was represented at the meeting by its attorneys, Guy and Fischer, and by Rapport; Local No: 120 was rep- resented by its shop committee and by two International representa- tives. The meeting began at about 5 p. m., and did not end until 9 or 10 p. m. At the meeting Local No. 120 contended that in hiring the 4 men the respondent had violated clauses 1 and 10 of the con- tract, to which Guy replied, "Well now that's a matter 'of opinion. You believe the contract should be interpreted one way and we be- lieve it should be interpreted another way." With respect to clause 1, Local No. 120 contended that the respondent should, have given the entire shop committee an opportunity to meet the four new men 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before they went to work. The respondent replied that if it violated clause 1 no harm had resulted since Local No. 120 now had the oppor- tunity to speak to the new employees and to solicit their membership. Guy stated that the hiring of men was, in the last analysis, a "prob- lem of management" and that clause 1 did not confer on Local No. 120 the right to review prospective hirings. Local No. 120 then claimed that the blanket department constituted a "promotion" 34 over the other departments in the ,plant and that the seniority rights of men already working in the plant, as established by clause 10 of the contract, had been violated by the respondent when it hired the four men to work in that department. Rapport told the union rep- resentatives that the "hiring of the four men was a question of man- agement" and that Local No. 120 "had no right to negotiate concern- ing the hire of those men." (Italics supplied) The respondent also denied that the blanket department was a "promotion" over the other departments in the plant. Local No. 120 then stated that in the exchange of correspondence of October 1938 35 the respondent had agreed to consult with Local No. 120 before placing men in the blanket department, but the respondent stated that no agreement had been reached on that occasion. Moore then proposed to the respond- ent by way of compromise that it retain two of the new employees it had hired in the blanket department and "promote" two members of Local No. 120 to the department. Rapport refused, saying, "We would like to manage the' affairs of the progress of the company." -He stated that the foremen and the shop committeemen had never been able to agree on a list of proposed transferees to the blanket department; referred to the list of 12 employees which Local No. 120 had drawn up in connection with its conferences with the foremen in January 1939 as "a couple of janitors" and "people who weren't capable of doing the work;" and concluded by telling the repre- sentatives of Local No. 120 that "Regardless of what you fellows do this plant will operate. We have men to take your jobs if you leave." The meeting ended without any agreement having been reached on the matters in dispute. 84 Although the starting wage in the blanket department was $25 a week , the minimum wage for production workers in the plant , there was an automatic increase after 6 months to $28 per week. Moreover, it was a rapidly expanding department and as a result, much overtime was earned by the employees working there . Further, the employees in the past showed that they considered it a promotion and the respondent 's past conduct lent sub- stance to the claim . Thus, Rapport conceded during the Ruby Levy incident that the transfer of Levy to the blanket department was a violation of the contract ; he agreed to "get together" with Local No. 120 in order to devise a plAn for transferring other em- ployees to the blanket department, and negotiations to that end were had thereafter ; finally, the respondent has attempted to show that it did consult with the shop committee prior to the Levy transfer, thereby recognizing that the employees may have had the right to be so consulted. 35 See supra RAPID ROLLER CO. The strike 585 On the afternoon of March 10, 1939, the members of Local No. 120 went out on strike .36 Two meetings were held between Rapport and the shop committee on that day, before the strike. The first meeting was in the morning, at which time the shop committee told Rapport that Local No. 120 had received authorization to call a strike and asked him to reconsider the matters in dispute once more." Both Nielson and Moore testified in substance that Rapport replied that the hiring of the four men was a "question of management" and could not be negotiated and that there would not be "any inter- pretation as far as the contract was concerned." Although Rapport denied at the hearing that he had said that he "didn't see anything further to negotiate," 88 we do not credit such denial in view of the fact that Rapport had previously testified concerning the March 6- meeting : Q. Did you say at that meeting [March 6] that the hiring of the 4 men was a' question of management and that the Union had no right to negotiate concerning the hiring of those men? A. I did. We therefore find, as did the Trial Examiner, that Rapport made the statements substantially as testified to by Nielson and Moore. The shop committee than asked Rapport if he would transfer Ruby Levy to the blanket department, stating that such action would end the controversy so far as they were concerned, since they wanted to "take something back to the boys besides `No."' Rapport said that he would "think the matter over" and they agreed to meet again after lunch time. They met again at that time and Rapport told the committee that he had considered their proposal and that he had decided that the respondent would "stand pat." He also warned them that even if they went out on strike the respondent would con- tinue to operate its plant. The shop committee left Rapport's office but returned a few minutes later and told him, "Mr. Rapport, the boys feel that they cannot give up the whole basic rights of the contract on which the Union is founded, the seniority principle, we will have to accept your challenge and go out on strike." Before 80 Approximately 84 employees went out on strike. ar Rapport testified in effect that at both of the meetings on March 10 the shop committee demanded that he discharge the four new employees and threatened to strike at once unless he did The shop committee denied his testimony . In view of the fact that it was Local No. 120, and not Rapport, that offered a final compromise proposal on March 10 , and in the light of the whole record, we do not credit Rapport's testimony. 88 He testified : Q. Did you say that you didn't see anything further to negotiate? A. I didn't say that. Q. Did you say that the hiring of these men was a management problem? A. I said the hiring of men is a management situation. