Myers Products Corp.

In the Matter Of MYERS PRODUCTS CORPORATION and INTERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT No. 101 Case No.13-03017.Decided June 9, 1949 DECISION AND ORDER On December 6, 1948, Trial Examiner John Lewis issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices in violation of Section 8 (1) of the Act and recommending that it cease and desist therefrom, as set forth in the copy of the Intermediate Report at- tached thereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices in violation of Section 8 (3) of the Act as alleged in the complaint and recom- mended dismissal of these allegations. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief.' Pursuant to the provisions of Section 3 (b) of the Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Members Reynolds, Murdock, and Gray]. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings and conclusions of the Trial Examiner, insofar as they are consistent with our Decision and Order herein. The Trial Examiner found that the Respondent was not aware of the concerted activities of the polishers or that Bevan was acting as their spokesman. We agree. Furthermore, we are of the opinion that when Bevan asked for a raise, on the day of his discharge, there was nothing in the context of events to indicate that he was speaking 3 Those provisions of Section 8 (1) and 8 (3) of the National Labor Relations Act which the complaint alleged were violated, are reenacted in Section 8 (a) (1) and 8 (a) (3) of the Act as amended by the Labor Management Relations Act, 1947. 84 N. L. R. B., No. 8. 32 I MYERS PRODUCTS CORPORATION 33 in the capacity of a' representative of his coworkers or that his em- ployer believed or had reason to believe he was so acting. Accord- ingly, we find that Bevan was not discriminatorily discharged within the meaning of Section 8 (3) of the Act. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders .that the Respondent, Myers Products Corpora- tion, and its successors and assigns , shall : 1. Cease-and desist from: (a) Threatening to discharge, or attempting to treat as new em- ployees or as having terminated their employment, or otherwise attempting to penalize in their employment status, any of its em- ployees on account of their membership in International Association of Machinists, District No. 101, or in any other labor organization, or for otherwise engaging in concerted activities; and (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join or assist International Asso- ciation of Machinists, 'District No. 101, or any other labor. organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual air or protection, as guaranteed in Section 7 of the Act and the amended Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post immediately at its plan in Rockford, Illinois, copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after having been signed by Respondent's representa- tive, be posted by the Respondent and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by other material. (b) Notify the Regional Director for the Thirteenth Region, in writing, within ten (10) days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleged that the Respondent committed an unfair labor practice by unlawfully discharging or discriminatorily refusing ,34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to reinstate John Bevan, Everett Peterson, Elmer Hills, T. R. Jacobs, Ellsworth Brickson, and Oscar Haeggquist. 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 Relations Act, we,hereby notify our, employees that : WE WILL NOT threaten-to discharge, or attempt to treat as new, employees or as having terminated their employment, or other- wise attempt to penalize in their employment status, any of our employees on account of their membership in INTERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT No. 101, or in any other labor organization,. or for otherwise engaging in concerted activities. WE WILL NOT. in- any like or related 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 ASSOCIATION OF MACHINISTS, DISTRICT No. 101, 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 protection. MYERS PRODUCTS CORPORATION, Employer. Dated---------------------- By------------------------------- (Representative) (Title) 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 Mr. Robert Ackerberg, for the General Counsel. Large, Reno and Zahm, by Mr. Shelby L. Large, of Rockford, Ill., for the Respondent. • Mr. Jack J. Denny, of Chicago, Ill., for the Union. STATEMENT OF THE CASE Upon a second amended charge filed November 29, 1946, by International Asso- elation of Machinists, District No. 101, herein called the Union, the General Coun- sel of the National Labor Relations Board,' by the Regional Director of the I The General Counsel and the attorney representing him•at the hearing will be referred- to-'herein as the General Counsel The National Labor- Relations Board will be called the Board. 