Harcourt and Co., Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1952

98 N.L.R.B. 892 (N.L.R.B. 1952)

892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in the INTERNATIONAL BROTHERHOOD
-OF ELECTRICAL WORKERS, LOCAL UNION 465, affiliated with the AMERICAN
FEDERATION OF LABOR, or in any other labor organization of our employees,
by discriminating in regard to their hire or tenure of employment or any
term or condition of employment.
WE WILL NOT threaten our employees with discharge for engaging in
activities protected by the aforesaid Act, or in any other manner interfere
with, restrain, or coerce our employees in the exercise of their right to self-
organization, to form, join, or assist the INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL UNION 465, affiliated with the AMERICAN FED-
ERATION OF LARoR, or any other labor-organization, 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 pro-
tection, or to refrain from any or all of such activities except to the extent
that such right may be affected by a valid agreement requiring membership
in a labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the National Labor Relations Act.
WE WILL offer to COSBY M. NEWSOM immediate and full reinstatement to
his former or substantially equivalent position without prejudice to seniority
or other rights and privileges previously enjoyed, and make him whole for
any loss of pay suffered as a result of our discrimination against him.
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate against any
employee because of membership in or activity on behalf of any such labor
organization.
SAN DIEGO GAS AND ELECTRIC COMPANY
Employer.
By ----------------------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
IIARCOURT AND COMPANY, INO. k a INTERNATIONAL PLATE PRINTERS?
DIE STAMPERS AND ENGRAVERS UNION OF NORTH AMERICA, LocAL.
No. 5, AFL. Case No. 9-CA-229. March 31, 1952
Decision and Order
On June 15, 1951, Trial Examiner George A. Downing issued his
Intermediate Reort in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief. The
Respondent's request for oral argument is hereby denied because
* See Order Denying Motion, 98 NLRB 1333.
98 NLRB No. 142.
HARCOURT AND COMPANY, INC. 893
the' record and the exceptions and brief, in our opinion, adequately
present the issues and the positions of the parties.
The Board has reviewed the rulings of the Trial 'Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner only insofar as they are consistent with our
findings, conclusions, and order herein set forth.
. ` I. The Trial Examiner found that the Respondent's course of con-
duct from on or about November 10, 1949, constituted a refusal to bar-
gain with the Union in good faith in violation of Section 8 (a) (5)
of the Act; and that the strike of November 21, 1949, was an unfair
labor practice strike caused by the Respondent's unlawful conduct
during the bargaining negotiations for a new contract. The Trial
Examiner 'also found that even assuming the strike was economic in
its inception, it was promptly converted into an unfair labor practice
strike by the Respondent's subsequent unfair practices. For the
reasons stated below we do not agree with these findings.
Background: The Respondent recognized the Union on December
3, 1948, and shortly thereafter they entered into a contract to expire
July 1, 1949. On February 11, 1949, following a consent union-
authorization election which it won, the Union received a union-
authorization certificate from the Board. Early in 1949, an arbi-
trator, to whom the Respondent and the Union had submitted a dis-
pute, resolved the dispute in favor of the Respondent.
Negotiations for a new contract were opened by the Respondent's
letter of May 4, 1949. The Union replied suggesting that a meeting
be held on June 4. Thereafter, conferences were held on June 4, June
18, July 1, July 29, August 11, October 12, November 19, and November
20.1 Certain proposals for changes in the 1948 contract were submit-
Zed by the Respondent and the Union. They reached agreement as to
some of these proposals. By July 29, it became clear that the main
stumbling blocks to final agreement were the Union's demands for a
,union shop and a 10-cent wage increase. At the October 12 conference,
the parties reached an impasse on the union-shop issue. As the Trial
Examiner found, the impasse on that issue "went far towards pre-
venting an agreement on the other issues." The Trial Examiner also
found that up to and including the October 12 conference the parties
bargained in good faith and that the impasse did not constitute a
'The, Respondent was represented at these conferences by Harcourt , Jr. The Union
was represented by its negotiating committee , the membership of which varied from time
to tinre. In addition to the negotiating committee certain International and A . F. of L.
representatives were present at the last four conferences.
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refusal to bargain by either party. Indeed, the General Counsel does
not contend that the Respondent refused to bargain before the Novem-
ber 10 meeting with older employees discussed below.
The November 10 meeting: On November 10, Harcourt arranged for
one or two meetings with some of the older employees 2 As the Trial
Examiner found, at these meetings Harcourt informed the employees
of his disagreement with their committee on the union-shop issue,
stated that he thought he could work out the other parts of the matter
with the Union, and asked for suggestions as to how he might settle
his dispute or his difficulties with the Union.' Harcourt stated that he
could not understand why the younger employees were on the negoti-
ating committee; that "it seems very strange to me that they [the
older employees] were the ones who had the most to lose by reason of
a strike, and it seemed very strange to me that-people who had been
there only a short time were doing all the talking, and people who
had been there twenty or thirty years weren't doing any of the talking."
Harcourt also stated at one of these conferences that "if he could get
rid of Metts [President of the Union], he thought he could make a. deal
with the rest of the people." Harcourt asked the group as a whole
or Smith singly whether they or he were satisfied with the wage rate.
At this point or later in the meeting employee Collins said that all
they could tell Harcourt was to make his best offer to the Union.
Employees Smith and Denneler observed that they were not in a
rosition to "bargain" with the Respondent since the Union was their
bargaining agent. On this note the meeting terminated.
The Trial Examiner concluded that the Respondent's conduct in
conection with the two meetings on November 10 was vit'.ative of
both Section 8 (a) (5) and 8 (a) (1) of the Act. Although, as
hereinafter found, we do not agree with the Trial Examiner's 8 (a)
2 The record is not clear whether there were one or two meetings with the older em-
ployees The Trial Examiner , crediting Smith, found that there were two such meetings.
Watkins and Collins, who were asked if they attended a meeting with older employees on
or about November 10, testified that they attended one such meeting . Harcourt testified
that he arranged only one such meeting . However, in view of Smith ' s testimony that
the discussion at both meetings were about the same, it is not material whether there
was one or two meetings . The Trial Examiner found that the first meeting was attended
by Harcourt and employees Mervin Smith, Watkins, Denneler, and Collins. The second
meeting held in the afternoon of the same day was attended by these same employees,
except Watkins and four or five other older employees.
3 The Trial Examiner 's conclusion is based principally upon the testimony of Smith
and Collins who to a large extent corroborated the testimony of each other . Smith testi-
fied that the discussions at the two meetings were "about the same if there wasn't some
way of settling this trouble ; that he [Harcourt) had us there as the older employees .. .
and it seems . . . to him that we should be able to straighten it out " Collins testified
that Harcourt had asked the group as older employees in effect "what arrangements he
could make to settle the dispute between Harcourt and the Union"; and asked them for
suggestions "as to how the difficulties over the new contract could be settled." -Collins
further testified that Harcourt stated that be had offered the old contract , that it had been
rejected , and that "he had called us down there for suggestions on how to end this argu-
ment-he wanted us to settle the arguments that was going on about the contract."
HARCOURT AND COMPANY , INC. 895
(5) nnding, we do not find that the Respondent's conduct in connec-
tion with these meetings was violative of Section 8 (a) (1).
It is the declared purpose and policy of the Act "to prescribe the
legitimate rights of both employees and employers in their relations
affecting commerce , to provide orderly and peaceful procedures for
preventing the interference by either with the legitimate rights of
the other. . . ." To this end the Act is designated to protect the
"exercise by workers of full freedom of association, self-organization,
and designation of representatives of their own choosing for the pur-
pose of negotiating the terms and conditions of their employment or
other mutual aid or protection." 4 Thus, Section 7 of the Act guaran-
tees to employees the "right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through represent-
atives of their own choosing, and to engage in other concerted activi-
ties for the purpose of collective bargaining or other mutual aid or
protection . . . ," and Section 8 (a) (1) declares it to be an unfair
labor practice for an employer to "interfere" with employees in the
exercise of any of those rights. It follows therefore that if an
employer engages in conduct which impinges upon the full freedom
of his employees to exercise the rights guaranteed them by the Act,
he thereby violates Section 8 (a) (1) of the Act.'
Had the Respondent in this case arranged a meeting with a group
of its employees at which it questioned them as to their union affilia
tions or activities, it would thereby have interfered with the exercise
by them of the rights guaranteed employees by the Act, in violation
of Section 8 (a) (1) 6 It was, in our opinion , no less an interference
with the free exercise of those rights for the Respondent, as it did
on November 10, to call together groups of older employees and inter-
rogate them concerning their attitude with respect to the position
taken by their representative in bargaining negotiations with the
Respondent. Accordingly, we find that the Respondent's conduct
in this regard was violative of Section 8 (a) (1) of the Act. We
further find that Harcourt's statement made to this group of em-
ployees that "if he could get rid of Metts, he thought he could make
a deal with the rest of the people" was violative of Section 8 (a) (1),
because it carried the implication that the Respondent contemplated
economic reprisal against the Union's President Metts because of his
activities in behalf of the Union.
4 Section 1 of the Act.
5 Standard - Coosa -Thatcher Company, 85 NLRB 1358 , in which the Board stated :
In banning "interference" Congress clearly meant to proscribe any employer actively
which would tend to limit employees in the exercise of their statutory rights Inherent
in the very nature of the rights protected by Section 7 is the concomitant right of
privacy in their enjoyment . . . "full freedom" from employer intermeddling , intru-
sion, or even knowledge.
6 Standard- Coosa -Thatcher Company, supra.
896 DECISIONS -;OF NATIONAL LABOR RELATIONS BOARD
- The Trial' Examiner concluded that the Respondent by calling
together -arid talking to groups of employees on November 10 as set
forth above, attempted to (1) bypass the Union and to take up directly
with its older employees the issues of its disagreement with their bar-
gaining representative; and (2) to enlist their support to settle these
issues on the Respondent's -terms, and thereby violated Section 8 (a)
(5) of the Act. We disagree.
At the time Harcourt arranged these meetings the bargaining
negotations between the Respondent and the Union had broken down
because of the impasse reached over the union-shop issue. This fact
Harcourt reported to the assembled employees. He stated further
that if this issue were eliminated, he thought he could work out an
agreement with the Union. These remarks constituted a purely
objective account of the status of the bargain-negotiations and were
therefore not violative of the Act 7 Harcourt made no attempt to
negotiate directly with these employees concerning.the matter in
dispute between the Respondent and the Union. He merely sought
to ascertain their views concerning the Union's position on the union
shop and to solicit suggestions from them as to how the impasse might
be broken. We do not construe this conduct of the Respondent as
evidence of an intent to negotiate directly with the employees rather
than with their statutory representative. It was at most an attempt
by the Respondent to enlist the support of these older employees for
its position. As such it was, as we have found above, an unlawful
intrusion upon their rights protected by Section 7, but not, we believe,
conduct inconsistent with the Respondent's obligation to bargain
only with the exclusive representative of its employees.,,
Neither do we agree with the Trial Examiner's conclusion that
the purpose of the November 10 meeting was "to set off" the older
employees against their own representative and thereby undermine
the Union. Harcourt's references to the lack of their representation
on the Union's bargaining committee or to their failure to take an
active part in union affairs, do not under the circumstances compel
the inference that he attempted to set off one group of employees
against the other or to undermine the Union's status as the exclusive
bargaining representative. Indeed, the whole background of the
Respondent's relations with the Union militates against such an
inference. The Respondent had voluntarily recognized the Union
7 The Jacobs Manufacturing Company, 94 NLRB 1214.
e Cf. Medo Photo Supply Corporation v. N. L. it. B., 321 U. S. 678; Reeder Motor Com-
pany, 96 NLRB 831; N. L. R. B. v . Union Manufacturing Company, 179 F. 2d 511, enfg.
76 NLRB 322; and Central Metallic Casket Co., 91 NLRB 572. In each of these cases
the employer , in derogation of the exclusive bargaining representative 's authority, dealt
directly with the individual employees for the purpose of negotiating an agreement con-
cerning their terms and conditions of employment.
c- ,- ^ -- - , HARCOU-RT ^ AND COMPANY; ING. 897
when.-it organized the plant; entered into a contract with it; and
had continued to bargain with the Union in good faith until an impasse
was reached. Moreover, at the November 10 meeting Harcourt did not
question the Union's representative status. Nine days later, Harcourt
met with the Union's representative in a further effort to break the
deadlock, and, as we find below, bargained with the Union in good
faith.
We do not interpret Harcourt's statement concerning Metts as
either an outright refusal to bargain with the Union or as evidence
of Harcourt's lack of good faith in his dealing with the Union.
There is evidence indicating that Metts' ambiguous conduct during
the negotiations led Harcourt to believe that Metts was obstructing
Harcourt's attempt to consummate an agreement with the Union,. and
that, with Metts out of control of the negotiations, he might have
reached a satisfactory agreement with the Union. Despite his pro-
fessed desire to get rid of Metts, Harcourt made no objection to Metts'
presence and participation in the subsequent bargaining conferences
with the Union on November 19, 20, 21, 25, and 26. Indeed, at the
conferences held on November 25 and 26, after the strike began, Har-
court offered to take back all the strikers, including Metts, and to
renew the old contract with, the Union. Under the circumstances,
we cannot regard Harcourt's statement as evidence of either an
attempt'to bypass the Union, set off older employees against Metts,
or undermine the Union as the collective bargaining representative.
The Trial Examiner found that even prior to the - November 10
meeting Harcourt had not hesitated to undercut the Union by enlisting
the assistance of older employees. In so finding, the Trial Examiner
relied ;upon the testimony of Watkins that on some occasion in August
Harcourt requested assistance from him and Denneler "to get the
people to agree to or accopt the old contract." We do not find that
Harcourt's, request was intended or was reasonably calculated to
undermine the Union. If, was made shortly after Watkins had taken,
with the approval of tjie Union's negotiating committee and the,
Union's president, the August 1 poll of the union members as toa
whether they were for or against the renewal of the old contract. A.
majority of the employees polled voted in favor of the renewal of
the contract. Harcourt then prepared an extension agreement and
left it with Watkins for signature by the members of the committee
and President MettE. The extension agreement was then signed by
Watkins, a member of the committee, and Denneler, a former member
of the committee. ]But despite the expressed desire of the majority
of employees, ,the agreement was not signed by the other members of
the committee or by Metts. It is at this juncture that Harcourt asked
Watkins and Denneler to "get the people [the committee members and
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Metts] to agree to or to accept the old contract." Since 'Harcourt
testified that he was never informed of Denneler's replacement on the
committee, and since he was under the reasonable impression that the
poll of the union members would be conclusive on the issue of the
renewal of the old contract, we cannot construe his request to Watkins
and Denneler, who he believed to be members of the committee, as
intended to undermine the Union. Indeed, the General Counsel does
riot contend that this request constituted a refusal to bargain.
The question is close but, upon the entire record, we find, contrary
to the finding of the Trial Examiner, that by conferring with a group
of the older employees under the circumstances, the Respondent did
not seek to subvert the collective bargaining process, or to undermine
the authority of the Union as the employees' statutory representative
in violation of Section 8 (a) (5) of the Act.'
Our colleague accuses us of "sophistry" because we find that the
Respondent's conduct in connection with the November 10 meetings
was violative of Section 8 (a) (1), but not Section 8 (a) (5). He
reasons that if the Respondent's act of "dealing directly" with its
employees on November 10 constituted an unlawful interference..with
the right guaranteed employees by Section 7 of the Act "to bargain
collectively through representatives of their own choosing," that con-
duct a fortiori constituted a refusal to bargain with the Union in
violation of Section 8 (a) (5). This reasoning is predicated upon a
factual premise unsupported by the record and an erroneous legal
conclusion.
We have found that the record fails to support a finding that the
Respondent dealt or attempted to deal directly with the employees
at these meetings concerning their conditions of employment within
the accepted meaning of that term. The absence of such a finding
distinguishes this case from the Medo Photo case and each of the
other cases cited in the dissenting opinion on this point. To ascer-
tain the precise meaning of the Supreme Court's holding in the Medo
'case it is necessary to analyze the holding in the light of the factual
.situation there present. Those facts as set forth in the Court's
opinion were as follows : Two days before the date on which the Em-
9 See United Welding Company , 72 NLRB 954, N. L. R. B. v. Russell Kingston , 172 F.•
2d 771, ( C. A 6), den . enf 74 NLRB 1484 ; N. L. R B . v. Algoma Plywood and Veneer
'Company, 121 F. 2d 602 ( C. A 7) ref. enforcement 26 NLRB 975.
'Our 'dissenting colleague Implies that we have not adequately considered the events
preceding the November 10 meeting between the Respondent and the older employees for
the light it sheds on the motives behind the Respondent 's subsequent conduct. We deny
this, implication . Indeed , as pointed out below , the Union 's attitude during this early
period of negotiation , particularly its refusal to abide by the majorty vote of its con-
stituents to renew the old contract , was, in our opinion , a major cause of the failure of.
the parties to reach an agreement. An employer who knows that a majority of his
employees have expressed satisfaction with existing conditions of employment can hardly
be condemned for exhibiting a certain amount of "pique," "vexation," or "resentment"
toward their bargaining representative for demanding changes in those conditions.
HARCOURT AND COMPANY, INC. 899
ployer had agreed to meet with its employees' exclusive bargaining
regresetltative to begin collective bargaining, a group of employees
pi oposed to the manager of the employer that "they would leave the
union if they were given wage raises." The manager then adjourned
the meeting with the employees in order to consider the suggested wage
inci•easbs with the company's president! A few days later, after con-
sidering the matter with the president, the manager announced to the
employees that the wage increase would be given and this was im-
mediately followed by the employees' desertion of the union. With
these facts before it the Supreme Court ruled as follows :
The National Labor Relations Act makes it the duty of the
Employer to bargain collectively with the chosen representative
of his employees. The obligation being exclusive . . . it,
exacts "the negative duty to treat with no other" . . . Bargain-
ing carried on by the employer directly with the employees,
whether a minority or majority, who have not revoked their des-
ignation of a bargaining agent, would be subversive of the mode
of collective bargaining which the statute has ordained... .
Orderly collective bargaining requires that the employer be not
permitted to go behind the designated representatives, in order
to bargain with the employees themselves, prior to such a
revocation .. .
It seems clear to us that the Court's decision turned on the fact that
the employer actually negotiated directly with the employees con-
vening a condition of their. employment, namely wages, and also- in-
duced them to abandon their bargaining representative by promising
them higher wages. Likewise, in each of the other cases cited in the
dissenting *opinion the employer engaged in actual bargaining or
negotiations with the employees in respect to their terms or conditions
of,employment, to the exclusion of their chosen bargaining repre-
sentative 10 Moreover, the direct employer-employee bargaining that
10 In Reeder Motor Company, 96 NLRB 831 , the employer bargained with the employees
in respect to the wages and other conditions of their employment . The employer was
informed that the employees would abandon the union if the employer agreed to their
demands. The negotiations with the employees , in fact, resulted in the immediate resig-
nations of the employees from the union . Finally, the employer , following such resigna-
tions, refused to bargain with the union.
In Twsn City Milk Producers Association, 61 NLRB 69 , 84, the employer assembled
the employees in the plant and discussed with them certain provisions in the proposed
contract. He then offered them a wage increase, subject to the Government approval, but
without the necessity for collective bargaining with the union The employer also threat-
ened economic reprisals in the form of a lower wage scale if the employees required him
to execute a contract with the union A few days later at a bargaining conference with
the union the, employer rejected summarily all the union 's demands , and questioning the
majority status of the union, demanded an election.
In W. W. Holmes et at., 72 NLRB 39 , the employer ignored the union's request for
recognition and conference on the alleged ground that the union did not represent a
majority of its employees . Thereafter , he called the employees to his house , and discussed
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
took place in those cases was accompanied by either a refusal to bar-
gain with the exclusive bargaining representative or conduct intended
or reasonably , calculated to destroy the representative's majority-
status or at least to undermine its authority. As we have found,
no such direct employer-employee negotiation or bargaining took
place in this case. Nor did, the Respondent question the Union's
majority status or urge the employees to take any action in deroga-
tion of the Union's authority as their representative.
The November 19 and 20 conferences with the Union: As the Trial
Examiner found that "by its entire course of conduct from on or about
November 10, 1949, the Respondent refused to bargain with the Union
in good faith," it becomes necessary to determine whether the Re-
spondent's conduct at these later conferences was in violation of Sec-
tion 8 (a) (5).
Our colleague apparently assumes that every interference by an
employer with the right of its employees to bargain collectively
through representatives of their own choosing is per se an unlawful
refusal to bargain with their statutory representative. We do not
understand this to be the law.
It is well established that the violations of Section 8 (a) (2), (3),
(4), and (5) are species of the generic unfair labor practices defined
in Section 8 (a) (1), and hence conduct violative of those sections
is also violative of Section 8 (a) (1). The converse; however, is not
true. For example, interference with the right of the employees to
with them the changes in wages and hours. Later , the employer did effect changes in their
wages and hours without consulting the union.
In Pepsi-Cola Bottling Co ., 72 NLRB 601, the employer failed either to meet with the
union or reply to the union's request for recognition . Thereafter , he extended to the
employees an invitation to individual dealings, and expressly refused the union's request
to negotiate with the union on various matters. '
In Consumers Cooperative Refining Association, 77 NLRB 528, 531 , the 8 ( 5) conduct
consisted In a refusal to recognize and resume negotiations with the union near the close
of the certification year ; unilateral action in granting three wage increases ; and later
dealing with a nonunion committee , following which the employer granted to the employees
certain privileges and adopted a bonus plan without consulting the union.
In N. L. R. B. V. Highland Shoe , Inc., 119 F. 2d 218, (C. A. 1), enfg. 23 NLRB 259,
the employer , after his unsuccessful effort to obtain from the union , a consent to a reduc-
tion of wages , closed down its factory . Later he invited the employees to a meeting at
which he told them that It would be impossible for him to stay in business under the wage
scale established by the union, but that if the employees accepted a 10-percent wage reduc-
tion they could have steady work . At the suggestion of one of the employees a vote was
then taken at the meeting on the question of returning to work with a 10-percent wage
reduction and the proposal was adopted by a majority . The court held this to be 8, (5),
saying that "the only reason why the meeting was called was so that rates of pay might
be discussed between the employer and its employees directly and in circumvention of the
union."
In N L. R. B. v. Acme Air Appliance Company, Inc., 117 F. 2d 417 ( C. A. 2), enfg.
10 NLRB 1385, the employer during negotiations with the union took the position that it
did not care who represented the employees , but that any agreement they reached would
be between the employees and the employer , and not with the union . The court found
this conduct to be "the persistent refusal to treat [the union] as an exclusive bargaining
representative with power to contract and with a- right to conclude an agreement in
writing."
.HARCOURT AND COMPANY, INC. 1 901
bargain collectively is a much broader concept than a refusal to bar-
gain with their statutory representative. Indeed, the commission
of any of the unfair labor practices defined in the Act constitutes at
least an indirect interference with that right, for the Act was designed
to encourage collective bargaining and to assure to employees the
right to bargain collectively through representatives of their own
choosing. Thus, coercive statements by an employer, as well as any
other conduct engaged in by an employer that is calculated to prevent
its employees from organizing for the purpose of collective bargain-
ing; the sponsoring of a company-dominated or assisted union by an
employer as a bargaining agent for its employees; the discharge of an
.employee by an employer for their designation of a union as their
bargaining agent, etc., constitute acts of interference with, the right
of the employees to bargain collectively, just as does a direct refusal
to bargain with their bargaining agent. Under our dissenting col-
league's theory, all such conduct would constitute an independent vio-
lation of Section 8 (a) (5). We cannot agree with this legal
conclusion.
To answer this question, the Respondent's conduct must be exam-
ined in the context of the previous bargaining conferences. The Trial
Examiner found that the Union made its initial demand for a union
shop at the June 18 conference, at which time Harcourt stated his
objections to the union shop. Thereafter, the demand for a union shop
was reiterated by the Union at every bargaining conference, while
Harcourt just as steadfastly, opposed it. The parties never-receded
from their original positions. Thus, it appears that the parties
reached an impasse on the union-shop issue long before the November
19 and 20 conferences. At these conferences no new factor was intro-
duced which evidenced a change in the respective position of the
parties. At no time during these conferences did Knoblock withdraw
the Union's demand for a union shop, nor did Harcourt recede from
his opposition to it. Although Knoblock promised on November 19
to redraft the Union's demands in such a manner as to make them
more palatable to the Respondent, the final draft of the proposed con-
tract evidences no material change from the earlier drafts. It con-
tained a standard union-shop provision. While Knoblock offered "to
again. rewrite that document, modify it, providing [they] can come to
some amicable agreement," such proffer did not constitute a shift in
the Union's uncompromising stand on the union-shop issue. No rea-
sonable inference could be drawn therefrom that the Union was ready
to withdraw or modify its demand for a -union shop, nor could it be
reasonably construed as a request for a further bargaining conference 11
n Assuming , however, that Knoblock 's statement could be construed as a request for
further bargaining , Harcourt was under no obligation to agree to a new conference to
998666-vol . 98-53-58 _
9 02 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Indeed, Knoblock's offer was more in the nature of an ultimatum,
rather than a request. Knoblock stated that "as [Harcourt knew] the
Union local has taken a strike vote"; that the International Union has
'substantiated" the.strike vote taken by the Local; that his reason for
being in Louisville was to avoid a strike; and that "unless you come to
aab agreement today-[the boys] will not return to work on Monday."
