The Philip Carey Manufacturing Co.

National Labor Relations Board - Board Decisions

Feb 6, 1963

140 N.L.R.B. 1103 (N.L.R.B. 1963)

THE PHILIP CAREY MFG. CO. (MIAMI CABINET DIV.) 1103
transporting, or otherwise dealing in the products sold by Colony
Liquor Distributors, Inc., and Colonial Carriers, Inc., or to cease
doing business with these companies.
LOCAL 455, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Fourth Floor, The 120 Building, 120 Delaware Avenue, Buffalo
2, New York, Telephone No. TL 6-1782, if they have any question
concerning this notice or compliance with its provisions.
The Philip Carey Manufacturing Company (Miami Cabinet Divi-
sion ) and International Union , United Automobile , Aircraft
and Agricultural Implement Workers of America, UAW-
AFL-CIO, and its Local Union No. 689 . Cases Nos. 9-CA-2192
and 9-CA-2240. February 6, 1963
DECISION AND ORDER
On February 21, 1962, Trial Examiner Sidney Sherman issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain af-
firmative action, as set forth in the attached Intermediate Report.
Thereafter, the General Counsel, the Charging Party, and the Re-
spondent filed exceptions to the Intermediate Report and supporting
briefs. The Respondent also filed a motion to expedite and requested
oral argument.'
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner as modified herein.
1. The Trial Examiner found that the Respondent had refused to
bargain in good faith with the Union on and after July 28, 1960, and
'The request for oral argument is denied as the record , including the exceptions and
briefs, adequately presents the issues and the positions of the parties.
140 NLRB No. 90.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that this refusal was the cause of the strike that began on September 6,
1960. We do not agree.
After the Union's certification on March 17, 1960, the parties en-
gaged in extensive bargaining. Meetings began on April 18, and on
July 28, at the 11th meeting, the Respondent, after having considered
the Union's proposals and having made counterproposals, made a
complete contract proposal which it described as a final offer to end
negotiations and its best offer to avoid a strike. The Union found the
offer unsatisfactory because, although it provided for a wage increase,
it cut back from the Respondent's past practices with respect to ac-
cumulation of seniority on layoffs and rates to be paid during tem-
porary transfers to avoid layoff.
From July 28, when this proposal was made, to September 6, when
the strike began, there were seven meetings. During this time, al-
though the Respondent did make minor changes in certain respects, it
did not alter its proposal in the respects the Union found objectionable.
On September 6, when a strike vote had been taken and the strike
deadline set for that night, Ross, the Union's chief negotiator, tele-
phoned Humphrey, Respondent's president, who had, not theretofore
participated m negotiations, explained the situation, and sought to
meet with Iumphrey in an effort to avert a strike. Humphrey re-
fused a meeting, saying that, although Ross had mentioned matters of
which he was unaware, nevertheless he would adhere to his policy of
not becoming involved in plant level negotiations, noting also that he
considered Respondent's negotiators qualified.
On substantially these facts, the Trial Examiner found that on and
after July 28, the Respondent had refused to bargain in violation of
Section 8(a) (5).2 In so doing, the Trial Examiner held that after
making its July 28 proposal the Respondent froze its position and be-
came deaf to any arguments the Union might advance. The Trial
Examiner also found that this intransigence was compounded by
Humphrey's refusal to meet with Ross, especially in the light of the
lack of authority of the Respondent's negotiators to make significant
changes in the proposal. We disagree.
Assuming that in fact the Respondent made a so-called final offer on
July 28, we believe that the Trial Examiner placed too inuch stress
on finality and not enough on the amount of negotiation that preceded
the "final" offer. The Respondent's proposal came at the 11th meeting
between the parties, it did offer a wage increase, and it does not ap-
pear to us in the circumstances to be an indication of a failure to bar-
21n reaching his result herein, the Trial Examiner disavowed any intent to pass gen-
erally upon a technique of bargaining which he refers to as "Boulewareism ." However,
his reference to the Respondent's bargaining as a form of "Boulewareism " creates some
ambiguity as to his rationale As our decision herein makes clear, we are deciding this
case only on its own facts, and not passing upon any purportedly general technique of
bargaining.
THE PHILIP CAREY MFG. CO. (MIAMI CABINET DIV.) 1105
gain in good faith? That the Respondent regarded its offer as final
is a matter of its own judgment. One need not listen to argument
endlessly. There comes a point in any negotiation where the positions
of the parties are set and beyond which they will not go. Where that
point is obviously depends on all the facts of the case. On the facts
of this case we are not prepared to say that the Respondent exceeded
the limits of permissible bargaining by substantially adhering to its
July 28 proposal.
Nor do we think that Humphrey's refusal to meet with Ross alters
the case. The Respondent had entrusted its negotiations to both a
corporate officer, Fasold, who specialized in such matters, and to
Evans, the plant manager, its highest official on the scene, whose com-
petence is not questioned, and whose authority was certainly as broad
as that of Ross. In such circumstances, we cannot attach any sig-
nificance to the refusal of the Respondent to depart from its customary
procedures.
Accordingly, we find that the strike which began on September 6,
1960, was an economic strike in its inception.
2. The Trial Examiner further found that even had the strike not
been an unfair labor practice strike from inception, it Was converted
to one as of December 28 by the Respondent's conduct after the strike
began. We agree With this finding.
Specifically, the Trial Examiner relied upon the Respondent's in-
sisting, to impasse on December 28, upon its superseniority proposal.
That proposal was first made in a letter from Respondent to the
Union (copies being sent to the employees) on September 26, 1960.
In this letter Respondent informed the Union that unless the con-
tract proposal was accepted by September 30, the proposal would be
amended by adding a provision that nonstrikers and replacements
for strikers be given special seniority for layoff and recall. The
deadline for acceptance was later extended to October 7. It is clear,
as the Trial Examiner found, that the Union, which sought the re-
turn of all strikers with their seniority intact, took a position strongly
opposed to this proposal. The Respondent, on the other hand,
insisted upon the inclusion of the superseniority provision in any
contract it would sign. This Was clear in Fasold's statements of
November 23, which remained unchanged to December 28, When meet-
ings broke off. Meetings did not resume until August 1961 when
the Respondent, after the Board issued its decision in Erie Resistor
Corporation, 132 NLRB 621,° notified the Union that it was with-
3 We note, in this connection, that the Union seeks now to have the Respondent sign a
contract similar in these respects to the July 28 offer
4In Eire Resistor (enforcement denied 303 F. 2d 359 (C A 3), cert granted 371 U S.
810), the Board held that superseniority was an unlawful form of discrimination and
that insistence upon it as a condition of negotiating an agreement was therefore violative
of Section 8(a) (5).
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drawing the superseniority proposal. While it is true that no agree-
ment was reached thereafter, it is obvious that it was only the re-
moval of this impediment that made further meetings possible. We
are therefore, like the Trial Examiner, satisfied that bargaining nego-
tiations between the parties reached an impasse on December 28,
1960, because of the Respondent's unlawful insistence upon the in-
clusion of its superseniority proposal.'
We also agree that the Respondent's insistence on this proposal
contributed materially to the prolongation of the strike on and after
December 28, 1960. As the Trial Examiner noted, the issue of rein-
statement of all the strikers was of great importance to the Union
and the Respondent's proposal was an insuperable obstacle to the
achievement of that goal.
3. The complaint alleged, and the Trial Examiner found, that the
Respondent had violated Section 8 (a) (3) by its failure to reinstate all
the strikers for whom the Union unconditionally requested reinstate-
ment in August 1961. His finding in this respect is based upon his
prior finding that the strike was an unfair labor practice strike from
its inception.' We have found, however, that the strike was an eco-
nomic one until December 28, 1960. Accordingly, the Respondent
was free to replace strikers up to that time and was under no obliga-
tion to reinstate any strikers who had been replaced before December
28. Accordingly, contrary to the Trial Examiner, we do not order
the reinstatement of strikers replaced before December 28, 19601
e We are not here passing upon whether in fact the Union could , consistent with its
duty as certified bargaining agent, agree to such a proposal . The Union did not agree
Moreover , there is no suggestion in the record that the strikers , who struck originally for
economic purposes , changed their objective as a result of the September 26 letter As set
forth in the text, it was only after the December 28 impasse in collective bargaining that
the Respondent ' s proposal became an insuperable obstacle to settlement of the strike.
Hence, for purposes of the instant case , we need not and do not determine in what re-
spect, if any , the letter of September 26 was violative of the Act Moreover , we specifi-
cally disagree with the Trial Examiner's finding that the Respondent ' s letter of Septem-
ber 26 , 1960, was independently violative of Section 8(a) (1) in its statement that
strikers who were permanently replaced lost their seniority The Trial Examiner relied
in this connection on his finding , with which we disagree, that the replaced employees
were unfair labor practice strikers at this time.
Member Brown considers the publication of the September 26 letter as a threat to
institute unlawful superseniority unless striking employees would forgo their lawful con-
certed action . Such threat clearly violated Section 8(a) (1) in Member Brown ' s opinion,
and he would further find that the strike was converted to an unfair labor practice strike
on September 26.
O At one point in his Intermediate Report, the Trial Examiner states that the strike
was still current at the time of the hearing The Respondent urges this fact as a bar to
any backpay award. We do not agree Even assuming that the strike was then in
effect-a point not entirely clear on this record-it is still evident that the strikers had
made unconditional applications to return to work , and any continuation of the strike
thereafter was attributable to the denial of the request Cf Hawaii Meat Company,
Limited, 139 NLRB 966; Marathon - Clark Cooperative Dairy Association, 137 NLRB 882
7In Appendix B to the Intermediate Report, the Trial Examiner set forth the names of
all strikers he found entitled to reinstatement The attached Appendix B lists the names
of all those strikers who we find , on the basis of the evidence adduced, had not been re-
placed before December 28, and who are entitled to reinstatement
THE PHILIP CAREY MFG. CO. (MIAMI CABINET DIV.) 1107
4. The Trial Examiner dismissed the allegation of the complaint
based upon the Respondent's alleged effectuation of its superseniority
proposal.8 Both the General Counsel and the Union except to this.
The Trial Examiner's finding is based largely on his resolution of
factual issues, and his reliance upon the distinction between super-
seniority as a contract proposal and an operating procedure. As noted
above, the Trial Examiner did find insistence upon the proposal. He
did not find implementation.
The Trial Examiner relied on the testimony of Hays, one of Re-
spondent's attorneys, that he had misinterpreted Respondent's pro-
posal when, during the investigation of this case, he wrote the Board
stating that the Respondent's superseniority proposals had been put
into effect. The Trial Examiner, in the light of this finding, similarly
attributed alleged statements of Fasold and Evans to their failure
to observe the distinction between superseniority as a proposal and
superseniority as a procedure. Especially as there is no concrete evi-
dence establishing that superseniority was put into effect, while there
is evidence that no mention was made of superseniority to those re-
placements who were hired, we agree with the Trial Examiner.
5. The Trial Examiner found no violation in respect to the Respond-
ent's refusal to reinstate strikers David Back, Ross Dalton, William
Napier, Jimmie Combs, James Prater, and Stanley Harris because of
their alleged misconduct during the strike. As it appears that this
misconduct, and the replacement of these individuals occurred, except
in the case of Harris, before the strike became an unfair labor practice
strike, there was, in any event, no obligation to reinstate those who
had been replaced. We therefore affirm the Trial Examiner's dis-
missal with respect to these strikers without passing upon whether
their misconduct was in fact sufficient to warrant a refusal to reinstate .9
As to Harris, however, even though not replaced, we find in agreement
with the Trial Examiner that his misconduct warranted the Respond-
ent's denial of reinstatement.
THE REMEDY
We have found that the Respondent discriminatorily denied rein-
statement to the employees listed in the Appendix on the ground that
they had been replaced after the strike had been converted, on Decem-
8 The Trial Examiner dealt with this issue on the merits despite his reservations as to
whether there was not a variance between complaint and charge in this respect beyond
what would be permitted under the doctrine of N.L.R B. v. Pant Milling Company, 360
U.S. 301. In view of our agreement with the Trial Examiner as to disposition of this
issue, we do not deem it necessary to pass upon the applicability of Pant.
O The Trial Examiner granted the General Counsel's motion to strike from the com-
plaint the names of four other strikers alleged to have engaged in strike misconduct.
