Wilson & Co., Inc.

National Labor Relations Board - Board Decisions

Aug 26, 1940

26 N.L.R.B. 1353 (N.L.R.B. 1940)

In the Matter Of WILSON & CO., INC., A DELAWARE CORPORATION, TRADING AS J. EAVENSON & SONS, DIVISION OF WILSON & CO., INC.' and UNITED SOAP WORKERS LOCAL INDUSTRIAL UNION No. 931, C. I. 0. Cases Nos. C-1466 and R-1550.Decided August 26, 1940 Jurisdiction : meat packing industry. Unfair Labor Practices. Interference, Restraint, and Coercion: anti-union statements; employer's letter to its striking employees threatening discharge provided they did not abandon the strike and return to work; advising and soliciting individual employees to abandon current strike and return to work while union was attempting to negotiate settlement; threats of interference with tenure of employment. Respondent's refusal to make any agreement as to reinstatement of strik- ing employees except upon condition that the respondent's failure to reinstate any striking employee should not be made the basis for any unfair labor practice charges held violation -of 8 (1). Discrimination. Respondent's refusal to reinstate striking employees to positions filled by persons hired subsequent to commission of unfair labor practices which prolonged the strike held violation of 8 (3). Collective Bargaining: allegations of refusal to bargain collectively dismissed. Remedial Orders: reinstatement and back pay awarded. Investigation and Certification of Representatives : evidence of existence of question: union's letter for conference concerning recognition unanswered- ,election necessary; to be held at such time in the future as the Board shall direct. Unit Appropriate for Collective Bargaining : production, maintenance, shipping, receiving and ware-room employees, excluding foremen, foreladies, assistant foremen, assistant foreladies,. watchmen, office employees, factory clerks, department clerks, truck drivers, technically-trained laboratory employees, and all managerial and supervisory employees above the rank of foreman and forelady. Mr. Joseph F. Castiello, for the Board. AIr. M. H. Goldstein, of Philadelphia, Pa., for the Union. Schnader & Lewis, by Mr. Bernard G. Segal, of Philadelphia, Pa., and Mr. Paul Ware, of Chicago, Ill., for the respondent. Mr. Wallace Cooper, of counsel to the Board. 1 The respondent was incorrectly named in the amended complaint as "J. Eavenson & Sons , Inc." At the hearing , all pleadings were amended to correct the designation of the respondent. 26 N. L. R. B., No. 126 1353 1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION ORDER AND DIRECTION OF ELECTION STATEMENT OF THE CASE On April 3, 1939, United Soap Workers Local Industrial Union No. 931 , herein called the Union , filed charges , on July 7, 1939, amended charges ,, and on July 25, 1939 , second amended charges, with the Regional Director for the Fourth Region (Philadelphia, Pennsylvania), the second amended charges alleging that Wilson & Co., Inc., a Delaware corporation , trading as J. Eavenson & Sons, division of Wilson &.Co., Inc., Camden , New Jersey , herein called the respondent , had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5 ) of the National Labor Relations Act, 49 'Stat. 449, herein called the Act. On May 17, 1939, the Union filed with the Regional Director a petition , and on July 10, 1939 , an amended petition , alleging that a question affecting commerce had arisen concerning the representation of employees of the respondent and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Act. On July 15, 1939 , the National Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3 , of National Labor Relations Board Rules and Regulations- Series 2, ordered the Regional Director to conduct an investigation and to provide for an appropriate hearing upon due notice , and, acting pursuant to Article III, Section 10 (c) (2), and Article II, Section 36 (b), of said Rules and Regulations , further ordered that the repre- sentation proceeding and the proceeding with respect to the alleged unfair labor practices be consolidated for the purpose of hearing and for all other purposes and that one record of the hearing be made. On July 12, 1939 , the Board , by the Regional ' Director , issued its complaint ,3 and on July 25, 1939, its amended complaint , the amended complaint alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 ( 1), (3), and (5) and Section 2 (6) and (7) of the Act. Copies of the amended complaint and an accompanying notice of hearing were duly served upon the respondent , upon the Union, and upon International Brotherhood of Teamsters , Chauffeurs, Stable- men, and Helpers , Local No. 676 , affiliated with the American Federa- 2 The charges and amended charges alleged violations of Section 8 (1) and (5) of the Act. 3 The complaint alleged violations of Section 8 (1) and (5) of the Act. WILSON & CO., INC. 1355 tion of Labor.4 The amended complaint alleged in substance with respect to the unfair labor practices that the respondent (1) on about March 29, 1939, and at all times thereafter, refused to bargain collec- tively with the Union, although at such. times the Union represented a majority of its employees within an appropriate unit, in that, inter alia, it refused to embody terms and conditions of employment agreed upon or to be agreed" upon in the form of a written contract; (2) by its refusal to bargain collectively with the Union caused a strike of its employees on about March 31, 1939; (3) advised and solicited individ- ual employees to abandon the strike and return to work while the Union was continuing the strike and attempting to negotiate its settlement by collective bargaining; (4) circulated on about April 24, 1939, a letter to its striking employees threatening them. with dis- charge or the closing of the plant provided they did not abandon the strike and return to work; (5) on about May 5, 1939, and at other times, incited violence and attacks against striking employees and union leaders; (6) during and after the strike made intimidatory anti- union statements to employees, disparaging leaders and members of the Union and advising against the Union; (7). refused on about July 22, 1939, and at all times thereafter, to reinstate and give em- ployment to its employees who had gone out on strike, although on about July 21, 1939, the Union terminated the strike and such em- ployees, on about July 22, 1939, requested reinstatement to their former positions; and (8) by the foregoing and other acts interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. At the hearing, the respond- ent filed an answer to the amended complaint denying the allegations of unfair labor practices contained therein. Pursuant to notice, a hearing was held at Camden, New Jersey, and Philadelphia, Pennsylvania, from August 7 through September 25, 1939, before Albert Lohm, the Trial.Examiner duly designated by the Board. The Board, the respondent, and the Union were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to produce evidence bearing on the issues was afforded all parties. During the course of the hearing, the amended complaint was amended, on motion of the Board's council, to conform to the proof. At the close of the Board's case and also at the close of the hearing, the respondent moved to dismiss the amended complaint and separate paragraphs 'thereof. The Trial Examiner denied the motions made at the close of the Board's case, but reserved decision on those made at the close of the hearing. In his Intermediate Report the Trial Examiner denied the motions 4 The Teamsters did not appear or participate in the hearing . The stipulation regarding the appropriate unit, referred to below excludes from the appropriate unit herein in issue employees eligible for membership in the Teamsters. 1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon which decision had been reserved, except that certain motions directed at paragraphs of the amended complaint, as to which the Trial Examiner recommended dismissal, were granted. The Board has reviewed all rulings made during the course of the hearing and in the Intermediate Report on motions and on objections to the admis- sion of evidence and, except as appears below, finds that no prejudi- cial errors were committed. With such exceptions. the rulings are hereby affirmed. 'On October 20, 1939, the record was supplemented with a stipula- tion, dated October 7, 1939, between all parties with respect to the appropriate unit. On January 13, 1940, the Trial Examiner filed an Intermediate Report in.which he found that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) of the Act and. recommended that the respondent be ordered to cease and desist therefrom. He further found that the respondent had not engaged in unfair labor practices within the meaning of Section ,8 (3) and (5) of the Act and recommended the dismissal of the complaint in those respects. Copies of the Intermediate Report were duly served upon the respondent and the Union. Thereafter the respondent and the Union filed separate exceptions to the Inter- mediate Report and other portions of the record and briefs in support of such exceptions. The Board has considered the exceptions to the Intermediate Report and, except in so far as they are consistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following; FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Wilson & Co., Inc., is a corporation organized under the laws of the State of Delaware,, with its principal office at Chicago, Illinois., It is engaged in the operation of meat slaughtering and packing plants in, various sections of the United States, as well as of a soap plant at Camden, New Jersey. It also has a subsidiary selling company, Wilson & Co., a New Jersey corporation, which operates approximately 90 warehouses from which meat products are sold to the retail trade. The annual sales of the respondent amount to approximately a quarter of a billion dollars. The respondent and its predecessors have engaged in the business of manufacturing soap at the Camden plant since 1857.5 The plant The plant was operated by J. Eavenson & Sons, a co-partnership , until 1903 , and by J . Eavenson & Sons, Inc., until 1935 , when the respondent acquired it. WILSON & CO., INC. 1357 manufactures soap powders, flakes, and bar soap, and like products, for various shops, jobbers, supply houses, hospitals, and other in- stitutions. It also manufactures branded soap products for depart- ment stores, drug and grocery chain stores, and the like. Approximately. 95 per cent of the raw materials used at the Camden plant are obtained outside the State of New Jersey. During the 4 weeks prior to February 25, 1939, a typical period for the plant's business, the value of the raw materials used at the plant was $81,462.01. Approximately 95 per cent of all products manufactured at the Camden plant are sold and shipped to customers outside the State of New Jersey. The value of the sales of such products during the 4 weeks prior to February 25, 1939, was $162,121.71. The respondent admits that it is engaged in commerce within the meaning. of the Act. II. THE ORGANIZATION INVOLVED United Soap Workers Local Industrial Union No. 931 is a labor organization affiliated with the South Jersey Industrial Union Coun- cil, which in'turn is affiliated with the Congress of Industrial Organi- zations. It admits to membership production and maintenance employees of the respondent, excluding supervisory and clerical employees and teamsters. III. THE UNFAIR LABOR PRACTICES A. The alleged refusal to bargain collectively The amended complaint alleged (1) that the respondent on about March 29, 1939, refused to bargain collectively with the Union, the representative duly designated by a majority of the respondent's em- ployees ,within an appropriate unit, in that, inter alia, it refused to embody terms and conditions of employment agreed upon, or to be agreed. upon, in the form of a written contract; (2) that on about March 31 the respondent's employees went out on strike as a result of the respondent's said refusal to bargain collectively with the Union; and (3) that the respondent at all times thereafter refused to bargain collectively with the Union. The respondent's answer denied these allegations. 