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD leaving the meeting the committee agreed with Rapport that several of the members of Local No. 120 would remain at their jobs to pre- vent deterioration of materials in process and to complete certain, blankets then being vulcanized. At 2:30 in the afternoon the mem- bers of Local No. 120 went out on strike. On March 13, 1939, the Monday following the strike, the respondent began to hire new employees. On the same day Local No. 120's shop committee, and Lanning, a representative of the United Rubber Work- ers of America, met with Fischer and Guy in the office of Harry E. Scheck, a Commissioner of the United. States Conciliation Service, at the request of Local No. 120. At this meeting Local No. 120 once more contended that in hiring the ,four men the respondent had violated clauses 1 and 10 of the contract. Fischer and Guy replied that the placing of a man in the blanket department did not constitute a "pro- motion," thereby implying that clause 10 had no application to the situation. Fischer also told the Conciliator, Scheck, that Local No. 120 always "wanted to have the last word" in connection with the plac- ing of men in the blanket department and that the respondent would never accede to that position. Guy added, "We cannot negotiate the matter . . . we told these boys before they went out on strike and we tell them now that it is a, strict prerogative of management, the placing and the hiring of men." Scheck suggested that the parties arbitrate the matter but the respondent's representatives refused. Fischer stated, in so refusing : "This situation, as we see it, is in regard to this contract and is simply a question of what the language of the contract means, and we don't think that there is any question as to what it means, and if there is a question, that is a question of interpre- tation and not a matter for arbitration, which requires give and take." [Italics supplied.] Thereafter, the respondent and Local No. 120 met on various occa- sions from March 16 to June 26, 1939, inclusive. At these. meetings the discussion related principally to the possible return to work of the strikers. At a meeting held on March 27, 1939, Guy told Local No. 120 that, "We still think we are right about this promotion clause, our interpretation of it, that we have discussed before." On May 9, 1939, at a conference held during the course of a hearing before Master- in-Chancery Louis J. Behan in 'connection with an injunction action which the respondent had brought against some of its pickets, Local No. 120 unconditionally offered the return of all tbe'strikers to work.39 SD The respondent contends that Local No. 120's offer to return to work was not uncon- ditional because Local No. 120 insisted that the respondent reemploy all the strikers. Since the respondent was, in any event, under a legal duty to reemploy all the strikers, it is obvious that the imposition of such condition did not alter the nature of the offer. See Matter of Nevada Consolidated Copper Corporation , et at and International Union of Mine, Mill and Smelter Workers, 26 N. L. R. B. 1182. RAPID ROLLER CO. 587 Rapport, on behalf of the respondent, rejected the offer, but stated that the respondent would reemploy as many of the strikers as it had positions for, perhaps 10 or 20. He stated that the respondent was unwilling to discharge new employees in order to make positions available for the strikers. At the time of the hearing the, parties had not reached any agreement as to any of the matters in dispute. Conclusions as to'the refusal to bargain concerning the four men As stated above, Local No. 120 contends that in hiring the 4 new employees on March 2, 1939, without previously consulting with the shop committee, the respondent violated clause 1 of the 1938 contract, and that the hiring of the 4 men in itself was a violation of clause 10 of the contract. The respondent adheres to the position, in regard to clause 1 that its breach, if any, was "academic" since Local No. 120 had the opportunity to solicit the new employees' memberships when they began to work; and in regard to clause 10, that the blanket department does not constitute a "promotion" over the other depart- ments in the plant, and that in any event the hiring of employees is a matter exclusively for the respondent's discretion. Local No. 120's claim that the respondent violated in two respects the collective bargaining contract then in existence between the par- ties, was itself a proper subject of collective bargaining. In the New- ark Morning Ledger case,40 the Circuit Court of Appeals for the Third Circuit said : The right of collective bargaining is, however, necessarily a continuing right. Collective agreements ordinarily, as in this case, run for definitely limited periods of time. • Negotiations for their renewal must take place periodically and may commence, at least preliminarily, shortly after the signing of the preceding con- tract. Furthermore, it may at any time become desirable or in, deed necessary to bargain collectively for the modification of an existing collective agreement which has proved in practice to be in some respects unfair or unworkable or for the adjustment of complaints or alleged violations of such an agreement. Collective bargaining is thus seen to be a continuing and developing process by which, as the law now recognizes, the relationship between em- ployer and employee is to be molded and the terms and conditions of employment progressively modified along lines which are mu- tually satisfactory to all concerned. It is not a detached or iso- lated procedure which, once reflected in a written agreement, 'O N. L. R. B. v. Newark Morning Ledger Company, April 17, 1941 (C. C A. 3), enfg as mod. Matter of Newark Morning Ledger and American Newspaper Guold, 21 N L. R. B. 988. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD becomes a final and permanent result. Section 7, as we have seen, guarantees to employees the right to organize and engage in con- certed activities for the purpose of collective' bargaining. This right must necessarily continue so long as the prospect of future bargaining remains. It will thus be seen that the act guarantees to employees the continuous right to maintain labor organizations for the purpose of collective bargaining, after the signing of a particular collective bargaining agreement as well as before. [Italics supplied.] And in the Sands Manufacturing Company casc,41 the Supreme Court of the United States said : The legislative history of the Act goes far to indicate that the purpose of the statute was to compel employers to bargain collec- tively with their employes to the end that employment contracts binding on both parties should be made. But we assume that the Act imposes upon the employer the further obligation to meet and bargain with his employes' representatives respecting pro- posed changes of an existing contract and also to discuss with them its interpretation, if there is any doubt as to its meaning. The evidence conclusively shows that the respondent, at the out- set of the negotiations with Local No. 120 concerning the four men and at all times thereafter, clearly indicated that the position it as- sumed "in the first instance .was its final one, and throughout the negoti- ations it maintained this unyielding attitude. Rapport's statements, on March 2, that "I don't think there is anything