Harcourt, however, refused to yield, observing : "suit yourself." The
strike began the next day. Thus, at the November 20 conference the
Union still held out for a union shop and the Respondent just as stub-
bornly held out against it. The duty to bargain implies only an obli-
gation to discuss the matter in question in good faith with a sincere
purpose of reaching an agreement. It does not require that either
side agree or make concessions.12 The Respondent, therefore, was
under no obligation to accept the Union's demand for a union shop
or to make a counterproposal 13
Harcourt's outright rejection of Knoblock's draft and his remark
that he had nothing more to' offer is also not evidence of bad faith
bargaining on his part, particularly when viewed in the light of the
Union's' own method of bargaining. The Trial Examiner rejected
the Respondent's contention that the Union did not bargain in good
faith. Nevertheless, the evidence clearly indicates that the Union's
conduct throughout the negotiations measurably contributed to the
failure of the parties to reach an agreement. The Trial Examiner
himself found that the Union engaged in what he described as "horse
trading" during the negotiations. This' was not unbefitting in itself,
but it throws light upon the Respondent's reaction. The Union, ap-
parently in accordance with the advice of a Kentucky Federation of
Labor official "to go easy on demands and to wait until business picked
up," did not submit all of its demands at once. It proceeded to intro-
<,duce,.tliem piecemeal. As, late, as November 20, the Union made new
demands : (1) for stricter -seniority rules than provided in the old
contract; (2) for an additional holiday; (3) for two and a half times
the regular rate of pay for work on enumerated holidays (the old
contract required the payment of double time) ; (4) for a higher rate
reiterate the old arguments in favor of or against the union shop As the Board has said,
"a good faith impasse ordinarily connotes the futility of further negotiations" ( Cenral
Metallic Casket Co., 91 NLRB 572). Where as here, the Union throughout 5 or 6 . months
of negotiations failed to suggest any revision on its stand on the controversial issue of a
union shop , a request for a further bargaining conference by Knoblock, might have been
properly construed by Harcourt as not having been made in good faith . Cf. Jefferson
Standard Broadcasting Company, 94 NLRB 1507.
12 Lawrence Tank Corporation , 94 NLRB 352, where the Board held that an employer's
remark that he would not agree to any clause which required his employees to become
union members in order to keep their jobs "evidence no more than the Respondent's as-
sertion of its right not to agree to the union's proposal": Union Manufacturing Co.. 76
NLRB 322, affirmed 179 F. 2d 511 (C. A. 5), holding that the Respondent's refusal to
recede from its position of opposition to any form of union-security and checkoff provisions
or to make a counteroffer was not violative of Section 8 (a) (5) of the Act.
33 Old Line Life Insurance, 96 NLRB 499; Jacobs Manufacturing Co., 94 NLRB 774
HARCOURT AND COMPANY, INC. 903
of pay in case of temporary transfer from a lower position to a higher
position or vice versa. Moreover, incidents like the Union's refusal
to renew the old contract after a majority of the union members voted
in favor of its renewal at the August 1 poll, and Metts' ambiguous
letter in reply to Harcourt's letter of June 27 which led Harcourt to
believe that the Union would renew the old contract, were not con-
ducive to mutual `trust.
We find that by its rejection of Knoblock's draft of an agreement
and by its other conduct at the November 19 and 20 conferences, the
Respondent did not refuse to bargain with the Union in good faith.
The strike: The Trial Examiner found that the strike, which began
on November 21, was caused by the Respondent's unfair labor prac-
tices: We do not agree.
It has been found that the Respondent did not refuse to bargain
with the Union before the strike. Thus, the only unfair labor prac-
tices which could have been responsible for the strike were (a) arrang-
ing the November 10 meeting with the older employees, and (b) the
statements made by Harcourt at these meetings, conduct which we
have foundviolative of Section 8 (a) (1), but not 8 (a) (5). Neither
of these 'acts, in our opinion, were the proximate or contributing
causes of the strike. The November 10 meetings were neither discussed
nor mentioned at the November 19 and 20 conferences. Indeed, it does
not appear that either Knoblock or any union officer was informed of
these meetings. As for the Harcourt statements at these meetings, as
we have found, they were not reasonably calculated to undermine the
Union's representative status or to make agreement with the Union
impossible, nor does the record contain any evidence to indicate that
-the above-mentioned violations of Section 8 (a) (1) were in any man-
ner responsible for the Union's decision to strike.
On the other .hand, the,-prlepoaderance of evidence conclusively
shows that the strike was caused by -an impasse in the bargaining
negotiations over the union-shop issue. Thus, members of the Union's
negotiating committee or their substitutes testified as follows : Kau f er
testified that "[they] were striking to get a new contract, true enough,"
-that Harcourt would not give in to the Union demand for the union
shop, whereas the Union held out right to the last on the union shop.
Gossett admitted on cross-examination that throughout the bargain-
ing negotiations the Union insisted as strongly on the union shop as
Harcourt held out against it, and that was why the Union struek on
November 21; that the Union's position on the union-shop issue "has
never been altered," and that as far as he knows "right to today" they
are still demanding a union shop ; and that every concession the Union
made during the negotiations was on the condition that the union shop
-would be agreed to by the Respondent. Cecil Conrad, who was pres-
904 DECISIONS, OF NATIONAL LABOR-RELATIONS BOARD
ent at the November 19 and 20 conferences, as-a substitute for McCaf-
ferty, admitted on cross-examination that the Union never gave up
on the union-shop issue. Watkins testified that toward the end of
the November 20 conference Federal Mediator McConnell, after a
brief and private consultation- with Harcourt, stated to those present
that `.`Harcourt is still willing to offer you the old- contract," where-
upon Knoblock said, "Well, Mr. Harcourt if it seems that you can't
meet any of our demands, the only thing we can do is to throw a
picket line around your place in the morning," and that Harcourt
replied, "I am sorry, but if it has to.be.that way it has to be." Watkins
also testified that at no time during the bargaining conferences for a
new contract did the Union give up its demands for a union shop.
Knoblock's statement to Harcourt at the conclusion of the November
20 conference that "unless you come to an agreement today-[the em-
ployees] will not return to work on, Monday" also indicates that the
strike was called because the parties were unable to come to an
agreement.
The Trial Examiner concedes that there is a "strong basis" for the
Respondent's contention that an impasse had been reached and that
the Union struck to enforce its economic demands'' He found, how-
ever, this defense to be unavailing to the Respondent, because it was
the Respondent while by its own prior unfair labor practices had
.induced the impasse. We do not agree. - It is undisputed that a bona
fide impasse had been reached before the November 10 meeting with
the older employees. As found above the Respondent, despite the No-
vember 10 meetings, bargained with the Union in good faith at' the
subsequent two conferences before the, strike, but was unable to come
to agreement with the Union on that issue. There being no- refusal
to bargain in good faith before the strike, the only question remain-
ing is whether the Respondent's violation of Section 8 (a) (1) caused
the strike. We are satisfied that it did not. Knoblock stated at the
November 20 meeting that the Union would strike the next day because
Harcourt refused to meet the union demands and because the Union
.felt that Harcourt was not bargaining in good faith. Knoblock made
no reference to the November 10 meeting with the older employees as
a reason for the strike; the record shows that this strike was not
caused by those meetings but by the failure to reach-an agreement on
the contract.
14 At the oral argument before the Trial Examiner Respondent 's counsel took the posi-
tion that the impasse in the bargaining conferences continued throughout the November
19 and 20 conferences and that this impasse was the cause of- the November 21 strike.
The Trial Examiner then made the following observation : "I agree that Mr. Harcourt
wouldn't give the union shop and I agree I believe that the preponderance of evidence
shows that the Union was insistent upon it. Some of Knoblock's testimony is somewhat
to the contrary, but the other witnesses claim that to the end they wanted the union
shop."
". I4ARCOT5RT"AND 'COMPANY, INC. 905
'Upon the entire record we find that the November 21 strike was not
caused by the Respondent's violation of Section 8 (a) (1) but was
economic in its inception.
The November 91 conference with Knoblock: The strike began in
the morning of that day and the picket line was setup at once. Knob-
lock was with the pickets during the morning. Early in the after-
noon he, Sickler, and Metts went to see Harcourt. Knoblock in-
formed Harcourt that he was leaving for New York in an hour and
was making a further attempt to settle the matter; that he was willing
to place the matter in the h Inds of the Louisville Labor Management
Committee and abide by its findings 15 Harcourt would not agree to
this, proposal. The Trial Examiner concluded that Harcourt's con-
duct at this conference constituted a "refusal to bargain." We do not
agree. The Respondent was under no obligation to accept the pro-
posal. It is well settled that the statutory obligation to bargain in
good faith does not imply an obligation to accept any proposal made
by the other party1e A fortiori, it does not require one party to dele-
gate to an arbitrator his authority to agree to or reject the other party's
proposal. Nor can we, under the circumstances, conclude that Har-
court's refusal to submit the matter to arbitration evidenced bad faith.
The November R5 and 26 conferences with the strikers : Harcourt
held two meetings with the strikers on Friday, November 25, and one
meeting on Saturday, November 26. The first meeting on November
25 was held at the request of striker Denneler. Denneler, Collins,
and Smith attended that meeting. At Denneler's suggestion it was
decided to meet again later in the day "with everyone present." The
second meeting was attended by the above-mentioned 3 employees and
all other strikers (about 11), who were in the vicinity of the plant.
Included among them were 5 members of the negotiating committee,
President Metts, and several other officers of the Union. Before
opening the discussion, Harcourt inquired as to whether "this was the
committee and was advised "Let's call this the committee at large."
The chief issues discussed were the union shop and the wage increase.
Harcourt again refused to agree to the union shop repeating his
earlier objections, but expressed his willingness to make some wage
adjustment. That led to the employees' attempt to trade off the wage
demand for the union shop. The attempt failed, for Harcourt refused
to agree to a union shop. Harcourt did, in fact, offer to renew the old
contract. Before the meeting broke up it was arranged to hold
another meeting the next morning.
as Knoblock testified that he stated to Harcourt that he was "perfectly willing to take
this contract that was drafted [by him] the day before, have Mr. Harcourt sign the con-
tract and place its disposition into the hands of the Committee."
le Jacobs Manufacturing Company, 94 NLRB 774; Old Line Life Insurance, 96 NLRB
499; Collins Baking Co., 90 NLRB 95.
906 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD
The, November 26 meeting was attended by the same group of
employees as the November 25 meeting (except Radelife). The union
shop and wage issues were again discussed. Harcourt said : "Fellows,
you can all go back to work under the old contract." McCafferty re-
plied that they wanted a union shop and a wage increase. Harcourt
observed that they had discussed these matters the night before and
he could not offer any more than the old contract.
The Trial Examiner concluded that these meetings with the strikers
"stand on no different footing.' than the,November 10 meeting with the
older employees and that by negotiating with the strikers, as individ-
uals, the Respondent refused to bargain with the Union. We do not
agree with this finding. Harcourt's meeting with the three employees,
early on November 25 was arranged at the request of striker Denneler,
not at the request of Harcourt. No negotiations took place at this
meeting, and the meeting was soon adjourned in order to have a larger
meeting the'same afternoon "with everyone present." The Trial
Examiner's conclusion with respect to the two later meetings with the
strikers is based on the erroneous 1assurnption that at these-meetings the
negotiations proceeded between Harcourt and individual employees,
not between Harcourt and the Union. Indeed, Harcourt asked
the strikers if "this was the Committee" and someone replied "Let's
call this the committee at large." There is not the slightest indication
that those present regarded 'the group as a committee of employees
rather than as a committee representing the Union. "The Committee
,at large" included all five members of the union bargaining commit-
tee, the president and other officers of the Union, as well as practically
all active members of the Union. None of them voiced any objection
to the meeting on the ground that it was a meeting with individual
employees in derogation of the Union's status as the employees' bar-
gaining representative, nor is there any evidence to show that the
strikers had abandoned the Union or intended to do so if the Respond-
ent acceded to their demands. Implicit in the position taken by the
strikers at these meetings was the assumption that they were negoti-
ating as the Union rather than as individual employees.'' Thus, they
were insisting on the union shop. When Harcourt expressed his
willingness to make some wage adjustments, the "committee"
attempted to trade off the Union's wage demand for the union shop.
Assuming, however, that the November 25 and 26 conferences were
with individual strikers rather than with the Union as such, there is
nothing in the record to show that these conferences were arranged
or conducted in a manner or with the intent to undermine the Uniofi s
status as the majority representative of the employees. The meetings
were arranged by the strikers themselves, not by Harcourt. He made
77 Cf Medo Photo Supply Corporation, supra, and Reeder Motor Company, supra
HARCOURT AND COMPANY, INC. 907
no threats of reprisal or promises of benefit to the strikers. He did
not urge them to abandon the Union. He was willing to renew the
old contract with the Union and to take back all strikers, without
discriminating against any of them. Harcourt, thus, tried in good
faith to settle the strike with the Union, even though he discussed
the settlement with the "committee" of individual strikers.
The circumstances surrounding the November 25 and 26 meetings.
clearly distinguish this case from the Biles-Coleman case relied on
by our dissenting colleague. There the employer deliberately bypassed
the, employees' bargaining agent and announced directly to the em-
ployees its decision not to bargain with their representatives."" Here,
on the other hand, the Respondent, as we have found, had bargained
with the Union in good faith for over 5 months. Nothing Harcourt
did or said at these two meetings was indicative of an intent by the
Respondent to bypass the Union or to undermine its prestige. Indeed,
under all the circumstances, we are convinced that the Respondent was
fully justified in believing that it was dealing with the Union's bar-
gaining committee at these meetings. Moreover, as noted, all officers
of the Union and members of the bargaining committee were present
and voiced no objection to the meetings. The Board has recently
held that where a union acquiesced in meetings between the employer
and all his employees for the discussion of conditions of employment,
the holding of such meetings was not a violation of Section 8 (a) (5).19
Upon the entire record we find that the Respondent, by conferring
with the "committee" composed of strikers including the union officers
and bargaining committee on November 25 and 26, did not refuse to
bargain with the Union in violation of Section 8 (a) (5) of the Act.
Solicitation of strikers: The Trial Examiner found that Harcourt,
Jr., Harcourt, Sr., and Foreman Striegel solicited individual strikers
to return to work, and, while engaged in such solicitation, made various
threatening and coercive statements. The Trial Examiner also found
that, as the solicitation was an integral part of a "course of illegal
opposition to the purposes of the Act" and was "manifestly calculated
to undermine the Union's authority as the strikers' bargaining repre-
sentative," it was in violation of'Section 8 (a) (5) and (1) of the
Act; and that, assuming that the strike was economic in its inception,
it was converted by the Respondent's solicitation of strikers into an
unfair labor practice strike.
18 Thus , as reported in the Board's decision in that case , the employer's president, 2 days
after meeting with the employees' bargaining agent and receiving from it a proposed bar-
gaining agreement which called for a written reply to the union 's secretary , called a
meeting of all employees at which he informed them , inter alia, that the employer would
not agree to a number of provisions in the proposed contract. The Board held that the
president 's remarks were properly construed by the union as a flat refusal to negotiate
concerning the proposed agreement and constituted an unlawful refusal to bargain with
the union.
19 Leader News Co-- Inc, 98 NLRB 119.
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We agree with the Trial Examiner that the solicitation by the
Respondent of individual strikers to return to work was violative of
Section` 8 (a) (1) of the Act. We predicate our finding on the fact
that the acts of solicitation were accompanied by coercive statements.
Thus, as found by the Trial Examiner, the Respondent's representa-
tives, while engaged in such solicitation, made certain statements to
the effect that Metts, Cecil Conrad, Hickman, and other striking
employees would not be reinstated, and that certain strikers did not
have jobs and were not wanted ; that there would no longer be a
union; that the Respondent was not going to sign a contract; that
they would not have a union shop in here. These statements we find
were clearly violative of Section 8 (a) (1). Moreover, as these state-
ments were made in conjunction with the solicitation of strikers to
return to work, we find that the acts of solicitation were themselves
violative of Section 8 (a) (1) of the Act.20
-For the reasons which follow hereafter, however, we do not agree
with the Trial -Examiner that the Respondent's solicitation- of strikers
to return to work was also violative of Section 8 (a) (5). The
Respondent solicited eight strikers to return to work. Of these,
strikers Ray, French, and Cecil Conrad themselves approached Re-
spondent's officials for the purpose of returning to- work. Strikers
Kaufer and Smith went to the plant to get their tools and told the
Respondent that they had found employment elsewhere. They were
then urged by Harcourt and Striegel not to terminate the employment
with the Respondent but to return to work for the Respondent. Three
other strikers were solicited at a, time when the Respondent was recruit-.
ing replacements for the strikers. These solicitations hardly seem
intended as a part of a campaign to undermine the Union. Moreover,
when evaluated in the light of the Respondent's contemporaneous con-
duct, the solicitation cannot be reasonably construed as calculated to
undermine the Union. Thus, (1) at the end of the first week of the
strike, Harcourt offered to take back all strikers, making no exception
as to the strikers mentioned in the above statements; (2) Cecil Conrad,
one of the strikers described as not wanted any longer in the organiza-
tion, was asked in January to come back to work; (3) certain other
strikers (Guenthner, Anderson, Kaufer, Smith), despite the Respond-
ent's professed determination not to hire them, were thereafter solicited
either to continue in the Respondent's employ or to return to work;
(4) all of the statements were made at the time the Respondent was
hiring replacements for the economic strikers who refused to abandon
the strike; (5) some of the statements were made at about the time
the Respondent, following the "mass" picketing on December 9 and 10,
had asked for, and procured, in the State court an injunction against
20 De Soto Hardwood Flooring Company, 96 NLRB 382.
HARCOURT AND COMPANY, INC. 909
the Union and certain strikers restraining them from engaging in
mass picketing, violence, and other misconduct, a fact that could have
reasonably led Harcourt to believe that the Respondent was under no
obligation to rehire the strikers named as defendants in the inj unction
proceedings; and (6) finally, the hiring of strike replacements and
the resultant loss by the Union of its status as the bargaining
representative of the employees.
In these circumstances, we are not convinced that the solicitation
engaged in by the Respondent constituted conduct inconsistent with
the Respondent's obligation to bargain in good faith with the Union
as the representative of its employees.
While we have found that certain statements referred to above are
violative of Section 8 (a) (1) of the Act, we do not find that this un-
lawful conduct, in fact, prolonged the strike and thereby converted it
from an economic into an unfair labor practice strike. It is well
established that an employer's unfair labor practices during an eco-
nomic strike do not per se convert it into an unfair labor practice
strike, absent proof of causal relationship between the unfair labor
practices and the prolongation of the strike.21 In the instant case,
there is no evidence showing that the conduct found unlawful above,
in fact, prolonged the strike. Indeed, the more reasonable inference
is that the impasse over the union shop which caused the November
21 strike was also responsible for the failure of the parties to settle
the strike. Thus, the Union never withdrew its demand for a union
shop. At the November 25 and 26 conferences and throughout the
strike the Union continued to insist upon-the union shop, while the
Respondent just as emphatically refused to give in on that issue.
Late attempts to bargain; Grimes' letter of December 14: On De-
cember 14, Grimes, an AFL organizer, wrote the Respondent that he
had authority to represent the Union for the purposes of collective
bargaining and asked for a conference for the purpose of settling the
21 Anchor Rome Mills, Inc., 86 NLRB 1120; Desoto Hardwood Flooring Co., 96 NLRB
382. In the Anchor Rome Mills, Inc., case the employer wrote to three striking employees
stating that they would be discharged if they did not apply for their jobs by a certain
date. The Board found the letter to be a violation of Section 8 (a) (1) as an attempt to
undermine the union 's representative status, but refused to adopt the Trial Examiner's
finding that thereby the employer prolonged the strike and converted it to an unfair labor
practice strike. It was also found that threats , assaults, and other acts of violence by
the employer 's agents upon pickets and strikers while constituting a violation of Section 8
(a) (1) did not prolong the strike and convert it to an unfair labor practice strike. See
also Myers Product Corporation, 84 NLRB 32, 51 , where the employer 's conduct in termi-
nating the employment relationship of strikers during a strike was found not to prolong
the strike
Cf. DeSoto Hardwood Flooring Company, 96 NLRB No. 76 , where the Board found that
the strike , economic in its inception , had been converted into an unfair labor practice strike
by the withdrawal of the union 's recognition (a per se violation of Section 8 (a) (5)),
the refusal to bargain with the union thereafter coupled with its inauguration of wage
increase , and by the solicitation of strikers ; Old Town Shoe Co , 91 NLRB 240, where the
employer refused to bargain with the union during a lawful strike.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
current labor dispute. In its reply of December 17, the Respondent's
attorney referred to the mass picketing, violence, etc., in connection
with the strike and to Harcourt's application for an injunction and
expressed the view that until the application for an injunction was
...disposed, of;-no "usefulpurpose",would be- served by any discussions
and that such a meeting would prove "fruitless." The letter, however,
concluded : "if in the light of the above you still wish to talk with. us,
I would suggest you to call the writer at Clay 8321." The letter also
invited Grimes to submit "concrete proposals" in this connection and
assured him that they would be given "most thoughtful consideration."
The Trial Examiner found that the Respondent's reply constituted a
refusal to bargain in violation of Section 8 (a) (5). We do not agree.
Although the Respondent stated that it believed that the meeting with
Grimes would serve no useful purpose, the Respondent did not reject
Grimes' request. It left it up to Grimes to decide whether under the
then existing conditions he should press for a meeting. Grimes elected
not to do so. The Trial Examiner's finding that the Respondent's
letter-of December 17, was a:refusal to bargain is,accordifigly. reversed.
The Union's request in January: On January 12 and 16 Metts wrote
Harcourt requesting a meeting. The Respondent refused the request
on January 18 alleging that the Union has lost its majority status.
Two other requests, made by Knoblock on February 11 and March
4, were refused on the same ground. The Trial Examiner found that
these refusals were in violation of Section 8 (a) (5) of the Act.
It is the Respondent's position that, as the strike was economic
in its inception and was not converted to an unfair labor practice
strike, and as a majority of the strikers had been permanently re-
placed, the Respondent's refusal to bargain with the Union on Janu-
ary 18 on the ground that the Union had lost its majority status was
not in violation of the Act. On this issue the record shows that on
November 21, 1949, the date on which the strike began, the Respond-
ent employed 33 production and maintenance employees, of whom 28
were union members. On January 21, 1950, the end of the then cur-
rent payroll period, there were 34 employees in the same unit, 21 of
whom were hired after the strike, 6 were nonunion members, who
were employed before the strike, and 7 were union members who were
hired before the strike and who either did not join the strikers or
returned to work after the strike. By February 17, 1950, the Respond-
ent had 39 production and maintenance employees, of whom 26 were
first employed after the strike began.
The Union does not claim that any of the employees who were
hired after the strike joined the Union or authorized the Union
to represent them. As a matter of fact, the testimony of McCafferty
and Metts affirmatively shows that none of the new employees desig-
HARCOURT AND COMPANY, INC. 911
dated the Union as their bargaining agent. Moreover, the union
members who returned to work after the strike began did so under
-circumstances sufficient to justify inferring that they had abandoned
the Union : 22 they crossed the picket line in the presence of President
Metts and other officers of the Union, stopped paying the dues, at-
tended .no union meetings,-and' generally, stopped regarding them-
selves as members of the Union.
The record thus shows, and we find, that on January 18 and during
the month of February, when the Respondent refused the Union's
request to bargain, the Union no longer represented a majority of
its employees. As the strike was economic in its origin and was not
-converted into an unfair labor practice strike by the Respondent's
unfair labor practices during the strike, we find that the Union's loss
.of its majority status justified the Respondent's refusal to bargain
further with the Union. An employer's lawful conduct which results
in loss of a union's majority status is not violative of Section 8
(a) (5).23 ,
Upon the entire record, we find, contrary to the Trial Examiner,
that at no time did the Respondent refuse to bargain with the Union
in violation of Section 8 (a) (5) of the Act. We also find that the
November 21 strike, which was economic in its inception, was not
-converted into an unfair labor practice strike by the Respondent's
conduct during the strike.
II. Refusal to reinstate striking en-bployees : On February 17, 1950,
the Union wrote the Respondent requesting employment of all
strikers without prejudice. That letter was not answered. In its
answer to the complaint the Respondent alleged that by February 17
all strikers' jobs were filled by- permanent replacements. At the
hearing the Respondent adduced documentary evidence in support
of this allegation. ' That evidence was not rebutted by the General
Counsel. Since we have found that the strike was called by the Union
to enforce its economic demands, that the strike was not converted
into an unfair labor practice strike, and as at the time of the Union's
application for reemployment no jobs were available, we find there-
fore; contrary to the Trial Examiner, that the Respondent's refusal
of the Union's application was not in violation of the Act.
III. Interference, restraint, and coercion: We agree with the
Trial Examiner that the Respondent interfered with, restrained, 'and
coerced its employees in the exercise of their rights guaranteed by
Section 7 of the Act, and thereby committed unfair labor practices
in violation of Section 8 (a) (1) of, the Act by the following acts :
The various statements and threats by Harcourt, Jr., and Harcourt,
22 Cf. Celanese Corporation of America, 95 NLRB 664.
23Jeffer8on Standard Broadcasting Company, 94 NLRB 1507.
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sr., that Metts, Conrad,. and other striking employees would not be
reinstated and that others -did not have jobs and were not wanted;
the statement by Harcourt, Sr., to Anderson that there would na
longer be a union; Striegel's statement to Anderson that Anderson
-would have abetter setup with the Union out of the shop; Harcourt,.