The Union excepts to this ruling . We affirm the Trial Examiner 's ruling. Cf Amalgamated
Lithographers of America , Independent , and Local Union No. 14, etc. (Lithographers
Association of Philadelphia ), 137 NLRB 1674
681-492---63-vol. 140-71
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ber 28, to an unfair labor practice strike. We shall therefore order that
the Respondent offer these employees reinstatement to their former
or substantially equivalent employment, without loss of seniority or
other rights and privileges, discharging if necessary any replacements
hired on or after December 28, 1960, the date on which, as we have
found, the strike became an unfair labor practice strike. The Respond-
ent shall make these employees whole for any loss of earnings they may
have suffered by reason of the Respondent's discrimination against
them by payment to each of them of a sum of money equal to the
amount he normally would have earned as wages from the date of his
unconditional application for reinstatement (set forth opposite his
name in the Appendix) to the date of the Respondent's offer of rein-
statement less his net earnings (F. W. Woolworth Compa?ly, 90 NLRB
289). Backpay shall include payment of interest at 6 percent per
annum in accordance with the Board's usual practice.'°
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner, but Appendixes B and C, attached hereto, are substituted
for the Trial Examiner's Appendixes B and C.11
1O Isis Plumbing & Heating Co , 138 NLRB 716 For the reasons set forth in the dis-
senting opinion in Isis, Members Rodgers and Leedom would not award interest
n In the event the Board 's Order is enforced by a decree of a United States Court of
Appeals , the words "Pursuant to a Decree of the United States Court of Appeals , Enforc-
ing an Order" shall be substituted for the words "Pursuant to a Decision and Order "
APPENDIX B
Philmore C. Adams------------------------------------ 8/3/61
Edith G. Alderson------------------------------------- 8/3/61
Hager Banks------------------------------------------ 8/3/61
Ralph Bentley----------------------------------------- 8/3/61
Beulah Brate------------------------------------------ 8/3/61
Herman Combs---------------------------------------- 8/3/61
Osie Crase-------------------------------------------- 8/3/61
Thomas A. Dokas, Sr----------------------------------- 8/3/61
Clarence D. Eldridge---------------------------------- 8/3/61
James Fox-------------------------------------------- 8/3/61
Albert Frigate----------------------------------------- 8/3/61
William J. Gabbard------------------------------------ 8/3/61
Irene Gibbs-------------------------------------------- 8/3/61
James T. Gross----------------------------------------- 8/3/61
Willard Hancock--------------------------------------- 8/3/61
Lawrence F. Haskell----------------------------------- 8/3/61
Robert Hunt------------------------------------------- 8/3/61
Francis E. Irwin--------------------------------------- 8/3/61
John W. Lauchard------------------------------------- 8/21/61
Frank Lowe------------------------------------------- 8/3/61
James L. Manning_____________________________________ 8/3/61
Barbara Reed------------------------------------------ 8/3/61
THE PHILIP CAREY MFG. CO. (MIAMI CABINET DIV.) 11 09
William B. Richardson--------------------------------- 8/3/61
Elizabeth Ross----------------------------------------- 8/3/61
Goble Shepard----------------------------------------- 8/3/61
Opal Sizemore----------------------------------------- 8/3/61
Robert Sundo------------------------------------------ 8/3/61
Charles T. Underwood---------------------------------- 8/3/61
Loyal Wagers------------------------------------------ 8/3/61
APPENDIX C
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL bargain in good faith, upon request, with International
Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, UAW-AFL-CIO, as the exclusive rep-
resentative of all employees in the bargaining unit described below
with respect to rates of pay, wages, hours of employment, or other
conditions of employment, and, if an understanding is reached,
embody it in a signed agreement. The bargaining unit is :
All production and maintenance employees at our plant at
Middletown, Ohio, including shipping and receiving em-
ployees, but excluding office clericals, professional and techni-
cal employees, guards, and supervisors as defined in the Act.
WE WILL NOT threaten our employees with economic reprisals if
they support International Union, United Automobile, Aircraft
and Agricultural Implement Workers of America, UAW-AFL-
CIO, or remain on strike, solicit our employees to abandon their
concerted activities, or indicate that we will not sign a contract
with the Union.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of their right to self-
organization, to form, join, or assist International Union, United
Automobile, Aircraft and Agricultural Implement Workers of
America, UAW-AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to re-
frain from any or all such activities, except to the extent that such
right may be affected by the provisos in Section 8 (a) (3) of
the Act.
WE WILL offer the employees named below immediate and full
reinstatement to their former or substantially equivalent positions,
discharging, if necessary, any replacements hired on or since
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
September 6, 1960, and make them whole for any loss of pay suf-
fered by reason of the discrimination against them.
Philmore C. Adams
Edith G. Alderson
Hager Banks
Ralph Bentley
Beulah Brate
Herman Combs
Osie Crase
Thomas A. Dokas, Sr.
Clarence D. Eldridge
James Fox
Albert Frigate
William J. Gabbard
Irene Gibbs
James T. Gross
Willard Hancock
Lawrence F. Haskell
Robert Hunt
Francis E. Irwin
John W. Lauchard
Frank Lowe
James L. Manning
Barbara Reed
William B. Richardson
Elizabeth Ross
Goble Shepard
Opal Sizemore
Robert Sundo
Charles T. Underwood
Loyal Wagers
All of our employees are free to become, remain, or refrain from
becoming or remaining members of International Union, United Auto-
mobile, Aircraft and Agricultural Implement Workers of America,
UAW-AFL-CIO, or any other labor organization.
THE PHILIP-CAREY MANUFACTURING COMPANY
(MIAMI CABINET DIVISION),
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NoTE.-We will notify any of the above-named employees presently
serving in the Armed Forces of the United States of their right to full
reinstatement upon application in accordance with the Selective Serv-
ice Act after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Transit Building, Fourth and Vine Streets, Cincinnati, Ohio,
Telephone No. Dunbar 1-1420, if they have any question concerning
this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding was heard at Middletown, Ohio, on various dates beginning on
October 3 and ending on October 31, 1961, before Trial Examiner Sidney Sherman.
The issues litigated were whether the Respondent violated Section 8(a) (1), (3), and
(5) of the Act. All parties filed briefs after the hearing.'
' The briefs attest the industry and skill of counsel.
THE PHILIP CAREY MFG. CO. (MIAMI CABINET DIV.) 1111
Upon the entire record,2 and my observation of the witnesses, I hereby adopt the
following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
The Respondent, an Ohio corporation, is engaged at its plant in Middletown, Ohio,
in the manufacture of steel bathroom cabinets, kitchen fans, range hoods, and allied
products. From this plant, the Respondent annually ships to out-of-State points
products valued in excess of $50,000.
I find that the Respondent was at all material times engaged in commerce within
the meaning of the Act, and that it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, UAW-AFL-CIO, hereinafter called the Union, and its Local
Union No. 689, are labor organizations within the meaning of Section 2(5) of the
Act.
III. PROCEDURAL MATTERS
A. The motion to sever
At the opening of the hearing I denied the Respondent's motion to sever Case No.
9-CA-2192 from Case No. 9-CA-2240, both of which had been ordered by the
Regional Director to be consolidated for hearing. In its brief, the Respondent re-
news its contention that such consolidation was improper. Understanding of this
matter may be aided by the following chronology:
The charge in Case No. 9-CA-2192, served on Respondent on September 26,
1960, alleged violations of Section 8(a) (5) and (1) of the Act. The charge in Case
No. 9-CA-2240, served on December 8, 1960, alleged violations of Section 8(a) (1),
(3), and (5) of the Act. The 8(a) (3) violation was alleged to consist only in the
Respondent's discriminatory denial of vacation pay to strikers. On July 28, 1961,
the Regional Director ordered consolidation of both cases and issued the original
complaint herein. On September 12, 1961, an amendment was filed applicable to
the charges in both cases, alleging, inter alia, a violation of Section 8(a)(3) of the
Act by refusing to reinstate strikers on August 3 and 9, 1961. The substance of
this allegation was incorporated in the complaint by amendment at the hearing.
In its brief, the Respondent contends that it was prejudiced by the consolidation
of the two cases, Respondent's theory apparently being that but for such consolida-
tion the amendment to the instant charges on September 12, 1961 , alleging for the
first time Respondent's refusal to reinstate the strikers, would have been untimely.
This argument seems to assume that (1) any violation of Section 8 (a) (3) of the
Act matured with respect to many of the strikers in November 1960 and February
1961 when they were notified of their replacement, and not in August 1961 when
they first applied for reinstatement, (2) the amendment of September 12, 1961, to
the charges herein relates back to the date of filing of the initial charges herein and
is therefore timely under Section 10(b) of the Act with respect to the foregoing
notices of replacement, and (3) but for the order of consolidation, such amendment
could not properly have been filed, and any 8(a)(3) charge with respect to rein-
2 See Appendix A attached hereto for corrections of the record
At the hearing I reserved ruling on the admissibility of Charging Party's Exhibits
Nos 1, 6, 7, and 8. I have determined to reject No. 1, as there is insufficient showing of
sponsorship thereof by the Respondent , and to admit the others
At the hearing, I admitted certain exhibits (Charging Party's Exhibits Nos 4 and 5)
purporting to be transcriptions of depositions taken by the Charging Party in connection
with certain State court proceedings The Respondent challenged the admissibility of
such depositions on the ground that they did not conform in certain technical respects
with State and Federal requirements . However , I take it that those requirements affect
only the use of such depositions as affirmative evidence and do not relate to their use
for the purpose of Impeachment , which is the only purpose for which they were admitted
here . In any event , I have not found it necessary to rely on the contents of these deposi-
tions and have not relied thereon , except insofar as they were read verbatim into the
record at the hearing and adopted by the deponent while testifying as a witness herein
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement of the foregoing strikers would therefore have been barred by Section
10(b) of the Act.
As to (1), the violation alleged is not replacement of the strikers, which is not in
itself unlawful, but the refusal to reinstate them upon application, which did not
occur until August 1961, and it is therefore from that date that the 6-month period
of limitations in Section 10(b) runs. It follows that the September 1961 amend-
ment to the charges was timely, even if it did not relate back to any prior date.
Moreover, as to (3) above, I am aware of no basis for holding that such amend-
ment would not have been permissible if the cases had not been consolidated. No
valid reason is suggested why, in the absence of consolidation, the same amendment
could not have been filed separately, with respect to either or both charges.3
Accordingly, I find no merit in the contention that consolidation of the instant
cases was improper or prejudiced.
B. The "Greenville Cotton" issue
Respondent also raised a contention at the hearing, based on the Board's ruling
in Greenville Cotton Oil Company, 92 NLRB 1033. This case held that Section
10(b) of the Act precludes the Board from entertaining a charge that a respondent
has violated Section 8(a)(3) of the Act by refusing to reinstate unfair labor prac-
tices strikers, if the unfair labor practices which allegedly caused the strike occurred
more than 6 months before the filing of the charge.
At the instant hearing, the General Counsel moved to amend the complaint to
add an allegation that the Respondent violated Section 8(a)(3) of the Act by re-
fusing in August 1961 to reinstate unfair labor practice strikers. The Respondent
opposed this motion on the ground that such allegation would require litigation of
events antedating the strike, which began on September 6, 1960, and that the Board
was barred by the rule of the Greenville Cotton case, supra, from litigating such
events. It is true that the first reference in the charges to the refusal to reinstate
strikers is contained in the amendment of September 12, 1961, which was more than
a year after the inception of the alleged unfair labor practice strike. Assuming
that such amendment was filed more than 6 months after any unfair labor practices
that may have prolonged the strike, and that the amendment did not relate back
to the filing dates of the original charges,4 I still would not deem the rule of the
Greenville case controlling here. In that case, unlike here, no timely charge was
filed with respect to the unfair labor practices alleged to have provoked the strike.
It is clear from the Board's decision in Brown and Root,5 that where a timely charge
is filed alleging an unlawful refusal to bargain (and the Board finds such a refusal),
any subsequent charge that a strike provoked by such refusal was an unfair labor
practice strike, and that the denial of reinstatement to the strikers therefore was
unlawful, need not be filed within 6 months after the refusal to bargain. It is true
that here, unlike Brown and Root, the refusal to bargain and the refusal to reinstate
are being litigated in the same proceeding rather than in two successive proceedings.
However, the procedure in the instant case of trying both issues together will afford
speedier relief to all parties concerned,5 and in that respect will better serve the
8 There seems implicit in Respondent's argument on this point the thought that an
amendment to a charge must be limited to a violation of the same section of the Act as
is alleged in the original charge. I am aware of no basis for this view. If the amend-
ment alleges a different class of violation, that fact may affect the retroactivity of the
amendment, but not the right to file the amendment It thus becomes moot to consider
what appears to be an alternative contention of Respondent-namely, that the original
8(a) (3) allegation, the charge in Case No. 9-CA-2240 (relating to denial of vacation
pay to strikers ) has been drained of vitality (
because not incorporated in the complaint)
and is therefore no longer available to support the filing of the September 1961 amend-
ment to that charge.
4 The Respondent does not dispute that the initial charges herein were timely with
respect to its alleged refusal to bargain.
8 Brown and Root, Inc, et at., doing business as a joint venture under the name of
Ozark Dam Constructors, 99 NLRB 1031 , 1035-1036.
O The Respondent will benefit by the consequent reduction in the size of any backpay
bill that may be assessed against it.
Respondent's brief cites The Davis Fire Brick Company, 131 NLRB 393 .
There, a
timely charge of refusal to bargain had been filed , but a settlement agreement with re-
spect to such charge was executed before the filing of a second charge alleging that the
respondent unlawfully refused to reinstate participants in a strike caused by the fore-
going refusal to bargain. The Trial Examiner held that Section 10 (
b) barred litigation
of the refusal-to-bargain issue, as the second charge was filed more than 6 months after
THE PHILIP CARET MFG. CO. (MIAMI CABINET DIV.) 1113
cause of justice, as well as better effectuate the policy of Section 10(b) against
dilatory proceedings.
C. The variance issue
Another contention urged by Respondent at the hearing was that the instant
,charges did not support the allegation in the complaint that the Respondent had
violated Section 8(a)(3) of the Act by granting supersemority to nonstrikers and
strike replacements. It is true that the charges, as amended, do not allege such a
violation, although they do allege other violations of Section 8(a)(3) (denial of
vacation pay to, and refusal to reinstate, strikers). This raises the question whether
there is a fatal variance in this respect between the charges and the complaint.
In N.L.R.B. v. Fant Milling Company, 360 U.S. 301, the Court held that the Board
is empowered to adjudicate unfair labor practices not alleged in the charge, but
alleged in the complaint and which are "related to" the unfair labor practices alleged
in the charge and "grow out of them while the proceeding is pending before the
Board." The General Counsel contends that the alleged grant of supersenionty to
nonstrikers was related to and grew out of the refusal to bargain in good faith cited
in the charge. This would seem to involve, however, a novel extension of the rule
of the Fant Milling case, and it may well be doubted whether such an extension is
proper. However, for purposes of this case, I have determined to assume, without
deciding, that the foregoing variance is not fatal and to consider the merits of the
allegation in the complaint relating to the grant of superseniority.
IV. THE UNFAIR LABOR PRACTICES
A. Factual summary
1. The election campaign
About January 1, 1960,7 the Union began its campaign to organize the Respond-
ent's Middletown, Ohio, plant, and on January 25 filed a petition for an election.