to discuss," "whether you like it or not these men are going to remain in the blanket depart- ment," and "you know I had to sign all those contracts and I had to accept your contentions then because I wasn't prepared and you was. This time it will be a different story;" his reiterated statements that Local No. 120 "had no right" to negotiate concerning the hiring of the four men and that there would be "no interpretation" of the contract; and Guy's statement on March 13, that : We cannot negotiate this matter ... we told these boys before they went out on strike and we tell them now that it is a strict prerogative of management, the placing and the hiring of men; all show that the respondent intended to adhere to its position regard- less of any arguments that Local No. 120 might advance. Were there any doubt as to the respondent's lack of good faith, it would be dissi- pated by the respondent's longstanding antipathy to Local No. 120 and its leaders, which, as heretofore shown, had in no wise abated in 41 N. L R. B. v. Sands Manufacturing Co., 306 U. S. 332, a8'g 96 F. (2d ) 721 (C. C. 'A. 6), setting aside Matter of Sands Manufacturing Company and Mechanics Educational Society of d'merica, 1 N. L. R. B. 546. RAPID ROLLER CO. 589 -1939. It must be recalled, in this connection, that Rapport had often threatened that he would "get rid" of Local No. 120.- We hold, therefore, contrary to the respondent's basic position, that .the question of the proper interpretation of the contract was plainly an issue of substance between the parties and a legitimate subject of ,collective bargaining within' the contemplation of the Act. The re- spondent argues, however, that its interpretation of clauses 1 and 10 tis a correct one and that it is under no duty to accede to Local No. 120's interpretation of them. We do not hold that it was or is under any such duty. We do hold that the Act imposes upon the employer the duty to listen to the union's contentions with an open mind, and to discuss them with a view to arriving at an amicable understanding if there is a basis therefor 42 Where the contentions of a party concern- ing the meaning of an agreement have reason supporting them, as did Local No. 120's in this case, a rigid predetermination by the other party not to consider such contentions, despite the reason supporting them, is productive of the very industrial strife and unrest which Congress sought to alleviate by passage of the Act. ' The fact that the respondent and Local No. 120 had previously sought to agree upon a list of transferees, without success, did not re- lieve the respondent of its duty to bargain collectively in this instance. On the contrary, such prior negotiations are further evidence of the respondent's ultimate unwillingness to deal with the blanket depart- ment except on its own terms. The failure to agree on procedure in October 1938 was not the fault of Local No. 120, for it accepted the respondent's proposals which left final determination of whether an employee would be transferred to Rapport, almost in to to, and offered only a few counterproposals which were not acceptable to the re- spondent.43 Similarly, in January 1939, it was Local No. 120 alone that prepared a list of proposed transferees; no counter-list v< as ever suggested by the respondent. Neither Schwartz nor Rapport took 43 In N. L. It. B. v. George P. Pilling & Son Co., March 18, 1941 (C. C. A. 3), 8 L. R. R. 108, enf'g Matter of George P. Palling & Son Co., and Dental, Surgical & Allied Workers Local Industrial Union No. 119, affiliated with the C. 1. 0., 16 N. L. R. B. 650, the Circuit Court of Appeals said : Bargaining presupposes negotiations between parties carried on in good faith . The fair dealing which the service of good faith calls for must be exhibited by the parties in their approach and attitude to the negotiations as well as in their specific treatment of the particular subjects or Items for negotiation . For such purpose, there must be common willingness among the parties to discuss freely and fully their respective claims and demands, and , when these are opposed , to justify them on reason. When the proffered support fails to persuade or if, for any cause , resistance to the claim remains, it is then that compromise comes into play. 48 In its "brief on the facts " the respondent contends that the feature of Local No. 120's reply in October 1938 ( see footnote 27, supra ) "which was completely unacceptable to the company was the requirement that the shop committee should have the last word in passing upon the fitness of the men for the work in the departments to which they were transferred." We fail to discover any such requirement in Local No. 120 's reply. 590 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD part in these negotiations, or consulted with the shop committee there- after up to the time the four men were hired. Rapport, moreover, though he had never seen Local No. 120's list, and though the foremen had conceded the qualifications of at least two employees on the list, continuously refused to consider the list and referred to it as a "lot of old colored janitors." All the foregoing reveals the respondent's lack of good faith. We are of the opinion, moreover, that since the Janu- ary 1939 negotiations were not held in connection with prospectiv® hirings or transfers which had been scheduled for a specific date, no impasse was reached as to,the specific vacancies in dispute on March 2. In summary, the record shows that the respondent did not enter into the discussions with Local No. 120 concerning the interpretation of the 1938 contract with an "open fair mind." In sealing its mind in advance against the thought of entering into an agreement with Local No. 120 concerning the interpretation of the contract, the respondent did not fulfill its duty under the Act to bargain collectively with the representative of its employees.44 We find that the respondent refused to bargain collectively with Local No. 120 as the exclusive representa- tive of its employees in the appropriate unit, on or about March 2, 1939, and thereafter, and that the respondent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. Co'nclusion as to the strike The amended complaint alleges that the strike on March 10, 1939, was caused by the respondent's refusal to bargain on the dates hereto- fore mentioned and by other acts of interference, restraint, and co- ercion. The respondent denies that these were the causes of the strike and alleges affirmatively that the members of Local No. 120 went on strike because of the respondent's refusal to comply with the request of Local No. 120 that it discharge one Edward Schrambeck, an em- ployee. Local No. 120 had expelled Schrambeck on March 7, 1939, 3 days before the strike, and on the following day, it requested the re- spondent to discharge him. The respondent refused to do so and on March 9 Local No. 120 again demanded that the respondent discharge Schrambeck. Rapport testified that at the two meetings held on March 10 the shop committee asked him to discharge Schrambeck in 44 In Sanger Mfg Co. v