Jr.'s inquiry of Conrad as to his vote on the strike ballot, followed
by the threat never to reinstate him; Harcourt, Jr.'s statement to
Guenthner that he was not going to sign a contract; and the statements
by Harcourt, Jr., and Laufer to forget the Union and come back to
work. _
We also find that as the solicitation of individual strikers to abandon
the strike and return to work was coupled with coercive statements
such as those set forth above, the solicitation itself constituted inter-
ference, restraint, and coercion with the employees' right to bargain
collectively through the representative of their own choosing, and was
therefore in violation of Section 8 (a) (1) of the Act. We further
find that the Respondent engaged in;a similar violation of the Act by
holding meetings in November with older employees for the
purpose of receiving their suggestions as to how it might settle its
dispute or difficulties with the Union with respect to a new contract,
and by Harcourt, Jr.'s statements at meetings that if he could get rid
of Metts, he thought he could make a deal with the Union, and that it
was strange that the new employees "were doing all the talking,"
whereas the people who had been there twenty or thirty years "weren't
doing any of the talking."
IV. The remedy: It having been found that the Respondent has
engaged in certain acts of interference, restraint, and coercion, it will
be ordered that the Respondent cease and desist therefrom.
The violations of the Act which the Respondent committed per-
suasively relate to the other unfair labor practices proscribed by the
Act, and the danger of their commission in the future is to be antici-
pated from the Respondent's conduct in the past. The preventive
purposes of the Act will be thwarted unless the order is coextensive
with the threat. In order, therefore, to make more effective the inter-
dependent guarantees of Section 7, to prevent a recurrence of unfair
labor practices and thereby minimize the industrial strike which bur-
dens and affects commerce and thus effectuate the policies of the Act,
it will be ordered that the Respondent cease and desist from infringing
in any manner upon the rights guaranteed in Section 7 of the Act.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
HARCOURT AND COMPANY, INC. 913
Relations Board hereby orders that the Respondent, Harcourt and
Company, Inc., its officers, successors, and assigns, shall :
1. Cease and desist from :
(a) Interrogating employees as to the strike vote; threatening em-
ployees with discharge or the loss of their jobs and threatening not
to reemploy or reinstate them because of their union activities ; threat-
ening not to permit the Union in the plant and not to sign a contract
with it; soliciting the abandonment of the strike by individual strik-
ers; holding meetings with individual employees for the purpose of
receiving their suggestions as to how the Respondent's differences with
the Union with respect to a collective bargaining agreement could be
adjusted.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist International Plate Printers,
Die Stampers and Engravers Union of North America, Local No. 5,
AFL, or any other labor organization, to bargain collectively through
representatives of their own choosing and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all of such activities except
to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as-
authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in its plant in Louisville, Kentucky, copies of the notice
attached hereto and marked "Appendix A." 24 Copies of said notice,
to be furnished by the Regional Director for the Ninth Region, shall,
after being signed by Respondent's representative, be posted by Re-
spondent immediately upon receipt thereof and maintained by it for
sixty (60) consecutive days thereafter in conspicuous places, including
all places where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Ninth Region in writing
within ten (10) days from the date of the receipt of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it
alleges that the Respondent had refused to bargain collectively with
the Union as the exclusive representative of the employees in the
appropriate unit, in violation of Section 8 (a) (5) ; and that on or
24 in the event that this Order is enforced by a decree of a United States Court of Ap-
peals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about February 17, 1950, and since, discriminatorily refused to rein-
state 18 named striking employees who had applied for reinstatement,
in violation of Section 8 (a) (3) of the Act.
MEMBER STYLES, dissenting in part :
I am impelled to dissent at some length in this case because I firmly
believe that in reversing the Trial Examiner and dismissing the 8 (a)
(5) and 8 (a) (3) allegations of the complaint my colleagues have
not only failed to attach proper significance to certain critical facts,
but have also done violence to certain established and salutary prin-
ciples in the law of collective bargaining. Applying those principles
as I believe they should be applied in this case, I would conclude that
the Respondent refused to bargain in violation of Section 8 (a) (5)
and 8 (a) (1), that this unfair labor practice provoked the strike of
November 21, and was responsible-together with other related un-
lawful conduct-for prolonging that strike, and that the refusal to
reinstate the strikers was, therefore in violation of Section 8 (a) (3)
and 8 (a) (1).
We are dealing in this case with one of the most elusive of the many
concepts created by this Act-good faith bargaining. In the case now
before us, no less than in any other which involves an alleged violation
.of Section 8 (a) (5), our judgment as to whether the standards of
good faith bargaining have been met requires comprehensive consider-
ation of the Respondent's entire course of conduct during the period
in question. I can hardly accuse my colleagues in the majority of hav-
ing demonstrated any lack of thoroughness in their analysis of the
course of negotiation and the Respondent's conduct which provoked
the charge in this case. But I do quarrel with the manner in which
the majority finds it possible to explain away several critical acts by
the Respondent which conclusively demonstrate to me that on and
after November 10 the Respondent did not engage in the kind of
good faith bargaining the statute requires. Alid I do find consider-
able cause for concern in the fact that in explaining away some of this
conduct the majority opinion draws factual distinctions which seem
clearly immaterial to the applicability of what I had thought were
well-settled principles of law, and thereby casts grave doubt on the
continued vitality of those principles.
In part, I believe, the error in the majority opinion stems from
the failure of my colleagues to adequately consider what transpired
during the period from the commencement of negotiations between
the Union and the Respondent on June 4, 1949, and the date of No=
vember 10, 1949. Because the complaint alleges the latter date as the
first instance of a refusal to bargain, we are not entitled to base any
.findings of unfair labor practices on this earlier period. We are,
HARCOURT AND COMPANY, INC. 915
however, free to consider-and we should consider-the Respondent's
conduct in that period for the light it sheds on the Respondent's mo-
tives and bargaining attitudes in the later period covered by the com-
plaint.25 If we blithely assume-as I think my colleagues do-that
the period before November 10 involved nothing more than routine
give-and-take negotiations between the Union and the Respondent, we
may well wonder why an employer, whd had recognized the Union,
had successfully negotiated a contract in the previous year, and had
been bargaining amicably concerning a new contract until November
10, should suddenly on that date embark upon a course of conduct'
which is marked with bad faith bargaining. And, finding no nwtiva-
tion for bad faith bargaining, the conclusion that the Respondent's
conduct on and after November 10, is not indicative of such bargain-
ing follows all too easily.
When, on the other hand, the record evidence bearing upon the
events prior to November 10, is carefully analyzed-and the Trial
Examiner has done so in the Intermediate Report-it provides, in
my opinion, some important clues to an understanding of the Respond-
ent's motives on and after November 10. In particular, I am im-
pressed by the following circumstances :
The. Respondent's initial written proposal to the Union on June 15
was for a renewal of the old contract. After a meeting on June 18,
at which the Union listed some seven major contract demands, Har-
court again, on June 27, offered a renewal of the old contract with one
modification concerning the accumulation of seniority during pe-
riods of sick leave. The Union replied to the Respondent's written
inquiry as to whether it wished to renew the contract, by stating that
it did wish to renew the contract "with changes in wages and condi-
tions that now exist in present contract." Despite the fact that there
obviously had been no agreement at this point on "changes in wages"
or changes in any other "conditions that now exist," the Respondent
apparently chose to construe this reply as an acceptance of its offer
to renew the old contract, and at the next meeting on July 1 urged
that the union negotiators immediately sign an extension agreement
"and get it over with." Upon their refusal to do so, Harcourt, the
Respondent's negotiator, walked out of the meeting in anger. When
a majority of the employees on August 1 expressed themselves though
a poll in favor of renewing the 1948 agreement, Harcourt, with pre-
cipitate haste, prepared an extension agreement, which did not even
contain the modification concerning seniority during sick leave to
which the Respondent had earlier agreed. Certain of the members
of the Union's negotiating committee, including Union President
"Compare Amelson Manufacturing Company, 88 NLRB 761 ; Florida Telephone Corpo-
,atwn, 88 NLRB 1429
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Metts, viewed the poll as unlawful and refused to sign the contract.
Harcourt thereupon requested employees Watkins (a member of the
union committee) and Denneler (a former member of the committee)
"to get the people to agree to or to accept the old contract." 26
The pique which this incident and what had come before provoked
on the part of Harcourt was not disguised. At the next meeting with
the Union on August 11, Harcourt, as he himself admitted, was "pretty
mad" throughout the meeting. It is undisputed that he said virtually
nothing. When asked by one of the union negotiators whether in
his (Harcourt's) opinion such conduct was consistent with good faith
bargaining, Harcourt merely stared at him in silence. This, more-
over was no momentary vexation. Following the meeting of August
11 the Union was unable to get Harcourt to agree to meet for some
2 months. On October 11 a meeting was finally arranged by 'the
Federal Mediation and Conciliation Service. At this meeting, ac-
cording to the credited testimony, the union negotiators stated that
Harcourt could not just sit there, but "must tell us something," and
Harcourt replied, "All I have to do is pay taxes and die."
• All of this, taken together with the other facts fully described in the
Intermediate Report, persuades me that in the period before Novem-
ber 10, despite a certain amount of superficial give and take, the
Respondent's bargaining was marked by a fixed objective of obtaining
a renewal of the 1948 contract without any substantial changes; that
the Union's persistence in rejecting so summary a resolution of the
issues and in demanding major contract changes even after the em-
ployees had demonstrated in a poll that they were satisfied with the
old contract, provoked a growing feeling of resentment by Harcourt
against the union bargaining committee in general and its leader,
Metts, in particular; and that by November 10, the Respondent had
determined that it could not do business with the union bargaining
committee.
This background of an overwhelming desire to push through a-re-
newal of the old contract, and of growing resentment against the
union bargaining committee provides a far more satisfactory explana-
tion to me of the Respondent's subsequent conduct than does anything
stated in the majority opinion 27 Particularly is this true of the
"I am far from satisfied , as my colleagues in the majority are, that by "the people" In
this remark Harcourt was referring not to the employees , but to the committee members
and Metts . Considered in the light of the Respondent 's subsequent attempts to deal in-
dividually with its employees I believe that the former construction is at least as plausible
as the latter. But however the remark be construed , it is, at the very least, further evi-
dence of the Respondent 's overwhelming preoccupation with summarily resolving all the
disputed issues in the negotiations by simply obtaining a renewal of the old contract.
27 I do not suggest , as my colleagues say I do, that Harcourt ' s vexation with the union
bargaining committee is itself evidence of bad faith bargaining . I say that it serves to
explain why Harcourt on November 10 embarked upon a campaign to undermine that
committee . And, though, under the circumstances, Harcourt 's resentment may well be
HARCOURT AND COMPANY, INC. 917
'Respondent's conduct, the necessary effect of which was to undermine
the authority and bargaining status of the union committee, and it is
with my colleagues' treatment of that phase of the Respondent's
conduct that I find myself in greatest disagreement.
On November 10, Harcourt arranged for one or two meetings with
the "older" employees. According to the credited testimony, Har-
court informed the employees that the purpose of the meeting was
to bring about a settlement of the matter with the Union, and inquired
whether there was some way in which the older employees "could
talk and maybe bring it about to a settlement of some kind." Har-
court stated "it seems very strange to me that [the older employees]
were the ones who had the most to lose by reason of a strike, and it
seemed strange to me that-people who had been there only a short
time were doing all the talking, and people who had been there
twenty or thirty years weren't doing any of the talking." At one
point Harcourt also said that "if he could get rid of Metts, he thought
he could make a deal with the rest of the people." At another point
he asked the employees whether they were satisfied with their wages.
One of the employees present, Smith, replied that he had no right to
negotiate anything, that he wasn't on the bargaining committee, that
the Union represented the employees, and that it was up to Harcourt
to bargain-with the Union. Another employee, Denneler, made a
similar observation and they both walked out of the meeting.
My colleagues find that by conducting the meetings of November 10
and by certain of the statements made at these meetings, the Respond-
ent violated Section 8 (a) (1) of the Act. They reverse the. Trial
Examiner, and refuse to find, however, that this conduct was indicative
of bad faith bargaining or otherwise violated Section 8 (a) (5) of
the Act. I most emphatically disagree.
I had thought it so well established as to leave no room for doubt
that for an employer to attempt to deal directly with his employees
under circumstances such as are present here was a violation of Sec-
tion 8 (a) (1) and 8 (a) (5). Whatever doubt there may earlier
have been was certainly put to rest by the Supreme Court in the
Mecto 28 case. In that decision, the Court summed up the situation
in these words :
The National Labor Relations Act makes it the duty of the em-
ployer to bargain collectively with the chosen representatives
of his employees. The obligation being exclusive . . . it exacts
the negative duty to treat with no other" . . . Bargaining
viewed as "an understandably human reaction ," that is no justification for the violations
of the Act which occurred . The law is often violated in an understandably human way,
but it is a violation nonetheless.
u Medo Photo Supply Corporation v. N. L. R. B., 321 U. S. 678.
998666-vol . 98-53-59
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
carried on by the employer directly with the employees, whetber
a minority or majority, who have not revoked their designation
of a bargaining agent, would be subversive of the mode of collec-
tive bargaining which the statute has ordained . . . Orderly
collective bargaining requires that the employer not be permitted
to go behind the designated representatives, in order to bargain
with the employees themselves, prior to such a revocation... .
And the Court of Appeals for the Second Circuit had earlier sum-
marized the problem and indicated some of the other policy con-
sideration involved as follows : 29
To permit the employer to go behind the chosen bargaining
agent and negotiate with the employees individually, or with
their committees, in spite of the fact that they had not revoked
the agent's authority, would result in nothing but disarrangement
of the mechanism for negotiation created by the Act, disparage-
ment of the services of the Union, whether good or bad, and
acute, if not endless, friction which it is'the avowed purpose of
the Act to avoid-or mitigate.
-My colleagues in the majority find these clear pronouncements,
and the rest of Board decisions which have reached the same result 3,)
inapplicable in this case. They find that Harcourt sought merely
to explain to the older employees his position in negotiating with the
Union, to ascertain their views, and to enlist their support. This,
to my mind, is a most unrealistic appraisal of what was actually said
at the meetings, and is a far narrower construction of the limitations
imposed by the Medo Photo doctrine on an employer's direct dealing
with employees than the Board and the courts have heretofore applied-
Thus, for example, in Twin City Milk Producers Association," the
Board found a violation of Section 8 (a) (5) in calling a meeting of
employees to discuss the union's proposals. • And in N. L. R. B. v.
Highland Shoe, Inc.,32 the court, in affirming the Board's finding of a
violation of Section 8 (a) (5) based on a similar meeting, rejected the
employer's contention that at the meeting in question with its em-
ployees it had not engaged in any real bargaining. Its words are
especially relevant to the instant case :
23 N. L. R, B. v. Acme Air Appliance Company, Inc ., 117 F. 2d 417 (C. A 2).
30 See, for example, the cases cited in footnotes 31 and 32, below, and the cases cited
therein. See also, Reeder Motor Company, 96 NLRB 831.
31 61 NLRB 69. See also, W W Holmes, at at, 72 NLRB 1339 ; Pepsi Cola Bottling
Company of Montgomery , 72 NLRB 601; Consumers Cooperative Refinery Association,
77 NLRB 528.
My colleagues also appear to place some reliance on the fact that the November 10
meeting followed an impasse on the union-security issue. But this is of no significance,
for the Board has held that even a good faith impasse does not justify unilateral action
by an employer which is undertaken in a manner calculated to undermine the union. See
Central Metallic Casket Co , 91 NLRB 572.
32119 F. 2d 218 (C A. 1).
HARCOURT AND COMPANY, INC. 919
-They fact remains that the only reason why the meeting was
called was so that rates of pay might be discussed between the
.Respondent and its employees directly and in circumvention of
the Union . . . To hold that the Board must accord controlling
importance to the Respondent's obviously studied act of re-
straint would be to permit it to evade the clear mandate of the
Act. (Emphasis supplied.)
Certainly at least two of the employees present, Smith and Denneler,
construed the meetings for what they realistically were, as an attempt
to bargain in circumvention of the union committee, and rejected
it on just that ground. But even if I were not as fully satisfied
as I am that such was the Respondent's purpose, I could not condone
the conduct in question. For whether or not the Respondent pur-
posefully determined to use the meetings of November 10 as a means
of undermining the status of the union bargaining committee, such
was the reasonably calculated effect of its conduct.33 And I cannot
treat as lightly as my colleagues do the fact that at these meetings
Harcourt even went beyond the act of dealing directly with its em-
ployees and resorted to (1) a clear attempt to set off the older employees
against their ow-n represelltatives,34 and (2) a statement, which the
majority admits was unlawful, that if Harcourt could "get rid of" the,
Union's principal negotiator it might "make a deal with the rest of
the people."
My colleagues thus reach their conclusion that, the 11fedo Photo
doctrine is inapplicable to the meetings of November 10 on distinctions
which are not based on any real differences. But what is particularly
strange about the majority opinion is that, while refusing to find
that in this conduct the Respondent refused to bargain, it nonetheless
finds in no uncertain terms that by this same conduct the Respondent
interfered with rights protected by Section 7 of the Act and thereby
violated Section S (a) (1). This is a kind of sophistry which escapes
me. For if, in dealing directly with its employees in the manner in
which it did, the Respondent interfered with rights protected by
Section. 7 of the Act, which of those rights were more clearly inter-
fered with than the right "to bargain collectively through represen
33 In dealing with a similar issue in connection with the problem of good faith bargaining
one court observed ". . . good intentions alone would not save [the respondent] from the
certain consequences of his deliberately chosen course ." N. L. R. B. v. George P. Pilling d
Son Co ., 119 F . 2d 32 (C. A. 3).
34 The majority opinion merely says that Harcourt's references to the lack of representa-
tion on the committee by "older" employees does not reveal such an attempt, apparently
because Harcourt had dealt with the committee in the past, and continued to deal with it
after November 10. But , the first of these considerations fails to consider the extent to
which Harcourt had become resentful of that committee, and the second is wholly beside
the point . I concede that having failed in its attempt on November 10 effectively to under-
mine the committee , Harcourt dealt with that committee thereafter.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tatives of their own choosing"? And if that is the right which was
interfered with, how can it be said, as the majority does, that the meet-
ings of November 10 were no evidence of a refusal to bargain? For my
colleagues, the vice in the Respondent's conduct apparently lay only in
the fact that the Respondent sought to inquire of the employees as to
what their views were on the position their representatives had taken
in bargaining negotiations, and, as such, was an interference in some
general sense, akin to interrogation by an employer as to an employee's
union activities. But the vice is deeper and more specific than that,
and is, almost by definition, the very antithesis of good faith bar-
gaining. Congress recognized it as such. In the hearings which
culminated in the enactment of the Wagner Act, Senator Wagner
very cogently observed : 35
To attempt to deal with his men otherwise than through rep-
resentatives they have named for such purposes would be the
clearest interference with the might to bargain collectively.
(Emphasis supplied.)
That being so, I fail to see why the appropriate remedy for a
violation of this character, however it may be labeled, is not an order
to bargain collectively. My colleagues, reporting to farfetched an-
alogies that have nothing to do with this case, say that by this rea-
soning we would be compelled to hold that every violation of the
other subsections of Section 8 (a) of the Act is also. a violation of
Section 8 (a) (5), because such violations at least indirectly con-
stitute acts of interferences with the right to bargain collectively.
We are not dealing in this case with general antiunion conduct en-
gaged in at a time when union organization of the employees is at
an incipient stage, and where, therefore there is no labor organiza-
tion in whose favor a bargaining order can properly be issued. Nor
do I say that violations of Section 8 (a) (1), (2), (3), or (4), under
all circumstances constitute a refusal to bargain. The violations of
Section 8 (a) (1) committed by the Respondent on November 10
were, by their very nature, aimed at destroying the bargaining status
of a duly designated majority representative. Wholly apart from
the Medo Photo aspect of these meetings, they involved an attempt
to set off the older employees against their representative, and a plea
to "get rid of" the Union's principal negotiator so that the Respondent
81 Hearings on Sen. Bill 1958, 74th Cong., 1st Sess., pt. 1, p . 43. In Air Associates, In-
corporated, 20 NLRB 356 , the employer attempted to persuade the members of a union
negotiating committee to discuss the terms of a proposed contract in the face of their
assertion that they were not authorized to do so in the absence of a union organizer. In
finding the conduct in violation of the Act the Board stated :
Not only does such a practice by an employer "undercut" the authority of the
chosen representative to act within the sphere of representation in regard to the
execution of a collective bargaining agreement, but it subjects the individual employees
to the very pressures which collective bargasning would obviate . ( Emphasis supplied.)
HARCOURT AND COMPANY, INC. 921
might "make a deal with the rest of the people." Indeed, they are
of so serious a Ql wracter that even my colleagues specifically find,
in the section of their opinion entitled "The remedy," that these and
other similar violations of Section 8 (a) (1) by the Respondent
"persuasively relate to the other unfair labor practices proscribed
by the Act" and warrant the broadest form of cease and desist order.
It seems plain to me that if the Respondent's conduct on November
10 persuasively relates to anything, it is to the Respondent's refusal
to bargain.
Moreover, the conclusion which I reach that the Respondent refused
to bargain on and after November 10 finds further support in the
fact that the Respondent's conduct in dealing directly with its em-
ployees in derogation of the Union on that date does not stand alone.
Similar manifestations of bad faith bargaining by circumvention of
the Union occurred on two subsequent occasions : (1) In the meeting
of November 25 and 26 during the strike, and (2) in the Respondent's
individual solicitation of the strikers.
There can be no doubt that at the November 25 and 26 meetings
Harcourt negotiated directly with the employees in the full sense of
that term. Wages and the union shop were discussed; the employees
attempted to trade off the Union's wage demand in return for a
union shop; and Harcourt-still persistent in his endeavor to renew
the old contract-said, "Fellows you can all go back to work under
the old contract." But here again my colleagues find the Medo Photo
doctrine inapplicable, and here again the distinctions they draw are
irrelevant. The majority stresses the fact that the employees them-
selves arranged these meetings. But that was precisely the situa-
tion in the Medo case itself, and in most of the cases which have
followed it. The Supreme Court, flatly rejecting this contention, said :
[The respondent] was not relieved from its obligations because
the employees asked that they be disregarded. The statute was
enacted in the public interest for the protection of the employees'
right to collective bargaining and it may not be ignored by the
employer, even though the employees consent . . . or the employ-
ees suggest the conduct found to be an unfair labor practice... .
(Emphasis supplied.)
The majority further emphasizes the fact that the employees present,
when asked if they constituted the committee, replied, "Let's call this
the committee at large," and the fact that the employees present in-
cluded all the committee members together with all the active union
adherents. But in one of the earliest cases on this subject the Board
recognized that even dealing with a group which includes all the
employees is not the same as dealing with the union representatives,
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and is not good faith bargainiiig . 36 To hold otherwise is to miss
completely the whole point of the Act's restrictionion dealing directly
with employees when there is a duly designated representative.
For me the meetings of November 25 and 26 are at least as much
an indication of the Respondent 's disregard of its obligation to bar-
gain in good faith as is the November 10 meeting. The fact that
in the period between these dates the Respondent met with the union
committee does not excuse its conduct at these times , or detract from
the light it sheds on the Respondent 's bargaining attitudes.
Like the Trial Examiner I also believe that the Respondent's in-
dividual solicitation of strikers-particularly when viewed in the
light of the other attempts to circumvent the Union I have already de-
scribed-was similarly calculated to undermine the authority of the
Union and therefore further evidence of.bad faith bargaining. Again
my colleagues find it possible to conclude that this solicitation inter-
fered with the striker 's rights, in violation of Section 8 (a) (1), but
that it in no way reflects bad faith bargaining. I, on the other hand,
have rarely seen a clearer example of the kind of individual solicita-
tion of str kers which is reasonably calculated to undermine the
Union. For here the Respondent did not merely individually invite
the strikers to return to work; it accompanied such invitation with
statements that ( 1) certain employees , including Union President
Yfetts, would not be reinstated , ( 2) there would no longer be a union,
(3) the Respondent was not going to sign a contract , (4) they were
not going to have a union shop , and (5 ) the employees would have a
better setup with the Union out of the plant . All of this my colleagues
explain away by what amounts to no more , in substance , than an
observation that not all of the threats contained in these statements
were carried out. This does not persuade me, and is clearly beside
the point on the issue of whether the individual solicitation reflected
• bad faith bargaining.
But these, three examples . of an undermining of the bargaining
authority of the Union-the meeting of November 10, the meetings
of November 25 and 26, and the individual solicitation of strikers,
while sufficient in themselves , are not the only evidence of the Re-
spondents refusal to bargain.
I am persuaded by the evidence as to what transpired at the meeting
of November 20 between the Respondent and the Union, on the eve of
the strike , that the Respondent did not at that meeting satisfy the
36 Stiles-Coleman Lumber Company, 4 NLRB 679 , enfd. 98 F. 2d 18 (C. A. 9) Leader
News Co., Inc ., 98 NLRB 119 , relied upon by the majority , turns on special facts which
are not present here, facts which show, among other things, that the union, acting through
its duly designated business agent who was fully aware of the direct negotiations, had
tacitly authorized tie direct negotiations with employees by conduct which involved much
more than the presence of the union members at the meeting and their failure to object.
HARCOURT AND COMPANY, INC. 923
standards of good faith bargaining. In this connection one fact,
which the majority opinion ignores, assumes considerable significance.