Literature was distributed to employees by the Union between January 18 and the
election on March 9. These handbills advised the employees of the developments
in the representation proceeding, stressed the benefits of unionization, and disparaged
the Respondent's campaign tactics by various means, including the use of uncom-
plimentary cartoons of management representatives and charges of misrepresenta-
tion by management. The Respondent countered with a series of letters to em-
ployees, all signed by General Manager Evans, except for one that was signed by
Plant Superintendent Kiley. These letters stressed the strike record of the Union,
and portrayed in graphic terms the suffering and hardship that accompanied strikes
by the Union as well as acts of violence and lawlessness by the strikers. In the
letter from Kiley the following appears:
It is my honest belief that the UAW-CIO is not and never will be a good rep-
resentative for the people of Miami Cabinet.
On March 7, Evans read a speech to the employees in which he stated, "We have
no faith and no confidence in the United Automobile Workers outsiders...." At
the same time Evans stressed the benefits which the employees had received without
a union.
The election of March 9 resulted in 122 votes for the Union, 106 votes for
Miami Cabinet Independent Union, and 6 votes for no union. The Union was cer-
tified on March 17.
2. The bargaining to July 28
Negotiations for a contract began on April 18. Respondent was represented by
General Manager Evans and by Fasold, secretary and assistant treasurer of the Re-
spondent, whose special function was to advise Respondent's plant managers in
labor relations matters and to participate in labor contract negotiations at all Re-
spondent's plants.° The Union was represented throughout most of the negotiations
such refusal The Board affirmed However, in that case, the Board's longstanding
policy of honoring settlement agreements precluded it, In any event, from relying on any
acts antedating such agreement in order to prove any subsequent unfair labor practices,
such as the refusal to reinstate the strikers. No such factor is Involved here
7 AR dates hereinafter given relate to events in 1960, unless otherwise specified or
unless otherwise Indicated by the context.
O The Respondent has eight plants In the United States and two in Canada. All but
one are organized.
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Hyde, assistant regional director of the UAW-CIO, who was joined on August 27
by Regional Director Ross. A bargaining committee consisting of six union members
also attended the negotiations. Between April 18 and the strike on September 6, there
were 19 negotiation meetings. During the strike, which was still in effect at the time
of the instant hearing, there were six additional meetings, the last on September 7,
1961.
On May 16, 1960, the Union submitted a proposed contract. The various provi-
sions were discussed in a series of meetings in June and July, during which agreement
was reached on a few issues, notably an elaborate grievance and arbitration pro-
cedure, and the area of disagreement was narrowed with respect to some minor
matters. On July 28 the Respondent presented its own contract proposal, which
contained a number of improvements in existing benefits, principally the following:
1. A general wage increase of 7 cents per hour, in addition to increases in the rates
for seven classifications ranging from 2.5 cents to 17.5 cents per hour, and elimination
of rate ranges for all jobs.
2. A grievance procedure culminating in arbitration at the option of either party.
3. Voluntary checkoff.
4. A slight liberalization of provisions relating to overtime, vacation, funeral leave,
and shift bonus.
5. A job bidding procedure, requiring posting of vacancies, and the filing thereof
by the senior applicant, where ability is equal.
6. Liberalization of "bumping" rights in case of layoff.
7. Restrictions on the performance of production work by foremen.
The Respondent estimated that the total value of the general increase and monetary
fringe benefits was 9 cents per hour.
The Respondent's proposal contemplated a 1-year contract, with an automatic
renewal clause, and Fasold offered orally to make it effective August 1, 1960.
On the same day,9 the Union receded from its demands in a number of respects,
as follows:
1. In lieu of its demand for a union shop for all employees, the Union offered
to accept a union shop for new employees only, and maintenance of membership for
old employees.
2 Its demand for a 25-cent per hour general increase was reduced to a demand for
a 14-cent increase in the first year of a 2-year contract, and a 9-cent increase in the
second year.
3. Demands for jury duty pay, severance pay, supplemental unemployment benefits,
and cost-of-living increases were withdrawn.
3. The "maximum offer" policy
Considerable evidence was adduced bearing on the question whether the Respond-
ent regarded its July 28 proposals as its maximum offer.
The General Counsel's witnesses iU were in agreement that on July 28 both Fasold
and Evans asserted that the Respondent's proposals were made "to end negotiations
and not to commence negotiations," and both Fasold and Evans admitted at one
point in their testimony that they told the Union that the July 28 proposal was the
"best offer" to avoid a strike. Elsewhere, Evans went even further, admitting that the
Union was told without any qualifications, that the July 28 offer was the best one
that Respondent would make.
Fasold attempted to qualify his foregoing admission by testimony that he charac-
terized the July 28 proposals as Respondent's "final offer at that time" and that he
assured Hyde that the Respondent "would consider any alternative that they [the
Union] had and we would be willing to meet with them at any time they wanted
to discuss the subject." A similar statement appears in a letter of August 24 from
Evans to the employees.ii Both Evans and Fasold categorically denied, moreover,
that the Respondent had decided on July 28 that it would make no further concessions.
However, Fasold admitted that he told Hyde on July 28 that it was Respondent's
policy, in dealing with unions, to make its maximum offer first, so as to avoid giving
a union credit for wresting from the Respondent concessions which it had intended
to make, in any event. As Fasold put it, he explained to Hyde "that it had not been
our practice as followed by some companies, of starting our wage negotiations off
D There was considerable dispute at the hearing as to whether the Union or Respondent
made the first presentation on July 28 I do not deem it necessary to resolve this point
10 Hyde and Laycock
u The letter states, in part: "We are willing to discuss and explain any of our pro-
posals, because we are anxious to obtain a contract which the employees will understand "
THE PHILIP CAREY MFG. CO. (MIAMI CABINET DIV.) 1115
at zero and letting the union beat out of us penny by penny what the company was
willing to offer to its employees, and in that way give the union credit for something
that the company intended to do." According to Hyde's uncontradicted testimony,
which I credit, Fasold added, "We didn't want the Union in the plant to start with,
and we aren't going to do anything to see that the Union stays in the plant." As
for Fasold's testimony, noted above, that he, nevertheless, assured Hyde that Respond-
ent would consider any alternatives the Union had to offer, this assurance was given,
Fasold admitted, after he had explained Respondent's foregoing "maximum offer"
policy, and Hyde asked him whether the July 28 proposal was his final offer. Fasold
replied that he "did not want to be trapped, that that was our final offer at that
time, that we would certainly consider any alternatives that they had, and we would
be willing to meet with them at any time they wanted to discuss the subject."
It is evident from the foregoing that Fasold at first forthrightly characterized the
Respondent's offer of July 28 as, in effect, its maximum offer, but, when he sensed
a "trap" in Hyde's query about the finality of the offer, Fasold asserted his willingness
to meet with the Union further and "consider" any alternative proposals,12 notwith-
standing that any further concessions to the Union would manifestly be inconsistent
with its avowed "maximum offer" policy. It is thus clear that this statement was
made only when Fasold realized that Respondent's "maximum offer" policy had
implications of finality which might be deemed incompatible with good-faith bargain-
ing and hastened to give Hyde assurances calculated to negate such implications but
which, at the same time, if taken to mean that Respondent was willing to consider
further concessions, implied an abandonment of Respondent's "maximum offer"
policy. I do not believe that such abandonment was intended, particularly in view
of Fasold's admission that he restated the Respondents' "maximum offer" policy at
a bargaining meeting on September 1, 1960.13
Finally, if anything more were needed, Evans' letter to Ross of September 26
recites that Respondent "made it clear" to Ross in the negotiations that the July 28
offer represented the Respondent's "final position," and there is the following state-
ment in Evans' letter of October 14 to the employees:
. we have repeatedly told the Union that they had received on July 28-
after thorough study and good faith collective bargaining-the best offer which
the Company will make. [Emphasis supplied.]
The letter then proceeds to list all the items in the Respondent's July 28 offer.
4. The bargaining from July 28 to September 6
Among the issues remaining unresolved on July 28 were two matters on which,
despite their apparent relative insignificance, the negotiations between July 28 and
September 6 seem to have focused-namely, temporary transfers and accumulation
of 'seniority in case of layoff.
Temporary transfers: The past practice of the Respondent had been that if an
employee was being paid $2 an hour, for example, and was temporarily transferred
to another job, for any reason, he would retain his $2 rate, whether the regular
rate for the other job was higher or lower than $2. At a negotiation meeting on
June 27, 1960, the Respondent proposed to alter this practice as follows:
12 As there is no contradiction of Fasold 's testimony that he made this assertion, I find
that it was in fact made.
13 As for Evans' letter of August 24 to the employees, cited above, it reads in pertinent
part as follows:
Our proposals . . . were made to complete negotiations, not to start negotiations
We have told the [bargaining] Committee many times, that each part of the Com-
pany's proposal including the wages and other money benefits was the best which
the Company had to offer after considering all the circumstances We are willing
to discuss and explain any of our proposals , because we are anxsous to obtain a con-
tract which the employees will understand . . [ Emphasis supplied ]
At the bearing , Evans pointed to the foregoing italicized language as manifesting Re-
spondent 's willingness to negotiate concessions , and as negating the implication of the
preceding sentences that Respondent had already made its final offer. However , in view
of the juxtaposition of the offer to "discuss" with the offer to "explain" and in view of
the further statement that the purpose thereof would be to obtain a contract which the
employees would "understand ," it is found that Evans, in writing the letter , had in mind
that any further discussions would be only for the purpose of clarifying , and not of
modifying , the Respondent 's proposals
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a. If the transfer was for the convenience of the Respondent,14 the employee would
receive either the rate of his old job or the rate of his new job, whichever was
higher. This was an improvement over past practice, insofar as it provided that
the rate of the new job would apply where it was higher than the rate of the old
job. Where such rate was lower than the rate of the old job, the old rate governed,
as before. Thus, the proposal as to transfers for company convenience represented
a potential net gain to the employees. If transferred to a lower rated job he was
no worse off than before; if transferred to a higher rated job, he was better off.
b. However, if the transfer was to avoid laying off an employee who had tem-
porarily run out of work, and he was assigned to a job carrying a lower rate of pay,
he would receive such lower rate,15 and not, as theretofore, retain the rate of his old
job. In this respect Respondent's proposal was less favorable than past practice.
Accumulation of seniority: The past practice had been that an employee on in-
definite layoff would not only retain, but would also accumulate, seniority for 6
months, but thereafter would lose all seniority rights. Thus, if an employee with I
year's seniority was laid off for 5 months, he would return to the plant with 1 year
and 5 months' seniority. If laid off for 7 months, he would have no seniority. On
June 21, the Union proposed that laid-off employees accumulate seniority for 2
years rather than 6 months. The Respondent countered with a proposal that in
layoffs seniority be retained for 2 years, but not accumulated to any extent, so that
an employee with 1 year's seniority, who was recalled from layoff at any time within
2 years, would return with the same seniority as when he left (1 year). For those
employees who might be laid off for more than 6 months, this proposal was more
favorable than past practice, as they would lose all seniority rights under past prac-
tice. On the other hand, for employees laid off less than 6 months, the proposal
was less favorable than past practice, as they would merely retain their former
seniority and would not, as theretofore, receive any seniority credit for the period
of their layoff.
Returning to the course of the bargaining, on August 5, Hyde wired the Re-
spondent that the membership of the Union had rejected the July 28 proposal and
negotiations were resumed on August 16 The Respondent offered to modify its pro-
posal regarding layoff procedure so as to provide that a laid-off employee could ex-
ercise his "bumping" rights on a plantwide basis after 7 days, instead of after 2
weeks as previously proposed 16 However, the Respondent refused to recede from
its position on accumulation of seniority in layoffs and the downgrading of em-
ployees in certain cases of temporary transfers, which has just been discussed. At
the next meeting, on August 23, the Union indicated that it was "flexible" as to
other issues, but was forced to be adamant on those matters where the Respondent
was offering less than past practices (i e., accumulation of seniority and temporary
transfers) because the Union could not "live with" its members if it accepted such
proposals. That meeting was unproductive, as was another meeting on August 26.17
At the August 27 meeting, Ross entered the negotiations on behalf of the Union.
The Union modified its wage demand from 14 cents the first year and 9 cents the
second year to 12 cents and 11 cents, respectively, and the Union receded somewhat
from its demand that the Respondent pay the entire cost of group insurance Al-
though several more meetings were held before the strike of September 6. they
were unproductive. Throughout these prestrike meetings in August and September,
the dispute over the temporary transfers and accumulation of seniority proposals
was constantly in the foreground The Union contended at these meetings that these
proposals were less favorable to the employees than past practices, and that the
proposed "downgrading" of employees in case of certain temporary transfers would
more than offset the proposed 7-cent raise, so that many would receive less take-
home pay under the proposed contract than they received before the advent of the
Union. The Union cited to the Respondent the example of Shepherd, a member of
the bargaining committee, whose regular job as acetylene welder paid $2 191/2 cents
an hour, and who had in the past been frequently transferred for brief periods to
14 E g, there was sufficient work for the employee at his old job, but he was more
urgently needed elsewhere
16 There was little reference in the negotiations to the rate to be paid where the new
job carried a higher rate than the old, presumably because it was content r)l.lt('d or
assumed that any transfer to avoid layoff would normally not be to it higher rated job
16 Hyde testified that this concession was made orally on July 28 and reduced to writing
on August 16. However, as his testimony reflected some uncertainty, I deem more re-
liable Fasold's recollection that the proposal was first advanced on August 16
17 A representative of the Federal Mediation and Conciliation Service attended this and
all subsequent meetings.
THE PHILIP CAREY MFG. CO. (MIAMI CABINET DIV.) 1117
the job of spot welder, which paid only $2.05 an hour. In this connection, Shep-
herd testified, without contradiction, and I find, that he and the other seven acetylene
welders frequently worked for periods of 5 to 7 consecutive workdays on spot weld-
ing, when no acetylene welding work was available. It is thus clear that during such
a period the effect of the Respondent's proposal would be to more than offset the 7-
cent raise.18 The Union, on the basis of a plantwide survey, reached the conclusion
that about 130 out of the 220 employees in the unit would be adversely affected by the
temporary transfer proposal, and so advised the Respondent.
Fasold, on the other hand, took the position that only the eight acetylene welders
would in fact be seriously affected, but conceded that theoretically all the employees
could be affected.