1 MYERS PRODUCTS CORPORATION 35 Thirteenth Region (Chicago, Illinois'), issued a complaint, dated March 17,,1948,' against Myers Products Corporation, herein called the Respondent, alleging-that the Respondent had engaged in and was engaging in unfair labor, practices affecting commerce within the meaning of Section 8, (1) and (3) of the National Labor Relations Act,2 and Section 8 (a) (1) and (3) of the Labor Management Relations Act, 1947,8 and Section 2 (6) and, (7) of the Act and the Amended Act. Copies of the complaint, the second amended charge, and notice of hearing were served upon the Respondent and the Union on March 17, 1848. With respect to the unfair labor practices the complaint alleges, in substance, that the Respondent terminated the employment of six named employees on, or about, August 22, 1946, and thereafter failed and refused and continues to, fail and refuse to, reinstate, such employees 4 for the reasons that they joined and assisted the Union and engaged in concerted activities for the purpose of collec-, tive bargaining with regard to rates of pay, hours of employment, or other con- ditions of employment. Respondent in its answer denied the various allegations of the complaint, including the allegations with respect to the jurisdictional facts, as well as those pertaining to the commission of the unfair labor practices. The answer also alleged affirmatively that each of the employees mentioned in the complaint vol- untarily terminated his employment with the exception of John Bevan, and that he was discharged for good cause. Pursuant to notice, a hearing was held at Rockford, Illinois, from August 24 to' 26, 1948, inclusive, before the undersigned, John Lewis, the,Trial Examiner designated by the Chief Trial Examiner. The General Counsel and the Respond- eht were each represented by counsel and the Union was represented by a Grand Lodge Representative. All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses,,and to in- tioduce'evidence bearing oii the issues. At the conclusion of the General Coun- sel's case-in-chief, the Respondent moved to dismiss the complaint on the ground that the evidence adduced failed to support the allegations of, the complaint, either with respect to the jurisdictional facts or the commission of any unfair labor practices by the, Respondent. This motion was denied by the undersigned; At the 'conclusion of the entire case, Respondent renewed its previous motion, Ruling on such motion was reserved by the undersigned and such motion I is dis- posed of in accordance with the findings, conclusions, and recommendations hereinafter made. During the course of the hearing the undersigned granted a motion by Respondent for the separation of witnesses, including those alleged in the complaint to have been discriminatorily discharged. At the conclusion of the hearing, the undersigned granted motions by the General Counsel and the Respondent to conform the pleadings to the proof as to formal matters. The undersigned also advised the parties that they could make oral argument before him, and file briefs or proposed findings of fact and conclusions of law, or both. The Respondent stated, that it did not desire oral argument since it had already stated its position in connection with its motion to dismiss the complaint. The General Counsel also declined an opportunity for oral argument. Memoranda 2 49 Stat. 449, herein called the Act. 61 Stat. 136, herein called the Amended Act. 4 The employees alleged to have been discharged and refused reinstatement are Everett Peterson,., Elmer Hills, John Bevan, T. R. Jacobs, Ellsworth Brickson, and Oscar Haeggquist. 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in'the nature of briefs were subsequently filed with the undersigned by the General Counsel and the Respondent. 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 THE RESPONDENT The Respondent, Myers Products Corporation, is a corporation organized under the laws of the State of Illinois, with its principal office and place of business at Rockford, Illinois. It is engaged in the manufacture of soda fountain appliances, and more specifically ice cream dippers and dishers. The principal raw material used in the manufacture of such appliances is stainless steel, which is procured principally from the Central Steel and Wire Company of'Chicago, Illinois, sales agent for the Carnegie-Illinois Steel Corporation. These materials are shipped' to'Respondent from Chicago. Approximately 5 percent of the raw materials used by Respondent is shipped directly to Respondent from outside the State of Illinois.` The parties stipulated that in the year 1947, the products of Respondent were purchased by the Myers Products Sales Division of the Albert Pick Company, Inc.; to the extent of $626,673.46 and that these purchases were fully consummated within the State of Illinois ; that in the year 1947, the Myers Products Sales Division of the Albert Pick Company, Inc., sold such products to its customers located through the United States and other countries in the amount of $562,- 864.72, of which amount $51,005.65 were sold to customers located in the State of Illinois. In the year 1946, according to the testimony of Myers, all of Respondent's products were sold, under contract, to Franklin Products Corporation, which it was stipulated is a wholly owned subsidiary of the Albert Pick Company, Inc. According to Myers' testimony, such sales amounted to between $ 50,000 and $60,000 in 1946. Respondent's products are sold under the name