Just before the November 20 conference the Union, pursuant to prior
arrangements, submitted to Harcourt a proposed draft of a contract.
According to his own testimony, Harcourt read the contract and
when he came to the clause relating to union security his interest
"died right then and there." This was the general attitude with
which Harcourt entered the meeting of November 20, a conference
designed to make one final attempt to resolve the disputed issues and
avert a strike. When Knoblock, the union negotiator who had drafted
the proposed contract, asked Harcourt what he thought of it, Harcourt
replied he "didn't think much of it"; and when Knoblock thereupon -
suggested that, in that event, they should review the entire situation,
and see what further changes might be made in order to reach an
agreement, Harcourt simply replied that he had nothing further to
offer.
I hardly think that in the circumstances present on that day this
was th&kind of good faith bargaining the statute requires. I am
well aware of the principles stated by my colleagues that the Act
does not require that an employer capitulate to a union's demands,
or continue to rehash proposals when, after all the elements of good
faith bargaining have been exhausted, it is clear that the parties have
reached a true impasse. But such was not the situation, in my opin-
ion, on November 20. The Respondent, in the events of November 10
and those which preceded it, had, at the very least, cast some doubt
on the bona fides of its bargaining and on the existence of any desire
on its part to reach any agreement which did more than renew the
old contract. It entered the meeting of November 20 with feeling
that its interest "had died," and, while the contract which had been
submitted to it may have contained nothing new, the Union made at
the conference what I believe was a sincere offer to review the situ-
ation and reach some compromise in order to prevent a strike. What-
ever impasse may have existed prior to that,point-even assuming
it was a good faith impasse-was broken by this offer of the Union.
In these circumstances I believe it was incumbent upon the Respond-
ent to attempt to explore the situation further. This it failed to do.
The Respondent's conduct at this meeting was thus a direct con-
tributing cause of the strike.
Finally, like the Trial Examiner, I believe that the Respondent's
refusal to bargain was manifested in its reply on December 17 to the
request of the Union's Representative Grimes for a conference for 'the
purpose of settling the dispute. This reply referred to the conduct of
the strikers. against whom the Respondent had applied for an injunc-
tion, and stated that in such circumstances no "useful purpose" would
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be served by any conference, that such a conference would prove "fruit-
less," but that "if in the light of the above you still wish to talk to us,
I would suggest you call the writer....", Here again, it seems to-
me, the Respondent failed in its clear obligation to attempt to resolve
the issues of the strike. For the strike itself, and the request of the
Union to meet, broke whatever impasse had existed. To this my col-
leagues simply state that the Respondent "did not definitely turn down
Grimes' request." But at best it left it up to Grimes to decide whether-
lie should ask for what the Respondent assured him in advance would
be a "fruitless" meeting. While the Respondent's reply did not spe-
cifically foreclose a conference, it made it clear in no uncertain terms
that it regarded such conference as "fruitless," and of no "useful pur-
pose." If this was not an anticipatory refusal to bargain at any
future meeting, it, at the very least, strongly indicates the lack of good
faith in the Respondent's offer to meet.
In the light of all of the foregoing, I am convinced that from on
and after November 10 the Respondent failed and refused to bargain
in good faith. For the reasons which are adequately stated 'by the
Trial Examiner, and need not be repeated here, I would also find that
the strike of November 21 was provoked by this conduct, that it was,
in any event, prolonged by the unlawful conduct during the strike,
and that the strikers were unfair labor practice strikers entitled to
the treatment normally accorded such employees.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Re-
lations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees as to the strike vote;
threaten employees with discharge or the loss of their jobs or
threaten not to employ or reinstate them because of their union
activities; threaten not to permit the union in the plant and not
to sign a contract with it; solicit the abandonment of the strike by
individual strikers; or hold meetings with individual employees
for the purpose of receiving their suggestions with respect to how
its differences with the Union with respect to a collective bargain-
ing agreement could be adjusted.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist INTER-
NATIONAL PLATE PRINTERS , DIE STAMPERS AND ENGRAVERS UNION
HARCOURT AND COMPANY , INC. 925
of NORTH AMERICA, LOCAL No. 5, AFL, or any other labor organ-
ization , to bargain collectively through representatives of their
own choosing and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all of such activities except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act.
All our employees are free to become , remain, or refrain from
becoming or remaining members of INTERNATIONAL PLATE PRINT-
ERS, DIE STAMPERS AND ENGRAVERS UNION OF NORTH AMERICA,
LOCAL No. 5 , AFL, or of any other labor organization , except to
the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of em-
ployment as authorized in Section 8 (a) (3) of the Act.
HARCOURT AND COMPANY, INC.,
Employer.
By --------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a second amended charge filed April 17, 1950, by International Plate
Printers , Die Stampers and Engravers Union of North America, Local No. 5,
AFL, herein called the Union, the General Counsel of the National Labor Rela-
tions Board 1 by the Regional Director for the Ninth Region (Cincinnati, Ohio),
Issued a complaint dated January 25, 1951, against Harcourt and Company, Inc.,
herein called the Respondent, alleging that Respondent had engaged in unfair
labor practices in violation of Section 8 (a) (1), (3), and (5) and Section 2
(6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136,
herein called the Act, which unfair labor practices may be summarized as, fol-
lows: (1) That at all times since November 10, 1949, Respondent had refused
to bargain collectively with the Union, which was the exclusive bargaining repre-
sentative of the employees in an appropriate unit; (2) that on or about Febru-
ary 17, 1950, and since, Respondent discriminatorily refused to reinstate 18
named striking employees who had engaged in an unfair labor practice strike
and who had applied unconditionally for reinstatement; and (3) by the above
and by other specified acts commencing on or about November 21, 1949, Respond-
ent had interfered with, restrained, and coerced employees in the exercise of
rights guaranteed in Section 7 of the Act. Copies of the complaint, of said
charge, and of a notice of hearing were duly served on Respondent and the
Union.
1 The General Counsel and his representatives at the hearing are referred to herein as
the General Counsel and the National Labor Relations Board as the Board.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent filed certain motions prior to the hearing which were referred
to and passed upon by Trial Examiner Sidney Lindner, duly designated by the
Chief Trial Examiner for that purpose. Said Trial Examiner denied Respond-
ent's motion to take the depositions on cross-examination of Vernon Metts and
granted in part Respondent's motion for a bill of particulars. The General
Counsel complied with the latter order by a bill of particulars filed, on:-February
26, 1951, and also filed on that date an amendment to the complaint as to the
cause of the strike.
Respondent filed its answer on February 5, 1951; and on March 2, 1951, it
filed an amended answer which pleaded additional affirmative defenses: Said
answers may be briefly summarized as follows : The original answer denied
the commission of unfair labor practices,, averred that the strike was an economic
strike and that the strikers had been permanently replaced, and pleaded also
that the strike was an unlawful one and that the employees, by participating
therein, had lost their status as employees. The latter defense was enlarged
upon in the amended answer, which averred, among alternative defenses, that
an extension of an existing contract had been agreed to on August 1, 1949
(date as amended at the hearing), that said contract-contained a no-strike
clause, and that the strike which was called on November 21, 1949, was in viola-
tion of that clause. The amended answer also pleaded that by reason of calling
the strike, and otherwise by refusing to bargain with Respondent, the Union
had violated Section 8 (b) (3) and 8 (d) of the Act, and had thereby lost its
status as the bargaining representative of the employees, and that the striking
employees, by participating in the strike, had lost their status as employees.
The amended answer also expanded upon the defense that the strike.was
an economic one, that the strikers had been replaced by permanent employees,
and that the Union had thereby lost its majority status. Respondent also
pleaded as a defense to the reinstatement of six of the strikers that they had
engaged in certain unlawful acts, such as mass and illegal picketing, and
as to one of them, that Respondent had offered unconditionally to reinstate
him and that he had declined. .
The amended answer also pleaded that the Board had "delayed and pro-
crastinated an unreasonably long time in filing a complaint" and that such fact
absolved Respondent from any liability for acts "with which [Respondent]
would not have been charged, had the Board acted with reasonable promptness
and diligence in prosecuting this cause." The latter defense is hereby denied.
Agar Packing & Provision Corpo? ation, 81 NLRB 1262, 1265, and cases cited ;
and see N. L. R. B. v. Andrewv-Jergens Co, 175 F. 2d 130, 134 4C. A. 9) ; N. L. R. B.
v. Stone, 125 F. 2d 752, 756-7 (C. 'A. 7), cert. den. 317 U. S. 649; Vulcan Forging
Co., 85 NLRB 621; Quarles Manufacturing Company, 83 NLRB 697, 698.
Pursuant to notice a hearing was held from March 20 through April 6, 1951,
at Louisville, Kentucky, before George A. Downing, the undersigned Trial
Examiner, duly designated by the Chief Trial Examiner. The General Counsel,
Respondent, and the Union were represented by counsel. Full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce evidence
pertinent to the issues was afforded all parties.
As the hearing opened, Respondent moved to dismiss the complaint for
failure to state a cause of action ; the motion was denied 'Respondent also
moved to dismiss on the further ground that the complaint did not allege that
the Union was in compliance with Section 9 (f), (g), and (h) of the Act. The
General Counsel represented that the Union's compliance had been adminis-
tratively determined by the Board except for the periods from October 1 to
December 14, 1949, and from October 15 to November 20, 1950, which periods were
HARCOURT AND COMPANY, INC. 927
prior to the issuance of the complaint. The motion was denied! Respondent
also renewed its motion for a bill of particulars and moved for a continuance.
Said motions were denied, with leave to Respondent to renew its motion for
a continuance at the conclusion of the General Counsel's case. Respondent
renewed the latter motion when the General Counsel rested on March 28,
and a recess was granted until April 4.
Respondent also moved for a dismissal upon conclusion of the General Coun-
sel's case; said motion was denied. At the conclusion of the case, the parties
were afforded an opportunity to make oral argument and to file briefs, proposed
findings of fact, and conclusions of law. The case was argued orally by the
General Counsel and the Respondent,' who have also filed briefs which have
been considered.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Harcourt and Company, Inc., is a Kentucky corporation engaged in the busi-
ness of manufacturing jewelry and engravings at Louisville, Kentucky. Its
annual purchases of materials and supplies are approximately $100,000, of which
approximately 50 percent comes from points outside the State of Kentucky.
Its annual sales of finished products are approximately $300,000, of which ap-
proximately 50 percent is shipped directly to points outside the State. It is
concluded and found that Respondent is engaged in, interstate commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Plate Printers, Die Stampers and Engravers Union of North
America, Local No. 5, AFL, is a labor organization admitting to membership
employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background; statement of main events and issues
Respondent's business was established about 45 years ago by Ashton Har-
court, Sr., who was until recently its president. Ashton Harcourt, Jr., testified
that 2 or 3 months before the hearing he became president and his father,
chairman of the board of directors.4 However, Harcourt, Jr, has been the
active managing head of the business for several years
There is no history of union activities prior to the fall of 1948. A strike
occurred at that time, unconnected with the Union and prior to the Union's
request for recognition. Later, the Union organized the employees and entered
into a contract with Respondent dated December 3, 1948, and expiring July 1,
1949. That contract contained a no-strike clause.
2 Sunbeam Corporation, 93 NLRB 1205, Sunbeam Corporation, 94 NLRB 844, and cases
there cited ; New Jersey Carpet Mills, Inc, 92 NLRB '604; West Texas Utilities Co. v.
N L. R B, 184 F 2d 233, cert den May 28, 1951 , and see N. L R. B. v lViltse, 27 LRRM
2526 (C A 6), and N L. R B v I F. Sales Co., 27 LRRM 2603 (C A 6)
3Respondent also renewed its motion to dismiss based on Section 9 (f), (g), and (h)
said motion was again denied
4 Yet as late as February 3 and March 1, 1951, Harcourt, Jr., signed and swore to the
answer and amended answer as vice president.
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent opened negotiations for a new contract by its letter of May 4,
1949, and bargaining conferences were held on June 4, 18, July 1, 29, August
11, October 12, and November 19 and 20. Respondent also had called and
held meetings on or about November 10, with groups of its "older employees."
A strike occurred on November 21, which remains unsettled. On that date, top
officials of the International and of the Local conferred briefly with Harcourt.5
On November 25 and 26, Respondent held conferences with various groups of
employees, at which there were sometimes present various representatives of
the Union and sometimes none. There is evidence-some of which is contro-
verted and some not-that at various times subsequent to November 21, Re-
spondent solicited individual employees to abandon the strike and return to work
and that it threatened to discharge certain employees and threatened not to re-
instate others because of their union activity. There is also evidence that on
December 9 and 10 there occurred incidents of alleged mass picketing and
violence on or near the picket line.
On December 14, 1949, and on January 12 and 16, 1950, the Union made re-
quests for bargaining conferences, but Respondent refused. On February 17,
1950, the Union requested the reinstatement of all striking employees and the
resumption of bargaining negotiations. Its letter was not answered. On Feb-
ruary 11 and on March 4, Otto E. Knoblock, who was then the International's
vice president, made attempts to bargain and to settle the strike with Harcourt
and with Respondent's attorney, James U. Smith, Jr., but the requests were
refused. In the meantime, Respondent had, on February 17, completed the re-
placement of the strikers by employing persons alleged to be permanent
employees.
` The main issues in the case are whether Respondent refused to bargain, as
charged, on and after November 10, 1949; whether an agreement was precluded
by the Union's own refusal to bargain, as pleaded by Respondent ; and whether
the old contract was in fact renewed and whether the strike was in violation
of the no-strike clause Other main issues concern the character of the strike,
i. e., whether it was an economic or an unfair labor practice strike ; whether, if
economic in origin, it was later converted into an unfair labor practice strike
and when ; and whether, if it continued as an economic strike, Respondent
had replaced the strikers with permanent employees, and when the Union lost
Its majority. Other issues are whether Respondent solicited individual strikers
to abandon the strike in derogation of the Union's status as their bargaining
representative, and whether it threatened to discharge employees and threatened
not to reinstate others because of their union activities.
B. Prestrike negotiations
Although the complaint charges and the General Counsel contends that Re-
spondent's refusal to bargain commenced on November 10, it is necessary to re-
view the earlier negotiations in some detail because of the nature of Respondent's
affirmative defenses and its contention that the reaching of an agreement was
precluded by the Union's refusal to bargain as far back as June 4.
It is unnecessary to the determination of any issue that the full discussions
be here recited, since the evidence as a whole clearly defined the course of the
negotiations and the positions of the parties. It would also be both unreward-
ing and futile to spell out the minutiae of variation, conflict, and inconsistency
in the testimony of all the witnesses to the several conferences. Indeed, the
All references to Harcourt relate to Harcourt, Jr.
HARCOURT AND COMPANY, INC. 929
recollections of a number of the witnesses were admittedly hazy ; and others
who made no such admission also obviously confused certain meetings with
others, including both the participants and the subjects under discussion.' The
findings herein made are therefore based on the preponderance of the evidence
on the record as a whole ; and the testimony of individual witnesses which is
not in accord, or is not reconcilable with these findings, has not been credited.'
However, specific credibility findings have been made where matters of impor-
tance or significance to the issues are involved.
To further expedite the summary of the negotiations, there is listed in the
margin the names of the Union's negotiators who participated in the various
bargaining conferences prior to the strike. 8 Harcourt himself was Respondent's,
only representative throughout the negotiations.
1. The meeting of June 4
Respondent notified the Union on May 4 that it wished to make "certain
changes in the contract expiring July 1," and suggested "some Saturday morn-
ing after the rush season is over." . Metts replied on May 21, suggesting June 4,
and the meeting was held on that date. It is possible that Anderson and
one or two other employees were present unofficially and not as members of
the committee.
The meeting was a short one. Harcourt suggested two changes in the con-
tract, 1. e., changing the annual expiration date from July 1 to June 1 and the
removal of two jobs from the bargaining unit. Harcourt also stated that he
had considered suggesting a wage cut but indicated that he had abandoned the
idea. There was no substantial discussion of the proposals. The committee
informed Harcourt they would have to submit his proposals to a union meeting
to be voted on ; they submitted no proposals from the Union.
6 As early examples , Harcourt, Watkins, and Denneler placed Metts (the Union' s presi-
dent ) at the first meeting on June 4, and Watkins also placed Metts at the second meeting
on June 18 ; yet Metts was on his vacation at the time of both meetings. Similarly , Kaufer
and McCafferty placed Gossett at the first meeting, though Gossett's credited testimony
establishes that he was not elected to the bargaining committee until July 25 (replacing
Paul Collins), and that the first bargaining conference he attended was on July 29. As a
further example, there was marked confusion on the part of several witnesses concerning
alleged meetings on November 21, and as to attendance at meetings on November 25
and 26.
7 Though this has resulted in partial acceptance and partial rejection of the testimony
of many witnesses , such fact in no wise diminishes the force of the findings "It is no
reason for refusing to accept everything that a witness says, because you do not believe
all of it ; nothing is more common in all kinds of judicial decisions than to believe some
and not all ." N. L. R. B. V. Uncversal Camera Corporation, 179 F. 2d 749, 754 (C A. 2),
reversed on other grounds, 71 S. Ct 456; Stedfast Rubber Company, Inc., 91 NLRB 300.
8 Negotiators who testified as the General Counsel's witnesses are marked (GC), Re-
spondent 's witnesses are marked (R), and negotiators who did not testify as to the particu-
lar meeting are marked (x). Attendance was as follows : June 4: August Denneler (R),
Norman Kaufer (GC), Melvin McCafferty (GC), Stanley Watkins (R). June 18: Kaufer
(GC), McCafferty (GC), Watkins (R). July 1: Kaufer (GC), McCafferty (GC), Watkins
(R). July 29: John Gossett (GC), McCafferty (GC), Watkins (R). August 11 : Ben N.
Mazza , International vice president (GC), Edward H Weyler, State Federation, AFL (GC),
Gossett (GC), Elizabeth Jarboe (x), Kaufer (GC), Vernon Metts (GC), McCafferty (GC),
Watkins (R) October 12: Edmund F. Grimes, AFL organizer (x), Weyler (GC), Gossett
(GC), Kaufer (GC), Metts (GC), McCafferty (GC), Watkins (R). November 19: Otto E.
Knoblock, International vice president (GC), Frank Sickler, International representative
(x), Cecil Conrad (substituting for McCafferty) (GC), Kaufer (GC), Metts (GC),
Watkins (R). November 20 • Same as 19th plus Gossett (GC) and McCafferty (GC).
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The meeting of June 18
Subsequent to June 4, Harcourt's proposals had been voted on •rn a union
meeting, and other union proposals had been decided on. On June 15, the Union
wrote Harcourt requesting a meeting on June 18, and adding, "This is a very
important meeting to bargain collectively on changes in wages and some existing
conditions in their contract with you." (Emphasis supplied.)
Harcourt had dictated a letter on the same date, prior to receipt of the Union's
letter, stating, "In line with our conversation of June 4th Ave enclose herewith
new contract for the coming year. If this is satisfactory in all respects, please
sign and return one copy." The "contract" was simply a brief extension agree-
ment, plus a provision removing two jobs from the bargaining unit. See foot-
note 12, infra.
In this meeting, the Union's committee first informed Harcourt that the Union
had rejected his suggestions for changing the terminal date of the contract but
that it had agreed to the transferring of the two jobs to management! Mc-
Cafferty had a memorandum list of seven changes proposed by the Union ;70 he
read them off, and they were discussed seriatim. They were union shop, check-
off, sanitary conditions, extra pay for holidays which occurred during vacations,
retention of seniority during illness, arbitration of discharges for cause (some-
times referred to as the management clause), and a 10-cent wage increase.
It is unnecessary to recite the discussions on each issue, since the positions of
the parties were more fully outlined in subsequent meetings and will be sum-
marized hereinafter. It is sufficient to say that no agreement was reached on
any of the Union's proposals save that of retention of seniority in case of illness.
Harcourt did not renew at this or at any subsequent meeting his proposal for
changing the expiration date of the contract. No arrangement was made for a
subsequent meeting.
3. The meeting of July 1
On June 27, Respondent wrote the Union:
This is to confirm conversation . Please inform us on or before June 30th
if you want to renew your contract for another year.
If you like the following can be added to the contract already handed over
to you.
"After one year's service , no seniority will be lost by reason of absence from
work caused by sickness or accident."
i
Elizabeth Jarboe, the Union's recording secretary, replied by the following
undated letter, which was dictated by Metts :
The President of Local No. 5 has instructed me to answer your letter of
June 27th regarding contract.
His answer is they do want and will renew contract, with changes in wages
and conditions that now exist in present contract. (Emphasis supplied.)
° McCafferty's testimony that the Union also rejected the latter proposal is contrary to
the clear preponderance of the evidence. The remainder of his testimony as to the June 18
meeting has been credited Thus, Kaufer's testimony corroborates McCafferty's that the
Union's proposals were mentioned and discussed Harcourt's recollection of that meeting
was not clear He testified, however, that he "evidently" had talked about some of the
Union's proposals, and mentioned some four or five as discussed or possibly discussed.
Watkins testified he did not clearly remember any meeting between June 4 and July 29, and
that he remembered only the seniority clause (and possibly sanitary conditions) being
discussed at the June 18 meeting.
10 Though McCafferty testified he "believed" there were six proposed changes on his
memorandum, he later enumerated seven changes which were discussed.
HARCOURT AND COMPANY, INC. 931
They shall meet with you at your office Friday morning at ten o'clock
July 1st."
The meeting was a very short one. Harcourt presented an extension agree-
ment, the body of which is set forth in the margin," and said, "Here it is, boys,
let's sign it and get it over with." The committee refused to sign, saying, "We
haven't got a contract with you." Harcourt testified that he had understood the
Union's letter to mean that they were ready to renew the contract, that he was
"a little bit sore" when the committee refused to sign, and that he thereupon
left the meeting.
On July 2 Harcourt notified the Board's Cincinnati office of the existence of a
labor dispute with the Union, and later, on advice from that office, notified the
regional and Washington offices of the Federal Mediation and Conciliation
Service.
4. The meeting of July 29
On July 25, Jarboe wrote Harcourt the following letter :
Our negotiating committee will meet with you Friday morning July 29
at ten o'clock. They will bargain with you on the changes they have asked
for in the existing contract. The changes are as follows :
1-Local No. 5 wants a Union Shop. With your permission the election
was held in your plant and was won in favor of the Union, therefore we
have a right to a Union'Shop.
2-We also ask for the check off system.
3-Extra pay for holidays when they fall during vacation.
4-A general increase of 10¢ per hour for all employees.
5-In case of illness we will get an automatic leave of absence for the
duration of illness and be reinstated to same job with same seniority, if we
have been with the company one year or more.
6-We also ask for improvement in the sanitary conditions, which are
badly needed.
Though the testimony is in conflict on minor details of the negotiations at that
meeting,,there is no substantial dispute as to the main subjects of discussions
nor as to the positions of the parties. McCafferty read off the Union's proposals
as listed in the Union's letter of July 25, and they were discussed in order.
Harcourt's position as then stated did not substantially vary during later
negotiations, though he may later have added, from time to time, additional
supporting reasons.
Harcourt's position on the union shop was that it was against his principles
to require an employee to join a union or to pay dues to any organization to work
at Harcourt. He objected to a checkoff for the same- reason, because to his
mind the checkoff was naturally connected with the union shop, and on the
ground that it would require the services of an extra clerk whom he could not
11 Although the middle paragraph of this letter is ambiguous standing alone, it is not
so when considered in relation to the Union's prior letter of June 15, supra, and the dis-
cussions at the June 18 meeting. However, Harcourt interpreted the letter as an agree-
ment by the Union to renew the contract. -
12 "The contract expiring July 1, 1949, between Harcourt & Company and the Inter-
national Plate Printers, Die Stampers and Engravers Union of North America is hereby
renewed for a period of one year except for the following
"1. The clerical jobs in the jewelry department and the stationary engraving department
are to be considered a part of management and are not to be covered in the Union contract.
"It is understood that standards of production prevailing in this industry are to be
maintained at all times."
932 DECISIONS'OF NATIONAL LABOR RELATIONS BOARD
afford to pay. On the subject of extra pay for holidays during vacations, Har-
court's position was, as stated in the June 18 meeting, i. e., that he would not
agree to pay what would amount to double pay for holidays, because practically
all employees decided when to take their vacations. He adhered to that position
throughout the negotiation. Harcourt's position on the wage increase was that
he could not afford it and that it would add $8,000 a year to his payrolls (credited
testimony of Watkins).
There was only brief discussion of the proposal for automatic leave of absence
in event of illness. Harcourt agreed to it,1S as he had indicated he was willing
to do in his letter of June 27. On the subject of sanitary conditions, Harcourt
had referred in the June 18 meeting to Andrew Hickman's responsibility for the
cleanliness of the rest rooms and had stated he would speak to Hickman. The
Union was also asking for washbowls and hot water in' the rest rooms, but
Harcourt's position was that he was not able to stand the expense of such
improvements (credited testimony of Gossett). An unlisted proposal, arbitration
for discharges for cause (also raised at the June 18 meeting), was also discussed.
The Union's position was that before making discharges for cause, Uarcourt
should take the matter up with the Union. Gossett testified that Harcourt
stated he saw no harm in that, but he did not want to put it in writing.16
As the meeting was closing, Harcourt stated that the best he could do was to
renew the old contract. Watkins, without prior consultation with the other com-
mittee members, inquired whether Harcourt would object to Watkins "taking a
vote" in the plant of the employees or of union members 1" to see if they wanted
to renew the old contract. Neither McCafferty nor Gossett voiced objection.