On August 20, the membership of the Union voted to strike, and a membership
meeting was called for September 6 to fix a precise date for the strike. The parties
met in the morning of September 6, but accomplished nothing. After the meeting,
Ross called Humphrey, Respondent's president, at his office at Respondent's Lock-
land plant, 20 miles away, and advised him of the two "hard core" issues, mentioned
above, and that the Union was merely seeking to maintain past practices in those
areas. Ross added that he was about to meet with the members of the Union, that
they had voted to strike, that, in the absence of any agreement, Ross expected the
strike to begin at midnight, and that, if Humphrey would agree to meet with him,
Ross would report this to the members and recommend that they withhold strike
action pending such meeting. Humphrey replied that, while Ross had apprised him
of matters of which Humphrey "was not entirely aware," he "had qualified people
that had been meeting with us, and it was his policy not to become involved." 18
5. Events in 1960 during the strike-superseniority
Later that day, the union membership reaffirmed its prior decision to strike and
at midnight the strike began. On September 14 the Respondent advised the Union
that it was discontinuing its group insurance contributions for those still on strike
as of September 19, and that arrangements had been made for such strikers to con-
tinue their policies in force by paying the entire premium themselves. On Sep-
tember 26, Evans wrote Ross a letter renewing the Respondent's last offer, which
was essentially the July 28 proposal, but withdrawing (1) the proposal to make
the contract effective on August 1, 1960, and (2) the checkoff clause, explaining as
to (2) that Respondent had recently received information that some of the em-
ployees had been "pressured" into signing checkoff cards. The letter further stated
that, unless the Respondent's offer was accepted by September 30, it would be
necessary to begin hiring permanent replacements, that strikers who reported for
work by October 3 would be reemployed, and that after September 30 the Re-
spondent's proposal on seniority would be modified so as to give "special seniority
rights for layoff and recall purposes" to nonstrikers and replacements for strikers.20
(This proposal is hereinafter referred to as "superseniority.") A copy of this letter
was sent to all employees with a covering letter warning of the October 3 deadline
for returning to work.
The parties met on September 29, without result, and on September 30 Evans sent
Ross and all the employees a document entitled "Rules for Replacement of Strikers,"
which reiterated the Respondent's intention to begin hiring permanent replacements
for strikers on October 4, and stated that all replaced strikers would "lose their jobs
and their seniority."
The parties met on October 7, and the Respondent presented its written proposal
for superseniority, which proposal it stated would become part of the Respondent's
18 Thus, for a 40-hour period, the 7-cent raise would amount to $2.80, while the reduc-
tion in the acetylene welders' pay under the "temporary transfer" proposal would amount
to $5 80, a net loss of $3 for that period.
1e The foregoing findings are based on Ross' testimony, which was not contradicted by
Humphrey, and was, in some respects, corroborated by him.
20 Fasold testified that this meant that the seniority of any employee, for purposes of
layoff and recall only, would begin to accrue from the first day that he worked after
the beginning of the strike. Thus, a nonstriker, returning striker, or newly hired em-
ployee who worked on October 15, for example, would have greater seniority for layoff
or recall than an unreplaced striker who did not return to work until October 16 Thus,
the proposal would deprive returning unreplaced strikers of all their accumulated
seniority for purposes of layoff and recall. ( Replaced strikers would lose their seniority
for all purposes under the "Rules for Replacement of Strikers" discussed in the next
paragraph of the the text. However, this was based on considerations separate and
apart from the superseniority proposal , as will appear later.)
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract offer after October 7, absent any agreement. Hyde stated that he could
not recommend to the strikers that they accept the agreement "minus the past prac-
ice areas" (i.e., accumulation of seniority and temporary layoffs) and discussion
centered on the "past practice areas," superseniority and withdrawal of checkoff.
At this meeting the parties also discussed an abortive proposal by the Respondent
that its last offer be submitted to a vote by all employees in the unit.
The Respondent did not actually begin hiring replacements until October 12. On
October 22, Humphrey again rejected Ross' plea for a meeting with Humphrey.
When the parties next met, on October 29, there was further discussion of the two
"hard core" issues, the Union stressing the insignificant cost to the Respondent which
was involved, and Fasold retorting that these issues should be no more important
to the Union than to the Respondent. At this meeting Fasold also announced that
a number of replacements had already been hired and that they would not be dis-
charged to make room for strikers. Ross declared that he could not agree to this.
At the next meeting on November 22, the Union, according to Fasold, presented
new proposals on checkoff,21 layoff and recall, premium time, retroactivity of the
contract, vacation benefits for strikers, and accumulation of seniority in layoffs.
Fasold explained the superseniority proposal, eliciting from Hyde the comment that
he thought the proposal had "gone too far." When the meeting was resumed the
next day, Fasold, according to his testimony, stated that the latest union proposals
were not acceptable and pointed out further that the Union had not "taken into
consideration" the fact that the Respondent had already hired replacements,22
whereupon the Union, according to Fasold, "refused to sign any agreement that
recognized replacements." Evans corroborated Fasold's testimony to the effect that
the union representatives insisted on November 22 and 23 that there could be no
settlement of the strike unless all the replacements were removed.
Hyde's version of the November 22 meetings, which was corroborated in all mate-
rial respects by Ross, was that the Union (1) advised the Respondent that it regarded
the strike as lost and was prepared to accept the Respondent's July 28 offer,23
(2) offered to meet the Respondent's objection to checkoff by obtaining new cards,
and (3) submitted a rather obscure written proposal calling in effect for continuation
of certain past practices with regard to layoff and recall as modified by agreement
in the negotiations. According to both Hyde and Ross, on November 23, Fasold
refused to agree to a checkoff clause or to withdraw the superseniority proposal 24
Both Hyde and Ross denied that they had taken the position in the November meet-
ing, attributed to them by Fasold, that the strike could not be settled unless all replace-
ments were removed. Ross testified, in effect, that the Respondent's insistence on
superseniority for the replacements as against unreplaced strikers preempted any
consideration of the reinstatement of those strikers who had been replaced. However,
Ross later in the hearing admitted that the Union took the position in the November
meetings that "all of the strikers should be returned to their jobs with their seniority
intact." [Emphasis supplied.]
While there are many points of disagreement as to the events of November 22
and 23, there is no dispute that the principal areas of difference on those dates were
(1) checkoff and (2) the rights of the strikers vis-a-vis the strike replacements. A
synthesis of all the testimony on this point convinces me that under (2) the parties
discussed (a) the Respondent's superseniority proposal, and (b) the Union's demand
for reinstatement of the strikers. Although the testimony of Respondent's witnesses
tended to give less emphasis to the discussion of (a) and the Union's witnesses, on
the other hand, tended to deemphasize, if not to deny, any discussion of (b), I
find, that at the November meetings the Respondent's insistence on its superseniority
proposal and the Union's insistence on reinstatement of all strikers were both major
obstacles to agreement. I find also that, while there was some discussion of the
seniority-accumulation issue, both that issue and the temporary transfer problem were
no longer deemed significant.
At the next meeting on December 28, Ross stated that he "could not recognize the
replacements in the plant." 25 Otherwise there were no significant developments,
21 The Union proposed that the Respondent accept checkoff cards signed after Septem-
ber 6 to meet the Respondent's objection that the old cards had been obtained by
improper means.
22 At that time about one-third of the strikers had been replaced
28Fasold denied that the Union agreed to take the July 28 offer
21 Hyde also attributed to Fasold admissions at this meeting that the Respondent had
already granted superseniority to replacements for strikers. For reasons set forth at a
later point in this report, I believe that Hyde misconstrued Fasold's remarks
a This finding is based on Fasold's uncontradicted testimony
THE PHILIP CAREY MFG. CO. (MIAMI CABINET DIV.) 1119
and the parties recessed, subject to further call by the mediation service. Meantime
the Respondent had continued with its restaffing program and virtually completed
this program by February 1, 1961.26
6. The bargaining in 1961
There were no further meetings until August 23, 1961. In the meantime, there
were the following significant developments:
On August 3, 1961, Ross addressed to Evans, on behalf of 122 named strikers, an
unconditional offer to return to work 27 On August 9, Evans replied that 15 of the
employees named in Ross' letter, not having been replaced, had been rehired on
August 7, that 10 of the strikers had been denied reinstatement because of strike
misconduct,28 and as to the rest, reinstatement was denied because they had been
permanently replaced. On August 9, Evans sent the Union, in response to its request,
a document purporting to be a copy of the Respondent's current seniority list.
On August 10, Evans wrote Ross as follows:
We are hereby withdrawing the bargaining proposal which we presented to
you last fall, which if accepted, would have given special seniority rights for
layoff and recall purposes to employees who had reported for work during the
strike and to striker's replacements. With this deletion, we hereby renew our
most recent contract proposal for a one year agreement effective upon acceptance.
The Respondent's foregoing about-face on superseniority was admittedly prompted
by a decision issued by the Board on July 31, 1961, in the case of Erie Resistor
Corporation, 132 NLRB 621, holding that (1) insistence on a contract proposal
for superseniority for strikers' replacements violated Section 8(a) (5) of the Act, and
(2) the actual grant of such superseniority to replacements violated Section 8(a)(3)
and (1) of the Act. It is clear from the record that all that was intended by the
foregoing letter was to bring the Respondent's bargaining proposals into conformity
with Erie Resistor by deleting therefrom the superseniority provisions However,
the Union apparently misconstrued this letter as a retreat from the Respondent's
position previously taken by it that permanently replaced strikers had no reinstate-
ment rights,29 for, on August 12, Evans received a wire from Hyde stating that he
construed Evans' letter as offering to hire all strikers who had applied for reinstate-
ment and that they would report for work on August 14. Hyde added, with refer-
ence to Evans' renewal of the Respondent's "most recent contract proposal," that this
posed "numerous problems" and he suggested a meeting on August 14.
However, on August 12, Evans replied to Hyde that all strikers not yet rehired
had been permanently replaced and need not report on the 14th, and on August 15
the Respondent sent individual notices to strikers of their replacement or discharge
for misconduct.
The parties met again on August 23, 1961, after an interval of nearly 8 months
since their last bargaining session. The Union took the position that it construed the
Respondent's August 10 letter as an offer to reinstate all strikers. The Respondent
explained that it had merely intended to withdraw the superseniority clause in its
October 7, 1960, proposal, but not another clause (paragraph 53), which provided
that strikers would forfeit their seniority rights when permanently replaced. The
Respondent also insisted on retention of paragraph 10 of the October 7 proposal,
which provided that the grievance procedure of the contract would not apply to
persons who had been discharged or whose seniority had been broken,30 prior to
the effective date of the contract.
At the next meeting on September 7, 1961, the Respondent presented a signed
contract, which consisted of the July 28 offer, without the checkoff clause, but with
re See Respondent's Exhibit No 62.
27This was supplemented on various dates in August and September by similar appli-
cations on behalf of a number of other strikers.
20 The letter stated that all of these except Stanley Harris had in any event been
permanently replaced.
28 This position was based on the premise that the strikers were economic strikers, and
therefore, under the Supreme Court's ruling in N.L.R.B. v. Mackay Radio d Telegraph
Co , 304 U.S. 333, were not entitled to reinstatement if permanently replaced
20 Read together with paragraph 5G of Respondent's proposal, paragraph 10 implied
that strikers who had been permanently replaced would have no recourse to the grievance
procedure.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paragraph 10 of the October 7 proposal31 Goerlich, counsel for the Union, entered
the negotiations on that date and restated the Union's position that the retention of
paragraph 10 of the October 7 proposal and the refusal to reinstate strikers was a de-
viation from the Respondent's offer of August 10, which Goerlich took to consist of
the July 28 contract proposal as modified only by the September 26 letter withdrawing
checkoff. Goerlich contended that such offer had been accepted by the Union by its
wire of August 12, 1961. The Respondent reiterated its position that it had not
intended by its August 10 letter to offer reinstatement to any replaced strikers but
merely to delete supersemority from its outstanding proposals. However, without
reinstatement of the strikers, the Union refused to accept the proffered contract.
There were no further meetings.
B. Discussion
1. The appropriate unit
The complaint alleges, the answer admits, and I find, that all production and
maintenance employees at Respondent's plant in Middletown, Ohio, including all
shipping and receiving employees, but excluding all office clerical employees, tech-
nical employees, professional employees, guards, and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
2. The Union's majority status
There is no dispute, and I find, that on March 17, 1960, the Union was certified
by the Board as the exclusive bargaining representative of the employees in the afore-
described unit and that the Union has at all time since that date been such
representative 32
3. The refusal to bargain in good faith
a. The prestrike bargaining
During the prestrike period (as well as thereafter) the Respondent showed a com-
mendable willingness to meet and confer with the Union. However, Section 8(d) of
the Act requires not only that the parties meet and confer, but also that they confer
in "good faith."
As evidence that Respondent did not bargain in good faith, the General Counsel
and Charging Party point, inter alia, to (1) the vigorous preelection campaign waged
by the Respondent; (2) the admission of Evans on the stand that his "personal feel-
ing" throughout the negotiations was that the Union was not a "proper representative"
of the employees, but that in view of the certification of the Union the Respondent
was negotiating with it as a "business proposition"; (3) Fasold's statements to the
Union on September 1 that he agreed with the Respondent's preelection attacks upon
the Union, that the Respondent preferred to start with its maximum offer rather
than reach the same result by a series of concessions so as to minimize any credit
to the Union for obtaining such concessions, and that the Respondent did not want
the Union in the plant and would do nothing to help it remain there; (4) the testi-
mony of Respondent's Vice President Barrett that Respondent's economic offer
to the Union was about the same as it would have made to the employees if there
had been no union; (5) the Respondent's adamant insistence on its "accumulation-
of-seniority" and "temporary transfer" proposals, involving curtailment of existing
benefits, and (6) its refusal to grant a union shop, to incorporate in the contract
verbatim its existing insurance and pension plans, or to make any other significant
concessions after July 28, 1960.
The Respondent, on the other hand, points to the various concessions it made to
the Union, particularly on July 28. These included checkoff, grievance, and
arbitration procedure, the 9-cent economic package, and a number of fringe
benefits.