rational Labor Relations Board, 119 F. (2d) 131 (C. C. A. 7) (Enf'g as mod. Matter of Singer Manufacturing Company and United Electrical, Radio d- Machine Workers of America, Local No. 917, affiliated with the Congress of Industrial Organizations, 24 N L. R B. 444) the Circuit Court of Appeals said: "As we have pointed out, there is a duty to enter into discussion with an open fair mind. An employer must keep ever before him the remedial purpose and intent i of the Act ; he must not seal his mind against the thought of entering into an agreement but rather make a sincere and earnest effort to bargain collectively with the representative of his employees " [Italics supplied.] RAPID ROLLER CO. 591 addition-to discussing with him the, hiring of the four new employees. The, shop committee denied this testimony 45 While it is true that the respondent and Local No. 120 discussed the case of Schrambeck on occasions prior to the strike the testimony clearly shows, and we find, as did the Trial Examiner, that the hiring of the four men was the principal subject matter that they discussed,46 that the Schrambeck case was incidental and collateral thereto, and that the strike was caused by the respondent's refusal to bargain collectively concerning the hiring of the four men. The respondent also claims that -Local No. 120 voted to strike on February 28, 1939, which was prior to the date on which the four new men were hired, and not on March 3 as set forth above. The purpose of this contention is to establish that the strike vote must necessarily have been taken for reasons other than the respondent's alleged refusal to bargain collectively concerning the hiring of the four men. The respondent bases its contention upon the fact that typewritten minutes of the meeting at which the strike vote was taken, introduced into evi- dence by the Board; bore the date February 28, 1939. In addition, Board witnesses originally testified that the strike vote was taken on February 28, 193947 Later in the hearing these same witnesses, in- cluding Carl P. Wagner, the secretary of Local No. 120, who had typed the rhinutes, testified that they had been mistaken and that the strike vote was actually taken on March 3. Wagner explained at the hear- ing that his error had been one of memory; that he had typewritten the minutes from his original handwritten notes of the meeting (which, he stated, bore no date) almost 6 months after the meeting had been held, and that the date February 28, 193,9, was his best recollec- tion, at the time he prepared the typewritten copy of the minutes, of the date on which the meeting had actually been held. Documentary and other evidence introduced at the hearing establishes beyond doubt that the strike-vote meeting was held on March 3, and we find, as did the Trial Examiner, that the meeting was held on that date. We find that the unfair labor practices of the respondent in refus- ing to bargain collectively with Local No. 120 as the exclusive col- lective bargaining representative of its employees in the appropriate 95 Whether or not Schrambeck was mentioned on March 10 , it is clear that he was not Local No. 120's principal grievance , since as we have seen above, Local No 120's final offer of compromise on March 10 was that the dispute would be settled if the respondent would place Ruby Levy in the blanket department. 4°At the hearing Guy testified that in April or May 1939, while discussing the possible return to work of the strikers, he told Local No 120's attorney , "I am inclined to think that these members of the union , if you would recommend it to them, * * * if it is your opinion that we are legally right on this question of this contract, if you would tell them that I am inclined to think they would follow your advice " [ Italics supplied ] 47 In so testifying, however, they nevertheless placed the meeting at a time subsequent to the hiring of the four men. 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit caused the strike of March 10, 1939, and that the- strike was pro-. longed because the respondent continued-to engage in said unfair labor practices. C. Discrimination with respect to hire and tenure of employment (a) The strikers As stated above, Local No. 120, on May 9, 1939, offered the uncon- ditional return to work of all the strikers and the respondent refused to reinstate them because it had replaced most of them with new em- ployees it had hired since the strike began. There is no testimony that any of the strikers made individual applications for reinstate- ment. However, in' view of the general application made by Local No. 120 on May 9 in behalf of all the strikers and the respondent's refusal to displace new employees in order to put the strikers back to work, a subsequent individual application would have availed the employees nothing.- It cannot be said that because the strikers did not make individual applications to go back to work they were not refused employment. To require the strikers to make individual ap- plications in this situation would "place a penalty on them for not do- ing what they knew would have proved fruitless in the doing." 48 Since the strike was caused by the, respondent's unfair labor prac- tices, the striking employees were, in the absence of some valid cause for discharge, entitled to reinstatement to their former positions upon request, even though the respondent had hired new employees during the strike 49 The respondent was under a duty, at the time Local No. 120 applied for reinstatement on behalf of the strikers, to discharge a sufficient number of the employees it had hired during the strike to make positions available for the strikers. By its failure and refusal to reinstate the strikers in the place of the employees hired during the 48 N. L. R B V. Pliclps Dodge Corp , 313 U. S 177 , modifying and remanding 113 F. (2d) 202 (C C. A. 2), enf'g as mod . Matter of Phelps Dodge Corporation, a corporation and International Union of Mine, Mill and Smelter Workers, Local No. 30, 19 N. L. R. B. 547; Eagle-Picher Mining and Smelting Company, v. N. L. It. B., May 21, 1941 (C. C. A 8)-, enf'g as mod. Matter of Eagle-Picher Mining & Smelting Company, and International Union of Mine, Mall it Smelter Workers, Local Nos 15, 17, 107, 108 and 111, 16 N. L. R. B. 727; N L. R. B. v. Sunshine Mining Go , 110 F. ( 2d) 780 (C. C. A. 9), cert. den. 312 U. S. 678, enf ' g Matter of Sunshine Mining Company and International Union of Mine, Mill and Smelter Workers, 7 N L. R B. 1252 41 Black Diamond Steamship Corporation v. N. L. R B 94 F. ( 2d) 875 (C. C. A.'2), cert den , 304 U. S. 579, enf'g Matter of Black Diamond Steamship Corporation and Marine Engineers' Beneftdial Association, Local No 33, 3 N L. R B 84 ; Matter of McKaig- h atch, Inc. and Amaljamated Association of Iron. Steel , and Tin Workers of North America, Local No. 1139, 10 N. L. it. B. 33. N. L R B. v. Remington Rand, Inc., 94 F. (2d) 862 (C. C. A. 2), cert. den. 304 U S. 576 , 585, enf'g as mod Matter of Remington Rand, Inc and Remington Rand Joint Protective Board of the District Council Office Equipment Workers, 2 