1. The appropriate unit . Subsequent to the hearing, all parties entered into a stipulation concerning the appropriate unit, which stipulation, by its terms, was made a part of the record herein. The stipulation provided, inter alia, 1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the appropriate unit should include all of the respondent's "pro- duction, maintenance, shipping, receiving and ware room employees," excluding "foremen, foreladies, assistant foremen, assistant foreladies, watchmen, office employees, factory clerks, truck drivers, technically- trained laboratory employees, and all managerial and supervisory em- ployees above the rank of foreman and forelady"; and that the inclu- sion or exclusion of "department clerks" should be determined "on the basis of the evidence adduced in the record." The issue as to the inclusion or exclusion of the department clerks involves two employees, William Hughes and James Muckley. Each is a member of the Union. The Union asserts that these employees should be included in the unit, although their duties involve the keep- ing of production records of other employees and also part-time work in the main office. The Union-attaches no significance to the fact that the department clerks check the work of certain production employees (members of the Union) to determine whether their work is within the permissible 10-per cent variation from the standards set for such work and also prepare time and production records from which are prepared labor production and control records and other summary and master records. It urges that the department clerks are to be distinguished from factory clerks on the grounds (1) that the department clerks are paid on an hourly basis and are not entitled to vacations, whereas the factory clerks receive a salary and are entitled to vacations, and (2) that the department clerks occasionally do production work. The respondent contends that the department clerks are a part of management and disputes the Union's assertion that these employees do any production work. It offered, however, during the negotia- tions with the Union, to transfer Hughes and Muckley to, work of a different nature at the same rates of pay, provided the Union would agree to the exclusion of department clerks from the unit. The Union refused this offer. The respondent's records do not indicate that Hughes and Muckley ever did any production work. Thomas Nolan, Jr., their immediate superior, testified that they had express instructions not to do pro- duction work, but to spend all their spare time in the office. In any event, it is clear that Hughes and Muckley actually do little, if any, production work, and are required to work in the office on Saturdays in order to complete their records, whereas. production employees do not work on Saturdays except during emergencies. The work of Hughes and- Muckley in the office involves access to all pay roll .and other confidential records. We find that the department clerks spend approximately all their time doing work not substantially different from that done by other employees excluded from the unit by the stipulation. We shall exclude them from the unit. WILSON & CO., INC. 1359 We find that all of the respondent's production, maintenance, ship- ping, receiving and ware-room employees, excluding foremen, fore- ladies, assistant foremen, assistant foreladies, watchmen, office employees, factory clerks, department clerks, truck drivers, tech- nically-trained laboratory employees, and all managerial and super- visory employees above the rank of foreman and forelady, at all times material herein constituted and that they now constitute a unit appropriate for the purposes of collective bargaining and that such unit insures to employees of the respondent the full benefit of their right to self-organization and collective bargaining and otherwise effectuates the policies of the Act. 2. The Union's majority in the appropriate unit Efforts to organize the respondent's employees commenced in January 1939 and the Union received its charter on February 11. During February and March the respondent had approximately 195 production and maintenance employees and the evidence establishes beyond doubt that on and prior to March 29 the Union represented a large majority of the employees.' Furthermore, the respondent does not question this fact. We find that on March 29, 1939, and at all times thereafter until July 22, 1939,7 the Union was the duly designated representative of a majority of the employees in an appropriate unit, and pursuant to Section 9 (a) of the Act, was the exclusive representative of all the employees in such unit for the purposes of collective bargaining with the respondent in respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. Events prior to March 29 Pursuant to the Union's request for a conference, representatives of the Union and the respondent met on February 9 regarding the alleged discharge of about six women employees. It developed at the confer- ence that the employees in question had merely been laid off and had already been recalled to work. During the conference William C. 6 There are in evidence 183 original union application cards, only 3 of which were dated after March 29. Of these cards 115 were signed in the proper place and 15 were otherwise signed. The 50 cards remaining were either undated, the dates were uncertain, or the signatures were in printed form. These defects were cured in 27 instances by testimony of the applicants. The Trial Examiner compared the signatures on the 115 properly signed applications with identification signatures produced by the respondent and found that, together with the testimony of 36 applicant§ who appeared as witnesses, the comparison established that on or before March 29 "a large majority" of the respondent's production and maintenance employees had designated the Union to represent them. We agree with this determination. This conclusion is further supported by the fact that on March 31 approximately 182 employees went out on strike in support of the Union. I See Section VIII, infra. 1360 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pommerer, representing the Union,' advised Israel Katz, manager of the plant, that the Union represented a majority of the employees in the plant and would soon request a conference on wages and conditions of employment. Katz replied that he would meet with the union representatives whenever they were ready for a conference. On February 27 Pommerer sent a letter to the respondent advising that the Union represented a majority of the respondent's production and maintenance employees and requesting a conference for the pur- pose of negotiating a collective agreement.' Katz was absent from Camden upon the receipt of this letter, but upon his return a conference was arranged for March 8. At the March 8 conference the Union submitted its proposed agree- ment to the respondent. It was incomplete, however, in that Schedule A thereof, covering wages and work classifications, was not then sub- mitted.10 The Union's proposal was read and discussed generally, but adjournment was taken to enable the respondent to give it more careful consideration." 4. The respondent's refusal on March 29 to:embody in writing any agreement reached or to be reached with the Union The next conference was arranged for March 29. At this conference, lasting several hours, each paragraph of the Union's proposed agree- ment was discussed at great length.12 At the close of the conference the following major issues remained between the parties and upon which they were adamant in their respective positions: (1) The Union sought and the respondent resisted a provision for a union shop; (2) The Union sought a wage increase which the respondent refused because of its financial condition; and (3) The Union sought to have the respondent agree to reduce to writing any agreement reached by the parties. This the respondent refused to do. Pommerer and other witnesses testified that Katz asserted, although stating that the respondent did not question the Union's majority, that it was contrary to the respondent's policy to sign a written agree= F8 Pommerer , an organizer for the South Jersey Industrial Union Council, is not employed by the respond, ent. - Y Previously the Union had named a negotiating committee composed of lS members and officers of the Union. Pommerer and other Board witnesses testified that this committee did not have authority to enter into a final agreement with the respondent, but that approval by the union membership was necessary to any tentative agreement reached between the respondent and•the committee. 00 This was submitted to the respondent on April 5. 11 Prior to the next conference on March 29 Katz discussed the Union's proposal with his assistants and also, while in Chicago on other business, with the respondent's legal department and certain of its Chicago execu- tives. 12 The position of the parties upon each paragraph of the proposal is discussed in Section III A 7,rinfra. WILSON & CO., INC. 1361 ment with a union, and that the Union could rely on any oral agreement made by him. Katz and other witnesses for the respondent denied that the matter of a written agreement was discussed. In resolving this conflict, the Trial Examiner was not favorably impressed with the. denials of Katz and other witnesses for the respondent, and found that the aforesaid testimony of Pommerer, as corroborated by other Board witnesses, was entitled to "full faith and credit." We have reviewed the evidence and accept this finding of the Trial Examiner. We find that on March 29 Katz in effect stated to the union representatives that if an agreement was reached the respondent would not embody it in the form of a written contract. As noted below, however, the respondent subsequently withdrew from this position and expressed a willingness to embody any substantive agreement in a signed contract. The March 29 conference adjourned to enable the union committee to'report to a union meeting concerning the negotiations. The par- ties also agreed that they would resume their negotiations upon request from the Union. 5. The union meeting on March 30 Approximately 150 employees attended a meeting of the Union on the evening of March 30. After a detailed report by Pommerer on the negotiations with the respondent, the meeting voted to call a strike. This action was shortly thereafter rescinded, however, and a resolution was adopted providing in substance that (1) the respond- ent's position that it would not sign a written agreement was unac- ceptable to the Union, (2) Katz's answer on the provisions of the proposed contract was rejected, (3) the negotiating committee was instructed to notify Katz that the Union would not accept "evasive answers," (4) a demand should be made upon Katz to inform the union committee on March 31 as to whether his attitude was final or whether he intended to bargain honestly, and (5) that Katz's answer should be reported to a special meeting of the Union on Saturday, April 1, at 2 p. in., so that the membership could decide what further action would be necessary. This resolution was telephoned to Katz at about midnight on March 30 and at that time Katz agreed to meet with the union com- mittee at 4:30 p. m. on March 31. A copy of the resolution was delivered to him the following morning. In addition to the above resolution, the union meeting adopted a resolution empowering the negotiating committee to take appropriate action should an emergency situation arise during the interim. 