Harcourt gave his consent.
Watkins made no statement to Harcourt as to what effect was to be accorded
the outcome of the poll (nor did any member of the committee), nor did Har-
court make any commitment on his part to be bound by the outcome, whether
favorable or unfavorable. Harcourt's testimony that Watkins stated, in pro-
18 Gossett's testimony that Harcourt refused to agree to this provision is not credited,
nor is McCafferty's testimony that Harcourt stated he would agree to it but had decided
he could not put it in writing.
11 Different witnesses for the General Counsel testified to a variety of natters from
July 29 through the final conference on November 26, when Harcourt allegedly expressed
willingness to agree to a particular proposal, but added that he would not put it in
writing. Such matters included the sick leave provision (which Harcourt had in fact
"Put in writing" In his letter of June 27), the arbitration of discharges, and the renewal
of the old contract. Though some basis obviously existed for the several references to
Harcourt's refusal to put something in writing, the evidence is too conflicting and in-
consistent to support a finding as to the occasion of Harcourt's remark or as to what it
related to Gossett's version may be correct that Harcourt's remark related to the Union's
proposal that Harcourt should consult it on discharges for cause, since it seems inferenti.
ally supported by Harcourt's testimony as to his position on that proposal. Or the
testimony may have been inspired by Harcourt's attitude at the October 12 meeting. Thus
queried at one point as to whether he ever at any time said that he would not renew the
old contract, Harcourt answered, "No, I never said that, except on one occasion when
they provoked me a little bit, I told them I didn't have to sign anything." That testimony
obviously related to Harcourt's widely quoted "death and taxes" remark at the October 12
meeting, infra
1' Harcourt first testified that Watkins specified union members, but later admitted he
did not recall McCafferty testified that Watkins specified employees. Gossett testified
at first that Watkins referred to polling union members, but later qualified that testimony
by testifying he did not recall whether Watkins had in fact specified union members or
employees. Watkins' own testimony was that he specified neither, but simply requested
permission to take a vote. The point is immaterial in view of the conclusions herein
reached as to the effect of the poll.
HARCOURT AND COMPANY, INC . 933
posing the ballot, that if the employees voted to renew the old contract, "we will
consider it renewed," is in conflict with the testimony of Gossett and McCafferty
as well as with that of Respondent's witness, Watkins, and is not credited.
5. The poll
Evidence concerning the poll is here summarized because it relates directly to
the negotiations and to Respondent's contention that the Union had refused to
bargain.
Watkins testified that he informed Metts either on the night of July 29 or 30
that the vote bad been proposed and that Metts did not object. He also testified
that on Monday morning (August 1) Metts at first requested him not to conduct
the vote, but later told him to go ahead, "I know just about how it is coming out.,,
Watkins prepared a small cardboard box as a voting box and polled all union
members who were at work at the time," asking them to vote yes or no on the
proposition whether they wanted to renew the old contract. Watkins supplied
blank slips of paper for use as ballots. Twenty-two ballots were cast, one of
which was a blank, apparently cast by Kaufer, who testified that he simply
folded the slip and stuck it in the box. Watkins denied that he attempted to
influence the vote, though he admitted that Alvin Guenthner asked his views and
that he replied he was in favor of the old contract.
Watkins kept the ballot box until around noon , when he and Metts tallied
the ballots. The count was 13 to S in favor of extending the contract, with 1
blank ballot. Metts exclaimed , "This is no good," and scooped up the ballots
and threw them on the floor." Harcourt walked up and inquired the results.
Metts mumbled something unintelligible, but Watkins told Harcourt the outcome.
Harcourt hastily readied an extension agreement for signature. He did not,
however, limit the document to a mere renewal of the old contract. Instead,
through haste or for convenience in draftsmanship, he made a few pencil
notations on the face of the earlier draft submitted to the Union with his letter
of June 15, (see footnote 12, supra) and had it retyped. As so prepared, the
extension provided for transferring to management the two clerical jobs as
previously agreed to by the Union, but it did not contain the provision Harcourt
had agreed to in his letter of June 27, and confirmed in the meeting of July 29,
that seniority should not be lost as a result of illness or accident. The agree-
ment read as follows (including the signatures of Harcourt, Watkins, and
Denneler later appended)
CONTRACT BETWEEN HARCOURT AND COMPANY AND INTERNATIONAL PLATE
PRINTERS DIE STAMPERS AND ENGRAVERS UNION OF NORTH AMERICA
The contract which expired July 1, 1949, between Harcourt & Company
and the International Plate Printers Die Stampers and Engravers Union of
North America is hereby extended to July 1, 1950, except for the following :
1. The clerical jobs in the jewelry department and the stationery engrav
"As financial secretary of the Union, Watkins had a list of all union members, which
he used in conducting the poll. The number of ballots cast squared exactly with his list
and with a list of Respondent's employees (less nonunion members) who were at work at
the time.
i' Metts claimed to have informed Watkins before the poll that "it wasn't legal to have
a poll in the shop," but he offered no plausible explanation why he permitted the poll to
proceed or why he voted in it. The explanation can be inferred from, Metts' remark to
Watkins (testified to by the latter) that Metts "knew just about how it was coming out."
Metts' denial that he made that remark and his denial that he told Watkins to proceed
with the poll are not credited.
998666-vol 98-53-60
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing department are to be considered a part of management and are not to be
covered in the Union contract.
HARCOURT & COMPANY.
By A. HARcouRT JR.
ENGRAVERS UNION, LOCAL No. 5.
BY --------------------------------
President.
STANLEY F. WATKINS,
A. DENNELER,
Secretary.
Committee.
Committee.
Committee.
Committee.
Around 4 or 4: 30 p. in., Harcourt approached Watkins and Denneler,18
announced that he had "the old contract" ready, and if they wanted to sign
it, they would find it back on his desk. In a few minutes, Watkins and Denneler
went back together and signed the agreement, which already bore Harcourt's
signature. Watkins admitted he did not read the document over, and did
not know that if was. not limited to renewing the old contract, but Watkins
stated that he would have signed it anyway. Denneler testified to similar effect.
Metts testified that when Harcourt inquired of him if he wanted to sign the
contract, it already bore the signatures of Watkins and Denneler, but that
he informed Harcourt he refused to sign because the election was illegal.
McCafferty testified that he similarly informed Harcourt that he would refuse
to sign because he had come to the conclusion after he voted that the election
was illegal. Gossett testified he informed Harcourt he would not sign until
an agreement were reached and until all the committee were to sign together.
Harcourt had no recollection of having asked Gossett or McCafferty to sign.
He admitted he made no attempt to procure the signature of Jarboe, the recording
secretary, and testified that after Metts refused to sign he did not pursue the
3B Harcourt testified he assumed Denneler was on the bargaining committee , though
Denneler had attended none of the meetings except the first one. Testimony of witnesses
for the General Counsel establishes that Denneler was not a member of the bargaining
committee at any time subsequent to June 4. McCafferty testified that he had replaced
Denneler on the committee and that he so informed Harcourt at the June 4 or June 18
meeting [probably the latter, since Denneler himself attended the June-4 meeting]. How-
ever, Harcourt denied that McCafferty or anyone else ever informed him that Denneler
was no longer on the committee. Denneler testified also that no one ever informed him
that he was no longer on the committee or that McCafferty had replaced him. McCafferty
testified, to the contrary, that Denneler had commented on the fact in a conversation with
him. McCafferty's testimony is credited. Denneler admitted that he had lost interest in
the Union just after the June 4 meeting and has stopped attending union meetings. He
offered no credible explanation for his assumption that he continued as a member of the
committee in the face of the foregoing facts and in the face of his admitted failure to
attend any bargaining conference subsequent to June 4. Similarly, Harcourt' s assertion
of continued belief that Denneler remained on the bargaining committee is incompatible
with his assertion in his conference with the "older employees" on November 10 that the
older employees were without voice in the negotiations with the Union. Furthermore,
Harcourt never questioned Collins' absence from the committee, though he had remained
a member until July 25, and though he participated in none of the bargaining conferences.
HARCOURT AND COMPANY, INC. 935-
matter any further. Watkins testified that it was his intention, by signing
the agreement, to bind the Union, but he admitted he did not know. whether it
would'be• binding if not signed by the president and the other members of
the committee.19
At no time during the subsequent lengthy negotiations for a new contract did
Harcourt ever make any contention that the taking of the poll had resulted
in a renewal of the contract or claim that the old contract had been extended as
a result of the poll. In fact, Gossett testified credibly that in a bargaining
conference sometime subsequent to August 1, some reference was made to a
practice prohibited by the contract, and that Harcourt replied, "You don't have
any contract."
Furthermore, in it's sworn petition for an injunction filed in the State court
on December 10, 1949, Respondent had pleaded that the contract had "expired
and ceased to be in effect" on July 1, 1949; that Respondent had entered into
negotiations "looking to the effectuation of a new collective bargaining con-
tract"; and "that despite the efforts of [Respondent] to reach an agreement
with the defendant union an impasse in the negotiations was reached." Re-
spondent's counsel represented during a colloquy that had he known of the
alleged extension agreement, it would have affected the theory of his injunction
petition, but he represented further that he had drawn tire petition hurriedly,
that Harcourt bad produced only the old contract, and that counsel had no knowl-
edge at the time of the alleged renewal. I
6. The meeting of August J.
McConnell of the Federal Mediation and Conciliation Service was present at
this and at subsequent bargaining meetings through November 20. It is unneces-
sary to summarize the happenings in detail. McConnell read off the various
union proposals and different union representatives endeavored to discuss them
with Harcourt. Harcourt's responses were practically nil. Thus, some of the
General Counsel's witnesses testified that Harcourt said practically nothing, but
simply sat and tapped a pencil on his desk. Harcourt did not deny it. Harcourt
claimed that Weyler had somehow irritated him and that he was in fact "pretty
mad" throughout the meeting:
Well, I did my best not to show it, but I think I was just sitting there
clutching my fist, trying not to explode. Mr. Weyler irritated me. I forget
just what it was, but he said something I didn't like, and I didn't think that
meeting was for any other purpose other than to provoke me into saying
something that could be used against me . . . That's the sum total of my
recollection of that meeting.
However, the record is devoid of evidence or suggestion that Weyler had made
any insulting remark, nor does it indicate what basis in fact existed for Har-
court's attitude.
The proposals submitted by the Union were at least seven in number, including
those listed in the Jarboe letter of July 25, plus the arbitration of discharges for
cause, all of which had been discussed at earlier meetings. Near the end of the
19 Respondent also made an offer of proof that in proposing the ballot, Watkins intended
that a vote in favor of extending the old contract "would settle the matter once and for
all and that the contract would thereby be extended to July 1, 1950." The testimony of the
occurrences at the meeting of July 29 establishes conclusively that Watkins communicated
no such intention either to Harcourt or to the other members of the committee, and that
be obtained no commitment from Harcourt to be bound by the outcome of the ballot either
one way or the other.
936 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
-meeting, Mazza inquired of Harcourt whether he considered that by his act of
sitting there and making no comment whatever, he was bargaining in good faith.
Harcourt simply stared at Mazza and said nothing.
7. The meeting of October 12
At various times after August 11, the Union sought meetings with Harcourt,
who stated he was unable to meet because of the rush period in soliciting busi-
ness and because of his frequent trips out of town to call on his school customers.
The next meeting was not held until October 12 and was arranged by McConnell.
Weyler introduced Grimes to Harcourt and stated that he had requested Grimes'
assistance and that Grimes would proceed in his place. Grimes thereupon took
over and began to read seriatim a list of 11 changes proposed by the Union to the
contract as follows :
Changes on Contract:
1-Local No . 5 wants union shop which was voted on and won 32-1.
2-We also ask for check off system.
3-Change No. 4 on old contract to read , The work Holidays , as used in
this agreement shall include New Years Day, Memorial Day, Independence
Day, Labor Day, Thanksgiving Day, and Christmas Day. Employees shall
receive eight hours pay at single time rates for the above named six Holi-
days during the year , for which no work is' performed , unless said Holiday
falls on Saturday or Sunday.
4-A general increase of ten cents per hour for all employees.
5-In case of illness we will get an automatic leave. of absence for the
duration of illness , and be reinstated to same job with same seniority, if
we have been with the company one year or more.
6-We ask for improvements in the sanitary conditions , which are badly
needed.
7-Change No . 7 in old contract to read, The parties hereto agree to volun-
tarily arbitrate any and all disputes or differences that arise during the life
hereof, ' provided that such disputes or differences , cannot be settled by mutual
agreement of both parties. However , such arbitration shall not extend to
future wage rates, privileges and etc. which are the subject of collective
bargaining between the parties, except where the question of interpretation
of this agreement is involved.
8-Change No. 8 in old contract to read, The management of the plant and
the direction of the working forces, including the right to hire is vested
exclusively in the company, however the company agrees it will inform the
union of the reason for the discharge of any employee for proper cause and
will afford the union an opportunity to discuss such reason with the man-
agement.
9-During the term of this agreement there shall be no reduction in any
rates unless the employee is reclassified on a permanent basis to a lower
paying job. Teinporary reclassification shall not affect the pay rate.
10-Any new positions created and any wage rates not listed shall be
mutually negotiated on by the union and the management.
11-This agreement shall continue for successive periods of one year, un-
less at least sixty days before the end of such period, either party shall notify
the other in writing of its intention not to renew the agreement.
These changes will be made on old contract and new agreements added.
It is unnecessary to review the negotiations in detail . Some of the proposals
were discussed at considerable length. Harcourt testified ; however, that he
was unable to remember discussing the various points, but he agreed he must
HARCOURT AND COMPANY, INC. 937
have done so because the meeting lasted an hour or longer. Harcourt testified
that this time it was Grimes who made him angry by presenting the above
list of demands and stating "This is what we are going to have, and you have
to sign it." Harcourt replied in effect that "All I have to do is pay taxes and
die."
Weyler testified that Grimes' remark that provoked Harcourt's "death and
taxes" response was, "Mr. Harcourt, you just cannot sit there and say nothing.
You must tell us something." Other witnesses also denied Harcourt's claim
that Grimes informed him the Union was insisting on the 11 proposals and that
Harcourt would have to sign. They testified, to the contrary, that neither
Grimes nor anyone else took the position that the 11 proposals were on a "take
it or leave it" basis, but that the Union's position was that it was ready to bar-
gain on all of its proposals, and that it requested Harcourt to submit proposals
of his own if he could not accept the Union's. Harcourt's testimony is not
credited that Grimes insisted on Harcourt's acceptance of the Union's proposals.
Harcourt still refused to consider the union shop, the checkoff, or a wage
increase , but stated on the latter question that if the Union could show him
his rates were lower than those of his Louisville competitors, he would be glad
to come up to them. There was some reference by Metts to his having "con-
sulted with" one or two of Harcourt's competitors (including Jenner and
Company) and to the fact that they were allegedly paying higher wages than
Harcourt. Harcourt refused to accept Mett's representations as proof and
testified that he had also made inquiries at Jenner's 2°
Harcourt's position on the other proposals previously discussed was the same,
1. e., he agreed to automatic leave of absence for illness, but rejected the pro-
vision for holiday pay, for the requested improvements of sanitary conditions,
and for arbitration, including discharges for cause., Harcourt also refused
the proposal that wage rates not be'reduced in cases of temporary transfers
of employees to lower paid jobs, as well as the provision calling for negoti-
ations with the Union on wage rates for new positions. There was no dis-
cussion of the automatic renewal provision.
Although the Union's letter of July 25 listed 6 proposals, others had been
discussed orally before and after the meeting of July 29. McCafferty testified
that the list of 11 which formed the basis of the discussion on October 12 included
"just about every phase that had been discussed during the entire negotiations
4 up to that time." Harcourt admitted that some of the additional proposals had
been discussed in meetings prior to October 12 and specifically referred to the man-
agement clause," and the question of reduction in rates for temporary transfers.
Other testimony establishes that as early as August 11 the Union had contended
that Harcourt should negotiate with the Union on new positions (inspired by
Harcourt's proposal to rehire Collins).
In any event, this meeting (and all earlier ones ) reflected no refusal on the
Union's part to bargain as contended by Respondent. It is true that the Union
10 A collateral issue was raised as to whether Metts or other union representatives had
In fact obtained figures from Jenner and from Kentucky Balfour, as claimed . Representa-
tives of those concerns testified that they had given their wage rates to no one, including
Harcourt . The issue is an immaterial one, and at best the evidence is relevant only on
the general question of credibility ; but even on that the issue was stalemated because
Harcourt claimed that he had also checked with Jenner.
21 In a number of respects , the list submitted on October 12 represented an effort to
relate the Union 's proposals to specific clauses in the old contract and to suggest specific
amendments. Items 7 and 8, supra, were apparently both intended to effectuate the
Union's earlier proposal ( admittedly discussed) that discharges for cause be subject to
arbitration.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD_
had insisted on the union shop and that Harcourt just as firmly refused to give
in on it. The impasse on that issue, which went far towards preventing an
agreement on the other issues, did not constitute a refusal to bargain on the
Union's part and the General Counsel contends for none on the Respondent's
part down to this point. - -
8. The meetings on or about November 10
The events of these meetings are here summarized not because they were
.negotiation meetings between Harcourt and the Union, but because they follow
in chronological order and because the General Counsel contends that they rep-
resented the commencement of Respondent's refusal to bargain.
Most of the testimony concerned a meeting between Harcourt and a larger
group of "older employees" which is definitely fixed by the preponderance of the
evidence as having occurred on November 10. However, Mervin Smith, who was
unable to fix the dates precisely, testified that either shortly before or shortly
after the latter meeting, Harcourt had called him into a meeting with Watkins,
Denneler, and Collins. Smith's testimony as to that meeting will be summar-
ized before turning to the meeting with the larger group.
Harcourt informed the four employees that the purpose of the meeting was to
try to bring about a settlement of the matter (with the Union), and inquired
whether there was not some way that the older help "could talk and maybe
bring it about to a settlement of some kind." As to whether Harcourt men-
tioned any proposal of his own for a settlement, Smith testified that Harcourt
specifically referred to the union-shop issue, stating that "he did not want any
union shop," but that he thought that he could work olet the other parts of the
matter with the Union.
Smith also testified that Harcourt either asked the group as a whole or asked
Smith singly whether they (or he) were'satisfied with the wage rates. Smith
testified that he told Harcourt that "I had no right to negotiate anything there,
and I wasn't on any bargaining committee," and that' "the union represented
the employees and that [I] couldn't bargain with him ; it was up to him to
bargain with the Union." Smith testified also that Denneler "quoted himself"
to the same effect and walked out with Smith. Smith testified that the meeting
lasted from 30 to 45 minutes. - -
The record contains no denial of Smith's testimony that such a con-
ference occurred'or of the happenings there, though all of the remaining par-
ticipants testified as Respondent's witnesses. Denneler, Collins, and Harcourt
testified to the November 10 meeting with the larger group, but they were not
questioned about nor did they refer to the meeting with the smaller group which
Smith testified to. Referring to the November 10 meeting, Harcourt testified
"That's the only meeting I had with that group." (Emphasis supplied.) Fur-
thermore, Respondent's counsel endorsed Smith's honesty as a witness and
added, "I think it was obvious Mervin Smith was telling the truth to the best
of his recollection." Smith also exhibited some reluctance to testify freely on
matters most damaging to Respondent. These facts cumulatively afford con-
clusive support for the finding, hereby made, that Smith's testimony is credible
and that it is subject to no discount insofar as it is unfavorable to Respondent 22
Harcourt again personally selected and called in a group of older employees
to confer with him on November 10. There were present Denneler; Collins,
f
za That Harcourt had not hesitated to enlist the assistance of his older employees to
undercut the Union is also apparent from Watkins' testimony that on some occasion which
he fixed indefinitely in August, Harcourt had requested assistance from him and Denneler
"to get the people to agree to or to accept the old contract."
HARCOURT AND COMPANY , INC. 939
Smith , Zedock Embry , Pearl Long, Sue Sparrow , and Harcourt 's foreman, Lee
Striegel . Harcourt had also requested Watkins and Anderson to attend, but
they did not do so. The meeting was held after working hours and was a
short one , because the employees wanted to get home and because of Smith's
reaction to Harcourt 's attempt to deal directly with the employees . Thus, Smith
testified that the discussions were "about the same as what I told about the
other meeting. If there wasn 't some way of settling this trouble ; that he ]}ad
us there as the older employees . . . and it seems as though to him that we
should be able to straighten it out. .. ." Smith testified further that the occa-
sibn for-his leaving the meeting was "The same as the one before I was telling
of. I had no right to bargain," that he told Harcourt that, and that he and
Denneler walked out again.
Smith was unable to recall that Harcourt had said in that meeting that he
could not understand why the younger employees were on the bargaining com-
mittee, but he testified he had heard Harcourt make the statement either in or
out of that meeting. Smith also testified that although he could not recall that
Harcourt had made the statement in that meeting , he had heard Harcourt make
the statement on some occasion before the strike that " if he could get rid of
Metts, he thought he could make a deal with the rest of the people."
Collins, called by Respondent , substantially supported Smith's testimony.
Thus, he testified that Harcourt had asked the group as the older employees,
in effect, "what arrangements he could make to settle the dispute between
Harcourt and Company and the Union ," and asked for suggestions "as to how
the difficulties over the new contract could be settled." Collins testified further
thatLHarcourt stated that he had offered the old contract , that it had been
rejected , and that "he had called us down there for suggestions on how to end
this argument . .. . He wanted us to settle the arguments that was going on
about the contract ." Collins also testified that Smith remarked in effect, "Mr.
Harcourt , you can't bargain with me. The Union is my bargaining agent," and
that Smith thereupon walked out . Collins testified further that Denneler also
stated that "he wanted Mr. Harcourt to understand that we weren't in a position
to give him an answer of any kind . . . and that the Union was [our ] bargaining
agent."
Harcourt testified that what he told the group was that he had been hearing
talk of a strike and he wanted to know if there was going to be one; that he
"went on to express his views about the union shop " ; and that he told the
employees , "I was in disagreement with their Committee , that the Committee was
insisting on a union shop, that I did not believe in the union shop " Harcourt
testified further that in response to his request for suggestions as to how to
avoid a strike , Collins suggested that Harcourt make them the best offer he
could . Harcourt also testified that he told the assembled employees that "It
seems very strange to me they were the ones who had the most to lose by reason
of a strike , and it seemed very strange that most of them-I had had no ex-
pressions from any of them, and it seemed strange to me, the fact that people
who had been there only a short time were doing all the talking, and people who
had been there 20 and 30 years weren't doing any of the talking."
Harcourt denied that he requested them to use their influence to settle the
dispute. He denied that he questioned them about their satisfaction with their
wage rates , but testified that two of the group voluntarily stated that they were
satisfied with their jobs. Harcourt denied also that either Smith or Denneler
made any statement to the effect that he could not bargain or that the Union
was his bargaining agent, but testified that Smith had stated "he was fed up
with the Union and all Union activities and was going to leave." Harcourt ad-
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,mitted knowing that the Union was the bargaining representative for the group
on the occasion and that it was his duty to bargain with the Union's bargaining
committee, regardless of how strange it appeared to him that the- older em-
ployees were not represented thereon. Harcourt explained that the reason he
did not take the question up with the Union was that he had been negotiating
with the Union for several months, and could not come to an agreement with it.
Denneler testified. that the meeting lasted only 7 to 8 minutes, that Harcourt
informed them he had "heard there were.rumors of a strike and he called the
old employees down there, to more or less, try to get it straightened out so they
wouldn't have a strike," and that Harcourt requested them "to give him sug-
gestions on how to prevent the strike and get this settled " Denneler informed
Harcourt that no strike vote had been taken and he knew nothing about a strike,
,and that someone told Harcourt in effect to make the best deal he could with the
Union.
Denneler denied that he had said or had heard Smith or anyone else say that
he could not bargain with Harcourt because he had a union to do his bargaining
for him. Denneler similarly did not remember having heard Harcourt's remark
that it seemed strange to him that the older employees had no hand in running
the Union. Denneler testified, however, that he was-actually on,the outside of
the office (where the meeting was being held) and did not hear everything that
was discussed inside, and that he was the first to leave, walking out with Smith.
As has been seen, Smith's version of the events was closely corroborated by
-Respondent's witness, Collins ; and that version was 'also in close accord' with
'Smith's testimony as to the happenings at the other similar meeting with the
smaller group, which was not rebutted by any of Respondent's witnesses and
which has been credited. Harcourt and Denneler attempted to limit Harcourt's
references to a strike and to suggestions to avoid it, but in that setting the sub-
ject was an obvious anachronism as the record reveals no suggestion of a strike
before November 19. Furthermore, Harcourt's admitted reference to the ab-
,sence of representation of the older employees on the Union's bargaining com-
mittee and to the issue between him and that committee on the union shop dis-
closed that Harcourt did not limit himself to discussions of any threatened strike
danger, but that he was attempting to play off his older employees against the
bargaining committee and to procure their backing for his position on the union
shop, on which up to that time an apparent impasse existed. Indeed, Harcourt's
intention to bypass the Union was obvious from his final explanation of his
failure to take up with the Union the matters discussed in that meeting: "I had
been negotiating with the Union for several months, and we couldn't come to an
agreement."
The preponderance of the evidence clearly supports the Smith-Collins testi-
mony as to the discussions at the meeting, and it is credited.