N. L. It. B. 626; Stewart Die, Casting Corp . v. N. L R. B., 114 F. (2d) 849 (C. C A. 7) enf'g as mod. Matter of Stewart Die Casting Corporation and United Auto. mobile Woikeis of Ainetica, Local 298, et al, 14 N. L. R B 872 , cert. den. 312 U. S. 680. RAPID ROLLER CO. 593 strike solely because of its unwillingness to displace such persons, the respondent established a preference of a character which discourages uniora membership. We find that by refusing reinstatment to the striking employees at the time Local No. 120 unconditionally offered their return to work on May 9, 1939, and thereafter, the respondent discriminated in re- gard to the hire and tenure of said employees, thereby discouraging membership in Local No. 120, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act. (b) Milton Schnitzer and Ruby Levy The complaint alleges that on or about March 14 and 24, 1939, the respondent discriminatorily discharged Milton Schnitzer and Ruby Levy, respectively, because they had assisted Local No. 120.' In its answer the respondent admitted that it discharged Schnitzer and Levy but alleged that they "were discharged for good and suffi- cient cause in that they . . . refused to perform duties or work as- signed to them by the respondent." Milton Schnitzer was employed by the respondent on October 24, -1938, as an assistant in the laboratory. He was not a member of Local No. 120. Directly after the strike the respondent began to transfer its laboratory employees to the factory, to do the work of strikers. On March 13, 1939, the Monday following the strike, Rap= port asked Schnitzer if it was "against [his] principles" to work in the factory. Schnitzer replied that it was, during the continuance of the strike. About 10 minutes later Rapport told Schnitzer not to do any more work in the laboratory until Schwartz instructed' him to do so. Schwartz did not assign any more work to Schnitzer until March 15. Schnitzer testified that on Friday, March 17, he was instructed by someone on behalf of the respondent to teach one Carl Fox, a new employee, to do his work, and that he did so. Later on in the same day, Schwartz told Schnitzer that the respondent "wasn't busy" and "wouldn't need" Schnitzer any more, and that the respondent would call him back to work "when they get busy again." Fox, a graduate chemist, was employed by the respondent in. its laboratory on Monday, March 20, 1939, and was still in the respond-' ent's employ at the time of the hearing. He testified that he had visited the respondent's laboratory a few days prior to the com- mencement of his employment, but that he "didn't think" he saw Schnitzer on that occasion. However, he did not deny Schnitzer's testimony that Schnitzer had taught him to do his (Schnitzer's) work. Ruby Levy, who also worked in the -laboratory at the time, 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and who testified at the hearing under subpoena,b° partially corrob- orated Schnitzer's testimony and testified that on Friday, March 17, he observed Schnitzer "showing [Fox] around." Levy also testified that after Schnitzer left the respondent's employ Fox performed work in the laboratory which was formerly done by Schnitzer. Al- though Fox was a graduate chemist and Schnitzer only a laboratory assistant, it is not unreasonable that Schnitzer should have been called upon by the respondent to acquaint Fox, a prospective em- ployee, with the mechanics of the laboratory ; nor is it unreasonable to believe that Fox, in addition to other duties he may have had to perform, should have assumed, in addition, duties formerly per- formed by Schnitzer. The Trial Examiner credited Schnitzer's tes- timony. We credit the testimony of both Schnitzer and Levy and find that the events surrounding Fox's employment by the respond- ent occurred substantially as testified to by them. Toward the end of March, Schnitzer joined the picket line which the striking employees had formed outside the plant. He testified at the hearing without contradiction and we find that during April 1939 Foreman "Bill" Peters told him that "the other men might come back to work" but that Schnitzer surely would not. The respondent did not reemploy Schnitzer at any time thereafter, although it has employed at least three laboratory assistants since Schnitzer's discharge. Ruby Levy had been employed in the respondent's laboratory as an assistant since 1936, and, except for the occasion of his transfer to the blanket department in September 1938,51 had not worked else- where in the respondent's plant. He was not a member of Local No. 120. As stated above, the respondent, directly following the strike, be- gan to transfer its laboratory employees to the factory to do work formerly done, by strikers. Levy testified that on Saturday, March 11, the day after the re- spondent's employees went out on strike, Foreman Hibbs asked him if he would be willing to work in the respondent's mercury depart- ment, and that he told Hibbs that he was "sorry but he couldn't do it." Hibbs denied this testimony. Levy further testified without contradiction and we find that on the following Monday, March 13, Rapport said to him, "Ruby, I hear it is against your principles to work in the factory," and that he replied, "Yes, that's correct, I'm sorry." Whether or not it was Hibbs who, on March 11, requested that Levy do factory work, it is obvious from the above statement 50 Although Local No. 120 charged that the respondent had discriminatorily discharged Levy, Levy testified at the hearing that he did not desire reinstatement. 11 See Section III B ( 2), supra. RAPID ROLLER CO. 595 of Rapport to Levy on March 13, that someone on behalf of the re- spondent had asked Levy to work in the factory after the strike was called, and that Levy had refused, and we so find. Shortly after this conversation' Rapport instructed Levy not to do any more work until Schwartz assigned some to him. On Wednesday, March 15, Schwartz assigned work to both- Levy and Schnitzer. On March 17, the respondent employed one Oscar Dobkin as a research chemist in the laboratory, and Levy showed him certain processes in the labora- tory. On March 24, 1939, Schwartz gave Levy his salary check and told him, "I am sorry, Ruby, but there isn't mucli work to do around here, as you can see for yourself and we will have to leave you go."' Dobkin was still in the respondent's employ at the time of the hear-' ing. The respondent has never called Levy back to work. Conclusions as to Schnitzer and Levy As stated above, the respondent contends - that it discharged Schnitzer and Levy because they refused to perform work which was assigned to them (work in the factory replacing strikers). Several factors cause us to doubt the validity of such contention. In the first place, such reason was not assigned to Levy and Schnitzer by the respondent as the cause of their discharge at the time that it discharged them; at that time, the reason assigned by the respond- ent was that there was not sufficient work in the laboratory. If the respondent's real reason for discharging Schnitzer and Levy was that they had "refused