6. The strike on March 31 Several Board witnesses testified that from the time they went to work on Friday, March 31,.there were unusual activities by foremen 1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the ware room to speed tip shipments, that an unusual number of employees were transferred from other departments to assist in such shipping activities, that unusual shipping facilities were employed, and that shipping dates on certain orders were advanced as much as a month. These alleged unusual activities were reported at noon by John K. Miller, a ware-room employee, to a group of employees who customarily gathered in the clock room of the plant to eat their lunch. A majority of the negotiating committee was present on this occasion. The alleged unusual conditions were discussed and the committee concluded that the respondent was about to "ship out" its ware room and lock the employees out, and that a strike would be necessary if such conditions continued after lunch. This decision was telephoned to Pommerer, who advised the committee not to call a strike, but to refrain from working on extra shipments. Never- theless, a strike was called at about 1:15 p. m. and all but about 13 production and maintenance employees went out on strike at that time. . At the hearing the Union took the position that the strike was caused (1) by the respondent's refusal on March 29 to agree to reduce to writing the terms of a contract agreed upon or to be agreed upon and (2) by the unusual shipping activities on the morning of March 31. The record shows that during. a conference between the Union and the respondent on June 5, 1939, a conciliator of the United States Department of Labor inquired of Pommerer as to the cause of the strike. Pommerer replied that the strike had been caused by the re- spondent's abnormal shipping activities. The conciliator then inquired whether the strike had been caused by the respondent's "refusal to sign something" and Pommerer replied that it had not been. The testi- mony of Board witnesses on cross-examination and the testimony and documentary evidence adduced by the respondent establish that there was no factual basis for the Union's conclusions concerning the respondent's activities and intentions on March 31.13 Furthermore, no complaint was made to the respondent concerning these alleged activities prior to calling the strike. We conclude that the-evidence does not support the allegation of the complaint that the strike was 13 On March 31 the respondent had on hand 2,706,619 pounds of finished products. Its bi-monthly in- ventory of finished products on hand during the year preceding March 31, shows that the inventory on that date was above the average for the period . The tonnage shipped on March 31 was 116,880 pounds; on March 30, 164,000 pounds ; and the peak shipment for March was 205 , 598 pounds on March 6 . It con- clusively appears from the records in evidence that there was nothing unusual about the respondent's shipments on March 31 or during March , as compared with the preceding 11 months. The respondent shipped out 48 orders on March 31 , 98 on March 30, 102 on March 29, and 128 on March 1, the peak for the month. It further appears that approximately 95 per cent of the orders filled by the respond- ent do not have definite shipping dates and that the shipping dates were advanced on but 3 orders shipped March 31 . In that respect the day was fairly typical of conditions over the preceding year. The respondent 's records also show that there was nothing unusual about the transfers of personnel to the ware room from other departments on March 31 or during the preceding week. Such transfers are frequent and involve a large number of employees. WILSON & CO., INC. 1363 caused by unfair labor practices committed by the respondent, but on the contrary, was caused by the Union's erroneous conclusion that the respondent was about to lock the employees out. We find, therefore, that the strike was not in its inception an unfair labor practice strike. 7. The conferences from March 31 to April 17 Katz was away from the plant. at the time the strike was called, but returned upon being notified of what had happened. He immedi- ately informed the union leaders that he desired a conference as soon as possible and the time of the conference previously arranged for 4:30 was advanced to about 3:00 o'clock. During this conference the union representative cited the respondent's refusal to enter into a written agreement, the alleged unusual shipping activities, and. the respondent's refusal to grant a wage increase as being causes of the strike. Katz and other witnesses for the respondent denied that the matter of a written contract was discussed. The respondent coun- tered with the charge that the Union had acted in bad faith in calling a strike with a collective bargaining conference scheduled for 4:30 p. in. that afternoon. At this time the Union also requested that the respondent give it a written recognition. clause coupled with an undertaking by the respondent to enter into a final agreement within 10 days. Katz inquired whether the employees would be willing to return to work the following Monday (April 3) if he granted this request, and the union representatives replied that the matter would have to be determined by the membership. Katz then declined to grant the Union's request, stating that there was no need for a separate recognition clause since the respondent had previously accorded the Union recognition as representative of its employees and was bargaining with it as such. Following this conference, Katz telephoned James D. Cooney, vice president of the respondent, in Chicago. Cooney testified concerning this conversation as follows: . I told him [Katz] to tell them there isn't any occasion for their statement of recognition; that we have not questioned their right to be recognized, but we.cannot make any commitment to enter into a contract until we know what the contract is. If we can agree on a contract, there is no reason why it won't be signed, and if we agree on a contract, it will be signed; and there could be no commitment that he was to make a contract in ten days. Despite these instructions, Katz did not at the conference on April 1 offer to reduce to writing any matters agreed upon or to be agreed upon by the parties. As in regard to the conferences on March 29 1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and 31, there is a conflict in testimony as to whether Katz; on April, 1, refused to enter into a written contract. The Trial Examiner found that the testimony of Katz and other witnesses for the respondent on this question was unworthy of belief. Having reviewed the evidence, we accept this finding and conclude that on March 31 and April 1, as well as on March 29, Katz stated that the respondent would not reduce to writing any contract agreed upon or to be agreed upon by the parties. On April 4 the parties held a conference at the Board's Regional Office. Cooney, representing the respondent, at this time definitely agreed to reduce to writing any completed agreement reached by the parties. It appears that this matter ceased to be an issue in subsequent negotiations and that the strike subsequent to April 4 was not prolonged by any previous unfair. labor practices of the re- spondent. Under these circumstances, we do not regard the respond- ent's temporary refusal to agree to reduce to writing any agreement between the parties to constitute a refusal to bargain collectively within the meaning of the Act. At the April 4 conference the Union again requested that the respondent give it a written recognition clause 14 (apparently not coupled with an undertaking to reach a final agreement within a stated period), but the respondent refused this request on the grounds previously stated. This request was subsequently renewed on various occasions , but refused in each instance by the respondent. The re- spondent in fact had recognized the Union, and was dealing with it at the time. It was under no obligation to. give to the Union a written statement merely to the effect that it had recognized the Union. During the conferences from March 29 through April 11, 1.5 the parties discussed in great detail the Union's proposals 11 and the respondent's counter-proposals.17 The following is a summary of the,position of the parties on each section of these proposals: : Section 1 of the Union's proposal was ii preamble declaring the mutual desire of the parties to establish satisfactory hours of work, rates of pay, and the like. The respondent accepted this section. Section 2 of the Union's proposal defined the appropriate unit as including all employees except salaried foremen, watchmen, and main office employees. The respondent's counter-proposal accepted the exclusions made by this section, but described in greater detail the excluded employees and, in addition, excluded department clerks. Section 3 of the Union's proposal provided for its recognition as exclusive representative of all employees in the unit. The respondent's 1+ The Union representatives urged, in support of this request , that such recognition would take away from union members the fear that the respondent would not ultimately sign an agreement, and they might be persuaded to discontinue the strike after the respondent had demonstrated its good faith. 13 These conferences were held on March 29 and 31, and April 1, 4, 5,'7, 3, and 11 (2 conferences).. 16 The Union 's proposals were not complete until April 5 when .the wage schedule , a check-off provision, and a provision for the term of the proposed agreement were submitted. 17 The respondent 's counter-proposals were submitted on April 7. WILSON & CO., INC. 1365 counter-proposal accepted the section but added, in substance, the proviso of Section 9 (a) of the Act that individual employees or groups of employees should have the right at any time to present grievances to the respondent. Section 4 of the Union's proposal provided for a union shop and check-off of union dues. The respondent rejected these provisions. Section 5 of the Union's proposal provided that during slack periods there should be no lay-offs until after work for all employees had been reduced to 32 hours per week, and that in laying off and rehiring em- ployees seniority should be observed, except that consideration might be given in rehiring "to ability to perform the work to be done." The respondent rejected the plan for reducing the number of hours to be worked during slack periods as being impracticable in its business,7e but accepted the qualified seniority provision as applicable to both lay-offs and rehirings. In its counter-proposals, the respondent provided that seniority by departments should be applicable in both lay-offs and rehirings when skill, fitness, and the like, were substantially equal, and that a break of 60 continuous days in employment should result in a loss of seniority. Except as to the provision concerning loss of seniority the counter-proposal was agreeable to the Union. Section 6 -of the Union's proposal provided for 1 week's notice of lay-off or, in lieu thereof, pay for 20 hours' work. This proposal was rejected by the respondent, but in its counter-proposal the respondent agreed to give such "reasonable" notice of lay-off as might be possible under the flexible conditions of its business. Section 7 of the Union's, proposal provided that there should be no discharges except for good and substantial cause. The respondent rejected this proposal, stating that discharges would always be matters for grievance. Section 8 of the Union's proposal provided that sanitary conditions in the plant should meet the standards published by the New Jersey and the United States Governments. The respondent's counter- proposal was substantially the same. as the Union's proposal. In addition, the respondent stated that any alleged unsanitary conditions would be matters for grievance. Section 9 of the Union's proposal provided for vacations pay for legal holidays, double time pay for work on Sundays and legal holi- days, and time and one-half pay for any work over 40 hours per week, 8 hours per day, Monday to Friday, inclusive. In its counter-pro- posal the respondent provided that its policy would be to operate its plant 40 hours per week, 8 hours per day, Monday to Friday, in- 19 It appears that the respondent manufactures a large number of private brands of soap on orders from its customers . These orders frequently come in without advance notice, and it becomes necessary to fill them as early as possible. Under these circumstances, the respondent has difficulty in planning production schedules for a substantial period in advance. 323429-42-87 1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD elusive," obligating itself only to pay time and one-half for work over 44 .hours in 1 week, as then required by the Fair Labor Standards Act. It agreed, however, to pay double pay to shift employees working on Sundays and holidays and to grant 1 week's vacation to employees with at least 2 years' seniority, a break in employment for 60 continuous days to constitute a break in seniority. The respondent also orally agreed on April 7 to pay time and one-half overtime for work over 10 hours in 1 day. The Union objected to the 60-day provision, par- ticularly with regard to night-shift employees who were sometimes laid off for more than 60 days. The respondent then agreed to exempt night-shift employees from the 60-day provision.`e Section 10 of the Union's proposal provided that piece workers should be guaranteed the basic hourly rate for a single day, without regard to excess earnings on other days. This was accepted by the respondent. Section 11 of the Union's proposal established a grievance procedure involving several alternative procedures. The respondent rejected the Union's provision, stating that it was too complicated, but in its counter-proposal provided that the Union should designate a com- mittee and the respondent a representative who would discuss any matter raised by either party. In order to satisfy an objection raised by the Union, the respondent orally agreed to give the Union an answer within 3 days on a grievance. Section 12 of the Union's proposal 11 provided for a wage increase. This demand was rejected throughout the negotiations by the re- spondent on the ground of its weak financial position. The respondent explained that the Camden plant had lost money for the past 2 or 3 years and that its entire system during the preceding fiscal year had, on a quarter of a billion dollars worth of sales, earned a net profit of only $19,000.22 It stated, however, that it had been earning a' profit during the first 3 or 4 months of the current fiscal year, that it might be in a position to grant a wage increase by the end of the year, and suggested that the matter be left to future collective bargaining. The Union rejected this proposal23 and remained adamant in its demand for a substantial wage increase until about the end of June. 19 This had been its previous policy. 