Clearly the granting of checkoff was calculated to be of material aid to the Union,
and the establishment of a formal grievance procedure with full union participation
was a significant gain both for the employees as well as the Union. As for the
economic package, while slightly greater than that offered in 1960 by the Respondent
as Paragraph 5G of the October 7 proposal ( loss of strikers' seniority upon being re-
placed) was omitted, because Respondent regarded it as merely restating the rule of the
Mackay Radio case, supra, and therefore redundant.
" Local 689 was chartered in April 1960 and its representatives attended the bargain-
ing sessions, but did not participate actively in the negotiations.
THE PHILIP CAREY MFG. CO. (MIAMI CABINET DIV.) 1121
in any of its other organized plants,33 such package was no greater than the em-
ployees, on the basis of their past experience,34 had reason to expect to receive with-
out a union. In fact, in a letter of July 29 to the employees explaining its July 28
proposal, the Respondent observed that its wage offer and fringe benefits were based
on area rates, "in accordance with the Company's practice in prior years." More-
over, Vice President Barrett's statement, mentioned above, confirms that the 9-cent
package would have been offered even if there had been no union.
However, there is no need to consider further the particular benefits granted
or denied by the Respondent. Under Section 8(d) the refusal to agree to a particular
proposal or to grant a particular concession does not per se negate good faith 35
Conversely, agreement to one or more proposals or the granting of one or more
concessions does not per se establish food faith, as witness the many cases in which
the Board has found bad faith, notwithstanding the granting of some concessions by
the respondent.36 Good faith must be determined on the basis of a review of the en-
tire course of the negotiations.
"Good faith" bargaining has been held to contemplate "an interchange of ideas,
personal persuasion, and willingness to modify demands in accordance with the total
situation thus revealed," 37 and it has been said that a prerequisite of successful
negotiations is "mutual consideration of the merits of the arguments presented." 38
This means, I take it, that each party must lay aside personal feelings, resentment
over past wrongs, and subjective judgments as to the character or worthiness of the
other party, and, in the case of an employer, weigh each proposal on the basis of such
considerations as its impact on costs, plant efficiency, and the competitive situation 39
While neither party is required to make concessions, he is required to remain open
to persuasion throughout the bargaining.
It is clear that the Respondent's bargaining did not after July 28 conform to the
foregoing standards. With respect to its economic proposal, the Respondent asserted
when it offered the 9-cent package on July 28 that this was its maximum offer, citing
its policy of starting with its best offer. Such a policy necessarily envisaged no further
concessions, no matter how protracted the bargaining or how persuasive the arguments
for concessions advanced by the Union. True, Fasold told Hyde that he would be
willing to meet with him and consider any counterproposals by the Union. How-
ever, for reasons already stated, it has been found that when Fasold made this
statement he had no genuine intention of abandoning the Respondent's "maximum
offer" policy or of making any further concessions. He in fact made none in the
economic area.
As to nonmonetary issues, Fasold testified that his "best offer" statement did not
apply here,40 and, as proof of its willingness to make concessions in this area, the
Respondent cites its offer in August to reduce from 2 weeks to 1 week the waiting
period for exercising bumping rights.
33 However, the record shows that historically the Middletown plant had received more
liberal increases than Respondent 's organized plants
94 In a preelection speech Evans told the employees that they had received monetary
benefits worth a total of 90 cents an hour over a 10-year period.
25 See N L R B v. American National Insurance Co , 343 U S. 395 Accordingly, I do
not regard the Respondent's refusal to make particular concessions with regard to union
security, etc, as per 8c unlawful Nor do I attach any special significance to the Re-
spondent's insistence on incorporating its existing pension plan in the contract by refer-
ence rather than verbatim
WE g, Fitzgerald Malls Corporation, 133 NLRB 877 ; Federal Dairy Company, Inc, 130
NLRB 1158, enfd 297 F. 2d 487 (C.A. 1).
Singer Manufacturing Company, 24 NLRB 444, footnote 32, enfd. as mod 119 F. 2d
131 (CA. 7), cert. denied 313 U.S. 595
38 See Montgomery Ward & Company, 37 NLRB 100, footnote 34, enfd 133 F. 2d
676 (C A. 9).
ii I have not attempted a comprehensive enumeration of all the criteria which an em-
ployer may legitimately apply. Various others may be deduced from Board precedents.
Thus, cases holding that a refusal to grant union security is not evidence of bad faith
would seem to imply that an employer has a legitimate interest in protecting employee
freedom of choice with regard to union membership. So, a refusal to grant checkoff may
be justified on the ground of the burden to the employer involved in collecting and re-
mitting union dues.
111 have undertaken to discuss this contention at some length, although I am not
persuaded that it would affect my ultimate conclusions as to the bargaining. See foot-
note 44, below.
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition, Fasold testified, and I find, that on August 31 he attempted un-
successfully to settle the dispute over accumulation of seniority and temporary
transfers by offering to revert to past practices in those areas if the Union would agree
to retention of past practices in all other areas 41 This meant that the Respondent
would agree not to curtail past practices in the two disputed areas, provided that the
Union would give up all the improvements in past practices which the Respondent
had up to that point conceded.42 If the Union had accepted, the only gain to the
employees emerging from the bargaining would have been the 9-cent economic
package, which, as already indicated, they had been led to believe they would receive
even without a union. In view of this, Fasold could hardly have expected the
Union to accept his offer of all past practices, and, in any event, the record does not
warrant a finding that, on balance, such offer represented a movement from the
Respondent's July 28 proposal in the sense of being more favorable to the employees
than that proposal.
Accordingly, I find that there was no such movement by the Respondent on non-
monetary issues after July 28, except for the slight reduction of the waiting period for
exercising bumping rights. This minor deviation is not persuasive that the Re-
spondent's maximum-offer policy did not apply to the nonmonetary aspects of its
proposals, especially in view of the language already quoted from Respondent's
letters of August 24, September 26, and October 14, unequivocally asserting that
its maximum-offer policy applied to all its proposals. Thus, the August 24 letter
states:
Our proposals ... were made to complete negotiations, not to start negotia-
tions. We have told the Committee many times that each part of the Company's
proposal including the wages and other money benefits was the best which the
Company had to offer after considering all the circumstances. [Emphasis
supplied.]
The bargaining policy expounded by Fasold has been referred to in the record
(by the Union) as "Boulwareism." Whatever the justification for the form of
"Boulwareism" practiced by Respondent,43 its vice, as measured by the requirements
of the Act, is that it creates a collective-bargaining vacuum. Once management
has made its offer, it will listen attentively to the Union's arguments, but there will
be no interchange of ideas or objective weighing of the merits of the Union's argu-
ments, and no reevaluation of the employer's offer in the light of such arguments.
An analogy may be drawn here between good-faith bargaining and judicial due
process. A prejudgment by a court or a jury of the merits of a party's claim even
before he has presented his entire case violates due process. So, a prejudgment of
the merits of a Union's demands before it has concluded its presentation falls short
of good-faith bargaining.
It is clear therefore that the Respondent, save for one inconsequential concession
(the reduction in the waiting period for exercising bumping rights) froze its position
on all issues on July 28, and that from that date to the date of the strike there was
no genuine bargaining in the sense contemplated by the Act.44 During that period
the Respondent sought only to explain and justify a position from which it had
determined not to recede regardless of what pressure or arguments the Union brought
to bear.
I find, therefore, that between July 28 and September 6 there was, in essence, a
hiatus in collective bargaining by the Respondent. It is clearly no justification that
the Respondent's object in creating this hiatus was to minimize any credit that might
accrue to the Union for obtaining concessions, or, as Fasold put it, to do nothing
u At some points the testimony of Fasold and Evans suggests, contrary to their testi-
mony elsewhere, that Fasold's offer was conditioned upon a return to past practices only
in areas "related" to the two in dispute. However, Respondent's brief concedes, in
effect, that the offer was not so limited Thus, the brief states (p 35) :
. . Fasold told the Union that if they wanted past practices they would have to
take all past practices.
42 E g, the new job bidding procedure, the new grievance and arbitration procedure,
the enlargement of bumping rights in case of layoff, and restrictions on production work
by foremen.
sa Nothing herein is to be construed as passing judgment on this technique of bargain-
ing generally or on its legality in any other context.
44 See, e.g, Fitzgerald Hills Corporation, 133 NLRB 877. The same conclusion would
apply, in my opinion, even if it were found that the Respondent froze its position only
in certain areas-e .g, monetary benefits-but remained flexible in others.
THE PHILIP CAREY MFG. CO. (MIAMI CABINET DIV.) 1123
that would help the Union "stay in the plant." Such considerations are not germane
to good-faith bargaining.
Another factor reflecting on Respondent's good faith is the fact that it required
the Union, at all times after July 28, to deal with represenatives of management who
had no authority to make binding commitments with respect to any liberalization of
the July 28 offer 45 Although the testimony of Evans and Fasold is to the contrary, I
find far more persuasive the testimony of Humphrey and Vice President Barrett,
which, despite some equivocation, I construe as tantamount to an admission that
Evans and Fasold would have had to submit to either Barrett or Humphrey for ap-
proval any substantial liberalization of Respondent's July 28 proposals.46 The Re-
spondent's refusal to bargain through representatives with full authority to bind it
was highlighted by Humphrey's rejection on September 6 of Ross' plea for a last
minute meeting with Humphrey to avert a strike 47 Whatever considerations of con-
venience or expediency might have been deemed under other circumstances to justify
Respondent's decision to bargain through representatives with limited authority, such
considerations could hardly have had any validity or force when Respondent was
confronted with the urgent threat of a costly strike.
For all the foregoing reasons, I find that from July 28 through September 6, 1960,
the Respondent failed to bargain in good faith, thereby violating Section 8(a)(5)
and (1) of the Act. I find further that the strike, which began at midnight Sep-
tember 6, was caused by the inability of the parties to reach agreement on a con-
tract, which is attributable to Respondent's failure to bargain in good faith,48 and
that the strike was therefore an unfair labor practice strike.
b. The bargaining during the strike
(1) The alleged unilateral changes in working conditions
The amended complaint alleged as unlawful (1) the Respondent's unilateral action
on September 14 in discontinuing its group insurance contributions for the strikers,
and (2) the Respondent's unilateral promulgation on September 30 of the "Rules
for Replacement of Strikers."
As to (1), I granted Respondent's motion at the hearing to dismiss this allegation.
In his brief, the General Counsel has renewed his contention that the Respondent's
action was unlawful.
In General Electric Company ,49 it was held that an employer did not violate
Section 8(a)(3) or (1) of the Act by according to strikers less favorable treatment
than nonstrikers with respect to vacation and pension benefits. Equating such "de-
ferred benefits" to wages, the Board stated, "It is axiomatic that the Respondent is
not required under the Act to finance an economic strike against it by remunerating
the strikers for work not performed." It follows that the Respondent's discon-
tinuance of group insurance contributions for the strikers was not discriminatory
nor does the General Counsel so contend. The General Counsel contends, however,
in his brief, that the Respondent was required to negotiate with the Union about the
discontinuance of such contributions. It is axiomatic that an employer has no duty
to negotiate about stopping wage payments to strikers with respect to the period of
the strike. By the same token, if, as the Board, in effect, held in General Electric,
supra, monetary benefits, such as the Respondent's group insurance contribution, are
equivalent to wages, it necessarily follows that the Respondent was free to discon-
tinue them without consulting the Union. Accordingly, I adhere to my dismissal of
this allegation.
As to the "Rules for Replacement of Strikers," these were sent to all employees
on September 30, announced the Respondent's intention to begin recruiting per-
manent replacements for strikers on October 4, and stated that a replaced striker
45 Herman Sausoge Co , Inc ., 122 NLRB 168, 170, enfd 275 F 2d 229 ( C.A 5), re-
hearing denied 277 F 2d 793; Fitzgerald Mills Corporation. supra
/e It is admitted that these proposals were, themselves, approved in advance by Humphrey
and Barrett. In addition, Humphrey testified that the normal practice was for a plant
manager to submit to him or Barrett what the plant manager considered to be a fair
proposal and invite their suggestions . Barrett admitted in effect that any change in the
July 28 economic package would have had to be reported to him and Humphrey and they
would have had an opportunity to object to, or veto , the proposal.
47 In October, Ross renewed this plea for a meeting with Humphrey, but was again
rebuffed.
48 Cf. Federal Dairy Company , Inc., 130 NLRB 1158, enfd . 297 F . 2d 487 (CA. 1)
se 80 NLRB 510, 511-512.
681-492-63-vol. 140 72
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would "lose his job and his seniority" and, if later rehired, would "start as a new
employee." The Board has held that an employer may warn economic strikers of
its intention to hire permanent replacements by a certain date,50 and it would seem
to follow that an employer may advise economic strikers of the legal effect of such
contemplated action upon their job and seniority rights.51 However, I have found
that the strikers were unfair labor practice strikers, and, as such, they retained their
status as Respondent's employees even though permanently replaced.52 Accord-
ingly, the Respondent's announcement that the strikers would lose all "job and
seniority rights" if replaced was not privileged as a mere recital of the applicable
law. However, the objectionable feature of Respondent's announcement was not,
as General Counsel appears to contend, that it was promulgated unilaterally, without
prior bargaining. This contention presupposes that the subject matter of the an-
nouncement was bargainable. As the reinstatement rights of unfair labor practice
strikers may not be waived by a union,53 the subject matter of the announcement was
not bargainable. The announcement was objectionable, rather, because it consti-
tuted in effect a warning that the Respondent would take unlawful discriminatory
action against any strikers who were replaced, and so independently violated Section
8(a)(1). Isofind.
(2) The superseniority proposal
(a) Definition
In view of some confusion generated by the Respondent's various positions with
respect to the seniority rights of the strikers, it may be well at the outset to review
the present state of the law in that area, which appears to be as follows:
1. Unfair labor practice strikers are entitled to reinstatement without impairment
of seniority, upon proper application, but economic strikers are so entitled only until
they have been permanently replaced, and not thereafter
2 It follows that any refusal by an employer to reinstate an unfair labor practice
striker with full seniority, upon proper application, would violate Section 8(a)(3)
and (1) of the Act, as would his refusal so to reinstate an economic striker who
had not as yet been replaced.