9. The meeting of November 19
Harcourt resumed bargaining negotiations with union representatives on
November 19. The details of the negotiations are best reflected in the testimony
of Knoblock, Metts, and Harcourt, though Harcourt's recollection was not too
clear as to the discussion of certain issues. Contrary to the situation at the
August 11 and October 12 meetings, Harcourt testified that negotiations went
along pleasantly, that he found Knoblock a "welcome relief,", and that Knoblock
"didn't say a thing that I objected to particularly up until the very end of the
meeting when the Union shop entered in."
In any event, it is clear from Harcourt's and Knoblock's testimony that some
progress was made toward reaching an agreement. The list of 11 changes sub-
HARCOURT AND COMPANY, INC. 941
mitted at the October 12 meeting again served as a basis for discussions. Though
it is not clear that they were discussed seriatim the testimony will be so sum-
marized for convenience.
Knoblock explained the Union's position on the union shop, but Harcourt ob-
jected without adding to the reasons he had stated during previous negotiations.
Harcourt also objected to the checkoff ; and on that matter Knoblock testified
that he wqs "not very much in accord with it" himself, and that he informed
Harcourt that after the conference he would sit down and draft "something on
that and on other phases of the proposals which would be more amicable for
acceptance." On the question of wage increase, Harcourt stated he did not think
he could afford it, but that he would speak to his father about it that night.
Harcourt agreed again on automatic leave of absence for illness; and Knoblock
in turn agreed that there was no reason.to include any provision for sanitary
conditions in the contract because such matters were covered by State laws and
that the Union could obtain remedy or relief by reporting infractions, if any
existed, to the board of health.
On the voluntary arbitration of disputes, Knoblock stated, after discussion,
that the Union's proposal was not specific enough and he would elaborate on it
in the draft which he would prepare later. The management clause was men-
tioned but no one recalled specifically what the discussion was. Knoblock ex-
plained in some detail the Union's position as to wage rates in case of temporary
transfers and testified he "believed [Harcourt] took that point very favorably."
Harcourt could not recall the discussion. As to wage rates for new positions,
Harcourt contended it was his right to establish those. The automatic renewal
provision was mentioned but not discussed. Harcourt made no objection to nor
any comment on the number of proposals under discussion.
Harcourt testified that during the course of the meeting, Collins called him
on the telephone and inquired how he was getting along with the meeting and
that he informed Collins he did not think he "was going to have any trouble
[reaching an agreement]." Harcourt testified, however, that just after Collins
phoned and shortly before the meeting broke up "the whole tenor of the meeting
changed completely." He did not explain that statement, nor did he state what
it was that happened which abruptly changed the atmosphere. Presumably he
was referring to the union-shop issue, which he testified earlier was brought up
at the very end of the meeting. In any event, at the conclusion of the meeting
it appeared that the only issues which might preclude agreement were the union
shop and the wage increase
It was agreed to meet the next morning, Sunday, at 10 a. in. in Knoblock's
room in the Brown Hotel, and Harcourt told Knoblock that he would have to
talk over with his father some of the questions under discussion. That after-
noon, Knoblock drafted a proposed contract and sent a copy out to Harcourt's
house by taxi so that Harcourt would have an opportunity to study it before
the conference. Harcourt testified that he received the contract, discussed it
briefly with his father, and that when he saw the union-shop clause, his interest
"died right then and there "
10. The meeting of November 20
Knoblock testified that as the meeting opened he inquired what Harcourt
thought of the proposed contract, and that Harcourt replied that he "didn't
think much of it " Knoblock's testimony continued :
I told Mr. Harcourt I had tried to be very reasonable and modify a number
of the objectionable factors from the proposal of the union into my contract,
and he did not see there was very much difference in the material "meat"
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which I sent to him from what the material consisted of that he had before.
I asked Mr. Harcourt then to let its go into details of the entire situation,
let's see what further changes we may make in order td reach an agreement
Mr. Harcourt told me he had nothing further to propose. And of course
there was a back and forth as these conferences go along when they run
along an hour . . . and they are- no material matter in the subject matter,
but in the [main] Mr. Harcourt (lid not want to. discuss paragrap^ for para-
graph . . . He said he was not willing to discuss the general features of
the contract.
Knoblock also testified that neither on the 1ath nor 20th had he represented
to Harcourt that any of the 11 proposals discussed on the lath nor any contained
in the proposed contract were on a "take it or leave it basis " Knoblock testi-
fied that the conference concluded as follows :
I stated to Mr. Harcourt that we should try to get together on this thing
and not go overboard on this situation, wherein it may cause a lot of trouble
for all parties concerned. I told him I was willing to again rewrite that
document, modify it, providing we can come to some amicable agreement,
to which Mr. Harcourt answered to me that he had nothing further to say
about it. I told Mr. Harcourt then that, "As you know, the Union has taken
it strike-vote. You know that the international union has substantiated
the strike vote taken by the, Louisville local," and that my reason for being
down here was mainly to avoid the creation of a strike, and that I personally
will not let any stones unturned to. avoid that situation ... Mr. Harcourt
said "I don't think you will do it I don't think they will strike." I said
"Mr Harcourt, that is your opinion, but I believe the boys mean what they
say, and . . . -unless you come to an agreement today-they will not return
to work on Monday."
Harcourt replied, "Well, suit yourself."
Harcourt admitted that he had stated he "didn't think much of the contract"
and that he would not execute it. He testified that the only two issues dis-
cussed-were wages and the union shop, and "we couldn't get together on either
of them and so the other proposals just weren't discussed" to his recollection.
Harcourt testified that Knoblock contended that the contract did not really con-
tain a union-shop clause but that he replied "it looked like the same old thing
to [him]." Harcourt did not recall whether Knoblock asked him to make a
counterproposal on the union shop and wages, but testified that he had main-
tained "all along" that lie wasswilling to renew the old contract, and that as to
wages, if the Union offered evidence that his wages were not in line with com-
parable rates in the community, he was willing and anxious to raise his rates.23
23 A' minor mystery was injected into the hearing by the production by Harcourt of two
different drafts of the Union's proposed contract, one of which Harcourt testified he re-
ceived at his some on the evening of the 19th and the other of which he believed was
handed him at the meeting of the 20th Harcourt was unable to specify which one he
received on each occasion. However, Knoblock recognized the copy in evidence as Ueneral
Counsel ' s Exhibit 16, Respondent ' s Exhibit 21, as the one he hhd drafted and sent out to
Harcourt's home, and Knoblock explained credibly how and why he was able to identify it.
He did not recognize the other copy ( Respondent ' s Exhibit 20), and denied having any
connection with it. The record contains no explanation of its existence . Though Re-
spondent ' s counsel pointed to the second contract as an evidence of the Union 's shifting
and increasing demands, a close compaiison of its provisions with the other shows that
it is identical in wording except for the numbering of certain sections and except for the
omission of two short paragraphs relating to the wage rates to apply in cases of temporary
transfers to lower and higher paid positions . Furthermore , Harcourt admitted he did not
read over the latter draft and was therefore unaware whether or to what extent it varied
from the other.
HARCOURT AND COMPANY, INC.
C. The strike; subsequent conferences and requests to bargain
948
The strike began the next morning , and a picket line was set up at once.
Knoblock testified that he was with the pickets during the morning , and that
in the early afternoon , before leaving Louisville , he, Sickler, and Metts, went
in and talked with Harcourt briefly . The evidence is not in conflict that Knob-
lock informed - Harcourt that lie was leaving for New York in an hour , that he
was making a further attempt to settle the matter, and that he was willing to
place the matter in the hands of the Louisville Labor-Management Committee
and abide by its findings . Harcourt would not agree.
Harcourt was under the impression that Collins and possibly Anderson were
present at the meeting Knoblock and AIetts were definite in placing as present
only themselves and Sickler for the Union ; and McCafferty testified that he saw
only Knoblock , Netts, and Sickler go into the meeting . It is found that only
the three of them conferred with Harcourt
Though Anderson , Kanfer, and McCafferty testified to attending meetings with
Harcourt in the late afternoon, of the 21st (along with several other employees),
none of them testified to attending the meeting with Knoblock earlier in the after-
noon Anderson knew of no such meeting , and Kaufer did not refer to it.
Collins testified in great detail about a meeting with Harcourt around 10:30
a. ni, on Monday attended by Knoblock, Weyler, Grimes , Metts, Anderson, Wat-
kins, . and himself , during which Knoblock read over to Harcourt the various
clauses of the proposed contract and discussed them with Harcourt Collins'
foregoing testimony is corroborated by no witness for eiflier party, is in direct
conflict with all other evidence in the case , and is not credited."
The question remains whether Harcourt conferred with any group of ,striking
employees on the 21st subsequent to Knoblock 's departure , as testified to by
Anderson , Kaufer , and McCafferty Although each testified that several em-
ployees attended the meeting , and though Anderson and McCafferty mentioned
a number of the same persons ( most of whom testified as witnesses ), no other
witness testified that such a meeting was held on Monday, and Harcourt denied -
he held any meeting that day save the one with Knoblock . Furthermore, the
details of the alleged meeting , including the time, the persons present , and the
subjects discussed , accord closely with those of the second November 25 meeting,
infra, and it is hereby concluded and found that Anderson , Kaufer, and Mc-
Cafferty mistakenly confused the date of the meeting they testified to.
1. November 25; the first meeting
Harcourt held a meeting around noon on Friday, November 25, with Denneler,
Collins, and Smith " Denneler and Collins testified that Denneler had spoken
to Harcourt on a nearby street earlier that day, requesting a meeting, and that
Harcourt stated he would notify them later when he could see them 20 Smith
(who was under the erroneous impression the meeting occurred on Saturday,
21 Had Collins attended the bargaining conference on November 20, it might be assumed
he had confused the happenings there with the events of the 21st However, Collins had
attended none of the prior bargaining conferences.
25 Smith testified that Watkins attended the meeting. and Harcourt at first placed Wat-
kins in It. However, Harcourt's affidavit given the,- Board's field examiner during the
investigation in January 1950 and named only.Smith, Denneler, and Collins as present,
and Harcourt did not deny the correctness of the affidavit in that respect. Watkins testi-
fied that he did not attend the meeting ; and neither Collins nor Denneler placed him as
present It is found upon the preponderance of the evidence that Watkins did not attend.
28 Collins' testimony is credited that Denneler did not specify the purpose of the meeting
nor who was to attend 'Harcourt did not mention the encounter, but testified that he
thought "they" asked him for a meeting
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the 26th) testified that Harcourt had come out on the picket line and asked
him, Denneler, and Collins [and Watkins] to come in and confer, and that
though Kaufer and one other were also on the picket line that day, Harcourt
did not ask them to come in.
Smith testified that as the conference opened Harcourt asked them if they
would not come in and go back to work, and that he replied to Harcourt that
he would not cross the picket line. Pressed for further details, Smith said
that Watkins, Denneler, and Collins agreed to go back to work at that time.
Questioned further whether Harcourt had asked on that occasion "why you
wanted Metts to lead you," Smith replied, "He asked me that at one time but
I can't say it was at this meeting."
Collins' testimony was as follows:
Well, Mr. Harcourt opened the meeting by asking if there was anything
that we could do to bring about a settlement . . . and somebody says
if he can give us a contract and we will go back to work, and Mr. Harcourt
said could we have any way of excluding Mr. Metts . . . And Mervin
Smith said, "Well, if you are going to inject Metts into the issues, we can't
help you out any."
On cross-examination Collins testified he understood Harcourt's statement
relative to Metts meant to exclude Metts from employment.
Denneler's testimony was as follows :
Well, we asked, Ashton whether he could make an offer to the Union or
do something that would get this strike settled, and he said . . . "I won't
have anything to do with Vernon Metts, Put I will still give you the old
contract." With that, why, Mervin Smith said, "Well, let's not make
Metts an issue."
On cross-examination Denneler testified that Harcourt stated that he was
not going to take Metts back.
Harcourt testified that he did not remember "any words that were said," but
that the purpose of the meeting was "as to how we could get the strike settled."
Harcourt denied that his affidavit, given to the Board's field examiner, properly
quoted him on the following statement : "I asked them to talk with the other
employees and see if they could get this settled." He stated instead that "they
came to see me with a view to getting it settled, and then they were going to,
come back and talk to the employees with a view to getting it settled. It was
their idea entirely." Harcourt also modified the following statement in the
affidavit, "They just came in and talked to me. They were acting as individuals.
They were not acting as a committee," by stating, "so far as I know they were
not acting as a committee." 27
Certainly it is clear that Harcourt realized he was not dealing with any union
committee, in view of the absence of all members of the Union's bargaining
committee. Nor had Harcourt attempted to call in all" striking employees on
the picket line (credited testimony of Smith). Indeed, his selection of Denneler,
27 The Board's field examiner had taken a lengthy affidavit from Harcourt on January 20,
1950 , in the office of Respondent 's counsel, Smith, and in his presence . Harcourt had
read the affidavit and had written the following statement in his own handwriting above
his signature "I have read this affidavit and it is true." Harcourt had also initialed each
page of the statement and had also initialed a number of corrections in it. Furthermore,
Smith had himself read the affidavit and stated that he had made one of the corrections
himself. Such careful scrutiny ( if not censorship) by Harcourt and his counsel belied
their attempts at the hearing to attack the manner of preparation and the correctness of
the affidavit. To the extent that Harcourt's testimony varied from the affidavit on the
matters called to his attention during cross -examinalon , his testimony is not credited.
HARCOURT AND COMPANY, INC. 945
Collins, and Smith reflected his intention to continue negotiations with his own
committee of older employees of the November 10 variety.
2. November 25; the second meeting
The chief difficulty about this meeting and the one which followed it on
Saturday morning is in determining who attended each and in some instances
to which of the two meetings particular witnesses were testifying. See page 943,
supra. Thus, as previously found, Anderson, Kaufer, and McCafferty had mis-
takenly fixed the November 25 meeting as having occurred on November 21.
McCafferty further confused his dates by fixing on November 25, the meeting
which occurred on November 26.
Attending the Friday meeting were Anderson, Collins, Conrad, Denneler,
Gossett, Laufer, McCafferty, Metts, Radcliffe, Smith, and Watkins. The meeting
was the result of the suggestion at the earlier meeting that day that another
meeting be held with additional employees present. In this meeting (as well
as the one the next morning) approximately all striking employees were called
in who were on the picket line or in the vicinity of the plant. This included
all members of the Union's bargaining committee, though it is clear that the
negotiations were not being conducted between Harcourt and that committee
as such but with the striking employees as a group. This fact was accentuated
by Radcliffe's attendance (he was not. a union member) and his actual parti-
cipation in the discussion, and by Harcourt's testimony that he had inquired
at the beginning if "this was the committee," and that someone replied "Let's
call this the committee at large."
It is clear from all the evidence that the chief issues discussed were the
union shop and the wage question, and whether Harcourt offered to renew
the old contract, either in writing or not in writing. However, the testimony
varies widely as to what was said. It is unnecessary to resolve the minutiae
of the conflicts, since the main trend of the discussions is apparent from the
testimony on both sides, which is reconcilable on matters of relevance to the
issues. Thus all witnesses were in substantial agreement that Harcourt again
refused to consider the union shop, and some of them testified to repetition by
him of objections earlier expressed.
Watkins and Collins "testified that in rejecting the union shop Harcourt ex-
pressed his willingness "to make some wage adjustments." It was apparently
the latter suggestion that formed the basis of Anderson's and McCafferty's
testimony that Harcourt had agreed, or stated he might agree, to the wage in-
crease which the Union had sought. That suggestion also apparently inspired
the employees' counter-suggestion (testified to by Metts, McCafferty, and Wat-
kins) that they preferred to waive the wage increase in return for the union shop.
It is concluded and found that Harcourt indicated willingness only to consider
wage adjustments, and that led to the employees' attempt to trade off Its .wage
demands for the union shop. In any event the attempt failed, for Harcourt
refused as usual to agree to a union shop."
The remaining serious factual issue is whether Harcourt offered to renew the
old contract but refused to put it in writing, as testified by Metts, McCafferty,
Kaufer, and Conrad. It is possible that the impression of the latter witnesses
arose out of an exchange testified to by McCafferty between Denneler, McCafferty,
and Harcourt as follows : That Denneler inquired what Harcourt had to offer
and that Harcourt replied, "I want to renew my position that I want you to
come back to work under the conditions of the old contract and work for us like
28 Harcourt had also refused during earlier negotiations to agree to a maintenance of
membership , because he considered it no different in principle from the union shop.
946 DECISIONS OF NATIONAL'LABOR RELATIONS BOARD
we were before you -Nw ent out on strike ;" that McCafferty informed Harcourt
that the Union would not accept that , that the Union wanted a new contract; and
that Harcourt responded , "I don ' t think that they actually care whether they have
a new contract or not, just so they are working under the conditions of a con-
tract." This compared with Anderson 's testimony that Harcourt had asked
why "we couldn 't come back without a contract , [ that] we got along before
without one, and . . he couldn 't see why we couldn't now ." On cross-exami-
nation , however , Anderson admitted that what Harcourt had said in effect was
"why can 't we all go -back to work as we were before," from which Anderson sur-
mised Harcourt meant without a contract.
Watkins, Collins , Radcliffe , and Denneler testified that Harcourt offered to
renew the old contract. Harcourt could not recall specifically stating i'n the
meeting that he was willing to renew the old contract , but he had testified in
another connection that he was at all times willing to renew the old contract.
Indeed, that willingness seemed both implicit and explicit throughout the nego-
tiations . In fact, Harcourt 's eagerness to obtain an extension of the contract
was apparent from his actions at and prior to the July 1 meeting and from the
alacrity with which he attempted to take advantage of the favorable outcome
of the August 1 poll . It is therefore concluded and found that Harcourt did in
fact offer to renew the old contract and made no statement that he would not
sign it or would not put it in writing.
Before the meeting broke up, it was arranged to hold another meeting the next
morning. In neither meeting did Harcourt make any objection to Metts' pres-
ence nor any mention of not taking Metts back ; nor did anyone present object
to conferring with Harcourt.
3. The meeting of November 26
This meeting was attended in general by the same group of employees as on
the 25th ( except Radcliffe ). The meeting was a short one and the subjects of
discussion were again the union shop and the wage question.
Watkins testified that the union shop and wages were discussed ; that Harcourt
said, "Fellows, you can all go back to work under the old contract" ; that Mc-
Cafferty replied , "Well Mr. Harcourt we want a union shop and we want a
wage increase" ; and that Harcourt responded, "We went through all of that the
night before and I can't offer anymore than the old contract ." Watkins testified
that Harcourt made no mention either of putting the old contract in writing or
not putting it in writing.
The testimony of Denneler and Collins was in substantial accord with Wat-
kins', though Denneler recalled no discussion of wages. McCafferty testified
that he inquired whether Harcourt 's offer of a wage increase made at the previ-
ous meeting held good , and that Harcourt denied that he had offered a wage
increase.
Harcourt testified that he again stated his willingness to renew the old con-
tract and inquired whether they wanted to or not. He testified that McCafferty,
in arguing for the union shop , stated that Harcourt had an economic weapon and
that the employees wanted job security ; that he replied that the employees had
the same weapon by striking and that "If you walk out of this meeting it will be
purely in support of your own demands ." Harcourt also testified that wages
were not discussed.
This meeting concluded all negotiations by Harcourt either with groups of
employees or with union representatives.
On the following Monday, Watkins, Denneler, Collins, and Radcliffe returned
to work through the picket line, joining a few employees who had not gone out
HARCOURT AND COMPANY, INC. 947
on strike Each of the four testified that Harcourt had not individually solicited
or requested him to return to work.
4. Subsequent attempts to bargain
On December 14, Grimes wrote Respondent that he had authority to represent
the Union "for purposes of collective bargaining" and requested Respondent to
notify him of a date suitable for a conference "to work out an amicable settlement
of the current labor-management dispute at your plant." Smith's reply of
December 17 referred to mass picketing, violence, threats, intimidation of em-
ployees, and damage to property during the strike (see section E. infra), to
Harcourt's application for an injunction to the State court on account of said
acts, to Respondent's view that no useful purpose would be served by dis-
cussions had against the background of said acts, and refused a meeting until
the injunction was disposed of and the atmosphere "cleared of violence and the
threats of violence."
On December 27, the State court entered a temporary injunction against the
Union, against Metts, Weyler, Ezelle, James Wolf (Ezelle's assistant), and
against Andrew Hickman, Kenneth Anderson, Charles Kemble, Jimmy Kallaher,
and against all members of the Union.
On January 12 and 16 Metts wrote Harcourt, Jr., requesting a meeting for
the purpose of collective bargaining Smith replied on January 18 refusing the
request, because "We are reliably informed that the [Union] has, lost its ma-
jority status among the Harcourt employees and is, therefore, no longer au-
thorized to represent employees of Harcourt and Company, for purposes of
collective bargaining."
On February 11 and on March 4, Knoblock personally attempted to renew
negotiations with Harcourt and Smith, but his requests were refused on the
ground that Respondent had definite information that the Union had lost its
majority as a result of the strike.
On February 17, Respondent had completed the replacement of the strikers by
persons alleged to be permanent employees On the same date Metts had written
Respondent stating among other things," . . . we request you at this time to re-
employ every one of your striking employees without prejudice, in order that
we get back to the status we were in May ,1949, and we further request that
you then bargain with us in good faith, . . ." That letter was not answered,
and there have been no subsequent negotiations.
D. Solicitation of individual strikers; interference, restraint, and coercion
Witnesses for the General Counsel testified to a number of instances of indi-
vidual solicitation to return to work, made by Harcourt, Jr., Harcourt, Sr.,
Lee Striegel, and Lillian W. Bills, beginning shortly after the strike and con-
tinuing into January. The evidence will be summarized under the name of
each of Respondent's officers or agents to whom the solicitation was attributed.
1. A. H. Harcourt, Jr.
Aline M. French, Elsie Crutcher, Loraine Ray, Jewrell Buchanan, Alvin
Guenthner, Cecil Conrad, and Norman Kaufer 28 testified to solicitations by
Harcourt, Jr., to return to work, which were admitted by him. All except
21 McCafferty testified to having heard the end of a conversation between Harcourt, Jr ,
and Metts and Hickman on the picket line prior to December 9, in which Harcourt told
them "You two will never work in this plant again " Neither Metts nor Hickman testified
to any such statement or incident . It is concluded that McCafferty misinterpreted Har-
court's statement on the occasion.
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Buchanan and Crutcher testified to additional statements denied by Harcourt
summarized below.
French testified that she talked with Harcourt, Jr., on the telephone 2 or 3
days after the strike started about coming back to work , that she inquired
whether Metts would be back, and that Harcourt said that Metts would never
be there again. Kaufer testified that on December 5 Harcourt requested him
to come back to work through the picket line but that he refused; and that
Harcourt also said among other things that "he didn 't see why we had to act
like we was acting, that we always got along good that he thought, why don't
we forget the Union and come on back in to work." On cross-examination,
Kaufer testified to the following additional statement by Harcourt on December
5: "He told me that there would be five people out there that he would not take
back under any circumstances . . . These five people were Vernon Metts, Mr.
and Mrs Conrad, Andrew Hickman, and one more. I forget which that was."
Kaufer testified that he had, a later conversation with Harcourt on December
9, which was to about the same effect as that on the 5th, but that on the 9th,
Harcourt also stated that he was going to replace everyone who was out.
Cecil Conrad testified that, having seen an ad by Harcourt in the newspaper
on December 8, he went in the next day to talk with Harcourt about getting his
job back . He testified that he referred to the fact that Harcourt still had labor
troubles and that after the strike was over all of the strikers would be back in
Conrad 's testimony continued :
Then [Harcourt] asked me if I,was one of the voters at the union hall,
if I was one of the voters who voted for the strike . I told him that was a
secret vote , and no one knows how the other fellow voted . He said, "I
will have to study over and see" . . . and so in a little bit he said "Your
might as well go out and start looking for a job , because you will never
have a job here anymore."
Conrad also testified, and Harcourt admitted, that sometime in January,
Harcourt solicited Conrad 's return to work , stating that he had reconsidered.
Conrad refused, stating "As soon as it is all over with we will all be back."
Loraine Ray testified that 3 or 4 weeks after the strike started Harcourt called
her and requested her to come back and that he stated during the conversation
he was replacing the striking employees . Ray went in and worked 1 day. Ray
had a conversation that day with Harcourt in which she expressed fears of
losing her job. Harcourt informed her she would not lose her job because he
"was not going to hire the striking employees back, and they would not have
a union shop in there." Ray also testified that on January 14 Lillian W. Bills,
Respondent 's bookkeeper , called her and asked her to return to work, and then
passed the telephone to Harcourt , who also talked with her about coming back.
Alvin Guenthner testified that pursuant to Harcourt's request he met Harcourt
at the Citizens Bank on January 10 and that Harcourt endeavored to work
out with him some arrangement under which he would come back to work.
Guenthner informed him that one of the main reasons he would not come back
was that he feared a wage cut without the Union , and Harcourt explained
there was no way to prove he would not cut wages "because he was not going
to sign a contract ." Harcourt also stated he would like to have Guenthner back
but that there were other strikers whom he would not take back, but he did not
-mention the names of the others.
2. Ashton Harcourt, Sr.
John Gossett testified that about 10 days after the strike began the elder
Harcourt came out and spoke to him and McCafferty on the picket line saying
HARCOURT AND COMPANY, INC. 949
"why don't you quit this foolishness and come back to work." McCafferty
suggested a meeting to talk things over and Harcourt said he would talk with
his son . Harcourt , Sr., reentered the building and was seen speaking to Har-
court, Jr. Harcourt, Sr., returned and informed Gossett that his son had
replied that he "did not want to talk to any of the Union , but that if we wanted
our jobs back , to come in and he would talk to us ." Gossett testified further
that 2 or 3 days later Harcourt , Sr., came out and inquired , among other things,
why he "had let Metts get [him] into this."