20 In line with its contentions made in connection with its rejection of the Union's demand for a wage increase , as stated below, the respondent stated that it was not able financially to increase its pay -roll costs but thought that it should at least grant the Union 's demand for a vacation. 21 Submitted for the first time on April 5. 22 Pommerer agreed that this was an accurate summary of the respondent 's financial statement for the preceding fiscal year , but requested that the respondent submit its books to an independent audit. This request was refused . Previously , on March 29 , Katz had offered to show Pommerer the respondent's books , but Pommerer refused this offer , asking which "set of books" the Union would be shown. 23 Pommerer testified that on April 11 the Union was still contending that the department clerks should be included in the unit and that its union shop and check -off provisions be accepted , but announced at'that time that if wage increases were granted there would be no insurmountable difficulties on the rest of the agreement. WILSON & CO., INC. 1367 Section 13 of the Union's proposal provided that an employee called to work should be guaranteed at least 4 hours' work or pay for that period. This was accepted by the respondent. Section 14 one of the respondent's counter-proposals, provided that violation of the agreement by either party would constitute irreparable damage and entitle the aggrieved party to injunctive relief. This proposal was rejected by the Union. At the conference on April 12 Maury Hopkins, representing the respondent, stated that the Union was engaging in mass picketing and had prevented, allegedly by assaults and intimidation, supervisory, sales, and clerical employees from entering the plant, and that, unless these actions were discontinued, it would be difficult to continue the negotiations. The union representatives disclaimed any knowledge of the matter referred to by Hopkins, but assured him that they would do what they could to stop alleged violence by union members. Throughout the conference there was no change in the attitude of the parties on the wage increase. Hopkins testified, without contradic- tion, that George Stafford, a union representative, stated, "We have reached a deadlock on the wage question. I hate to say it because up to now we have had very peaceful picketing conditions as to what we are going to have in the future. The Union has been very nice up to now, but unless we get a wage increase and stop this thing it is going to develop into a dog-eat-dog situation." Hopkins replied that the respondent could not grant a wage increase at least until after the plant went into production and, according to the uncontradicted testimony of Stephen Domaco, president of the Union, ". . . the company could play the game clean or it could play it dirty, but no matter how it was played he was going to see that the plant ran." Upon opening the conference on April 13, Hopkins stated that, despite the assurances of the union representatives, violence on the picket line was increasing, that during the previous night paint and acid had been thrown into the homes of. two employees, that various employees had been compelled to remain in the plant over night and others had been assaulted when they tried to go through the picket line, and that if this situation continued, "coupled with the fact that there was apparently a deadlock, apparently on the wage issue, I didn't think that further negotiations of the issues at that time would result in the settlement of the strike; that the company was perfectly willing, if the union could stop its violence, to sit down and resume negotiations at any time, with the view of settling the issues and ending the strike." After this conference, which lasted but a few minutes, Pommerer issued a release to the press concerning the break-down of negotia- tions. This release, consisting mainly of a denial that there had been 1368 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD any violence by the pickets, stated, inter alia, that the. Union "regrets to announce that an apparent impasse has been reached in negotiations with the company looking towards settlement" and "until yesterday [April 13] the negotiations had been conducted in a friendly atmos- phere although the company refused to consider any wage increases whatsoever, claiming that it never makes any profit." The April 17 conference was arranged by Conciliator Gaffney of the United States Department of Labor. After the parties reviewed the prior negotiations, Gaffney suggested that he ' confer with them separately and held,. on that occasion, separate conferences with the representatives of each party. During these conferences, the Union stated that a substantial wage increase was essential to the settlement of the strike and the respondent continued in its refusal thereof. After Gaffney returned from, his second conference with the 'Union for another conference with the respondent, the union representatives left the premises. The parties did not thereafter resume their negotia- tions until May 17. On the basis of all the evidence, we conclude that on April 17 the major issue between the Union and the respondent was whether the Union's demand for a substantial wage increase would be granted, and that the negotiations terminated on that date with the parties in a definite deadlock on that issue. 8. The respondent's letter of April 24 to striking employees On April 24, the respondent sent a letter to its employees,24 includ- ing those out on strike, which reviewed the course of the negotiations up to that time, and which went on to state: (1) that the strike involved financial loss to both the respondent and the employees and the respondent was anxious that its employees return to work; (2) that the employees knew that the respondent would pay wages as high as returns from the business would justify.and they must realize that the plant could not remain shut down any longer without serious injury to the business; and (3) that, commencing April 26, the respond- ent would resume operations and employees who did not then report to work, or furnish a reason for not doing so other than the strike, would be assumed to have resigned, their names taken off the pay roll, and other employees would be permanently engaged to perform their duties. The issuance of this letter raises the question of whether it amounted to a withdrawal of the respondent's previous recognition of the Union and a clear indication that thereafter the respondent would '4 Hopkins testified that this letter was sent to all employees who worked during the week ending April 1. On°the date of the letter, work was being done at the plant by supervisory, office, and sales employees, and the approximately 13 production and maintenance employees who did not go out on strike. WILSON .& CO., INC. 1369 deal with the employees directly instead of through the Union. We conclude that the letter, when considered in the light of all the facts, did not have this effect. The letter was not responsible for any pro- longation of the strike. Clearly an impasse existed between the respondent and the Union on April 17. Between April 17 (when the union representatives left a conference with the respondent after stating that a substantial wage increase would be essential to the settlement of the strike) and April 24 no request was made by.the Union for a conference and it is clear that the respondent promptly granted the Union's first request made thereafter for a conference. The respondent at. the time of the hearing had not made good its threat to treat all employees who failed to return to work on April 26 as having resigned from their positions. On these facts, we cannot find that the letter of April 24, standing alone, constituted a refusal to bargain collectively with the Union or prolonged. the strike.25 It is true, however, that the letter impliedly threatened the strikers with discharge in case of their failure to return to work. While the respondent was doubtless entitled, in the absence of unfair labor practices, to hire new employees to replace strikers, the letter of April 24 went further than merely stating to the employees that this was what the respondent intended to do. Instead, the respondent chose to inform the employees that unless they returned by April 26 the respondent would treat all of them as though they were no longer employees. This the respondent was not entitled to do. Under all of the circumstances it is clear that by circulating the letter to all'of the employees the respondent sought to influence them to abandon the Union and return to work. Thereby the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act and violated Section 8 (1) thereof.26 9. Violence during the strike The Union commenced to picket the plant soon after the inception of the strike and at times used 100. or more pickets. Mass picketing was conducted principally when supervisory, sales, office, clerical ; and hourly paid employees sought to enter or leave the plant, and on several occasions such employees apparently were prevented by the pickets from entering or leaving the plant. On other occasions, certain employees who attempted to enter or leave the plant with 25 The Union in its brief cites Matter of Lone Star Gas Company and Gas Fitters Auxiliary to Local Union 146, United Association of Journeymen Plumbers and Steam Fitters and Gas Fitters , et at., 18 N. L. R. B. 420, in support of its contention that the April 24 letter constituted a refusal to bargain collectively . In that case, we held that striking employees discharged pursuant to an ultimatum contained in a similar letter had been discriminated against in violation of Section 8 (3) of the Act. In the instant case, the letter under all the circumstances did not amount to a refusal to bargain collectively and it is clear that no effort was made to discharge all striking employees who did not return to work on April 26. The letter of April 24 therefore , is properly to be regarded as a mere threat, and not as an actual discharge. 26 See Section III C, infra. 