of Myers De Luxe Dishers and, according to the testimony of Myers and his brother, David Myers,' are distributed by the Myers Products Sales Division all over the United States. Respondent in its brief contends that it is not engaged in commerce since 95 percent of its raw materials are purchased within the State of Illinois and all of its sales are consummated within that State. Irrespective of whether Re- sondent's extra-State purchases are, sufficient to constitute engagement in com- merce within the meaning of the Act,' it is clear that by virtue of its sales to the Albert Pick Company, Inc., and/or the Franklin Products Corporation, the Respondent is engaged in a business affecting commerce within the meaning of the Act. It is not necessary, as Respondent apparently contends, to a finding of engagement in commerce that Respondent directly ship its products out of the State of Illinois, but it is sufficient to sustain such a finding that the major portion of such products is shipped out of the State by the Albert Pick Company, 5 The above findings are based principally upon the testimony of Marvin Myers, secretary of the Respondent corporation 6 David Myers is vice president in charge of sales ' There was no showing as to the origin of the great bulk of the raw material used by Respondent, consisting of stainless, steel, except that it was purchased from the Central- Steel and Wire Company of Chicago. MYERS PRODUCTS CORPORATION 37 Inc. and/or the Franklin Products Corporation, with which Respondent has a contractual arrangement for the distribution of its products 8 The undersigned concludes and-finds that the Respondent, at all times material, was and is en- gaged in commerce within the meaning of the Act and the Amended Act. II. THE ORGANIZATION INVOLVED International Association of Machinists, District No. 101, is a labor organiza- tion admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Background and issues During the period here involved the 6 individuals alleged in the complaint to have been discriminatorily discharged were employed as polishers in the polishing department of the Respondent's plant. There were about 10 polishers employed in the department at the time, supervised by a foreman, one Swen Benson ° The department was under the over-all supervision of the factory superintendent, Marvin Myers.10 The work of the men in the polishing depart- ment involved the completion of metal ice cream dippers or dishers by a polish- ing and buffing process. The General Counsel attempted to show by the testimony of his witnesses that the polishers were dissatisfied with their system of pay and formed a group for their mutual protection in dealing with management on the pay ques- tion ; that one of the, polishers, John Bevan, was discriminatorily discharged on August 22, 1946, because of his participation in concerted activity with the other polishers and for seeking a pay increase; that the other polishers were discharged on the same day because of their support of Bevan, or, in the alternative, that the other polishers struck because of the discharge of Bevan ; and that all of the employees involved were discriminatorily refused reinstatement when they sought to return to work. The Respondent's position, in brief, is that it knew nothing of the concerted activity of these employees; that Bevan voluntarily quit or, in the alternative, that he was discharged for loafing and inefficiency ; that the other employees voluntarily quit their employment because of a pre- arranged secret understanding that they would walk out if one of their number was discharged ; that such walk-out was not a labor dispute ; and finally, that they failed to apply for reinstatement after respondent had offered to reinstate them. The testimony as it developed at the hearing revolved mainly about the following items: (1) the various changes in the pay system prior to August 22, 1946, and the formation of a group by the polishers during this period, (2) the events of August 22, 1946, including the alleged discharge of Bevan and the walk- out by the other polishers, (3) the various efforts to reinstate the polishers after August 22, 1946. 8 N L R B. v Sunshine Mining Company, 110 F (2d) 780 (C. A. 9) ; Matter of Unique Ventilation Co , Inc, 75 N L R B 325; Matter of Trinidad Brick and Tile Company, 67 N L R B 1351 ; Matter of Shore Products Company, 55 N L R B. 431 0 Benson was still employed by Respondent as foreman at the time of the hearing and was,one of the main iitnesses called in its behalf 10 As previously mentioned, Marvin Myers is also secretary of the Respondent corpora- 11 tion He is also son of its president, Louis Myers. - 853396-50-vol. 84-4 38 DECISIONS OF ^ NATIONAL LABOR RELATIONS BOARD B. The discharges; the interference, restraint, and coercion 1. Events leading .up to August 22, 1046; the pay changes and the inception of employee concerted activity Several changes were made,in the method of paying the polishers prior to the August 22 walk-out. Up until May 1946, the polishers were paid on a straight hourly basis, the. rate having been increased at various times not here material: Sometime around May ;1946, the. polishers were placed on a group incentive system, under which