Andrew Hickman testified that on December 3 or 4, Harcourt, Sr., spoke to
him on the picket line saying "no need of you fooling around here with that
thing [referring to picket sign] because you are fired ." On further examination
Hickman testified that Harcourt, Sr., had told him he was no longer needed
around there or wanted around there . Metts and Gossett testified that they had
also heard the elder Harcourt's statement to Hickman and that what Harcourt,
Sr., told Hickman was that he did not have a job there anymore. Their version
of the statement is credited.
Anderson testified that 3 or 4 weeks after the strike began the elder Harcourt
spoke to him on the picket line asking him to come back to work and do away
with that picket sign, and that he also stated during the same conversation that
McCafferty, Hickman, Conrad, and Metts were no longer wanted in the organiza-
tion and that there would also not be a union.
3. Lee Striegel
Kenneth Anderson testified that he had numerous conversations with Striegel
on the picket line 30 and that in January, Striegel asked him to come back to
work and told him that he "would have a better setup with the Union out of
there than [he] would ever expect to have with a union." On further examina-
tion Anderson testified that Striegel several times made statements to the fore-
going effect "in passing conversation."
Guenthner testified that on December 2, Striegel solicited him to do some
polishing on Harcourt 's work at a location outside the plant ( in the Will Sales
Building ). Guenthner also testified that Striegel had once or twice spoken with
him and Anderson on the picket line and had tried to "get both of us to come
back to work." Kaufer also testified that on his visit to the plant on December
5 he talked with Striegel , ' who told him to "forget the whole thing" and come
back to work.
4 Lillian W. Bills
Hickman testified that around December 3 or 4 , Mrs. Bills came out to the
front door and told him to come around to the back and get his clothes because
,,you are no longer wanted around here ." Mrs. Bills explained that the incident
occurred after the hiring of a replacement for Hickman , that the new porter
had complained about Hickman 's coat hanging in a closet where he wanted to
hang his own clothes, and that he threatened to throw Hickman 's coat out.
Bills testified that she told Hickman only that if he wanted his coat she would
hand it to him and that she did so. It is concluded and found that Hickman
confused the content of Bills' statement , as he had done also in the case of
Harcourt , Sr., as above found . Bills' testimony is credited.
30 Anderson testified that his association with Striegel had been a close one , that they
were good friends , and that on many of the occasions they simply had casual and friendly
conversations.
998666-vol 98-58--61
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Elsie Crutcher testified to two telephone conversations with Bills in which
Bills allegedly sought her return to work. Bills testified that Crutcher had
called her both times each time requesting a favor which Bills granted. Bills
denied that any conversation occurred on either occasion to the effect testified
to by Crutcher. Bills' testimony is credited. Loraine Ray testified to the
occasion on January 14, 1950, when Bills passed the telephone to Harcourt.
Harcourt admitted the incident and admitted that he directed Bills to call Ray
on the occasion.
As has been seen, a number of witnesses for the General Counsel attributed to
Harcourt, Jr., Harcourt, Sr., and Striegel individual solicitations to return to
work, accompanied in several instances by statements of a more coercive char-
acter. Thus, there were statements by Harcourt, Jr., that Metts would not be
there again, that Conrad would never have a job there anymore, that there were
five named striking employees he would not take back under any circumstances,
that he was not going to have the striking employees back, and that he was not
going to sign a contract Similarly there were statements by Harcourt, Sr., that
Metts had gotten employees "into this [trouble]," and that Metts would never
work there anymore, plus the message from Harcourt, Jr., repeated to Gossett
and McCafferty, that he would not talk with anyone from the Union but that
the employees might apply to him individually for their jobs. Striegel's state-
ment to Anderson also reflected management's view that the Union would no
longer be in the plant and that Anderson would fare better without it.
No denial was entered of any of the incidents involving, or statements attrib-
uted to, the elder Harcourt ' Harcourt, Jr., admitted the various solicitations
of individual employees attributed to him, but denied making the several addi-
tional statements above summarized. Striegel's version of his conversation
with Anderson was in direct conflict with his prior affidavit given the Board's
31 Respondent did not call Harcourt , Sr , as a witness . Though Respondent ' s counsel
represented at one point that Haicourt's physical condition was such as to prevent him
from testifying, Respondent contented itself with introducing the testimony of a physician,
Dr John T Bate (who was also the elder Ilarcourt's nephew), that he had treated Har-
court, Sr , some months before the strike for a condition which involved a hardening of
the arteiies and which had resulted in a certain degree of absent-mindedness and a tendency
to emotionalism. It was doubtful from Dr Bate's testimony, however, that Hai court,
Sr 's condition would or could have been apparent to any save a trained observer Fur-
theimore, his treatment of the elder Harcourt had ended some months before the strike,
and there was no evidence of subsequent treatment by any other physician.
Other evidence establishes that Harcourt, Sr., continued in his position as Respondent's
president until shortly before the hearing and that he was then elevated to the post of
chairman of the board ; that though not in active charge of the business for 5 years, he
has continued to spend a full working day at Respondent ' s place of business ( including
the strike period ) ; that correspondence and business matters which he personally handles
has required the services of his secretary an average of 1 hour a day in taking and tran-
stribing his business and personal dictation. The evidence also establishes that Harcourt,
Jr., conferred with his father on the question of granting the Union 's requested wage
increase
There was evidence that Harcourt , Sr., was upset emotionally by the occurrence of the
strike, but none that Respondent in any way attempted to prevent his participation in
the incidents above recounted or that it attempted to excuse or disavow any of his acts
or statements In short, insofar as the employees were concerned, they had every reason
to believe that Harcourt , Sr, was acting and speaking on behalf of management . Inter-
national Association of Machinists v. N L R B, 311 U. S. 72 , 80 ; J. S Abercrombie
Company, 83 NLRB 524 , and cases there cited , footnote 8. And see Stedfast Rubber Com-
pany, Inc., 91 NLRB 300: Sioux City Brewing Company, 82 NLRB 1061, footnote 7 ;
Macon Textiles, Inc., 80 NLRB 1525, 1528.
HARCOURT AND COMPANY, INC. 951
field examiner shortly after the incident." There was specific corroboration by
some of the General Counsel 's witnesses of the testimony of others , and their
testimony may generally be regarded as mutually corroborative in view of the
number of incidents and the similarity of the statements which they testified
to. That testimony shows that Respondent 's managing officers and supervisors
were contemporaneously engaged in pursuing parallel courses of action in their
antiunion activity . Cf. Macon Textiles , Inc., supra . It is therefore concluded
and found that the incidents occurred and the statements were made substan-
tially as testified to by the General Counsel 's witnesses.
E. Alleged mass picketing and violence
On December 9 and 10, certain incidents occurred on or in the vicinity of the
picket line which Respondent pleaded as a complete defense to a refusal to
bargain and to the reinstatement of all striking employees, and alternately as
a partial defense to the reinstatement of six striking employees alleged to have
participated in said incidents . A resolution of the issues requires only a brief
summary of the evidence.
The incidents consisted primarily of alleged mass picketing at the front and
rear (and side) entrances and of alleged incidents of obstruction to the entrance
of employees into the building. The alleged mass picketing occurred both
mornings between 7: 30 and 8: 30, when picketing employees of Harcourt were
joined by volunteers who were mainly unidentified" Generally speaking, it can
be said that the General Counsel's witnesses testified to one version of the
incident and the Respondent 's witnesses to another . The two versions differed
sharply from each other on many details. However, the version of employee
witnesses called by the General Counsel was corroborated by four police officers
of the city of Louisville who were present at the crucial times complained of.
The testimony of those disinterested witnesses convinces the undersigned, and
he hereby finds, that the version testified to by the General Counsel's witnesses
is the correct one''
Their testimony can be summarized as follows : Approximately 15 perscns
participated in the picketing on both mornings, 2 of whom carried picket signs
with the legend, "Harcourt and Company's Employees On Strike For a New
Contract." The picketers walked in oval fashion, counterclockwise on the side-
walk in front of the Harcourt building which was approximately 20 to 25 feet
wide. The inside of the oval was approximately 1'/ to 2 feet from the front
entrance to the building, and the pickets were spaced approximately on arm's
length apart. Pedestrians were able to and did walk either through the line
(the pickets pausing if necessary) or between the line and the building Non-
striking employees similarly walked through or around the line to enter the
building, and their entrance was not impeded or blocked by the picketers. No
one was arrested by the police, no arrest was requested by anyone,"' and no help
32 It was stipulated that Striegel 's affidavit , like Harcourt , Jr 's, was taken by the field
examiner in the office of Respondent ' s counsel , Smith, and in his presence . See footnote
27, supra.
33 Grimes , Mat Davis, and one Potter were among outsiders who were identified on the
picket line . Respondent 's evidence suggests that other volunteers were members of the
Truck Drivers ' Union or of the Aluminum Workers' Union.
34 It is worthy of note , however , that even were Respondent 's version accepted, it would
not constitute a defense either to the alleged refusal to bargain or to the reinstatement of
any of the employees named in the complaint See Concluding Findings , page 953, infra
35 There was testimony that on December 10, Mrs. Bills excitedly requested the police
to go to the back entrance because "someone was getting killed " The police found no
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or assistance was sought or requested of the police by any employee desiring
to enter the building. The police testified that there was no disorder and no
violence at any time.
Respondent's witnesses testified to an incident when McCafferty momentarily
blocked the entrance, on December 9, of Collins, Denneler, Watkins, and Geis,
but even under their version, the "blocking" ended in a few seconds when the
police directed McCafferty to "break it up." Actually, the police supported the
testimony of the other witnesses for the General Counsel that there was no
blocking.
Striegel had testified that he had some difficulty passing through the picket
line on Friday and that Grimes stiff-armed him and knocked off his hat. The
police officers did not see the alleged stiff-arming but saw Striegel stoop to pick
up his hat. The police were under the impression that Striegel's hat had fallen
or been knocked off as he "barged through" the line. In any event, Striegel
ignored the police (who went into the line to see what the trouble was), and
went through the line into the building without making any complaint of
any kind.
Striegel also testified that his tie was pulled by one Potter as he waited
beside Harcourt, who was unlocking the grilled entrance, on Saturday morning.
Mrs. Bills witnessed the incident. No employee of Harcourt's was involved.
There is no credible evidence of "mass picketing" at the side or rear entrance.
The police officers, who frequently checked those entrances on the 2 days in
question, testified that there were three pickets in the alley at or near those
entrances on Friday and that on Saturday there were at one time five in the
alley standing under a shed out of the rain.
Harcourt and Geis testified that on Saturday, Harcourt had met Geis in the
alley beyond the rear of the building to accompany him into the rear entrance,
and that they were stopped by two men (one identified by Harcourt as Mat
Davis, ap Aluminum organizer) who blocked their path and said in effect, "If
you know what is good for you, you won't go in there," and that Geis said,
"That's good enough for me, I'm leaving." The two men followed Geis, and
Harcourt in turn followed them. The men overtook Geis on the street, took him
by the arm, and guided him into a drug store, talking with him about the strike.
Geis admitted that no force was used and no threats were made. Harcourt sum-
moned the police and went with them into the drug store, demanding an arrest.
Geis testified that they then all went to the police station, but that no warrants
were sworn out and no arrests made.
Respondent also offered evidence that one Sam Ezelle (director of the Depart-
ment of Research and Education of AFL, State Federation) had made telephone
calls of a threatening nature to Denneler and Watkins on or about December
12 concerning their work at Harcourt. There was also evidence that Ezelle had
taken some pictures of nonstriking employees as they left work on or about
November 30, saying he wanted to get some pictures of some rats.
Respondent also made an offer of proof that a car positively identified as
Metts' was seen departing from in front of Collins' home late on the night of
December 9, immediately after some unidentified person had thrown a paving
brick through the window of Collins' home.
signs of disorder , and the evidence does not establish what basis existed for the apparently
hysterical request.
Hardin, one of the police officers , testified that Harcourt had come out on the 9th at the
time of Striegel's entrance and had said that he had seen a picketer strike Striegel and
wanted an arrest made . However, Harcourt did not Identify who had struck Striegel.
Harcourt was apparently referring to Grimes , who, according to Striegel , had stiff-army
him and knocked off his hat.
HARCOURT AND COMPANY, INC. 953
F. Concluding findings
1. The refusal to bargain
a. The appropriate unit; the Union's representation of a majority therein
All production and maintenance employees at the Respondent's plant in Louis-
ville, Kentucky, excluding the jewelry superintendent, office employees, and all
guards, professional employees, and supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
On or about December 3, 1948, Respondent recognized the Union as the ex-
clusive bargaining representative of the employees in the above unit and signed
a contract to terminate on July 1, 1949. The testimony of Respondent's wit-
ness, Watkins, established that on August 1, 1949, the Union represented a total
of 26 employees in a unit of 31. No evidence was offered of any diminution
of the Union's majority until sometime after the strike. nor does Respondent
question the majority prior to the strike. It is therefore concluded and found
that on and after December 3, 1948, the Union represented a majority of the
employees in the above unit. It is also found, for reasons which are fully
stated under section c, infra, that the Union's representative status has thence-
forth continued.
A disposition of the Respondent's affirmative defenses is in order before turn-
ing to the issue whether Respondent refused to bargain as charged in the
complaint.'
b. Respondent's affirmative defenses
(1) The alleged renewal
Respondent's amended answer pleaded that on August 1, 1949. "It was agreed
between Respondent and the Union that said [contract ] . . . was extended and
continued in full force and effect . . . until July 1, 1950." The evidence, which
has been fully summarized under section B, 4 and 5, supra, wholly fails to sup-
port that contention It is unnecessary to repeat salient facts there set forth,
which establish that there were no understanding or agreement as to the effect
to be accorded the outcome of the poll, and certainly no commitment that Re-
spondent was to be bound thereby?
At best, the poll represented only unilateral action by the Union to inform
itself of the sentiments of its members ; i. e., that it was advisory in nature and
not a substitute for formal constitutional action by the Union through its officers.
Furthermore, Harcourt's attitude throughout the remainder of the lengthy nego-
tiations in bargaining for a new contract and his sworn petition in the injunction
action were wholly incompatible with Respondent's belated claim in its amended
answer filed on March 2, 1951, that the taking of the poll effected a renewal of
the contract.
It is therefore concluded and found that the taking of the poll did not operate
to extend or renew the old contract, and that, accordingly, there did not exist
any no-strike clause on November 21, 1949.
"The absence of a charge against the Union and of a complaint thereon does not deprive
Respondent of the opportunity to have its affirmative defenses considered on the merits
by the Board Morand Brothers Beverages Co., et at., 91 NLRB 409 This would seem
particularly to be true in a refusal to bargain case, because of the reciprocal obligations
to bargain imposed upon employer and union alike Cf. Times Publishing Company, 72
NLRB 676, 683
3z Harcourt's attitude at the time may be compared with his earlier consent to the
union-shop election which was without commitment on his part to recognize or to be bound
by the result.
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) The Union's alleged refusal to bargain
Respondent's further defense that the Union refused to bargain is based mainly
on the following contentions : (a) Metts' absence from the first four meetings ;
(b) the Union's action in leading Respondent to believe it was agreeing to renew
the contract and later refusing to do so (as by the letter of June 27, and by
the poll on August 1) ; (c) the Union's action in constantly increasing its de-
mands; and (d) alleged incidents of mass picketing and strike violence. Those
contentions will be discussed in order.
(a) Metts' absence from bargaining meetings is not a circumstance availing
Respondent since there is no evidence and no contention that the members of
the bargaining committee who actively participated in the negotiations were
without authority. Similarly, there is no evidence to support Respondent's
representation at the hearing that Metts was deliberately staying out of meet-
ings in order to snarl up the negotiations from the outside. Metts' vacation
and his trip to St. Louis obviously constituted bona fide excuses for failure to
attend the first three meetings. Although his excuse of painting his house on
July 29 was a lame one, Respondent is in no more position to complain of Metts'
absence from bargaining meetings than the Union would have been to complain
of the absence of Respondent's president throughout the entire negotiations.
(b) The question of the poll has been disposed of. Certainly the letter of June
27 and the events at the July 1 meeting do not constitute a refusal to bargain
on the part of the Union. Though Harcourt may have been temporarily misled
by the apparently ambiguous letter, there is no evidence that the Union delib-
erately phrased its letter to mislead Harcourt into a bAief it was agreeing to
renew the contract without changes. Even were that so, Harcourt's impression
was a short-lived one, for lie was immediately set right at the meeting of July 1,
which he promptly terminated.
(c) Respondent also strenuously asserts that it was precluded from reaching
an agreement because of the Union's actions in constantly increasing its
demands. Respondent points to the list of proposals contained in the Union's
letter of July 25, to the list submitted at the October 12 meeting, and to Knoblock's
proposed contract as establishing that the Union was not bargaining in good
faith but was in fact seeking to avoid reaching a contract with Respondent.
The evidence does not support that claim. Harcourt had originally opened
the negotiations and had submitted his proposals at the June 4 meeting. At
the next meeting the Union submitted informally and discussed with Harcourt
seven changes which it proposed. Furthef discussion of those changes at the
July 1 meeting was precluded by Harcourt's act of walking out. Discussions
were renewed on July 29, on the basis of the Union's letter of July 25, which
was simply a restatement of earlier proposals. By that time it was becoming
evident that the chief issues between the parties were the union shop and the
wage increase, and that unless an impasse were to be avoided on those issues,
considerable "trading" would be necessary between the parties on other matters ms
The evidence establishes that in this posture of the negotiations new subjects
were from time to time interjected into the discussions and that they were
n Authorities on the subject of collective bargaining are in agreement that, to some
degree, "horse trading" is a natural incident of bargaining between management and
labor, and that a certain amount of barter, bluff., and compromise has become a part of
the expected and accepted tradition or technique of bargaining. See Hill and Hook,
Management at the Bargaining Table (N. Y. McGraw-Hill, 1945), page 255; Hoebreckx,
Management Handbook for Collective Bargaining, N. Y., Chicago, Commerce Clearing
House 1947, page 79 ; Smyth and Murphy, Bargaining with Organized Labor, N. Y., Funk
and Wagnalls, 1948, pages 64, 65.
HARCOURT AND COMPANY, INC. 955
collated in the list of the Union's proposed changes presented during and
discussed at the October 12 meeting. Among those "new" subjects was one
requiring Respondent to negotiate on wage rates for new positions (which was
apparently inspired by Harcourt's suggestion that he proposed to rehire Collins
early in August), and one relating to wage rates during temporary transfers,
which had entered into the discussion much earlier than October 12. The new
list also included in two parts a provision relating to arbitration and discharges
for cause which had previously been discussed as a single subject. The one
additional subject related to the term of the contract and for automatic renewal,
which had not been previously discussed.
In the subsequent meetings with Knoblock, on November 19 and 20, no new
proposals were interjected into the discussion In fact, Knoblock agreed to
waive the Union's proposals for a checkoff and for a provision relating to
sanitary conditions. Nor did Knoblock's draft of a proposed contract represent
any significant increase in demands It constituted mainly an effort to reduce
to contractual form and language the listed changes submitted informally on
October 12, and to a lesser extent his (unsuccessful) effort to express those
proposals in language more palatable to Respondent. Knoblock's draft also
included what were apparently alternative proposals on holiday pay, one being
based on the provision in the old contract. It similarly included seniority
provisions of the old contract as well as additional clauses (apparently intended
as alternative) which provided for a somewhat stricter observance of seniority
than was required by the old contract.3B Furthermore, Knoblock's position at
the November 20 conference was one of willingness to bargain on any of the
Union's proposals and to redraft and modify the contract in any respect Harcourt
might suggest. To the extent that the draft included proposals not specifically
encompassed in the October 12 listing, they consisted mainly of clauses copied
from the old contract. Minor deviations therefrom appeared in a provision
for the settling of grievances short of arbitration and in the method of arbitration.
(d) Finally, Respondent contends that the alleged incidents of mass picket-
ing and violence on December 9 and 10 were of such a character as to preclude
it from bargaining or reaching an agreement with the Union. The findings
previously made on the facts require the rejection of this defense. Or had
Respondent's version been adopted, no different result would here be required.
As stated in N. L. R. B. v Remington-Rand, The, 94 F. 2d 862 (C. A. 2).
.. . Though the Union may have misconducted itself, it has a locus poeniten-
tiae; if it offers in good faith to treat, the employer may not refuse because
of its past sins. In the case at bar there was no warrant whatever for
supposing that further negotiations would have been useless . . . That
they wished further conferences about these matters cannot be doubted. For
these reasons it was unnecessary to go into any past delinquencies of the
Union.
And see N. L. R. B. v. Carlyle Lumber Co., 74 F. 2d 138 (C. A. 9), cert. den 304
U. S. 575; National Mineral Company, 39 NLRB 344; Consumers Lumber and
Veneer Company, 63 NLRB 17, footnotes 16 and 45, and cases there cited.
Indeed even if Respondent's theory of the facts and of the law were accepted
as correct, its defense would at best appear to be good only for the brief period
of the occurrence of the alleged acts, i. e., December 9 and 10.
as Knoblock drew the proposed contract hurriedly in an effort to reduce to contractual
form the earlier proposals under discussion and to ready the draft as a basis for further
discussions on November 20.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is therefore concluded and found on all the evidence that the evidence
does not support Respondent's defense that the Union had not bargained in good
faith.
c. Respondent's refusal to bargain
The General Counsel contends that Respondent's refusal to bargain is estab-
lished by: (1) Respondent's negotiations with the employees in the meetings
of November 10 in derogation of the Union's status as their exclusive bargaining
representative; (2) Respondent's negotiations with groups of employees in
meetings subsequent to the strike relative to the terms of abandoning the strike
being conducted by the Union; (3) Respondent's solicitation of individual
employees to abandon the strike, in derogation of the Union's status as bargain-
ing representative; and (4) Respondent's refusal to meet and bargain with the
Union on or about December 17, January 18, February 11, February 17, and
March 4. Those contentions will be discussed in order.
(1) Further analysis and discussion of the evidence is unnecessary to support
the conclusion that Respondent's actions in the two meetings on or about No-
vember 10, plainly constituted an attempt to bypass the Union and to take
up directly with its oldest employees the issues of its disagreement with their
bargaining representative and to enlist their support to settle those issues on
Respondent's terms. Harcourt's intent to set off those employees against their
own representative was obvious from his reference to their alleged lack of
representation in the Union or on its bargaining committee. His negotiations
with them on the bargaining issues were also obvious. Thus, Harcourt informed
them of his diagreement with their committee on the union-shop issue, stated
that he thought he could work out the other parts of the matter with the Union,
and asked for suggestions as to how he might settle his dispute or his difficulties
with the Union. Significantly, Harcourt had previously given no indication, in
his negotiations with the Union, that he was willing to settle all issues except the
union shop. A clearer case of bypassing a bargaining representative can scarcely
be imagined. It was immediately recognized and branded by Smith and Denneler,
who walked out.
The keystone to the whole structure of collective bargaining is the exclusive
bargaining right granted to the duly designated representative of the employees.
The employer's duty to bargain collectively with that representative imposes
the negative duty to treat with no other. N. L. R. B. v. Jones and, Laughlin Steel
Corporation, 301 U. S. 1, 41; Med^o Photo Supply Company v. N. L. R. B., 321
U. S. 678, 683-4; and see Virginian Railway Company v. System Federation,
300 U. S. 515, 548-9. The Board has consistently held that it constitutes a refusal
to bargain for an employer to bypass the designated representative of the
employees and to go over their heads by dealing directly with the employees
individually. See, for example, Union Products Company, 75 NLRB 591; Mission
Oil Company, et al., 88 NLRB 743; C. Pappas Company, Inc., 82 NLRB 765;
Union Manufacturing Company, 76 NLRB 322, enfd. 179 F. 2d 511 (C. A. 5) ;
N. L. R. B. v. Booker, 180 F. 2d 727 (C. A. 5), enforcing 78 NLRB 553. The
Supreme Court has also supported the view that it is an unfair labor practice
for an employer to bypass the designated employee representative, either by
dealing with the employees directly or by unilateral action. See Medo Photo
Supply Company, supra, at pp. 684-5; May Department Store v. N. L. R. B., 32,
326 U. S. 376, 384.
(2) Respondent's negotiations with employees in the meetings of November
25 and 26 stand on no different footing. In the first meeting of the 25th, Harcourt
solicited the return to work of Smith, Denneler, and Collins (credited testimony
of Smith), negotiated with them for the settlement of the strike, and pointedly
HARCOURT AND COMPANY, INC. 957
suggested the exclusion of Metts, the Union's president, from further participa-
tion in the negotiations as well as from employment.90 On Smith's rejection of
Harcourt' s suggestion to exclude Metts, the meeting broke up with the under-
standing that it would be resumed when the attendance of more employees could
be procured.