1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their automobiles were harassed and the windshields and 'windows of the automobiles were smashed. It also appears that the homes of several non-striking employees were damaged by rocks, paint, and acid thrown through windows and doors during two nights,. about April 12 and 25. On the morning of May 5 a group of about 15 new employees tele- phoned the plant for assistance in getting to work. Hopkins and two plant executives responded to the call and left the plant to escort the employees to the plant. Thomas W. Saul, a union organizer, testi- fied that when Hopkins left the plant on that occasion he remarked; "I am going to clean this line out of here today. Hopkins, Katz, and Mackert denied that Hopkins. made the remark. The Trial Ex- aminer accepted as true Hopkins' testimony on this matter and, after reviewing the entire record, we find that Hopkins did not make the remark attributed to him by Saul. Several witnesses for the respond- ent testified that as Hopkins and his associates approached the plant with the new employees they were attacked by the pickets with bricks, stones, and milk bottles, and that Hopkins, while seeking sanctuary with Katz and Mackert in the nearby R. C. A. plant, was struck on the head with a heavy object, incurring a scalp wound which required hospital treatment. Several Board witnesses testified that Hopkins and those with him were the aggressors in this affray.. The Trial Examiner found that Paul G. Potlunas, the chief witness giving the Union's version of this incident, was "thoroughly discredited," and that "careful observation of the witnesses,, and consideration of their respective testimony, impels the finding that the striking employees on the occasion in question made an unprovoked attack on Hopkins and those accompanying him." We accept the Trial Examiner's resolution of this conflict in testimony, after reviewing the entire record, and find accordingly. On April 19 an ex parte Order to Show Cause issued out of a local' New Jersey court, on the basis of the respondent's bill of complaint and supporting affidavits. This was followed by a permanent in- junction after hearing on May 1, which enjoined the, officers, mem- bers, organizers, and agents of the Union from (1) interfering with the respondent's use and occupancy of its plant, except as incident to lawful picketing; (2) picketing so as to interfere with ingress and egress from plant by the respondent, its employees and invitees; and (3) intimidating employees who desired to work for the respondent; and limited the number of pickets to 12 at one time. On May 29 approximately nine striking employees were adjudged in contempt of the injunction and sentences or fines were imposed, which were pending on appeal at the time of the bearing herein. On June 12 other contempt charges were filed, but had not been heard at the time of the hearing. In addition to the above, nine striking em- WILSON & CO., INC. 1371 -ployees were indicted on various occasions after June_ 1, 1940, in the Court of Oyer and Terminer of Camden County.27 10. The conferences from May 17 through July 6 28 Pursuant to a telegram sent on May 16 by the Union to the respond- ent, negotiations were resumed at a conference on May 17.29 At this conference, the principal issues 30 between the parties were (1) a union shop, (2) a wage increase , and (3) whether all striking employees would be returned to work.31 The Union took the position that all striking employees should be returned to work and that its other major demands be granted, as conditions to the termination of the strike. The respondent persisted in its refusal to grant a wage in- crease, for the reasons stated above, or to accept a union shop. With regard to returning the striking employees to work, Hopkins stated on May 17 that the "only settlement" the respondent "would con- sider" was that if the Union would terminate the strike, the company would take back the striking employees as soon as possible and as the business permitted; that we would endeavor, as time went on, to take back all the striking employees, if business permitted, except that we would not obligate ourselves to take back those who had engaged in unlawful or violent conduct; that each of those cases would have to be considered, and we did not know whether we could take them back or not. It would be determined by our investigation of each case. We wanted a determination of whether they would be taken back left to the company.32 .During the succeeding conferences up to June 26, the position of the parties remained substantially unchanged with respect to the major 27 The following employees were indicted : Earl Foster, for atrocious assault and battery on May 4, 1939; Daniel Martin, for malicious mischief on April 26 , 1939, and for atrocious assault and battery on the same day; John Senek, for malicious mischief on June 10 , 1939 ; Stephen Domako (Domaco), for atrocious assault and battery on July 10, 1939, for malicious mischief on the same day , for atrocious assault and battery on June 11, 1939 , and for atrocious assault and battery on June 27, 1939; John Spavlick, for atrocious assault and battery on July 10, 1939; Stewart Hicks, for atrocious assault and battery on July 10 , 1939 , and for malicious mischief on May 27, 1939 ; Edward Connors , Alfred Hudnell, and Joseph M. Welsh, for malicious mischief on May 30, 1939. The docket of the Camden County Court shows that all of the foregoing defend- ants pleaded not guilty to the charges against them with the exception of Daniel Martin , who pleaded non vult to the charge that be had engaged in malicious mischief . Martin was sentenced to serve 30 days on 15 consecutive weekends . With this exception , all of the defendants were acquitted , or the proceedings against them were nolle pressed . We take judicial notice of the records of the Camden County court. See Matter of Eagle Picher Mining & Smelting Company, etc ., 16 N. L . R. B., No . 71, at p . 83; Matter of Re- public Steel Corporation etc., 9 N . L. R. B. 219, 389. 28 These conferences were on May 17, 22, 25, and 29; June 1, 5 , 9, 12, 16, 19, 21 , 22, 23, 26 , 28, and 30; and July 3, 5, and 6. 20 No other request for a conference had been made by the Union subsequent to April 17. 30 The Union also insisted on the inclusion of the department clerks in the appropriate unit and on June 22 made an additional demand for an arbitration provision in the contract and renewed its former demand for time and one-half overtime pay for work over 40-hours per week and 8 -hours per day. 31 By May 20 the respondent had hired a net total of 60 new employees and 5 striking employees bad returned to work. 32 Underscoring added. 1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issues between them, except that on May 29 the Union modified its union shop demand 33 and by June 21 had abandoned the demand altogether. On June 5 Conciliator Liller34 suggested that the .respondent take back all striking employees with the right subsequently to discharge any employee found guilty in criminal court. This and like sugges- tions subsequently made by the Conciliator and by Mayor Brunner of Camden were rejected by the respondent on the ground that it could not delegate to anyone the determination of the fitness of its employees. The respondent also on various occasions declined to arbitrate this issue for the same alleged reason. The Union did not accept the Conciliator's proposal, as he also proposed that the respond- ent should have the right to retain new employees hired during the strike and no obligation was placed on the respondent to grant a wage increase. On June 9 the respondent offered to recall 135 striking employees 35 to work as soon as possible and within 30 days after the termination of the strike, on the condition (1) that the order of rehir- ing should be determined solely by the respondent, (2) that the re- spondent would not be obligated to return to work those who had 'committed unlawful, violent, or criminal acts during the strike," the determination of the facts in this regard to be made solely by the respondent, and (3) that the Union agree that the respondent's failure to reinstate any employee found by the respondent to have engaged in such unlawful, violent, or criminal conduct should not be made the basis of any charges of unfair labor practices within the meaning of the Act. On June 12 Conciliator Liller suggested that the respondent reinstate all strikers, and then discharge any of them who might be found guilty of overt acts of violence by a court. This suggestion subsequently was made by the Union also, on several occasions. The respondent would not agree to it, however. At the conference on June 22 the Union submitted its second pro- posed agreement which, while conforming in most respects with the tentative understandings previously reached between the parties, included provisions for a wage increase, time and one-half overtime pay for work over 40 hours per week and 8 hours per day,37 and arbi- tration of disputes, which provisions had previously been rejected by the respondent. The respondent again indicated that it would 33 The Union proposed that the respondent require all members of the Union to retain their membership as a condition of employment . The respondent rejected this proposal for the same reasons that it had pre- viously rejected the union-shop proposal. 34 Conciliator Liller of the United States Department of Labor entered the negotiations on June 5 and participated in several subsequent conferences. 35 At that time the respondent had hired 117 new employees and 10 striking employees had returned to work. 36 The respondent did not at any time name the striking employees allegedly guilty of such conduct, but on June 19 Hopkins stated that there were approximately 27 persons in this class. 37 The Union dropped this request on June 26. WILSON & CO., INC. 1373 not accept these provisions and an ensuing conference on June 26 ended in a stalemate on the matter of returning the striking employees to work, and with the Union still seeking a wage increase. On June 28 the respondent proposed that the strike be settled as follows: (1) reinstatement of 135 striking employees under the same rates of pay and conditions of employment existing on March 31, the reinstatement of the remaining striking employees to be determined as previously proposed by the respondent; (2) retention by the respond- ent of employees hired since March 31; . and. (3) agreement by the Union to the withdrawal or dismissal of "pending Labor Relations Board complaint or any that may be filed", with the Board, with a statement that the strike was not caused by any unfair labor practices on the respondent's part and that the strike was an "attempt of the .Union through economic pressure to obtain, better working condi- tions." On June 30 Mayor Brunner suggested that the parties sub- mit all matters in dispute to arbitration. The Union agreed to this, but it was rejected by the respondent. Pursuant to a later suggestion of Mayor Brunner, Hopkins and Albert P. Morowitz, counsel of the Union, met on July 3 to determine what solution they could work out on the basis of the respondent's proposal of June 28. At this confer- ence, it was tentatively agreed (1) to eliminate the provision that the employees should return to work "under the same conditions prevail- ing on March 31," substituting therefor a clause recognizing the Union and granting vacations with pay for 1940 and other provisions previously agreed upon, and (2) to provide that the striking employees should.be returned to work "without discrimination." The respond- ent continued firm in its position that.it should have a free hand to deny reinstatement to any striking employees whom it deemed guilty of unlawful, violent, or criminal acts and that its determination on such matters should be final. On the morning of July 5, moreover, Hopkins stated to Morowitz that he did not think that the respondent could "make any changes at all" from its "proposition of June 28th." On July 5 Mayor Brunner suggested that the respondent consent to arbitrate the dispute as to which employees should be excluded from employment on the ground of unlawful conduct. The respondent rejected this suggestion, as it had previously done. On the same day Brunner also proposed that he, alone, should sit with a representative of the respondent when the determination of which striking employees should not be reinstated was made. This proposal was rejected by the respondent at the final conference between the parties on July 6 No further negotiations were had since the Union was unwilling to accord to the respondent absolute freedom of action in denying rein- statement to those employees whom the respondent should assert it, deemed guilty of unlawful conduct. . 