3. In recent years considerable controversy has arisen concerning the right of an
employer to accord to nonstrikers, to permanent replacements for strikers, or to de-
fecting strikers, greater seniority than that enjoyed by strikers, or, in other words, to
reduce the relative seniority of strikers. The cases have necessarily involved only
such impairment of seniority with respect to strikers who are entitled to reinstate-
ment with full seniority, either because they are unfair labor practice strikers or un-
replaced economic strikers. The leading decision on this point by the Board, which
is necessarily controlling here, is Erie Resistor,54 decided on July 31, 1961. There
the Board held that the respondent violated Section 8 (a) (3) and (1) of the Act by
granting 20 years' superseniority to strike replacements and to defecting strikers and
by thereafter laying off recalled strikers on the basis of such superseniority plan.
The Board held further that the respondent violated Section 8(a)(5) and (1) of
the Act by its insistence on the union 's acceptance of the superseniority plan as a
condition of negotiating an agreement
(b) The bargaining about superseniority
In the instant case, the Respondent, during the strike, took two separate positions
with respect to the future seniority rights of the strikers The first, which has just
been discussed, 55 was that the strikers were economic strikers, and so were not en-
titled to reinstatement or restoration of seniority, to the extent that they had been
permanently replaced. The second, which will next be discussed, was that as to
even those strikers who were otherwise entitled to reinstatement with full seniority
50 Albany Garage, Inc , and Albany Motor Parts , Inc, 126 NLRB 417, footnote 8
5i The Respondent's exposition of the rule that permanently replaced economic strikers
forfeit their seniority and other rights as employees is to be distinguished from Respond-
ent's "superseniority" proposal , discussed hereinafter , which would have given replace-
ments or nonstrikers greater seniority for certain purposes than unreplaced strikers,
notwithstanding that under the Act such unreplaced strikers still retained their rights
as employees , whether they be regarded as economic or unfair labor practice strikers
52 Fitzgerald Mills Corporation , 133 NLRB 877.
53 Fitzgerald Mills Corporation, supra.
54 Erie Resistor Corporation, 132 NLRB 621. Accord: Swan Rubber Company, 133
NLRB 375.
65 See discussion above of "Rules for Replacement of Strikers "
THE PHILIP CAREY MFG. CO. (MIAMI CABINET DIV.) 1125
Tights, the Respondent was privileged to accord greater seniority for purposes of
layoff and recall to otherwise junior nonstrikers, permanent replacements for strikers,
and defecting strikers, in order to induce them to cross the picket lines, in the face
of alleged violence and misconduct by the pickets.
This position was first indicated in Respondent's letter of September 26, announc-
ing that unless the offer contained in that letter was accepted by the Union by
September 30, the offer would be amended by adding thereto a proposal that non-
strikers and replacements for strikers be given "special seniority rights for layoff
and recall purposes." On October 7, the Respondent advanced this September 30
deadline to midnight of October 7. At subsequent meetings in 1960, the Respondent
treated the superseniority plan as part and parcel of its contract offer, and, as already
found, one of the major obstacles to agreement at the November meetings was the
superseniority proposal. The Respondent admits that this proposal was still one of
its bargaining demands until it was withdrawn on August 10, 1961, as a result of the
Board's Erie Resistor decision
The General Counsel contends that, even if it be found that the strike was eco-
nomic in its inception, it should nevertheless be held to have been converted into an
unfair labor practice strike by Respondent's insistence on its superseniority plan.
Respondent's defense is (1) that it did not insist on superseniority, but merely
proposed it, (2) that, even if it insisted, such action should not be deemed unlawful,
as it occurred before Erie Resistor was decided, and (3) that, in any event, the super-
seniority issue did not prolong or aggravate the strike and therefore could not be
held to have converted it loan unfair labor practice strike.
As I have already found that the strike was due to unfair labor practices from
its inception, any consideration of the impact of the superseniority proposal on the
character of the strike will be relevant only if it is found by higher authority that the
strike was at its inception economic Turning to Respondent's contentions, I find
that Respondent did in fact insist on superseniority. While the meaning of "insist"
as used in this context has not been precisely defined, it would seem to connote, at
the very least, persisting in a proposal to the point of impasse, notwithstanding ob-
jection thereto by the other party to the bargaining. Here the record shows that in
the November meetings the Union rejected superseniority, not only by express ref-
erence thereto, but also by insisting that the Union would sign no contract which
recognized the rights of replacements. Obviously, the latter position, whatever else
it denoted, precluded acceptance of a proposal which would have given replacements
greater rights in the area of seniority than strikers. Moreover, superseniority was
clearly incompatible with the Union's objective, as Ross put it, of restoring all the
strikers to their jobs with their seniority intact.
I find, therefore, that the Union took a strong position against superseniority.
The Respondent, on the other hand, took the position on November 23, through
Fasold, that it would not enter into any contract without superseniority,56 and stood
firm until impasse was reached on December 28, and during the subsequent 7-month
period, finally withdrawing its proposal, not in deference to the Union, but to the
Board's ruling in Erie Resistor. It is found, therefore, that the Respondent did, in
fact, insist on superseniority to the point of impasse.
Respondent's second contention is that Erie Resistor should not be applied retro-
actively to its conduct, since at the time that it proposed superseniority the position
of the courts, and the General Counsel, if not of the Board, appeared to be that
superseniority for strike replacements was proper when it was necessary to attract
such replacements, as Respondent contends was true here. The short answer to this
contention is that the Erie Resistor decision, itself, was applied retroactively in that
very case, notwithstanding that the respondent there pleaded the need for recruiting
replacements as justification. If further answer were needed, it would suffice to say
that I find no merit in Respondent's plea of necessity. That plea is that because of
incidents of strike violence, the Respondent felt that it would be necessary to offer
nonstrikers superseniority to induce them to cross the picket line. While there is
ample evidence of strike misconduct during the early days of the strike, there is no
evidence of any such activity after October 15, 1960, and Respondent admitted
in any case that it had no difficulty at any time in recruiting replacements, even
though, according to the testimony of Respondent's own witnesses, which I credit,
no job applicant was told at any time that he would receive superseniority. It is
thus clear that Respondent's "necessity" defense is not supported by the record, even
with respect to the period of strike misconduct, and certainly not with respect to the
subsequent period of approximately 8 months during which there was no evidence of
so Fasold did not deny Hyde's testimony to that effect. Fasold denied only that he had
said at the same time that the superseniority plan had already been implemented
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike misconduct and during most of which period the plant was already fully manned,
in any event.
There remains for consideration the Respondent 's final contention that its super-
seniority proposal did not affect the course of the strike. Respondent contends that
other economic issues prevented agreement at the meetings in the last 3 months of
1960. While it is true that there was discussion of such other matters as checkoff
and that the superseniority issue was intermeshed with the larger question of rein-
statement of the strikers, the fact remains that, as already stated, Fasold took the
position on November 23 that Respondent would not sign a contract without super-
seniority, which was incompatible with the Union's demands that all strikers be
rehired without impairment of seniority.
The Respondent contends that even if it had agreed to abandon superseniority that
would not have settled the strike, citing the fact that, when, in August 1961, it did
withdraw its superseniority demand, the Union still insisted on reinstatement of all
the strikers as the price of an agreement. However, this overlooks the fact that the
issue of reinstatement of the strikers necessarily had become more important to the
Union in August 1961, when all the strikers had already been replaced, than it was
at the November 1960 meetings , when only about one-third of them had been
replaced. There is thus no convincing evidence that the strike would not have
been settled if the Respondent had abandoned its superseniority proposal in November
or December 1960. On the other hand, it is clear from Fasold's aforementioned
statement to Hyde that the Respondent would not sign a contract without super-
seniority, that, even if the Union had agreed to permit existing replacements to retain
their jobs, the Respondent's insistence on giving to such replacements more seniority
than to returning (unreplaced) strikers would still have prevented agreement. Ac-
cordingly, I find that Respondent's insistence on its superseniority proposal violated
Section 8(a)(5) and (1) of the Act and contributed materially to the prolongation
of the strike on and after December 28 57
(3) The withdrawal of checkoff
As already related, the Respondent, on September 26, a few weeks after the
strike began, withdrew its checkoff proposal. The General Counsel cites this as
further evidence of bad faith. The Respondent on the other hand points to cases
in which the Board refused to predicate a finding of a violation of Section 8(a)(5)
of the Act on the withdrawal of bargaining concessions, including checkoff.58 How-
ever, in those cases, the Board appears to have held merely that the withdrawal
of a checkoff proposal or other concessions was net per se a violation of Section
8(a)(5), or was not evidence of bad faith in a particular context. Those cases do
not hold that such conduct may not under any circumstances be deemed to attest
bad faith. There is indeed ample Board authority that the withdrawal of bargaining
concessions does indicate bad faith, particularly where such withdrawal is sudden
and unexplained 59 Here, the withdrawal of checkoff, while sudden, was not
unexplained. In his letter of September 26 to Ross, Evans stated that checkoff was
being withdrawn because of recent information that some employees had been
"pressured" into signing checkoff cards. The question remains whether the explana-
54 There is no evidence that on December 28 any issue was discussed other than the
rights of the strikers vis-a-vis the replacements. Accordingly, there is insufficient basis
for inferring that checkoff or any other economic issue was still an obstacle to settlement
of the strike In this connection, it is significant that in his letter of December 22 to
the employees , Evans wrote:
. . The Union has stated publicly that the Company's right to protect new em-
ployees hired to replace striking employees has been the only issue which stood in
the way of a settlement.
This is tantamount to an admission that the Union had yielded on all issues except
supersenlority and reinstatement of strikers.
68 E g., Continental Bus System , Inc, 128 NLRB 384, affd 294 F 2d 264 (C A D C )
(checkoff) ; R.J Oil & Refining Co, Inc., 108 NLRB 641, 643, 674-677 (checkoff) ; Erie
Resistor Corporation, 132 NLRB 621 , footnote 33 (union shop) ; Solar Aircraft Company,
109 NLRB 130, 133.
° Herman Sausage Co , Inc , 122 NLRB 168, 170, enfd. 275 F 2d 229 ( CA. 5), re-
hearing denied 277 F . 2d 793 ( checkoff withdrawn) ; J W Woodruff, Sr, d/b /a Atlanta
Broadcasting Company, 90 NLRB 808, enfd . 193 F 2d 641 ( C.A. 5) ; International Furni-
ture Company, 106 NLRB 127, 141, enfd 212 F. 2d 431 (C A. 5).
THE PHILIP CAREY MFG. CO. (MIAMI CABINET DIV.) 1127
tion offered was an honest one.60 Evans testified credibly that checkoff was initially
agreed to by the Respondent upon condition that it would be voluntary on the part of
the employees. He stated further that some time prior to September 26 he received
reports from supervisors that union representatives had induced employees to sign
checkoff cards by "the use of pressure and misrepresentation," that the only employee
whose name he recalled in that connection was Bea Gressle, who, he was told, had
been threatened, before the strike, by Risner, a member of the Union's bargaining
committee, that she would lose her job if she did not sign a checkoff card. Evans
testified further that he discussed the foregoing reports with Fasold, but did not attempt
to verify them by interviewing the employees allegedly involved. Risner, at the
hearing, denied that he had made the threat attributed to him, and denied also that
Gressle had signed a checkoff card. This testimony was not contradicted. Fasold
testified that Evans reported to him that the Union was telling employees that they
had to sign the checkoff card (as well a union membership card) in order to be
eligible to vote at union meetings, and that it was for that reason that he decided
to withdraw the checkoff proposal.61
I credit Risner's uncontradicted denial of any threats to Gressle. However, the
circumstantial nature of Evans' and Fasold's testimony tends to lend credence to it.
I am inclined therefore to believe that Evans did receive reports from supervisors,
some of which 62 he relayed to Fasold, concerning the use of improper means by the
Union to obtain checkoff cards. Evans' failure ,to verify these reports does not negate
an honest, even though mistaken,63 belief on his part that the reports were accurate.
Accordingly, I find that Evans and Fasold honestly believed that the Union had
been using improper means to obtain checkoff cards, and withdrew checkoff for
that reason. Although the Union offered in November to obtain new cards, the
Respondent, as Fasold pointed out at the hearing, had no assurance that such new
cards would be obtained without coercion. Accordingly, I find no bad faith in the
withdrawal of the checkoff proposal or in the refusal to reinstate it 64
(4) Change in effective date of contract
On July 28, Fasold offered orally to make the Respondent's proposed contract
effective on the following August 1. In the September 26 letter, the Respondent
stated that its July 28 proposal, except for checkoff and the effective date of the con-
tract, was still open for acceptance. This letter does not specify what would be the
new effective date of the contract, if accepted by the Union. Assuming, as was
probably the case, that the Respondent intended that any such contract would be
effective from the date of execution, I find nothing therein inconsistent with the prior
offer, on July 28, of an August 1 effective date. Such prior offer did not involve
any retroactivity, but was impliedly conditioned on acceptance of the Respondent's
proposal on or before August 1. Similarly, the Respondent on September 26
was presumably still willing to make its contract effective upon acceptance. Ac-
cordingly, I do not regard the withdrawal of the August 1 date as, in substance, a
reversal of position, or as evidence of bad faith.
(5) Advance notice of superseniority proposal
The General Counsel contends that the Respondent's September 26 letter further
demonstrated its bad faith in that it advised the Union and the employees
80 See N.L.R B. v. Truitt Mfg. Co., 351 II S 149, 152, where the Court said, "Good faith
bargaining necessarily requires that claims made by either bargainer should be honest
claims."
Si The General Counsel adduced no testimony to impugn the veracity of Evans' report
to Fasold.
Si Evidently Evans did not report the Gressle incident to Fasold, as the latter makes
no reference thereto.
03 At least, in the case of the Gressle incident.
"In any event, even if I were to find that the withdrawal of checkoff violated Section
8(a) (5) of the Act, I would not find that it had any effect on the course of the strike.