The circumstance that in the subsequent meetings the members of the
Union's bargaining committee were among the employees present and that
no one offered objection to the meeting with Harcourt does not establish that
Harcourt was bargaining with the Union, nor does it excuse his continued
bargaining with the employees Obviously Melts, McCafferty, Kaufer, Anderson,
and Watkins were present in the same capacity as the other attendants, 1. e., as
striking employees; and the negotiation proceeded between Harcourt and the
employees as such, not between Harcourt and the Union, or between Harcourt
and the members of the bargaining committee. That fact was evident from
Radcliffe's presence and participation in the second Friday meeting, from
the participation in the discussions by Denneler (admittedly an inactive member
of the Union), and the participation of other employees who were not members
of the bargaining committee. Indeed, the group negated the idea that they
were a committee from the Union by stating, in reply to Harcourt's inquiry, that
they constituted a "committee at large "
Nor is it material that Denneler may have originally requested the first meet-
ing on November 25, and that no one offered objection to the subsequent negotia-
tions with Harcourt Orderly collective bargaining requires that the employer
be not permitted to go behind the designated representative in order to bargain
with the employees themselves. Medo case, supra. It is therefore immaterial
whether Harcourt requested the meeting or whether the employees sought him
out, for Respondent was not relieved of its obligations because the employees
asked that they be disregarded. The Act was enacted in the public interest for
the protection of the employees' right to collective bargaining, and it may not
be ignored by the employer even though the employees consent (N. L. R. B. v.
Newport News etc. Company, 308 U. S 241, 251) or suggest the conduct found
to be an unfair labor practice (National Licorice Company v. N L R. B., 309 U. S.
350, 353). Respondent's negotiations with anyone other than the Union (the
designated representative of the employees) was an unfair labor practice which
would have been avoided if the Respondent, as was its statutory duty, had refused
to negotiate with anyone other than that representative. Medo case, supra; and
see C. Pappas Company, Inc., supra, at p. 795
(3) The evidence reveals numerous instances after the strike when Harcourt,
Jr., Harcourt Sr. and Striegel solicited the return to work and the abandon-
ment of the strike by various individual employees. Though there were no
promises of benefit (save Striegel's representation to Anderson of "a better
set-up without the Union"), a number of threatening and coercive statements
were made as summarized under section D, supra.
The legality of Respondent's solicitation of individual strikers must be deter-
mined. of course, against the background in which such solicitation was made.
The Texas Company, 93 NLRB 1358, and cases there cited. The Board has, in
the past, frequently found individual solicitation of strikers violative of the
Act' where the solicitation had constituted an integral part of a pattern of
illegal opposition to the purposes of the Act as evidenced by the employer's
entire course of conduct. The Ili. T. Rawleigli, Company, 90 NLRB 1924; Cat hey
0 The latter suggestion was obviously at attempt by Harcourt to carry out his desire,
expressed to Smith before the strike , to "get rid of Metts" so that he could "make a deal
with the rest of the people."
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lumber Company, 86 NLRB 157, enfd. 185 F. 2d. 1021 (C. A. 5) ;'and see The
Cincinnati Steel Castings Company, 86 NLRB 592; Kansas Milling Company, 86
NLRB 925 (reversed and remanded, 185 F. 2d 413 (C. A. 10) ). The Board has
similarly found individual solicitation of strikers violative of the Act where
the solicitation had been conducted under circumstances and in a manner reason-
ably calculated to undermine the strikers' collective bargaining representative
and to demonstrate that the Respondent sought individual rather than collec-
tive bargaining. Samuel Binghani's Son Manufacturing Company, 80 NLRB
1612; see Hart Cotton Mills, Inc., 91 NLRB 728; cf. J. I. Case v. N. L. R. B., 321
U. S. 332; Medo Photo Supply Company v. N. L. R. B., supra.
Contrary to the situation in The Texas Company, supra, where neither factor
was found, both of the above factors are present here. Thus, Respondent as
early as November 10 had set upon a course of illegal opposition to the purposes
of the Act. This was first reflected in its meetings with hand-picked groups of
older employees in which he sought to foment dissatisfaction with their chosen
bargaining representative and to negotiate with them a settlement of his difficul-
ties with that representative.' Then after summarily rejecting Knoblock's final
effort on November 21 to settle the dispute, Harcourt promptly renewed his effort
to settle the matter with various groups of striking employees in derogation of
the Union's status as their bargaining representative. That his intention was
not only to bypass but to undermine and discredit the Union, was emphasized
by his suggestions both before and after the strike of the necessity of excluding
the Union's president as a prerequisite to reaching an agreement.
Nor did Respondent's failure at group bargaining' end its attempt to induce
employees to abandon the strike and return to work. Though changing its
tactics to a campaign of individual solicitation, Respondent now more openly
disclosed its hostility to the Union and to its leadership by various threats
to exclude Metts from reemployemnt and by similar threats that other partici-
pants in the strike would be discharged or would not be reinstated. Such
individual solicitation under the foregoing circumstances was manifestly cal-
culated to undermine the Union's authority as the strikers' bargaining represent-
ative and to demonstrate that Respondent sought individual rather than
collective bargaining. Indeed, the latter purpose was explicit in Harcourt, Jr.'s
message to Gossett, delivered by Harcourt, Sr., by which he refused to talk with
any union representative but invited individual applications from striking
employees.
Respondent relies strongly on N. L. R. B. v. Penokee Veneer Co, 168 F. 2d 868
(C. A. 7) ; Kansas Milling Company v. N. L. R. B., 185 F. 2d 413 (C. A. 10) ; and
Pacific-Gamble-Robinson Company v . N. L. R. B., 186 F. 2d 106 (C. A. 6) to
justify its solicitation of returning strikers. Those cases are clearly inapposite
to the present situation. In the Penokee case, the employees were engaged in
an economic strike and were therefore subject to permanent replacement by
new employees ; and, unlike the Respondent here, the employer had committed
no other unfair labor practices and had bargained in good faith to an impasse"
41 Indeed , Watkins ' testimony discloses that as early as August , Harcourt had sought
the assistance of Watkins and Denneler in securing a settlement of those difficulties The
General Counsel pointed to that and to other earlier evidence as "background ," and sought
no finding of an unfair labor practice prior to November 10.
92 Actually , Respondent 's efforts had enjoyed substantial success, in that by obtaining
the return of Watkins, Denneler, Collins, and Radcliffe, it had a sufficient number of its
key employees to resume operation
13 Aside from these distinctions , the Penokee decision has been criticized on various
grounds. See Vernon, Labor Law-Unfair Labor Practices-Employer By-passing Desig-
nated Bargaining Agent, 27 NCL Rev. 226 , 270-1 ( Feb '49 ) It also appears to be in
conflict with the Medo and May Department Stores cases , supra.
HARCOURT AND COMPANY, INC. 959
In Kansas Milling Company , likewise , there had been no unfair labor practices
before the strike ; and the court also pointed out that the solicitation of individ-
ual strikers to return to work did not tend to prolong the strike because the
Union had adamantly maintained throughout the strike that "second millers"
should be included in the unit. Similarly , in Pacific- Gamble-Robinson Company,
the court found the strike to be economic in origin, that the employer's wage
offer was made to the public, and that the employer had no contact with the
strikers individually.
(4) Respondent's later refusals to bargain with the Union on December 17,
and in January, February, and March, 1950, may be summarily disposed of. The
first of those refusals was based on the alleged mass-picketing and violence; it
has already been disposed of. The remaining refusals were based on the asser-
tion that the Union had lost its majority by the defection of returning strikers
and by the replacement of others by nonunion members.
As found in the ensuing section of this Report, the strike was caused by
Respondent's unfair labor practices, and alternatively that it was in any event
prolonged by Respondent's unfair labor practices. It is well established that
an employer may not justify its refusal to bargain by an alleged loss of majority
status which had been occasioned by his own unfair labor practices. Respond-
ent cannot "as justification for its refusal to bargain with the Union set up the
defection of union members which it has induced by unfair labor practices, even
though the result was that the Union no longer had the support of the majority.
It cannot thus by its own action disestablish the Union as the bargaining
representative of the employees previously designated as such of their own free
will." Medo case, supra, at page 687, and cases there cited. Also see Franks
Bros. Company v. N. L. R. B., 321 U. S 702, 705; Joy Silk Mills v. N. L. R B.,
185 F. 2d 732 (C. A. D C.) enfg 85 NLRB 1263; Stedfast Rubber Company, Inc.,
91 NLRB 300.
It is therefore concluded and found that by its entire course of conduct from
on or about November 10, 1949, Respondent refused to bargain with the Union
in good faith, and that such refusal is reflected particularly in (1) its negotia-
tions with groups of employees both before and after the strike, in derogation
of the Union's status as their bargaining representative; (2) its solicitation of
and negotiations with individual employees to abandon the strike, similarly
in derogation of the Union's status; and (3) its refusals to meet and bargain
with the Union, as requested, on December 17 and in January, February, and
March, 1950
2. The discriminatory refusal to reinstate striking employees
In February 17, 1950, the Union offered to terminate the strike, and it made
an unconditional application for the reinstatement of the striking employees
to their former positions. That application by the strikers' bargaining repre-
sentative was sufficient. Sifers Candy Company, 75 NLRB 296. 297, 310; enfd.
171 F. 2d 63 (C A. 10) ; Capitol City Candy Company, 75 NLRB 447, 450; cf.
Eva Ray Dress lllanufacturing Company, 88 NLRB 261 Respondent's refusal
to reinstate was based on its various alternative defenses. However, the de-
termination of the issue requires consideration of only the following questions :
(a) Whether the strike was an economic or an unfair labor practice strike in
origin, and if economic in origin, whether it was prolonged by Respondent's
subsequent unfair labor practices; and (b) whether particular striking em-
ployees for whom the General Counsel seeks reinstatement engaged in such
4' But see West Fork Cut Glass Co , 90 NLRB 944, and cases cited
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
illegal conduct or acts of violence as to render them unsuitable for further
employment.
a. The cause of the strike and of its prolongation
It has been found that Respondent committed unfair labor practices as early
as November 10, by refusing to bargain in good faith with the Union as the
designated representative of its employees. That refusal ww as manifested by
Respondent's action in going over the head of the Union's bargaining committee
and negotiating with its own selected "committee" on the issues and difficulties
between Respondent and the Union. Such action, in derogation of the Union's
representative status, obviously tended to prevent the success of and contributed
to the failure of the Union's effort to procure an agreement. Cf J. W. Wood-
s ff, Sr., 90 NLRB 808.
Respondent subsequently was fully advised that unless an agreement were
reached the Union would call a strike Thus, in the meeting of November 19,
Knoblock explained to Harcourt that he had come to Louisville to conclude the
negotiations and to reach an agreement. At the conclusion of the November 20
meeting, after Knoblock's further attempt to reach an agreement, he informed
Harcourt that the "main reason" for his presence was to avoid a strike ; that
the local had taken a strike vote which the International had approved; and
that unless an amicable agreement was reached, the strike would be called
forthwith. The record therefore clearly establishes that the strike was called
in protest against Respondent's course of conduct during the bargaining negotia-
tions for a new contract45 (J. W. Woodruff, Sr., supra), and only after it became
apparent that further attempts to secure one would be futile because respondent
was not bargaining in good faith (ibid).
Respondent pointed to the testimony of various members of the Local's bar-
gaining committee to the effect that the Union had held out for a union shop
just as hard as Harcourt has held out against it, and contended that an impasse
had been reached and that the Union struck to enforce its economic demands.
Though there might have existed a strong basis for that contention down to
the time of Knoblock's entry into the negotiations, such defense is unavailing
in the light of Respondent's prior unfair labor practices which had created or
induced the impasse on which it seeks to rely. Cf. N. L R. B. v. Andrew Jergens
Company, 175 F. 2d 130, 136 (C. A. 9) cert den. 338 U. S. 827; Dixie Culvert
Manufacturing Company, 87 NLRB 554.
But even were it true that the strike had the joint purpose of achieving both
an economic goal and the dissipation of Respondent's unfair labor practices,
the strike, being caused in part by those unfair labor practices, did not lose
its character as an unfair labor practice strike because economic reasons may
also have brought it about. Julian Freirich, et al., 86 NLRB 542, and cases there
cited, footnote 18; Bradley Washfountain Co., 89 NLRB 1662.
It is therefore concluded and found that the strike was caused by Respondent's
refusal to bargain with the Union in good faith, and that it was an unfair
labor practice strike in its inception.
Even were there any doubt as to the cause of the strike, there is none that
it was prolonged by Respondent's subsequent unfair labor practices. Indeed,
even if it be assumed the strike was economic in its inception, it was promptly
converted into an unfair labor practice strike by Respondent's refusal to bargain
with Knoblock, Sickler, and Metts on November 21, by Respondent's negotiations
45 The legend on the picket sign-"Harcourt and Company employees on strike for a
new contract"--does not conflict with that conclusion Thus Respondent's conduct had
prevented the reaching of a new contract, for lack of which the employees had struck.
HARCOURT AND COMPANY , INC. 961
with groups of striking employees on November 25 and 26, and by Respondent's
various other acts of interference , restraint , and coercion , which began 2 or 3
days after the strike ( see section D, supra ). Cathey Lumber Company, supra.
It is therefore concluded and found , alternatively , that assuming arguendo, the
strike was of economic origin, it was prolonged by Respondent 's subsequent
unfair labor practices , and was converted into an unfair labor practice strike
on November 21, 1949.
,Since the strike was caused and prolonged by Respondent ' s unfair labor
practices , the strikers were entitled upon application to reinstatement to their
former positions Julian Freirich Company, supra ; Cathey Lumber Company,
supra; Ford Brothers , 73 NLRB 49, 70; Athens Manufacturing Company, 69,
NLRB 605, 608; and Respondent 's refusal to reinstate the strikers, upon request,
constituted per se discrimination in hire and tenure of employment . Rockwood
t.tove Works , 63 NLRB 1297.
b. Whether individual strikers are barred from reinstatement
Respondent contends that a number of the employees for whom the General
Counsel is seeking reinstatement engaged in mass picketing and in other illegal
acts and violence, sufficiently flagrant to warrant the Board in withholding
the remedy of reinstatement as to them . The evidence establishes (and
Respondent ' s counsel conceded in oral argument ) that Respondent actually dis-
charged none of the strikers . In determining whether to grant the remedy
of reinstatement in cases like the present, the Board applies as the criterion
whether the acts asserted by the Respondent as a bar are of such a character
a s to render the employees unsuitable for reemployment . Dalton Telephone
Company, 82 NLRB 1001 , 1006, and cases there cited ; enfd. 27 LRRM 2506
(C. A. 5) ; Horn Manufacturing Company, 83 NLRB 177 , 1179-80; and see The
W. T. Rawleigh Company, supra.
Respondent relates its present defense specifically to Andrew Hickman, Max
Powell, Cecil Conrad , James Kallaher , John Gossett , and Charles Kemble.
However , the only evidence which tends at all toward supporting the defense
is that each of said employees was named by one or more witnesses as among
those who participated in the alleged mass picketing on December 9 or 10. It
is apparently Respondent 's position that the picketing on those days was designed
physically to bar entry into the plant of employees who wished to work. The
record wholly fails to support that contention . Indeed, even if Respondent had
sustained its version of the picketing ( i. e., that some 25 to 35 pickets marched
in an oval between 6 and 8 inches apart in front of the entrance ), its defense
would fail of establishment ( cf. The W. T. Rawleigh Company, supra ) ; and it
offered no evidence whatever that any of the strikers for whom reinstatement
is sought participated in the (alleged ) momentary blocking of Collins, at al.
by McCafferty ( cf. Rawleigh, supra ) or in the alleged stiff-arming of Streigel
by Grimes or in Potter's act of pulling loose Grimes' bow tie. Neither did
Respondent 's evidence connect any of said strikers with the Geis incident or
with any of the other alleged incidents at the rear entrance or elsewhere.
It is therefore concluded and found that none of the activity engaged in
by Hickman , Powell, Conrad , Kallaher, Gossett, and Kemble physically barred
the entry of nonstrikers or that it otherwise amounted to activity proscribed
by Section 8 (b) (1) of the Act (Rawleigh Company , supra). Respondent
has therefore failed to sustain its contention that said strikers forfeited their
right to reinstatement by engaging in conduct violative of that section.
Respondent's special defense as to Cecil Conrad is likewise without merit.
Its solicitation of Conrad in January stands on no different footing than its
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
solicitation of other individual strikers in derogation of the Union's status as
their bargaining representative. Furthermore, as the offer to Conrad was
conditioned on his crossing the picket line which was being maintained by the
Union as his bargaining representative, his refusal would not bar him from
reinstatement or back pay. Porto Rico Container Corp., 89 NLRB 1570; Houston
and North Teras Motor Freight, 88 NLRB 1462; The W. T. Rawieigh Company,
supra.
3. Interference, restraint, and coercion
It is concluded and found that Respondent, by the various acts above found
to constitute a refusal to bargain, and by its discriminatory refusal to reinstate
its striking employees, engaged in interference, restraint, and coercion of its
employees in the exercise of the rights guaranteed by Section 7 of the Act and
thereby committed unfair labor practices in violation of Section 8 (a) (1).
It is further concluded and found that Respondent similarly engaged in
interference, restraint, and coercion by the following acts : The various state-
ments and threats by Harcourt, Jr., and Harcourt, Sr., that Metts, Conrad,
and other striking employees would not be reinstated and that others did not have
Jobs and were not wanted ; the statement by Harcourt, Sr., to Anderson that
there would no longer be a union ; Striegel's statement to Anderson that Ander-
son would have a better setup with the Union out of the shop; Harcourt, Jr.'s
inquiry of Conrad as to his vote on the strike ballot, followed by the threat
never to reinstate him ; Harcourt, Jr.'S statement to Guenthner that he was
not going to sign a contract ; and the statements by Harcourt, Jr., and Striegel
to Kaufer to forget the Union and come back to work.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in Section III, above, occurring in con-
nection with the operations of Respondent described in Section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
It having been found that Respondent has engaged in certain unfair labor
practices, it will be recommended that it cease and desist therefrom and that
it take certain affirmative action designed to effectuate the policies of the Act.
It having been found that Respondent engaged in certain acts of interference,
restraint, and coercion, it will be recommended that Respondent cease therefrom.
It having been found that from November 10, 1949, and thereafter, Respondent
refused to bargain collectively with International Plate Printers, Die Stampers
and Engravers Union of North America, Local No. 5, AFL, it will be recommended
that Respondent upon request bargain collectively with said Union.
It having been found that the Respondent has discriminatorily failed and
refused to reinstate the employees whose names are listed in Appendix A 46
4° The General Counsel has disclaimed as to Mervin Smith and Norman Kaufer, who
accepted permanent employment elsewhere on December 9, 1949.
Although Respondent contended that Paul Haas quit its employ contemporaneously with
the start of the strike, the evidence does not support that contention. Striegel testified
that Haas had informed him about 2 weeks before the strike that he would leave "very
shortly," from which Striegel inferred Haas was giving a 2-week notice. However,
Striegel admitted that Haas had made previous announcements of his intention of leaving.
Furthermore, there was evidence which indicated that Haas had participated in some of
the strike activity.
HARCOURT AND COMPANY, INC. 963
hereof it will be recommended that the Respondent 'offer to each of them im-
mediate and full reinstatement to his former or substantially equivalent position
(see The Chase National Bank of the City of New York, San Juan, Puerto Rico,
Branch, 65 NLRB 827) without prejudice to his seniority or other rights and
privileges, dismissing if necessary any employees hired in their places since
November 21, 1949, and make them whole for any loss of pay they may have
suffered by reason of such discrimination by payment to each of them of a sum
of money equal to that which he normally would have earned as wages from
February 17, 1950, to the date of the offer of reinstatement, less his net earnings
during such period (see Crossett Lumber Company, 8 NLRB 440).
Said loss of pay shall be computed on the basis of each calendar quarter or
portion thereof during the period from Respondent's discriminatory action to
the date of a proper offer of reinstatement to the said employees. The quarterly
periods, herein called "quarters," shall begin with the first day of January,
April, July, and October. Loss of pay shall be determined by deducting from
a sum equal to that which each said employee would normally have earned
for each such quarter or portion thereof, his or her net earnings, if any, in other
employment during said period. Earnings in one particular quarter shall have
no effect upon the back-pay liability for any other quarter. In order to insure
compliance with the foregoing back-pay and reinstatement provision, it is recom-
mended that Respondent be required upon reasonable request to make all reason-
able records available to the Board and its agents. F. W. Woolworth and Com-
pany, 90 NLRB 289.
The violations of the Act which Respondent committed are in the opinion of
the undersigned persuasively related to the other unfair labor practices pro-
scribed by the Act, and the danger of their commission in the future is to be antici-
pated from Respondent's conduct in the past. The preventive purposes of the
Act will be thwarted unless the order is coextensive with the threat. In order,
therefore, to make more effective the interdependent guarantees of Section 7,
to prevent a recurrence of unfair labor practices and thereby minimize the in-
dustrial strife which burdens and affects commerce and thus effectuates the
policies of the Act, it will be recommended that Respondent cease and desist from
infringing in any manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings offact and upon the entire record in
the case. the undersigned makes the following:
CONCLUSIONS OF LAW
1. International Plate Printers, Die Stampers and Engravers Union of North
America, Local No. 5, AFL, is a labor organization within the meaning of Sec-
tion 2 (5) of the Act.
2. All production and maintenance employees at the Respondent's plant in
Louisville, Kentucky, excluding the jewelry superintendent, office employees, and
all guards, professional employees, and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
3. At all times since December 3, 1948, the Union has been and now is the ex-
clusive representative of all the employees in the aforesaid unit for the purposes
of collective bargaining within the meaning of Section 9 (a) of the Act.
4. By failing and refusing at all times since November 10, 1949, to bargain
collectively with International Plate Printers, Die Stampers and Engravers
Union of North America, Local No. 5. AFL. as the exclusive representative of the
employees in the aforesaid unit, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (5) of the Act.
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. By discriminating in regard to the hire and tenure of employment of the
individuals whose names are listed in Appendix A, attached hereto, thereby
discouraging membership in International Plate Printers, Die Stampers and
Engravers Union of North America, Local No. 5, AFL, Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a)
(3) of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
Appendix A
Charles Kemble James Kallaher
Alvin Gu,enthner John Gossett
Kenneth Anderson Max Powell
Andrew Hickman Cecil Conrad
Aline Marcum French Elsie Crutcher
Jewrell Buchanan Loraine Ray
Gerardina Buckman Mildred Conrad
Charles McCulloch Paul Haas
Appendix B
NOTICE TO ALL EMPLOYEES
' Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in INTERNATIONAL PLATE PRINTERS,
DIE STAMPERS AND ENGRAVERS UNION OF NORTH AMERICA, LOCAL No. 5, AFL,
or in any other labor organization of our employees by discriminatorily re-
fusing to reinstate any of our employees or by discriminating in any other
manner in regard to their hire or tenure of employment or any term or con-
dition of employment.
WE WILL NOT interrogate our employees as to the strike vote ; threaten em-
ployees with discharge or the loss of their jobs or threaten not to employ
or reinstate them because of their union activities ; threaten not to permit
the union in the plant and not to sign a contract with it ; promise better
working conditions without the union ; solicit the abandonment of the strike,
by individual strikers or bargain with employees in derogation of the said
union's status as their bargaining representative.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist INTERNATIONAL PLATE PRINTERS , DIE STAMP-
ERS AND ENGRAVERS UNION OF NORTH AMERICA, LOCAL No. 5, AFL, or any other
labor organization, to bargain collectively through representatives of their
own choosing and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from
any or all of such activities except to the extent that such right may be af-
PENNINGTON BROS., INC. 965
fected by an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to the 16 individuals whose names are listed below im-
mediate and full reinstatement to their respective former or substantially
equivalent positions, without prejudice to their seniority and other rights
and privileges, and make them whole for any loss of pay they may have-
suffered by reason of the discrimination to them :
Charles Kemble James Kallaher
Alvin Guenthner John Gossett
Kenneth Anderson Max Powell
Andrew Hickman Cecil Conrad
Aline Marcum French Elsie Crutcher
Jewrell Buchanan Loraine Ray
Gerardin6 Buckman Mildred Conrad
Charles McCulloch Paul Haas
WE WILL bargain collectively upon request with INTERNATIONAL PLATE.
PRINTERS, DIE STAMPERS AND ENGRAVERS UNION OF NORTI; AMERICA, LOCAL
No. 5, AFL, as the exclusive representative of all our employees in the
bargaining unit described below with respect to rates of pay, wages, hours.
of employment, and other conditions of employment, and, if an agreement
is reached, embody such understanding in a signed contract.
The bargaining unit is:
All production and maintenance employees at our plant in Louisville,
Kentucky, excluding the jewelry superintendent, office employees, and
all guards, professional employees, and supervisors as defined in the Act.
All our employees are free to become or remain members of INTERNATIONAL
PLATE PRINTERS, DIE STAMPERS AND ENGRAVERS UNION OF NORTH AMERICA, LOCAL
No. 5, AFL, or of any other labor organization, except to the extent above
stated.
HARCOURT AND COMPANY, INC.,
Employer:
By -----------------------------------
(Representative) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
PENNINGTON BROS., INC. and BAKERY & CONFECTIONERY WORKERS,
INTERNATIONAL UNION OF AMERICA, LOCAL # 57, A. F. OF L., PETI-
TIONER. Case No. 9-RC-1456. March 31,1952
Decision, Order, and Direction of Second Election
Pursuant to a stipulation for certification upon consent election by
the Employer and Petitioner an election was held under the direction
of the Regional Director on January 30, 1952. At the close of the
election, the tally of ballots showed that of approximately 82 eligible
voters, 42 voted for the Petititioner and 39 against. The Employer
filed timely objections to conduct affecting results of the election.
98 NLRB No. 141.
998666-vol. 98-53-62