1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although the Union did not at any time expressly withdraw its demand for a substantial wage increase, this matter was not discussed by the parties after June 26, and the clear inference to be drawn from all the evidence is that a settlement could have been effected on and after July 3 38 had the respondent been willing to modify its demand for complete freedom of action in denying reinstatement to those employees whom it should assert it deemed guilty of unlawful conduct. As appears above the respondent bargained collectively with the Union during the 2 weeks preceding April 17 and at all times was willing to reduce to writing any final agreement reached. Qn May 17 the respondent promptly consented to the resumption of negotiations upon the Union's request and thereafter bargained with the Union on numerous occasions, consenting to the incorporation in a written contract of the terms previously agreed upon, but maintaining its refusal to grant wage increases or accept a union shop. The respond- ent continued to meet and negotiate with union representatives until July 6. Under these circumstances, we agree with the conclusion of the Trial Examiner that the respondent did not fail or refuse to bargain collectively with the Union. Although as found in Section III B, infra, the respondent was not justified under the Act in its position with regard to the reinstatement of striking employees, we do not deem this, standing alone, to amount to a refusal to bargain col- lectively. We accordingly find, upon a review of the entire record, that at all times subsequent to April 4 the respondent bargained collectively with the Union and that the amended complaint, in so far as it alleges unfair labor practices in violation of Section 8 (5) of the Act, should be dismissed. B. The refusal to reinstate striking employees The amended complaint alleged that on and after July 22, 1939, the date of the Union's termination of the strike and its request for the reinstatement of all striking employees, the respondent refused to reinstate such employees because of their membership in and activities on behalf of the Union. On about July 22 the Union notified the respondent of the adoption of a resolution terminating the strike and requesting the reinstatement of all striking employees to the positions held by them on March 31. Subsequently, more than 100 such employees applied for reinstate- 39 At the July 3 meeting between Hopkins and Morowitz , the latter suggested that the parties consider everything which had taken place in the negotiations prior to June 28 as "null and void ." Morowitz further suggested that the parties start afresh on the basis of the proposition advanced by the respondent on June 28. While it may be true , as Hopkins testified, that the Union never expressly withdrew its demand for a wage increase we do not accept this testimony as establishing that the matter of a wage increase was still an issue between the parties on or after July 3. Hopkins ' notes as to tbat meeting contained no reference to discussion of the wage increase. . WILSON & CO., INC. 1375 ment.: On July 22 there were 220 non-supervisory employees on the respondent's pay roll, including 188 employees hired during the strike and 19 striking employees who had returned to work prior to the termination of the strike. From July 22 to the time of the hearing, no new employees were hired, but 58 striking employees were returned to work, resulting in a net increase in the pay roll of approximately 32 employees.39 Under these circumstances, the striking employees whose places had been taken by new employees hired prior to the termination of the strike were not entitled to reinstatement on July 22, 1939, unless the respondent previously had committed unfair labor practices which had the effect of prolonging the strike.40 We are thus brought to a consideration of the respondent's refusal on and after June 9 to make any agreement as to the reinstatement of striking employees except upon the condition (1) that it be given the sole and final power of deciding whether any such employees had, by their "unlawful conduct" during the strike, rendered them- selves no longer "desirable" as employees, and (2) that the Union agree that the respondent's failure to reinstate any striking employee should not be made the basis of any charges of unfair labor practices within the meaning of the Act. Although the respondent did not admit that it sought to exercise this absolute power to determine which employees should be returned to work in order to discriminate against leading unionmembers,41 it was, nevertheless, in the position of demanding the privilege so to discriminate. 42 This was apparent to the union representatives, who on a number of occasions sought to have Hopkins identify the employees whom the respondent did not desire to reinstate. This Hopkins consistently refused to do, although he stated that he "knew the people who had been guilty .of unlawful conduct." 43 By June 30, however, it became apparent that the respondent reserved the right to exclude from further employ- ment any persons who (1) had been found in contempt for violation 39 At the time of the hearing the respondent had approximately 253 employees as against approximately 195 on March 31. A total of 77 striking employees had been returned to work during and after the strike, - leaving approximately 105 who had not been reinstated. 4° See Black Diamond Steamship Corporation v. National Labor Relations Board, 94 F. (2d ) 875 (C . C. A. 2), enforcing 3 N. L. R. B. 84, cert . den. 304 U. S. 579 ; Matter ofLone Star Gas Company and Gas Fitters Auxiliary to Local Union 146, United Association of Journeymen Plumbers and Steam Fitters and Gas Fitters et at., 18 N. L. R. B. 420 ; and Matter of Alaska Juneau Gold Mining Company and International Union of Mine, Mill and Smelter Workers , Local No. 208, 2 N . L. R. B. 125. +1 In view of the fact, set forth above, that the respondent on April 24 had threatened to treat all employees who remained on strike after April 26 as having "resigned" from the respondent 's employ , the union rep- resentatives were justified in assuming that the respondent would make improper use of an unrestricted power to select which employees should be returned to work. 12 An employer cannot use the fact that violence has been committed during a strike as a pretext for not reinstating employees where the real motive behind the refusal to reinstate is the union activities of such employees. See Matter of Kentucky Firebrick Company and United Brick and Clay Workers of America, Local Union No. 510, 3 N. L. R. B. 455, enf'd National Labor Relations Board v. Kentucky Firebrick Co., 99 F. (2d) 89 (C. C. A. 6). 43 It does not appear , however, that Hopkins indicated that he knew the names of all persons whom the respondent might regard as having engaged in "unlawful conduct." 1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the injunction issued by the New Jersey court, (2) were charged with contempt, (3) were charged with criminal acts, (4) had been found guilty of any criminal acts, (5) had "in any way, shape, or form . . intimidated the striking employees," (6) had intimidated "the office help" by calling out or making remarks to them., (7) had threat- ened a foreman, or (8) had, in the opinion of the respondent, been guilty' of "violent acts during the conduct of the strike." At the conferences on and after. June 19 it appeared that in Hopkins' opinion there were approximately 27 employees whom the respondent would not reinstate because they were guilty of unlawful conduct "that he knew of." He refused to name the employees whom he had in mind, however, and, as already noted, only nine employees were shown to have been indicted for unlawful conduct in connection with the strike. Hopkins' vagueness as to the identity of the strikers whom the respondent would not regard as "desirable" employees and his unwillingness to be specific as to the types of conduct which might bar strikers from reinstatement, indicate that the respondent intended to discriminate against leading union members.44 Under the circumstances the insistence of the respondent that it be given'a license to discriminate in the selection of employees to return to work could only be construed by the union representatives as it was in fact construed, namely, as a threat that outstanding union members would be improperly deprived of further employment on the asserted ground that the respondent believed that they were guilty of "unlawful conduct." It is clear also that the respondent fully understood the coercive nature of the position which it took.45 We find therefore, that the respondent's persistent demand for a free hand to discriminate against leading union members, without possibility of redress under the Act, was such that the Union could not reasonably have agreed to it, and that this fact was fully understood by the respondent. Accordingly we do not view the respondent's position as being merely an attempt to find some reasonable basis for 44 As noted above, only nine of the striking employees had been indicted , on various. criminal charges, at the time of the hearing. About May 22 and on various occasions thereafter, Hopkins had indicated that the respondent might exclude as many as 30 or 40 employees from further employment . The respondent contemplated conducting its own investigation to determine whether or not certain of the strikers "would make desirable employees ." Cf. Itatter of Republic Creosoting Company, Reilly Tar and Chemical Corporation and Creosote Workers Union, Local 20483 , 19 N. L . R. B. 267 , where the Board held that a refusal to rein- state employees because of a bona fide belief, not without reason , that such employees had engaged in unlawful acts , did not constitute unlawful discrimination . Since in that, case the issue of discrimination related to specific employees to whom the employer had denied reinstatement, it is to be distinguished from the instant case, where various circumstances , including the respondent 's refusal to indicate which employees it would exclude from employment , evince a lack of good faith on the respondent's part. 45 At one stage of the negotiations a union representative remarked to Hopkins that it seemed obvious that Hopkins was "after those members of the Union whom he deemed most active in the strike," WILSON. & CO., INC. 1377 settlement of the strike.41 The respondent's effort to obtain a license to discriminate in the selection. of strikers to be reinstated, was a sub- stantial factor in prolongation of the strike after July 3,47 and new employees were hired to fill positions to which the striking employees would have been reinstated had the strike terminated on July 3. We find that by seeking to obtain an exemption from the operation of the Act, in regard to the reinstatement of striking employees, the respond- ent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act 48 and thereby con- tributed to the prolongation of the'strike. Between July 3 and termination of the strike on July 22, the re- spondent hired additional new employees. To the extent that such new employees were retained, after the union requested the reinstate- ment of all striking employees on July 22, 1939, in places which such striking employees were capable of filling, the respondent discriminated with regard to the hire and tenure of employment of the striking em- ployees, within the meaning of Section 8 (3) of the Act,49 and inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 4' We reach this conclusion despite the fact that the respondent avowedly was willing to reinstate a mini- mum of 135 strikers. The circumstances fairly indicate that the respondent sought to discriminate against leading union members and would have done so had the Union been willing to agree that the rights of the individual employees under the Act would be waived . More important , however, is the fact that the respondent knowingly sought to obtain the power to violate the Act with impunity . That the respondent might have been willing to make some agreement with the Union as to the number of employees to be rein- stated does not detract from or alter the unlawful nature of its effort to obtain a free hand to discriminate against union leaders. Even had the Union acquiesced in the respondent 's demand , the resultant agree- ment to permit discrimination in the future , without possibility of redress under the Act, would , appear con- trary to the policy embodied in the Act. 47 As heretofore found, the Union persisted in its demand for a substantial wage increase until June 26 and we do not find that the strike might have terminated prior to that date had the resporident not insisted upon its unlawful condition precedent to the reinstatement of striking employees. 46 In a recent case an employer sought to refrain from bargaining collectively with a union which was the exclusive representative of its employees in an appropriate unit , unless and until the union would drop certain charges of discrimination against a union member which had been filed with the Board . The Board held that the employer , by seeking to attach a condition of this sort to the performance of his duty to bargain collectively , had engaged in an unfair labor practice . Matter of Hartsell Dills Company and Textile Workers' Organizing Committee , 18 N. L . R. B., 268 , enf'd, Hartsell Mills Company v. National Labor Relations Board, 111 F. (2d) 291 (C. C. A. 4). In the present case , the respondent was obligated not to discriminate against the strikers in returning them to work after they had abandoned the strike and was not entitled to qualify this obligation , under the circumstances,, by seeking to obtain an agreement from the Uniorf which would in effect give the respondent an exemption from the operation of the Act. 4' Cf . Matter of McKaig -Hatch, Inc . and Amalgamated Association of Iron, Steel , and Tin Workers of North America, Local No. 1139, 10 N. L. R. B . 33; Matter of Western Felt Works , a corporation and Textile Workers Organizing Committee , Western Felt Local , 10 N. L . R. B. 407; Matter of Black Diamond Steamship Corpora- tion and Marine Engineers Beneficial Association , Local No . 