they would all receive a bonus of 20 percent, in addition to their regular straight time hourly earnings, if the group produced 1,500 dishers a day. The men worked as a unit under this system with each man performing a specific part of the finishing operation. After several weeks the men were taken off this group system and placed on an individual incentive system. Under this system each man was responsible only for his own produc- tion and would receive a'20 percent bonus in addition to his hourly rate earnings if he produced 150 dishers a day." Although there was some suggestion in the testimony of. employee dissatisfaction with the various changes in the pay system, there is no evidence of any improper motives on the part of Respondent in changing, from one system to another. Moreover, the evidence discloses that any dissatisfaction which may have existed was not shared. by all of the polishers 12 . . However, since the change from the group to the individual system did not result in any increase in the basic rate of pay there was some dissatisfaction among the polishers, and a group of them discussed during their lunch hour the desirability of obtaining an increase in their take-home pay.13 , Information as to the desire of the polishers to increase their earnings came to the attention of Superintendent Myers," and several weeks before the walk-out of August 22, 1946, Myers proposed to'the polishers a change in their pay system 1° The new proposal involved abandonment of the incentive system, and payment on a straight piecework basis. The polishers were to be paid 7 cents per disher or dipper, and ","'Under both the group and the individual incentive systems the men would receive no more of a bonus if they exceeded the group quota of 1,500 dishers a day, or the individual quota of 150 dishers per day. Their average earnings . under. both systems was $1 05 per hour , plus the 20 percent bonus. The testimony of employees Oscar Haeggquist and Elmer Hills disclosed that most of the employees had been satisfied with the group system but that some of the polishers did not like working as a group . Haeggquist testified that after the men tried the individual system they were generally satisfied with it. According to the testimony of Superintend- ent Myers , the men had been put on the group system because early postwar shortages pre- vented the company from giving each man sufficient equipment to perform all the nine operations involved in the finishing process The employees were taken off the group system, according to Myers, because some of the men complained that they were doing all of the work and others were shirking , and because the company had obtained sufficient equip- ment to permit each man to perform the complete operations 13 This group, which ate together during the lunch period, included, in addition to the six employees named in the complaint, another polisher referred to by the others as "Tex" Hatfield . 14 Although there was no direct testimony by the employees of their having spoken to Myers about an increase prior to August 22, 1946, Myers testified that several of the employees had spoken to him about increasing their earnings. 1s The exact date of this proposal cannot be fixed with precise accuracy The employees who testified fixed it, variously, from a week and a half to 3 weeks before the August 22 walk-out, 'and Myers estimated that the proposal was made about a month before that date. The precise date is not material to the issues , but the undersigned fixes it as approximately 2 to 3 weeks before the employees walked out on August 22, 1946. MYERS PRODUCTS CORPORATION 39 Myers estimated that they could produce 200 units per day which would result in an increase, in, their hourly rate earnings to $1.40 per hour. Employee John Bevan suggested that the polishers be, permitted to think over this proposal and Myers.agreed, no definite date being fixed for putting it into effect. As -previously mentioned, during this period a group of the polishers regularly ate their lunch together at the plant, and it was their custom to discuss informally the question of wages and other matters of common interest. - At about- the time of the new pay proposal by Myers this group organized itself on a some- what more formal, basis and it was agreed that John Bevan would be their spokesman for the purpose of taking up with management the question of a` wage increase and, other matters which might be the subject of'any grievance. ' It was also agreed that if one of their number was discharged, the others would walk out in sympathy.10 The testimony of the employees discloses, however, that up until the August 22 walk-out they had not advised anyone connected with man- agement,of the fact that they had formed this group or had appointed a spokesman. The undersigned finds, as a fact, that Respondent was unaware of the existence of the group prior to August 22, 1948. The testimony further discloses that although the employees in the group had reached a decision at their lunch hour meetings -not to accept Myers' pay proposal," this fact was not communicated to Myers, to Foreman Benson, or to any other responsible agent of the company prior to August 22, 1946. 