In a statement published by the Union during the strike listing the strike issues no refer-
ence is made to the withdrawal of checkoff. Moreover, as checkoff involved no benefit to
the employees, its withdrawal was not likely to influence their decision to remain on strike.
I find no merit in the Charging Party's contention that checkoff was withdrawn in order
to induce employees to abandon the strike . There is no testimony to that effect and
the reasons urged by the Charging Party for inferring such motivation do not appear
persuasive.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Respondent's intention to propose superseniority. I am aware of no basis for hold-
ing that the mere giving of advance notice to a union or to employees of an inten-
tion to present a new bargaining proposal, however stringent, is evidence of bad
faith. I find none here.65
c. The bargaining in 1961
The amended complaint alleges that the Respondent further demonstrated its bad
faith by reoffering to the Union on August 10, 1961, the same contract proposals
as were outstanding on September 6, 1960, and by later modifying these proposals
after theyhad been accepted by the Union.
As already noted, Respondent's letter of August 10, 1961, withdrew the super-
seniority proposal and, with that deletion renewed its "most recent contract proposal."
Although promptly advising the Respondent that the strikers would report for work,
the Union did not at that time accept the contract offered in Respondent's letter
of August 10, but instead proposed a meeting to discuss the "numerous problems
posed" by that offer.
At the subsequent meetings on August 23 and September 7, the Union took the
position that the Respondent's August 10 letter had offered to rehire the strikers,
that this offer had been accepted, and the Respondent was bound thereby. The
Respondent, on the other hand, denied that it had intended to do more than reoffer
its prior proposals, omitting only superseniority, and had not intended to waive its
alleged right to refuse to rehire those strikers who had been permanently replaced.
It is clear to me from the content of the August 10 letter, and from the surround-
ing circumstances, that the Union was mistaken in viewing that letter as offering
reinstatement to the strikers, and the Union's acceptance of such supposed offer
therefore did not bind the Respondent. It is patent moreover from the Union's reply
to the August 10 letter that it did not at that time accept any of the proposals
reoffered in that letter but requested further bargaining. Such bargaining was not
productive of any agreement.
Accordingly, I find no merit in the General Counsel's contention that the Respond-
ent's August 10 proposals had been accepted by the Union.
No useful purpose would be served by considering whether the 1961 negotiations
evinced bad faith on the part of the Respondent in other respects, as it is clear, in
any event, that it was basically the Respondent' s insistence in those negotiations upon
not reinstating the strikers that prevented the parties from reaching agreement, and
that, as the strikers have been found to be unfair labor practice strikers, such
insistence per se violated Section 8(a) (5) and (1) of the Act.66
d The violations of Section 8(a) (1)
The General Counsel litigated two categories of alleged violations of Section
8 (a) (1) of the Act. The first category involved alleged coercive statements by minor
supervisors to employees during the election campaign . As such statements antedated
the 6-month period of limitations in Section 10(b) of the Act, they are not urged
as in themselves violations of Section 8(a)(1), but merely as background evidence
of Respondent's hostility to the Union, and therefore as reflecting on its good faith
in bargaining. Some, but not all, of these statements were denied by the supervisors
involved. It would serve no useful purpose to resolve the credibility issues or burden
this overlong report with further consideration of this matter. Evans frankly ad-
mitted his personal antipathy to the Union and the Respondent's preelection literature
amply attests this. Fasold admitted that he agreed with this literature Coercive
conduct by minor supervisors, even if proved, would add little, if anything, of
significance to the foregoing evidence of union animus on the part of the Respondent.
Accordingly, I do not deem it necessary to consider further the foregoing preelection
incidents.
In addition to such incidents, the General Counsel adduced evidence relating
to a number of incidents occurring within the 6-month limitation period, involving
alleged coercive statements by supervisors. These will next be discussed.
(1) Page
Lairson, a striker, testified that Page was assistant foreman or group le-der in his
department, that in the summer of 1960 he commented to Page that the Union had
es This allegation is to be distinguished from the contention, considered elsewhere, that
Respondent' s insistence on acceptance by the Union of the superseniority proposal was
unlawful.
° Fitzgerald Mille Corporation, 133 NLRB 877.
THE PHILIP CAREY MFG . CO. (MIAMI CABINET DIV.) 1 129
been in negotiations that day, to which Page rejoined , "You won't get nothing out of
it." According to Lairson , Page also remarked at the same time that the Respondent
would have liked to see the employees organized, but would have "been plumb tickled
if the Independent Union had won" the election , that, if the Union struck, the
employees would not miss a day 's work, and that the Union's victory at the polls "was
the worst thing that ever happened at Miami Cabinet."
Page admitted discussing the Union with Lairson but denied that he had said
anything other than that strikes and work stoppages would cause the employees to
lose more than they would gain.
Contrary to Respondent 's contention , I find that Page was a supervisor under the
Act; 67 and I credit Lairson 's version of Page 's remarks . 68 However , the only one of
those remarks which was not in my view a privileged expression of opinion or predic-
tion was the statement that the employees would get nothing out of the negotiations.
The Board has frequently held that a threat not to sign a contract with a union
violates Section 8(a)(1) of the Act . 69 The rationale of these cases is that such a
threat impresses upon employees the futility of adhering to the Union . This rationale
would seem to apply with equal force to Page's remark, which implied that the
Union would obtain no substantial benefits for the employees . As Lairson could
reasonably believe that this statement reflected management policy, it follows that
the statement was coercive . Accordingly , I find that by such statement the Respond-
ent violated Section 8 ( a) (1) of the Act.
(2) Goforth
Lairson testified, without contradiction , and I find , that in September and October
1960, while he was on strike, Goforth , an admitted supervisor , solicited him and
other strikers to return to work and stated that "the contract that was offered the
Union" would go in effect "for those who worked during the strike."
By Goforth 's promise that the returning strikers would receive the benefits offered
to and rejected by the Union , the Respondent violated Section 8 (a) (1) of the Act.70
In the context of this and other violations found herein , I find that , by Goforth's
foregoing solicitation of strikers to return to work, the Respondent further violated
Section 8 ( a)(1).7i
(3) Henderson
Hubert Smith , a striker , testified that in July 1960, his foreman , Henderson , stated
that, in view of the failure of the Respondent to begin remodeling the Middletown
plant , he was afraid that the Respondent might move the plant . However, Smith
admitted that this statement was not related by Henderson to the Union.
Henderson testified that he was unable to recall the foregoing conversation . Absent
contradiction , I credit Smith . However, as Henderson's prediction was not related
by him to the Union , and, as he made it clear, in any event, that such prediction was
not based on any knowledge of management's plans, but rather on the failure of
Respondent to begin remodeling of the Middletown plant, Smith could not reasonably
construe Henderson 's statement as a threat rather than as mere speculation by
Henderson as to the future of the Middletown operation . Accordingly , I find no
violation here.
(4) Schneider
Hubert Smith testified also that in July 1960 , Schneider , an admitted supervisor,
asked Smith, who was a member of the Union's bargaining committee , about the
67 He directed the work of 10 to 15 employees and granted time off His immediate
superior was Goforth , an admitted supervisor , who was foreman of the welding depart-
ment , comprising 50 to 70 employees If Goforth was, as Respondent apparently contends,
the only supervisor in that department , the ratio of supervisors to employees would be
at least 1 to 50 Such a disproportionate ratio warrants the inference that Goforth
could not effectively supervise all the employees in his department , and that Page was
therefore required to exercise independent judgment in directing the employees under
him. See Interstate Company, 118 NLRB 746
68 The circumstantial nature of Lairson ' s testimony lends credence to it.
69 E g, Federal Dairy Company , Inc., 130 NLRB 1158 , 1159, enfd 297 F 2d 487 (C A 1)
70 The Respondent was not at the time of Goforth's offer or at any time thereafter
privileged to institute such benefits See Herman Sausage Co , Inc, supra, at 171-172.
While Respondent would have been so privileged had it reached an impasse after bargain-
ing in good faith, Goforth ' s promise was not conditioned on any such contingency.
71 Cf. The Texas Company, 93 NLRB 1358 , 1361-1362 , set aside on other grounds
198 F. 2d 540 ( C A. 9).
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
progress of the negotiations, and that Schneider observed that (1) he was "afraid
that the Company might move" to Indiana or to a cheaper labor area, in which case
the employees would all be out of work, and (2) "he didn't believe there would be
a contract."
Smith's testimony was contradicted by Schneider. However, Smith's demeanor
on the stand impressed me more favorably, and I credit him. It is true that both
of Schneider's statements were couched in terms of an expression of personal opinion.
However, it is not the form of these statements which is determinative of their
legality, but their probable effect on the employees. Here, unlike the case of Hen-
derson, above, it was not made clear that Schneider's opinions were based on factors
other than such confidential information as Schneider might possess relating to
Respondent's labor policy, and his statements were therefore likely to be construed
as reflecting such information and therefore indicative of that policy. Under these
circumstances, I find that Schneider's statements were coercive, and that the Re-
spondent thereby violated Section 8(a)(1) of the Act.
(5) Gibson
Underwood, a member of the Union's bargaining committee, testified that Gibson,
his stepbrother and an admitted supervisor, told him, in a private conversation at
Gibson's home, about a week after the strike began, that Gibson did not expect
the Respondent to give the Union a contract and that "they would try to ... drag
it out." Gibson did not testify. I credit Underwood. While Gibson's statement
was couched in terms of an expression of personal opinion, I find, for reasons set
forth in the discussion above, of a similar remark by Schneider, that by Gibson's
statement the Respondent violated Section 8(a) (1) of the Act 72
e. The violations of Section 8(a)(3)
The amended complaint alleged that the Respondent violated Section 8(a)(3)
and (1) of the Act by (1) the institution of its superseniority plan, and (2) the
refusal to reinstate the strikers upon application.
(1) Superseniority
Both Evans and Fasold denied repeatedly throughout the hearing that the Re-
spondent's superseniority proposal was anything more than a proposal or that the
Union had even been told that superseniority had actually been granted to non-
strikers.
However, Hyde and two members of the union bargaining committee 73 testified
that on October 7, Fasold stated that Respondent's superseniority plan would be put
into effect the next day if Respondent's proposed contract was not accepted. Hyde
testified also that on November 22, Fasold referred to the superseniority plan as
having been "instituted on October 7," and stated that the replacements already hired
had been given superseniority, and Ross' testimony concerning this meeting 74 is to
the like effect. Ross testified further that at the meeting on August 23, 1961, Re-
spondent's counsel, Hays, admitted that superseniority had already been instituted.
However, Hyde's testimony tends to contradict this.
Hays testified, but was not questioned about his alleged admission on August 23,
1961. He did admit, however, writing a letter on October 20, 1960, to an agent of
the Board's General Counsel, in connection with the investigation of the charges in
the instant case, in which the following appears:
Also in its letter of September 26, the Company advised Mr. Ross that, effec-
tive September 30, it was establishing special seniority for purposes of layoff
and recall only. The Company's sole purpose in establishing this special seni-
72 However, I find no violation in other statements attributed to Gibson by Underwood
These relate to a report to Underwood by Gibson of a statement made by unidentified
persons at a foremen's meeting, citing the Respondent's financial ability to endure a pro-
longed strike , and expressing the fear that if the Union "got in" it would take over the
functions of management.
At the hearing I struck a further allegation of the amended complaint ( paragraph
7(f)) relating to an alleged statement by Fasold in negotiations to the effect that the
employees had joined the Union because of their low opinion of the Respondent The
General Counsel has failed to advance any theory for finding this statement unlawful, and
I can perceive none.
73 Underwood and Laycock.
71 Ross did not attend the October 7 meeting
THE PHILIP CAREY MFG. CO. (MIAMI CABINET DIV.) 1131
ority relating only to layoff and recall was to enable it to stabilize its work force
and make it possible to staff the plant with employees who desired to work. The
special seniority provisions are non-discriminatory and apply alike to all em-
ployees. No retaliation was intended against any of the strikers. Special seni-
ority for purposes of layoff and recall has been established in conformity with
the decision in Olin Mathieson Chemical Corp., 114 N.L.R.B. 486, aff'd., 232 F.
2d 587 (4th Circ. 1956), and the General Counsel's opinion in Case No. SR-509
dated June 27, 1960. [Emphasis supplied.]
However, Hays testified, and the text of the letter quoted above so indicates, that
he was merely attempting therein to interpret the Respondent's letter of September 26,
and that he inadvertently misconstrued that letter as announcing the establishment
of superseniority as of September 30. (The September 26 letter, as already noted,
does not state that the Respondent would "establish" superseniority effective Sep-
tember 30, but that as of that date a superseniority proposal would become part of
the Respondent's contract offer.)
Accordingly, I find that Hays' letter was based solely on a misinterpretation of
the Respondent's September 26 letter to the Union, and not on any information
that the Respondent had actually established superseniority.
There remains for resolution the conflicting testimony regarding Fasold's state-
ments at the October and November meetings. Fasold's version was, in effect, that
on October 7 he merely notified the Union that it would have until midnight to ac-
cept a contract without superseniority, and that after midnight superseniority would
become one of Respondent's proposals. Hyde and the two bargaining committee
members testified, as already noted, that Fasold said instead that after midnight of
October 7, superseniority would be put into effect, unless Respondent's contract was
accepted. However, this testimony is readily reconciled with Fasold's on the as-
sumption either that Fasold did say "superseniority" but meant only the super-
seniority proposal, or that Fasold said that the superseniority proposal would be
put into effect, but the others understood him to mean that actual changes in seniority
rating would be put into effect.75 The distinction was a fine one , and if it escaped
Respondent's experienced counsel,76 it is understandable that it would escape laymen
such as Hyde and his associates. As to the testimony of Ross and Hyde that on
November 22, Fasold asserted that superseniority had already been "instituted" and
been given to the replacements, such testimony may well reflect the same failure to
grasp the distinction between making superseniority "effective" as a proposal and
making it effective as an operating procedure. As to Ross' testimony that Hays on
August 23, 1961, admitted that superseniority had been established, even if I were
to credit this testimony, notwithstanding inconsistent testimony by Hyde, it would
merely prove that Hays was on that date still laboring under the same misappre-
hension concerning the purport of the September 26 letter as when he wrote the
letter of October 20.77
In any event, there is no proof that any changes were actually made in seniority
ratings of employees because of their participation or nonparticipation in the strike.