33, 3 N. L . R. B. 84 , enf'd, Black Diamond Stearn- ship Corporation v. National Labor Relations Board , 94 F. (2d ) 875, (C. C. A. 2), cert . den. 304 U . S. 579; Matter of Stewart Die Casting Corporation and United Automobile Workers of America , Local 298, 14 N. L. R. B. 872, enf'd as modified, Stewart Die Casting Corporation v. National Labor Relations Board , 114 F . (2d) 849 (C. C. A. 7). Counsel for the Union , in his brief, in effect contends that the respondent 's position with respect to reinstatement of the strikers was not only violative of Section 8 (3) of the Act, but also constituted a violation of Section 8 (5) in that the taking of such a position conclusively demonstrates that the respondent did not bargain in "good faith " at any time subsequent to May 17. Support for this view maybe found in the testis mony of a union representative that Hopkins on June 23 took the position that unless the problem of the return of the strikers to work was settled nothing relating to a collective bargaining agreement could be dis- cussed. In view of the nature and extent of the lengthy bargaining negotiations between the parties up to July 3, however , we do not feel that the respondent 's conduct should be interpreted in the manner urged by counsel for the Union . See Section III A 10, supra. 1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Other acts of interference, restraint , and coercion We have found in Section III A, above, that the respondent, by sending its letter of April 24 to the striking employees, interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On the evening of April 24 Hanse Gwin , a supervisory employee, visited the homes of Emory Daniels and Edwin Smith , employees who prior to the strike had worked under him, and presented them with the respondent's letter of April 24. Daniels testified that Gwin said to him on this occasion , ". . . if I were you I would forget about the union and come back to work . . . the union is not doing anything for you. You know you have responsibilities , and you should forget about the union and come back to work," and that Gwin then turned to Daniels' wife and urged her to insist upon his returning to work. Smith testified that Gwin said to him on this occasion that "It is going to be awfully tough for you, raising a young family, to stay out of work , and that Gwin requested Smith's wife to persuade him to return to work, "being times were bad and I was so young and married; it would be hard to get a job doing anything right now ." Gwin testified that he took the letter to Daniels and Smith, but denied that he made the aforesaid statements attributed to him. The Trial Examiner found that Gwin's "denials of portions of the testimony of Daniels and Smith were not convincing" and found that the aforesaid testimony of Daniels and Smith was entitled to credit . We accept the finding of the Trial Examiner, and upon a review of the entire record, find that Gwin on April 24 made the statements attributed to him by Daniels and Smith. When the strike was called on March 31 the Union agreed to permit six engineers • and firemen employed in the powerhouse to remain at work so as to maintain enough steam to protect against fire hazards. When the respondent resumed operations on April 26 these employees were called out on strike by the Union. At that time, Carl Nutter, chief engineer , informed Frank Keen, an engineer and member of the Union, that the engineers and firemen would lose their jobs if they joined the strike and "If I was you I would not go out because you have a family to keep , and you had better take care of them because there won 't be no union in this place." On the basis of the foregoing facts, we find that the respondent has interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent de- WILSON & CO, INC. 1379 scribed 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 commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act and to restore as nearly possible the conditions which existed prior to the commission of the unfair labor practices. We have found that the respondent engaged in an unfair labor practice by seeking to obtain from the Union an agreement as to the reinstatement of striking employees which would permit it to violate the Act with impunity. This unlawful action by the respondent was a factor in prolonging the strike from July 3 to July 22, during which time additional new employees were hired to fill jobs which, but for prolongation of the strike, would have been filled by returning strikers. Furthermore, in view of the position taken by the respondent in its letter to the employees dated April 24, 1939, that employees remaining on strike and not reporting for work on April 26, would be deemed to have resigned, there is an apparent danger that the respondent will not reemploy the former strikers even if their former or substantially equivalent positions become open. In order to effectuate the policies of the Act, we will order the respondent to reinstate or to place upon a preferential list for employ- ment as it arises b0 all former striking employees who have not been reemployed, who desire such reinstatement or placement on a prefer- ential list. The reinstatement or placement on a preferential list shall be accomplished in the following manner: All new employees hired by the respondent on or after July 3, 1939, shall be dismissed if necessary to provide employment for those to be offered reinstatement. If, after this is done, the respondent determines that the services of any of its former striking employees are not required, it may distribute employment among them, following a system of seniority or other procedure to such extent as has heretofore been applied in the conduct of the respondent's business, and without discrimination because of union activities. Those employees remaining after such distribution, for whom no employment is immediately available, shall be placed on a preferential list prepared in accordance with the principles set forth 50 Cf. Matter of Black Diamond Steamship Corporation and Marine Engineers Beneficial Association, Local No. 83, 3 N. L. R. B. 84, ent 'd, Black Diamond Steamship Corporation v. National Labor Relations Board, 94 F. (2d) 875 (C. C. A. 2), cert. den. 304 U. S. 579; Matter of Western Felt Works , a corporation and Textile Workers Organizing Committee , Western Felt Local, 10 N. L. R. B. 407, 448. See also Matter of American Numbering Machine Company and International Association of Machinists, District #15 , 10 N. L. R. B. 536, 562, and cases cited therein. 1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD above and shall thereafter, in accordance with such list, be offered employment in their former or substantially equivalent positions, as such employment becomes available, and before other persons are hired for such work.bl We shall also order the respondent to make whole the former striking employees for any loss of pay suffered as a result of the respondent's discriminatory action. In cases where. we have found that a certain employee was dis- criminated against, we have ordinarily ordered the offending employer to make him whole with back pay, this being an amount equal to the amount be would have earned with the employer from the date of the discrimination to the date of reinstatement pursuant to our order, less net earnings during the same period. The objective is to restore the situation, as nearly as possible, to that which. would have obtained but for the illegal discrimination. Our order in the present case is designed to achieve the same objective, but the peculiar factual situa- tion in this case presents certain difficulties in fashioning our 'remedy so as to restore the status quo. Thus, even had the respondent acted lawfully in restaffing its force on July 22, 1939, a substantial number of the strikers would not have returned to work, since there were fewer jobs open than striking employees available. We could, of course, order the respondent to determine which of the employees against whom it discriminated it would'have taken back on and after July 22, 1939, had it acted legally. Back pay would then be due to those claimants who would have been reinstated and nothing would be' due to those whom the respondent now decides would not have been reinstated. In the light of the entire record, we do not believe that it would effectuate the purposes of the Act thus to permit the determination of the back pay due to rest almost wholly within the discretion of the "respondent, with no objective standards by which a third party could test their determination. We reject this method, and turn to a solution which 'seems better calculated to serve the purposes of the Act. A lump sum shall be computed, consisting of all wages, salaries, and- other' earnings paid: out by the respondent since July 22, 1939, the date of the application for reinstatement, to new employees hired on and after July 3,' 1939, whose positions' could have been filled by the 'striking employees, up to the date on which the respondent com- 51 None of the nine employees who are shown to have been indicted for various alleged unlawful acts during the strike are to be denied reinstatement for that reason . Any other employees who were adjudged in contempt of the New Jersey court, who may have been .charged but not found guilty of various crimes, or who may have been found guilty of such minor offenses as disturbing the peace , assault and battery, and disorderly conduct, shall not be denied further employment. See Matter of Republic Steel Corporation and Steel Workers Organizing Committee , 9 N. L. IT. B. 219 , 387, enf' d as modified , Republic. Steel Corporation v. National Labor Relations Board, 107 F.'(2d) 472 (C. C. A. 3), cert . den., in so far as here applicable , 309 U. S. 684. The principles as to reinstatement of strikers engaging in alleged unlawful conduct enunciated by the Circuit Court of Appeals in the Republic case are here applicable. WILSON & CO., INC. 1381 plies with our order reinstating or placing on a preferential list the former striking employees, but excluding the period from the date of the Intermediate Report until the date of our order herein.52 We shall then order that such lump sum shall be divided among all the former striking employees who had not returned to work prior to July 22, 1939. Each of such employees shall receive an amount proportionate to the average weekly wages paid him prior to the strike, computed over a period of three months prior to the strike, less his net earnings 53 during the periods from July 22, 1939, to the date of the Intermediate Report, and from the date of our order herein until the date of the offer of reinstatement, or placement on a preferential list, to the former striking employees by the respondent. The average weekly wage of any employee employed less than 3 months prior to the strike shall be computed on the basis of the period of his actual employment. VI. THE QUESTION CONCERNING REPRESENTATION Throughout the negotiations referred to in Section III A, above; the respondent recognized the Union as the representative of its employees. It does not appear, however, that the respondent still accords such recognition to the Union. On July 22, 1939, after the issuance of the complaint, and on August 3, 1939, after the issuance of the amended complaint, the Union wrote the respondent requesting a collective bargaining conference concerning "the determination of our right of representation, wage scale, hours of employment, overtime pay, procedure for adjustment and arbitration of grievances, etc." The respondent made no reply to these letters. We find that a question has arisen concerning the representation of employees of the respondent. VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the respondent described in Section I above, has 'a close, intimate,. and substantial 63 Matter of E. R. Haffelfinger Company , Inc. and United Wail Paper Crafts of North America , Local No. 6, I N. L. R . B. 760. 63 By "net earnings" is meant earnings less expenses , such as for transportation , room, and board , incurred by an employee in connection with obtaining work and working elsewhere than for the respondent, which would not have been incurred but for the unlawful denial of employmen t to him and the consequent necessity for his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America , Lumber and Sawmill Workers Union, Local No. 2590, 8 N . L. R. B. 440. Monies received for work performed upon Federal , State, county , municipal, or other work-relief projects are not considered as earnings , but, as provided below in the Order shall be deducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county, municipal , or other government or governments which supplied the funds for said work-relief projects. 