2. The events of August 22, 1946 ,On the morning of August 22, 1946, employees John Bevan and Elmer Hills were standing at their machines discussing the fact that they and some of the other employees had been getting back a number of completed dishers to be reworked because of alleged imperfections in the finishing process 18 While this conversa- 16 There is some question as to the precise date when the group organized itself on this more formal basis The General Counsel contends, and some of the testimony suggests, that it was formed prior to the proposal by Myers for a change In the pay system from an incentive to a piece-rate basis . However, the consensus-, of the testimony of the em- ployees involved is that the appointment of Bevan as their spokesman ,, and the agreement to walk out if any of them were discharged, took place after Myers had made the proposal in question .' Although the precise date is not material to the issues in this ease, the undersigned finds that the more formal stage of the group 's organization occurred after the last Myers pay proposal. '7 The employees ' decision not to accept the proposal was based on their belief that it actually resulted in a decrease in their rate of pay. According to their computations, under the pay system then in effect they were getting 8 cents per unit produced , while under the Myers proposal they would receive 7 cents per unit. - The increase In their take-home pay would result not from any increase in their basic rate of pay but from the fact that their daily quota of production was increased from 150 to 200 units. Myers testified that this proposed increase in production was feasible because improvements in dies, equipment, and material over that used in the early postwar period had made it possible for the employees to readily increase their daily production . The undersigned finds it unnecessary , for purposes of the conclusions hereinafter reached, to determine the merits of this controversy. '8 Several of the employees testified that during the period following the making of the Myers' pay proposal there was a marked increase in- the number of fishers rejected for imperfections in the finishing process and sent back to be redone by the polishers. How- ever, although they could see nothing wrong with the rejected dishers, they never com- plained to the foreman or to Myers about this . Two of the employees, Ellsworth Brick- son and Everett Peterson , testified , on the other hand , that they experienced no increase in the number of dishers sent back for rework during this period. Myers denied ordering any increase in the number of dishers sent back for rework , and testified that he had 40 DECISIONS : OF NATIONAL LABOR . RELATIONS BOARD tion was going on another of the polishers, Ellsworth Brickson, came over and joined in the discussion. After about 5 minutes the foreman, Benson, walked over and told them to get back to work, stating that he was tired of being "bawled out" by Marvin Myers on account of their "loafing." 1p Bevan denied that he was loafing, stating that he was making his quota of 150 dishers per day. Bevan then proceeded to tell Benson that the polishers wanted a raise. Benson replied, according to Bevan's testimony : "Well, he told me we had our chance for the raise when Marvin offered it to us that day, and I told him that it was a cut instead of a raise. He told me if I didn't like it here to get my check." Bevan then retorted that if he (Benson) was not satisfied with Bevan' s services, he could get Bevan's check.20 At this point, Benson left and went up to the front office to report to Superintendent Myers about the incident` The latter in- structed him to get Bevan's check. After an interval of about 20 minutes Benson returned to the polishing depart- ment with Bevan's check and with a statement of the amount of his 1946 earnings that had been withheld for income tax purposes. He laid them on Bevan's bench, who, by that time, was back at his machine working." According to Bevan's credited testimony, he asked the foreman why he had been fired and the latter did not at first reply. Bevan, testified that then, "I told him the only received no complaints on this score. On this state of the record the undersigned is unable to find that there was any substantial increase in the number of dishers sent back for rework after the Myers' pay proposal or that any increase which might have occurred was the result of a deliberate policy by Respondent to harass its employees because of their failure to accept the pay proposal. "Benson testified, that he had talked to Bevan about loafing on two prior occasions, the first being 2 or 3• weeks before! August 22,5and, the second -about a week prior to August 22. Benson was unable to recall, on cross-examination, any of the details of these prior incidents. He was somewhat confused as to whether Bevan had or had not told him to "go to hell" on one of these prior occasions. He conceded that these were the only two times when he ever had occasion to admonish Bevan, and that all during this period Bevan and the other polishers were meeting their quota of 150 dishers per day. Bevan denied that Benson had ever previously spoken to him about loafing. Although Benson did not strike the