No such changes are reflected in the seniority lists submitted by the Respondent at
the hearing showing the relative seniority standings of employees as of May 6,
1960, and as of August 9, 1961. As Respondent had no occasion during the strike
to lay off any employees, there is of necessity no evidence that the Respondent in
fact applied its superseniority proposal in selecting employees for layoff. All the
representatives of Respondent who interviewed job applicants during the strike testi-
fied without contradiction, and I find, that, while they assured such applicants, in
effect, that their tenure would be permanent, subject only to economic conditions,
the applicants did not ask about their seniority rights vis-a-vis the strikers and nothing
was said to them in that regard by the Respondent's representatives.78 Moreover,
75 This would be essentially the same mistake that Hays made in misreading the Septem-
ber 26 letter.
78 See preceding footnote
17 According to Hays' testimony, which I credit, it was not until about August 23, 1961,
that he discovered that he had misread the September 26 letter
78 One of these representatives was Plant Superintendent Kiley The General Counsel
adduced testimony by Mrs. Centers, a striker, that she received a copy of Respondent's
letter of September 26 notifying the employees that (1) the Respondent intended to
propose superseniority if the strike was not settled by September 30, (2) on October 4
the Respondent would begin hiring replacements, and (3) any permanently replaced em-
ployee would lose his seniority rights Mrs. Centers testified credibly that on October 3
she called Kiley and asked him if it was true that she had to report that day to protect
her seniority, and that Kiley replied that the September 26 letter meant "exactly what
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insofar as the record shows, none of the Respondent's advertisements during the
strike in local newspapers, offering employment, contained any reference to super-
seniority.
Upon consideration of all the foregoing, I am impelled to the conclusion that
(1) whatever language he may have inadvertently used at the bargaining confer-
ences, Fasold intended to say only that the Respondent would adopt or had adopted
superseniority as a bargaining proposal and not as an operating procedure, (2) any
admissions by Hays in his letter or in bargaining that superseniority had been adopted
as an operating procedure were based solely on his misreading of Respondent's Sep-
tember 26 letter, and (3) in any event, whatever Respondent may have told the
Union, the Respondent did not in fact implement its proposal by granting super-
seniority to nonstrikers or strike replacements.
Accordingly, I find no merit in General Counsel's allegation that the Respondent
violated Section 8(a)(3) and (1) of the Act by the grant of supersemority
(2) The refusal to reinstate strikers
As already found, the Union's unconditional applications in August 1961 for re-
instatement of strikers were rejected by the Respondent on the ground that they had
all been permanently replaced except for one,79 who, together with nine others of
the replaced strikers, was alleged to have forfeited any reinstatement rights by strike
misconduct.
As to those strikers who were not charged with misconduct, since I have found
that they were unfair labor practice strikers, the law is clear that they were entitled
to reinstatement upon unconditional application, whether or not they had been
replaced. Accordingly, I find that the Respondent's rejection of the Union's ap-
plications on behalf of such individuals violated Section 8(a) (3) and (1) of the Act.
The Alleged Misconduct
The Respondent contends that David Back, Ross Dalton, William Napier, Jimmie
Combs, James Prater, and Stanley Harris forfeited any reinstatement rights by mis-
conduct during the strike.80
There was uncontroverted testimony, and I find, that all of the foregoing indi-
viduals, except Harris, on September 15, 1960, followed three of Respondent's non-
striking employees in an automobile to the home of a relative of one of the non-
strikers and there participated in a physical assault on the nonstrikers, in the course
of which one or more of the strikers threatened to kill the nonstrikers if they went
back to work.
I find also that, on November 14, 1960, Back, Dalton, and Napier were involved
in fisticuffs with three nonstrikers at a restaurant near the Respondent's Middletown
plant. This fracas began when Dalton approached the nonstrikers and called them
"scabs" and "S O.B.'s" and Back struck one of the nonstrikers. Napier and Dalton
promptly joined in the fray and a free-for-all ensued. The strikers were convicted
of disorderly conduct.
The foregoing incidents establish sufficient justification for the Respondent's re-
fusal to reinstate Back, Dalton, Napier, Combs, and Prater.81
Harris: The record shows, and I find, that on September 15, 1960, Harris and
three other pickets forced a truck to stop by blocking the driveway to the plant,
and that, when the truckdriver persisted in his efforts to enter, Harris picked up a
stone and threatened the driver with it. This incident, I find, warranted Respondent's
denial of reinstatement to Harris s2
It says " General Counsel would apparently infer from this that Kiley was somehow
implying that the Respondent intended to put its superseniority proposal into effect. It is
not clear how such a construction can be placed on Kiley's remark, which merely re-
affirmed the contents of a letter referring to superseniority only as a tentative proposal.
Moreover, it is clear from the record that Mrs Centers ' concern was not about super-
seniority but rather about the warning in the letter that strikers would lose all seniority
rights in case of replacement-an entirely different matter.
79 Stanley Harris.
so Four other strikers alleged to have engaged in strike misconduct-Garry Bowling,
Virgil Hicks , Neil Blankenship , and Arnold King-were listed as claimants in the amended
complaint , but their names were stricken therefrom at the hearing upon motion of the
General Counsel.
"Kohler Co ., 128 NLRB 1062 , 1102-1108 , remanded on this issue 300 F. 2d 699
(CAD C) ; H N. Thayer Company, 115 NLRB 1591.
62 Kohler Co., supra, at 1104 , 1108; H. N. Thayer Company, supra.
THE PHILIP CAREY MFG. CO. (MIAMI CABINET DIV.) 1133
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section IV, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial 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.
VI. THE REMEDY
It having been found that the Respondent violated Section 8(a)(1), (3), and
(5) of the Act, it will be recommended that the Respondent cease and desist there-
from and take certain affirmative action designed to effectuate the policies of the
Act.
It has been found that the Respondent refused to bargain in good faith with the
Umon, which represented a majority of the employees in an appropriate unit.
Accordingly, I shall recommend that the Respondent be ordered to bargain, upon
request, with the Umon as the exclusive representative of the employees in the ap-
propriate unit.
It has also been found that the Respondent discriminatorily denied reinstatement to
certain unfair labor practice strikers. Accordingly, the Respondent should be re-
quired to offer the employees named in Appendix B, attached hereto, immediate and
full reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges, discharging, if necessary,
any replacements hired on or after September 6, 1960, in order to provide work for
such strikers. The Respondent should also be directed to reimburse the foregoing
employees for any loss of pay they may have suffered by reason of the Respondent's
discrimination against them, by paying to each of them a sum of money equal to the
amount he would normally have earned as wages from the date of his unconditional
application for reinstatement 83 to the date of Respondent's offer of reinstatement,
less his net earnings during that period. Backpay shall be computed on the basis
of calendar quarters, in accordance with the method prescribed in F. W. Woolworth
Company.84
In view of the nature of the violations found herein, particularly the discrimination
against the strikers, a potential threat of future violations exists which warrants a
broad cease-and-desist provision.85
CONCLUSIONS OF LAW
1. All production and maintenance employees at Respondent's plant at Middle-
town, Ohio, including all shipping and receiving employees, but excluding office
clericals, professional and technical employees, guards, and supervisors as defined in
the Act, constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
2. International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, UAW-AFL-CIO, at all times material hereto, has been and
still is the exclusive representative of all the employees in the aforesaid unit for
the purposes of collective bargaining within the meaning of Section 9(a) of the
Act.
3. By refusing to bargain collectively in good faith with the aforesaid labor organi-
zation as the exclusive representative of its employees in an appropriate unit,
and by insisting as a condition of entering a contract that the Union agree to super-
seniority for nonstrikers and that it agree to waive the reinstatement rights of the
strikers, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a) (5) and (1) of the Act.
4. The strike beginning on September 6, 1960, was at all times an unfair labor
practice strike.
5. By denying reinstatement to the strikers upon their unconditional application,
the Respondent has discriminated in regard to the hire and tenure of employment of
its employees, thereby discouraging membership in the Union, and has violated
Section 8 (a) (3) and (1) of the Act.
6. By making coercive statements and soliciting strikers to abandon their con-
certed activities, the Respondent interfered with, restrained, and coerced its employees
83 Such date, in the case of each claimant , Is set opposite his name In Appendix B.
8'190 NLRB 289.
65 See paragraph numbered 1(d) of the Recommended Order below.
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the exercise of rights guaranteed in Section 7 of the Act, and has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the
Act.86
RECOMMENDED ORDER
Upon the entire record in the case, and from the foregoing findings of fact and
conclusions of law, it is recommended that the Respondent , The Philip Carey
Manufacturing Company (Miami Cabinet Division ), Lockland, Ohio , its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith concerning rates of pay, wages , hours of
employment , or other conditions of employment with International Union , United
Automobile , Aircraft and Agricultural Implement Workers of America, UAW-AFL-
CIO, as the exclusive representative of all production and maintenance employees
at its Middletown , Ohio, plant, including shipping and receiving employees, but
excluding office clericals , professional and technical employees , guards, and super-
visors as defined in the Act.
(b) Discouraging membership in International Union , United Automobile, Air-
craft and Agricultural Implement Workers of America, UAW-AFL-CIO, or in
any other labor organization , by refusing to reinstate , or otherwise discriminating
against, employees in regard to their hire or tenure of employment or any term or
condition of employment.
(c) Threatening employees with economic reprisals if they support a union or
continue to strike , soliciting employees to abandon their concerted activities, and
indicating that it will not sign a contract with a union.
(d) In any other manner interfering with, restraining , or coercing its employees
in the exercise of their right to self-organization , to form, join , or assist the above-
named Union , or any other labor organization , to bargain collectively through rep-
resentatives of their own choosing , and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection , or to refrain
from any or all such activities , except to the extent that such right is affected in
the provisos in Section 8(a) (3) of the Act.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Upon request , bargain collectively in good faith with International Union,
United Automobile, Aircraft and Agricultural Implement Workers of America,
UAW-AFL-CIO, as the exclusive representative of all production and maintenance
employees of the Respondent at its Middletown , Ohio, plant, including shipping and
receiving employees , but excluding office clericals , professional and technical em-
ployees, guards , and supervisors as defined in the Act, with respect to rates of pay,
wages , hours of employment, or other conditions of employment , and, if an under-
standing is reached , embody such understanding in a signed written agreement
(b) Offer to the employees named in the attached Appendix B immediate and
full reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges.
(c) Make whole the said employees , in the manner set forth in the section of
the Intermediate Report entitled "The Remedy ," for any loss of pay each may
have suffered by reason of the Respondent 's discrimination against him.
(d) Preserve and , upon request , make available to the Board or its agents, for
examination and copying, all payroll records , social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amounts of backpay due under the terms of this Order.
(e) Post at its plant in Middletown , Ohio, copies of the attached notice marked
"Appendix C." Copies of said notice, to be furnished by the Regional Director
for the Ninth Region, shall , after being duly signed by the Respondent 's representa-
tive , be posted by the Respondent immediately upon receipt thereof, and be main-
tained by it for a period of 60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are customarily posted Reasonable
steps shall be taken by the Respondent to insure that such notices are not altered,
defaced , or covered by any other material.
so I have not attempted to discuss various contentions by the Charging Party which re-
late to matters not specified in the amended complaint and not otherwise raised by the
General Counsel. To do so would substantially prolong this report and would not, in any
event, affect the result.
BONHAM MANUFACTURING COMPANY, INC. 1135
(f) Notify the Regional Director for the Ninth Region, in writing, within 20
days from the date of receipt of this Intermediate Report, what steps the Respondent
has taken to comply herewith 87
87 If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify said Regional Director, in writing, within 10 days from the date of this
Order, what steps the Respondent has taken to comply herewith."
APPENDIX A
The transcript of testimony herein is hereby ordered corrected in the following
respects:
1. Page 25, line 13, change "thresh" to "threshold".
2. Page 33, line 7, change "section" to "violation".
3. Page 175 , line 23, insert "accumulation" after "months".
4. Page 204 , line 13, strike "not".
5. Page 254 , line 3 , strike "not".
6. Page 717 , lines 4 and 5, change "August " to "October".
7. Page 822 , line 14 , change "above" to "of each".
8. Page 970, line 16, change "69" to "59".
9. Page 973 , line 1 , change "mast" to "master".
10. Page 987 , line 9, change "He" to "I".
11. Page 1110, line 16 , change "for" to "forth".
12. Page 1247, line 9, change "go" to "give" and "place" to "case".
13. Page 1296 , line 10 , change "general" to "funeral".
14. Page 1389, line 2, change "union" to "company" before "to".
15. Page 1665, line 2, change "background" to "incident".
16. Page 1717, line 9, insert "a stipulation that" after "propose".
Bonham Manufacturing Company, Inc. and Amalgamated Cloth-
ing Workers of America , AFL-CIO. Cases Nos. 16-CA-1689
and 16-RC-31P3. February 7, 1963
DECISION, ORDER, AND DIRECTION OF SECOND
ELECTION
On November 21, 1962, Trial Examiner Benjamin B. Lipton issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in unfair labor
practices in violation of Section 8(a) (1) of the Act and recommend-
ing that it cease and desist therefrom and take affirmative action, as
set forth in the attached Intermediate Report. The Trial Examiner
also found that certain of the aforesaid unfair labor practices engaged
in by the Respondent interfered with the results of the Board election
in the above representation proceeding, and recommended that the
said election be set aside and that a new election be held at an ap-
propriate time. He further found that the Respondent had not en-
gaged in certain other unfair labor practices alleged in the complaint
and recommended that the complaint be dismissed with respect there-
to. Thereafter, the Respondent filed exceptions to the Intermediate
Report and a brief in support thereof.
140 NLRB No. 115.