323429-42--88 1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD relation to. trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VIII. THE DETERMINATION OF REPRESENTATIVES We have found that on March 31, 1939, the Union represented a majority of the respondent's employees. Although the striking employees were replaced with new employees hired during the strike which commenced on that date, the Union remained the representative of the respondent's employees during the currency of the labor dispute which ensued.b4 The current labor dispute ceased, however, on July 22, 1939, and employees then on the respondent's pay roll, except those whose dismissal is required by the Order, below, became eligible to participate in the selection of a bargaining representative.b5 At the, time of the hearing, there were approximately 252 employees within the appropriate unit, including approximately 77 striking employees who had been reemployed. There is no evidence as to whether the -Union represented any new employees hired during the currency.of the strike, although it is clear that the Union had substantial repre- sentation in the appropriate unit at the time of the hearing. We find that the question concerning representation can best be resolved by an election by secret ballot. Since the respondent has, by engag- ing in various unfair labor practices, interfered with the exercise by its employees of the rights guaranteed them by the Act, we shall not now set the date of the election. We shall hold the election, however, upon receipt of information from the Regional Director that the cir- cumstances permit a free choice, of representatives unaffected by the respondent's unlawful acts. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. United Soap Workers Local Industrial Union No. 931, affiliated with the South Jersey Industrial Union Council, which'in turn is affiliated with the Congress of Industrial Organizations, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act. '4 See Matter of Easton Publishing Co. and Easton Typographical Union No. 258, affiliated with International Typographical Union, 19 N. L. R. B. 389, and cases cited therein. 55 Matter of Standard Insulation Company, Inc. and Local #21111, chartered by A. F. of L., 22 N. L. R. B. 758. WILSON & CO., INC. 1383 3. By discriminating in regard to the hire and tenure of employ- ment of its striking employees on and after July 22, 1939, the respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce,' within the meaning of Section 2 (6) and- (7) of the Act. 5. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. 6. A question affecting commerce has arisen concerning the repre- sentation of employees of the respondent, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 7. All of the respondent's production, maintenance, shipping, receiving and wareroom employees, excluding foremen, foreladies, assistant foremen, assistant foreladies, watchmen, office employees, factory clerks, department clerks, truck drivers, technically trained laboratory employees, and all managerial and supervisory employees above the rank of foreman and forelady, at all times material herein constituted and they now constitute a unit appropriate for the pur- poses of collective bargaining, within the meaning of Section 9 (b) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Wilson & Co., Inc., a Delaware corporation, trading as J. Eavenson & Sons, division of Wilson & Co., Inc., Camden, New Jersey, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in United Soap Workers Local Industrial Union No.,931, C. I. 0., or any other labor organization of its employees, by refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire and tenure of employment because of their membership in or activity on behalf of any such labor organization; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: ' (a) Offer to those persons who went on strike on March 31, 1939, and who have not been reinstated, reinstatement in their former or substantially equivalent positions, without prejudice to their seniority or other rights or privileges, in the manner provided in the section entitled "The remedy," above, placing those persons for whom em- ployment, is not immediately available upon a preferential list in the manner set forth in said section, and thereafter, in said manner, offer them employment.as it becomes available; (b) Make whole all former striking .employees for any loss of pay that they may have suffered by reason of the respondent's refusal to reinstate them on July 22, 1939, or thereafter, in the manner provided in the section entitled "The remedy," deducting, however, from the amount otherwise due to each of said persons, monies received by said persons during the period from July 22, 1939, until the date of the Intermediate Report, and the period from the date of this Order to the date of the offer of reinstatement, or placement on a preferential list, for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amounts so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (c) Post immediately in conspicuous places at its plant, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the re- spondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; and (3) that the respondent's employees are free to become or remain members of United Soap Workers Local Industrial Union No. 931, C. I. 0., and the respondent will not dis- criminate against any employee because of membership or activity in that organization; (d) Notify the Regional Director for the Fourth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the allegations of the amended complaint, in so far as they allege that the respondent has engaged in unfair labor practices within the meaning of Section 8 (5) of the Act, be,: and the sane hereby are, dismissed. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Re- WILSON & CO., INC. 1385 lations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation directed by the Board to ascertain representatives for the purposes of collective bargaining with Wilson & Co., Inc., a Delaware corporation, trading as J. Eaven- son & Sons, division.of Wilson & Co., Inc., an election by secret ballot shall be conducted at such time as the Board shall hereafter direct, under the direction and supervision of the Regional Director for the Fourth Region (Philadelphia, Pennsylvania), acting in the matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among all pro- duction, maintenance, shipping, receiving, and wareroom employees of Wilson & Co., Inc., a Delaware corporation, trading as J. Eavenson & Sons, division of Wilson & Co., Inc., who were employed within a period to be determined by the Board in the future, excluding fore- men, foreladies, assistant foremen, assistant foreladies, watchmen, office employees, factory clerks, department clerks, truck drivers, technically trained laboratory employees, and all managerial and supervisory employees above the rank of foreman and forelady, to determine whether or not they desire to be represented for the pur- poses of collective bargaining by United Soap Workers Local Indus- trial Union No. 931, affiliated with the South Jersey Industrial Union Council, which in turn is affiliated with the Congress of Indus- trial Organizations: EDWIN S. SMITH, concurring in part and dissenting in part: I agree with the findings and order above set forth save that I would also sustain the allegation of the complaint that the respondent refused to bargain with the Union, within the meaning of Section 8 (5) of the Act. On March 29 the respondent took the position that, even if an agreement ultimately was reached with the Union on.any subject of' bargaining, it would not embody such agreement in the form of a written contract. After the strike had commenced, the respondent at the meetings of March 31 and April 1 adhered to this position. On April 3 the Union filed charges with the Board alleging that the re- spondent was violating Section 8 (5) of the Act by "refusing to em- body terms and conditions of employment agreed upon, or to be agreed upon, in the form of a written contract and by refusing to sign any such written contract." Thereafter, at a meeting in the Board's Regional Office on April 4, the respondent finally stated that it was willing to reduce to writing. any completed agreement reached by the parties. Under the circumstances, it is a fair inference that prior to April 4 the respondent did not negotiate with the Union with an open 1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mind, honestly intent upon making a reasonable effort to reach some agreement with the Union. In my opinion, the crucial issue here is whether the respondent's apparent change of heart on April 4 actually represented a permanent abandonment of its prior unwillingness to bargain collectively with the Union or was merely a temporary change in tactics induced by the exigencies of the strike and the injection of the.Board into the matter through the filing of charges. In the consideration of this question, it seems to me there are certain factors not given clue weight by my colleagues. Within only 3 weeks of the respondent's ostensible abandonment of its unwillingness to bargain with the Union the respondent deliber- ately attempted to undermine the Union as representative of the employees. This is apparent in the threat on April 24 to treat all employees who continued the strike as having "resigned." This threat was made not only in the form of a letter to each of the em- ployees, but also was made in various statements to striking em- ployees by supervisory officials. Coercive action of this sort, mani- festly designed to destroy the effectiveness of the Union as bargaining agent by inducing the strikers to abandon it, is scarcely compatible with any honest intent to bargain collectively. When negotiations were resumed after the foregoing incident, the respondent immediately sought to obtain the unrestricted privilege of excluding an unspecified number of strikers from further employment. Soon thereafter it became apparent that the respondent was seeking a means whereby it could circumvent the Act if it desired. As is recog- nized in Chairman Madden's opinion, the respondent's attempt to obtain a privilege to violate the Act with impunity constituted a violation of Section 8 (1) of the Act and contributed to prolongation of the strike. To view the threat to discharge the strikers on April 24, and the effort on and after May 17 to obtain the privilege of discriminating against strikers as isolated violations of the Act seems to me unrealistic. These acts by the respondent took place in connection with, and indeed in the course of, the Union's efforts to negotiate an agreement with the respondent and were clear manifestations of the respondent's con- sidered policy in dealing with the Union. In view of these facts, it seems clear to me that the respondent's initial unwillingness to bar- gain in good faith with the Union was fully revived by April 24 and continued thereafter. It is clear, moreover, that the respondent's lack of good faith, especially since it was fully apparent to the Union, provided a substantial obstacle to settlement of the strike at all times after April 24. WILSON & CO., INC. 1387 By reason of the foregoing, I would find that at all times after. April 24, 1939, the respondent refused to bargain collectively with the Union. In view of the disposition of this case by the other members of the Board I concur in the Direction of Election. WM. M. LE, ISERSON, concurring in part and dissenting in part: I have read the record in this case, and I find that the Intermediate Report of the Trial Examiner gives a more adequate and judicious summary of the facts in the record than is contained in the majority opinion drafted by the Review Division. The conclusions of the Trial Examiner as to the merits of the complaints also seem to me a more adequate and judicious decision. I would therefore approve the findings of the Trial Examiner and follow his recommendations ordering the respondent to cease and desist from engaging in unfair labor practices within the meaning of Section 8 (1) and Section 2 (6) and (7) of the Act and from interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act; and I would dismiss the complaints in so far as they allege that the respondent has engaged in unfair labor practices within the meaning of Sections 8 (3) and 8 (5) of the Act. I would also dismiss the petition requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Act without prejudice to the right of the Union to file another petition when there has been compliance with the order of the Board directing the respondent to cease and desist from the unfair labor practices under Section 8 (1) of the Act.