to perform work . . . assigned to them," it is curious that it should have given them another reason for their discharge which in no way involved an element of fault on their part. Secondly, if the refusal of Schnitzer and Levy to work in the factory as requested by the respondent were really the cause of their respective discharges, it is reasonable to assume that the respondent would have discharged them at the time of such refusal or immedi- ately thereafter; on the contrary, the respondent did not discharge Schnitzer until 4 days after his refusal nor Levy until 13 days there- after. Thirdly, the reason actually given by the respondent for the discharges at the time thereof is not a convincing' one. It is diffi- cult to believe that the respondent was compelled to lay off two em- ployees for the stated reason that there was no work for them to do at the same time it was hiring two new employees in the same depart- ment. The fact that the respondent subsequently hired additional laboratory assistants without recalling Levy and Schnitzer, after it had told Levy and Schnitzer that they were being discharged be- cause there was no work for them, indicates further that the real motive for the discharge of Levy and Schnitzer was not that as- signed by the respondent at the time. 450122-42-vol 33-39 596 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD As shown above, Levy and Schnitzer refused to do the work of, strikers when requested to' do so by the respondent. In stating, as the reason for their refusal, that they would not do factory work "during. the strike," or because of "principle," they unmistakably demonstrated that they were sympathetic to the strikers. In view of the respondent's long-standing antipathy to Local No. 120, it is reasonable to assume, and we find, that it wished to rid itself of.any of its employees whose sympathies were so directed and that it sought to rid itself of Schnitzer and Levy for this reason. The Trial Examiner found that "neither the alleged lack of work in the plant nor his alleged refusal to perform work assigned' to him motivated the respondent in discharging Schnitzer. The discharge, on the contrary, must be attributed to the respondent's desire to rid itself of all employees sympathetic to the strikers." He found also that the "same considerations" applied to Levy. We concur in these findings and conclude that the respondent discharged Schnitzer and Levy because they assisted Local No. 120.52 We find, as did the Trial Examiner, that by the discharges of Schnitzer and Levy on March 17 and March 24, 1939, respectively, and the subsequent failure to reinstate them, the respondent has discrimi- nated against them in regard to hire and tenure of employment, thereby discouraging membership in Local No. 120 and interfering with, re- straining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. At the time of the hearing 'Schnitzer was employed as a drawer fitter at the National Tool and Chest Company. His average earnings there are $12 per week, whereas his average earnings while he was in the respondent's employ were $15 per week. In addition, the type of work he is doing in his new position is'different from the work he did for the respondent. Schnitzer testified that if he were offered his former position in the respondent's employ he would accept it. Levy testified that he does not desire reinstatement since he had accepted a scholarship at the University of Illinois, where he was an enrolled student at the time of the hearing. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent, described in Section III, above, occurring in connection with the operations of the respond- Even if the respondent discharged Schnitzer and Levy for the reason assigned by it in its answer, our conclusion would be the same. In refusing to do the work of strikers because of their sympathy with the strikers Levy and Schnitzer engaged in the type of con- certed emplcyee activity which is ' protected by the Act Their desire not to assist the respondent with respect to a strike caused by the respondent's unfair labor practices cannot be deemed an act of insubordination justifying their discharge, but is in the nature of a partial strike. See Matter of Niles Fire Brick Company and United Brick Workers L. I. U. No. 1!18 afllliated with the Congress of Industrial Organizations, 30 N L it. B. 426. RAPID ROLLER CO. - 597 ent described in Section I, above, have a close, intimate, and substan- tial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Since we have found that the respondent has engaged in certain unfair labor practices, we shall order it to cease and desist there- from. We shall also order the respondent to take certain affirmative action which we find necessary to effectuate the policies of the Act. We have found that Local No. 120, on April 23, 1937, and at all times thereafter, was, and that it is, the exclusive representative of the employees in the appropriate unit. Having further found that the respondent has refused to bargain collectively with Local No. 120 as such representative, we shall order it, upon request, to bargain collectively with Local No. 120 as the.exclusive representative of the employees in the appropriate unit. We have further found that the striking employees ceased work as a consequence of the respondent's unfair labor practices and that the respondent thereafter discriminated against them in regard to their hire and tenure of employment. In order to effectuate the policies of the Act, we shall order the respondent to offer reinstate- ment to their former or substantially equivalent positions to those employees who have not been fully reinstated. Such reinstatement shall be without prejudice to their seniority and other rights and privileges ' and shall be effected in the following manner : All em- ployees hired by the respondent after March 10, 1939, the date of the commencement of the strike, shall, if necessary to provide em- ployment for those to be offered reinstatement, be dismissed. If, thereafter, despite such reduction in force, there is not sufficient employment available for the employees to be offered reinstatement, all available positions shall be distributed among the remaining employees, including those to be offered reinstatement, without dis- crimination against any employee because of his union affiliation or activities, following such system of seniority or other practice to such extent as has heretofore been applied in the conduct of the respond- ent's business. Those employees, if any, remaining after such dis- tribution, for whom no employment is immediately available, shall be placed upon a preferential list and offered employment to their former or substantially equivalent positions as such employment becomes available and before other persons are hired for such work, in the order determined among them by such system of seniority or other practice as has heretofore been followed by the respondent. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We shall also order the respondent to make whole the striking employees for any loss of pay they may have suffered by reason of the respondent's refusal to reinstate them; by payment to each of them of a sum equal to the amount which he normally would have earned as•wages from the date of the application for reinstatement on May 9, 1939, to the date of the respondent's offer of reinstatement or placement upon the preferential list hereinabove described, less his net earnings 53 during said period. Albert Jackson, one of the strikers named in the complaint, died on October 20, 1939. The problem of his reinstatement has thus been eliminated. However, Jackson's personal representatives are entitled to a sum of money equal to the amount which Jackson would normally have earned as wages from the date of the application for reinstatement on May 9, 1939, to the date of his death, October 20, 1939, less his net earnings 54 during said period.55 Even if we were to assume that the respondent's denial of rein- statement to the striking employees was not an unfair labor practice, we would nevertheless under the circumstances award reinstatement and back pay to these employees in the manner set forth above. The strike having been caused by the unfair labor practices of the respond- ent, the ordinary right which it had to select its employees became "vulnerable," and any refusal by the respondent of a request made by the striking employees for reinstatement was at all times subject to such order as the Board, in effectuating the purposes and policies of the Act, might make directing the respondent to reinstate said employees, to dismiss persons hired since, and not in its employ at the commencement of the strike, for the purpose of making posi- tions available for such reinstatement, and to compensate such strik- ing employees for any loss of wages sustained by virtue of the refusal55 The striking employees desired to return to work but were 59 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- n here than for the respondent, which would have not been incurred but for the respondent's discrimination against him and the consequent necessity of his seeking employment else- where See Matter of Corssett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers U,ilon, Local 2590, 8 N L. R B. 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered as earnings . See Republic Steel Corporation v. N. L It. B., 311 U. S. 7. w See footnote 53, supra. - e5 Phelps Dodge Corp v. N. L. It. B., 313 U. S. 177, mod and remanding 113 F (2d) 202 (C. C. A. 2), enf'g as mod . Matter of Phelps Dodge Corporation, a corporation and International Union of Mine, Mill and Smelter Workers, Local No. 30, 19 N. L. R. B. 547; N L It. B. v Hearst , et at , 102 F. ( 2d) 658, enf'g as mod Matter of William Randolph Heast, et at and American Newspaper Guild, Seattle Chapter, 2 N. L. R. B 530. 5e Black Diamond Steamship Corp v. N. L. R B., 94 F ( 2d) 875 (C. C. A 2), cert. den. 304 U. S . 579, enf'g Matter of Black Diamond Steamship Corporation and Marine En- gineers' Beneficial Association, Local No 33 , 3 N. L. R . B 84; National Labor Relations Board v Remington Rand, Inc., 94 F. (2d ) 862 (C C A . 2) cert den 304 U . 8 576, enf g RAPID ROLLER CO. 599 denied reinstatement by the respondent. Assuming that the respond- ent's denial of reinstatement to the strikers on the ground that their jobs were occupied by strikebreakers was not a violation of Section 8 (3) of the Act, nevertheless the situation was one created by the respondent's unfair labor practices in refusing to bargain collectively with Local No. 120. At the time the striking employees offered to return to work, the question as to whether the respondent would itself reinstate employees whose work had ceased as a consequence of unfair labor practices or await an order of this Board requiring it to do so reposed entirely in the judgment of the respondent. Where, as here, employees who cease work as a consequence of unfair labor practices offer to return to work, without requiring as a condition that the employer cease the unfair labor practices which caused them to cease work, and the employer refuses to permit them to return to work upon their application for reinstatement, thereby depriving the employees of their jobs and attendant earnings until a later time or until this Board issues a remedial order, we are of the opinion that the policies of the Act will best be effectuated by requiring that in addition to reinstatement, the employer make whole the employees for any losses they have suffered thereby from the date on which they offered to return to work to the date of their reinstatement or place- ment upon the preferential list hereinabove described. We have found that the respondent discriminatorily discharged Milton Schnitzer and Ruby Levy. We shall order the respondent to reinstate Schnitzer to his former or substantially equivalent posi- tion, without prejudice to his seniority and other rights and privileges. Since Levy does not desire to be reinstated to the respondent's employ, because he accepted a scholarship at the University of Illinois, we shall not order the respondent to reinstate him. We shall further order the respondent to make Schnitzer and Levy whole for any losses of pay they may have suffered by reason of the respondent's discrimi- nation against them by payment to each of them, respectively, of a sum of money equal to the amount which he normally would have earned as wages from the date of discrimination against him to' the date, in the case of Schnitzer, of the respondent's offer of reinstate- ment, and to the date, in the case of Levy, on which he accepted a Matter of Remington Rand, Inc. and Remington Rand Joint Protective Board of the District Council Office Equipment Workers, 2 N. L. R. B. 626; Matter of McKaig-Hatch, Inc. and Amalgamated Association of Iron, Steel and Tin Workers of North America, Local No. 1139, 10 N. L. R. B. 33; Republic Steel Corp . v N. L R. B, 311 U. S 7, mod. 107 F. (2d) 472 (C. C. A. 3), enf'g as mod. Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N. L. R. B. 219; Stewart Die Casting Corp. v. N. L. R. B., 114 F (2d) 849 (C C A. 7), cert. den. 312 U. S. 680, enf'g as mod Matter of Stewart Die Casting Corporation and United Automobile Workers of America, Local 298, at at., 14 N. L. R. B. 872. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD scholarship at the University of Illinois, Jess the net earnings 57 of each, respectively, during said period. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. Local No. 120, United Rubber Workers of America, affiliated with the Congress of Industrial Organizations, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees of the respondent, excluding supervisory, laboratory, and office employees and truck drivers, at all times material herein constituted and now constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. Local No. 120, United Rubber Workers of America, affiliated with the Congress of Industrial Organizations, is and at all times since April 23, 1937, has been the exclusive representative of all the em- ployees in the above unit, for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By refusing on or about March 2, 1939, and at all times there- after, to bargain collectively with- Local No. 120, United Rubber Workers of America, affiliated with the Congress of Industrial Organi- zations, as the exclusive representative of its employees in such unit, the respondent has engaged in and is engaging in unfair labor prac- tices, within the meaning of Section 8 (5) of the Act. 5. By discriminating in regard to the hire and tenure of employment of the striking employees and of Milton Schnitzer and Ruby Levy, .thereby discouraging membership in Local No. 120, United Rubber Workers of America, affiliated with the Congress of Industrial Or- ganizations, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, ,and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respond- u See footnote 63, supra. RAPID ROLLER CO. 601 ent, Rapid Roller Co., a corporation, Chicago, Illinois, its officers, agents, successors, and assigns, shall: i. Cease and desist from : (a) Refusing to bargain collectively with Local No. 120, United Rubber Workers of America, affiliated with the Congress of Indus- trial Organizations, as the exclusive representative of its production and maintenance employees, excluding supervisory, laboratory, and `office employees and truck drivers; (b) Discouraging membership in Local No. 120, United Rubber Workers of America, affiliated with the Congress of Industrial Organi- zations, or any other labor organization of its employees, by discharg- - ing or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire or tenure of employment or any terms or conditions of their employment,; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right of self-organization, to form, join, or assist labor organizations, to bargain collectively with repre- sentatives of their own choosing, or to engage in concerted activities for the purpose' of collective bargaining or other mutual aid or pro- tection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : ' (a) Upon request, bargain collectively with Local No. 120, United Rubber Workers of America, affiliated with the Congress of Industrial 'Organizations, as the exclusive representative of its production and maintenance employees, excluding supervisory, laboratory, and office employees and truck drivers, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) Offer to the striking employees immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority or other rights or privileges, in the manner set forth in the section entitled "The remedy" above; and place those employees for whom employment is not immediately available upon a preferential list' in the manner set forth in said section, and thereafter in said manner, offering them employment as it becomes available: (c) Make whole the striking employees for any loss of pay they made have suffered by reason of the respondent's discrimination in regard to their hire and tenure of employment, by payment to each ,of them of a sum of money equal to that which he would normally have earned as wages during the period from the date of the applica- tion for reinstatement on May 9, 1939, to the date of the respondent's offer of reinstatement or placement on the preferential list as set forth in the section entitled "The remedy" above, less his net earn- 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ings 58 during such period; and in the case of Albert Jackson, by payment to his personal representatives of a sum of money equal to that which Jackson would normally have earned as wages during the period from the date of the application for reinstatement on May 9, 1939, to the date of Jackson's death, October 20, 1939, less his net earnings 58 during such period; (d) Offer to Milton Schnitzer immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges; (e) Make whole Milton Schnitzer and Ruby Levy for any loss of pay they may have suffered by reason of the respondent's discrimina- tion against them, by payment to each of them, respectively, of a sum of money equal to that which he would normally have earned as wages from the date of the respondent's discrimination against him to the date, in the case of Schnitzer, of the respondent's offer of reinstatement, and to the date, in the case of Levy, on which he accepted a scholarship to the University of Illinois, less the net earn- ings 58 of each, respectively, during said period; (f) Post immediately in conspicuous places throughout its plant and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees, stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraph 1 (a), (b), and (c) of this order; (2) that the respondent will take the affirmative action set forth in paragraph 2 (a), (b), (c), (d), and (e) of this order; and (3) that the respondent's employees are free to become or remain members of Local No. 120, United Rubber Workers of America, affiliated with the Congress of Industrial Organizations, and that the respondent will not discriminate against any employee because of membership or activity in that organization; (g) Notify the Regional Director for the Thirteenth Region in writing, within ten (10) days from the date of this order, what steps the respondent has taken to comply herewith. Mn. WM. M. LEIsExsoN, dissenting in part and concurring in part : I cannot agree with the decision of the majority in this case. I do not believe the incidents which occurred in 1937 and 1938 should now be found to constitute violations of Section 8 (1) of the Act. Subse- quent to the incidents, both in 1937 and 1938, the respondent and Local No. 120 entered into collective bargaining agreements, thereby fully complying with the requirements of the Act. Nor did the respondent violate Section 8 (5) of the Act in March 1939. It is true that a refusal by an employer to negotiate concern- 58 See footnote 53, supra. RAPID ROLLER CO. 603 ing the interpretation of terms of an existing agreement constitutes a violation of the Act. But in this case the evidence does not sup- port a finding that the respondent refused to negotiate with Local No.. 120 concerning the filling of vacancies in the blanket department. Prior to March 2, when the four men were hired for the blanket department, the respondent and Local No. 120 on numerous occasions met and discussed the problem of transfers or promotions to the blanket department. On and after March 2 the record discloses that the respondent negotiated with Local No. 120 as to the interpretation of both the "promotions" clause and the clause requiring the respond- ent to refer new employees to the Shop Committee before they commenced work. The fact is that -the discussions between the respondent and Local No. 120 resulted in disagreement as to the interpretation of these two clauses. When parties to a contract bargain and disagree, as here, there is no basis for finding a violation of Section 8 (5) of the Act. Since there was no refusal to bargain, the strike of March 10, 1939, was not an unfair labor practice strike. I agree with the majority that Schnitzer and Levy, who refused to give up their regular jobs to replace strikers, were discriminatorily discharged.