undersigned as being a particularly reliable witness, it is unnecessary, for purposes of this proceeding, to determine whether Benson previously admonished Bevan for loafing or not. 20 The foregoing is based on the credited testimony of Bevan, Hills, and Brickson, which is mutually corroborative in all material respects. It is partially confirmed by the testimony of another of the polishers, Ted Jacobs, who heard the latter part of the conver- sation in which Benson told Bevan to get his check and the latter replied, according to Jacobs : "If you want me to have my check, go get it yourself." Foreman Benson's testimony differed somewhat from that of the other employees. According to his version, Bevan became angry when he was told to go back to work and told Benson to "go to hell," at which point he (Benson) told Bevan, "Well, if you don't want to go to work you will have to get your check" and Bevan replied, "You go get it " Benson also denied that there was any talk of a raise during the conversation. As previously indicated, the undersigned did not find Benson to be a reliable witness. His manner of testifying was flat and unconvincing When he left the safe moorings of his direct examination, which was conducted to a large extent by leading' questions, his testimony on cross-examination consisted of an amazing series of "I don't knows" and "I don't remembers," regarding the details of the matters as to which he had previously testified. 21 According to Benson's testimony : "I told him I had a fellow back there by the name of John Bevan who refused to work and that I wanted his check." It will be observed that in this account of what happened Benson made no mention of Bevan's having told him to "Go to hell." In Myers' testimony of what Benson had reported to him there is likewise no mention of Bevan's having used this profanity. In a statement which Benson gave to a Board field examiner there is likewise no mention of Bevan's use of profanity. 22 Both Bevan and. Benson testified that, the former had returned to his machine and was working when the latter returned with the check and-w'ithliolding statement. MYERS PRODUCTS CORPORATION 41 reason he fired me was because I had asked for a raise, and he told me I couldn't do that here or any place." 23 At this point Benson turned to walk back to his desk. Bevan picked up the check and withholding statement from the bench and started to leave the plant. The other polishers in the group, some of whom had overheard parts of the ex- change between Bevan and Benson, left their machines and gathered around Bevan who told them he had been fired. Benson then walked over and attempted to get the men to return to work,24 and when they refused to do so he went to get Superintendent Myers. In a few minutes Myers appeared on the scene. The conversation which took place from this point on was testified to by Bevan as follows : Q. Upon Marvin's arrival, what happened next? A. Marvin asked what the trouble was, and I told him there was no trouble with me, that I had been fired. Q. Anything else said at that time? And if so, who said what? A. Marvin told me, he said, "You asked for your check, didn't you?" and I said, "No." Q. Was there anything else said? A. I said that we wanted a raise. I asked for a raise. I told him I had asked for a raise. Q. Tell us everything that was said, if anything else was said. A. He told me that I was supposed to take it up with him, and I said that I thought there was a law to the effect that we were supposed to take it up with our foreman first, and he said that he had one law here, and that was either to get back to work or get the hell out. Q. To whom did he say that? A. To all of us. Q. And following that statement was there anything else said? A. Oscar Haeggquist told him that the only thing we could do was to go out on strike and picket the place. Q. Was there anything else said at that time? A. Marvin said that that was our privilege. Thereupon, Bevan, together with the other six polishers in the group, walked out of the plant 2B It being about lunchtime they ate their lunch in a nearby 28 Benson denied having said anything to Bevan when he laid the latter's check on his bench, and was unable to recall whether Bevan had said anything to him at that time. Benson's testimony as to this incident is not credited. Considering the probabilities of- the situation it appears unlikely that nothing would have been said when a man was given his check terminating his employment. 24 Benson testified that his direction that the men return to work included Bevan as well as the others. However, he admitted that he did not ask Bevan to return his check or specifically tell him that he could go back to work. Considering the words which had just passed between them, and the fact that Benson had given Bevan his check after having received Superintendent Myers' approval, the undersigned is satisfied that Bevan was not included in the request for the men to return to work. 21 Bevan's testimony was corroborated in all material respects by the other polishers who testified. Superintendent Myers in his testimony stated that none of the men said a word to him or offered any explanation in answer to his inquiry as to what was wrong. According to his testimony, they didn't tell him they were walking out because Bevan was fired, but "just said they were all sticking together " Despite the fact that no one had told him what had happened, he claimed that he told the men, "what happened to Bevan and the foreman will be taken up later," and that he then told them to go back to work, including Bevan. Myers further testified that, despite his statement that Bevan could go back to work, employee Haeggquist turned to him and said that they were going out to picket the place. Since it is obvious from all the surrounding circumstances that the men were walking out because of Bevan's apparent discharge, the undersigned finds it difficult 42 DECISIONS OF NATIONAL LABOR 'REL'ATIONS BOARD park and then proceeded to picket the plant.' The following day the other polishers received their pay checks and 1946 withholding statements in the mail: 3. Efforts at reinstatement ; the Union enters the picture On the afternoon of the walk-out, Robert K. Gustafson, an organizer for District 101, International Association of Machinists, went out to the plant and talked to the employees on the picket line, after having received word of the, walk-out through the wife of a union member. The strikers authorized him to represent them in negotiating a settlement of their dispute with Respondent- The following day, the Union through B. C. Bailey, business representative, wrote a letter to Respondent advising it that a majority of the employees in the plant were members of the Union and had authorized the Union to represent them as their exclusive bargaining agent. Respondent was requested to advise Bailey as to time, date, and place that the matter could be discussed. No. reply was received to this letter. In addition to writing this letter, the Union, through Gustafson, attempted to secure the assistance of the United States Con- ciliation Service in effecting a settlement of the dispute. At the suggestion of a representative of the Conciliation Service who had spoken to Respondent's attorney, Shelby L. Large, Gustafson called at the plant to talk to Superin- tendent Myers about 2 days after the walk-out. This meeting at Respondent's plant was the first of three meetings between representatives of the employees and of management. It was attended by Marvin Myers and by his brother David 26 on behalf of Respondent, and by Gustafson on-behalf of the Union. Myers told Gustafson that he would not recognize him as a representative of the majority of the employees in the plant, unless the latter could prove that a majority of the employees had authorized him to represent them. Gustafson replied that he was not there as a repre- sentative of the other employees in the plant, but as a representative of the people who were out on strike, and that he had come to try to get them back on the job, and to arrange for some sort of understanding on the wage question. He proposed specifically that the company put Bevan back to work and that the rest of the employees would then return, after which they could sit down and discuss the wage-piece rate proposal. Myers replied that as far as he was concerned, the employees had "quit" but that he would consider rehiring them if they would "re-apply" for their jobs. This would involve their coming to his office individually for a talking to. The offer to take the men back did not, however, include Bevan, nor did it include Hills and another employee by the name of Carlson," whom Myers informed Gustafson he would not rehire. Gus- tafson replied that the men would not consider returning to work unless they were all taken back. The meeting finally broke up with no definite decision to believe that the men would have persisted in this action' after Myers had' made it appar, ent that Bevan could go back to work. Considering-the, probabilities of the situation, and based on his observations of the demeanor of these witnesses , the undersigned does not credit Myers' version of this incident; but finds that Bevan 's testimony more nearly accords with what actually happened on this occasion 26 David Myers testified that he was vice'president of the company in charge of sales and of the office. He 'will be referred to hereafter as D. Myers . His brother is referred to throughout as Superintendent Myers or as Myers. 27 Carlson, although an employee of the Respondent, was not one of the polishers and did not walk out with the other men. His connection with the strike arose from his refusal to cross the picket line He is not named in the complaint as one of the employees 'who had been discharged or refused reinstatement. MYERS''PRODUCTS CORPORATION 43 reached28 The strikers continued to picket the plant after this meeting and were joined by a few of the other employees, including several female workers. About a week and a half later, on September 4, 1946, representatives of the parties had occasion to meet again at the local office of the United States Employ' ment Service. This meeting was called by a Mr. Springer, of the United States Employment Service, in response to Respondent's request that that agency refer to it applicants for polisher jobs The Myers brothers attended on behalf of Respondent ; Gustafson and B - C. Bailey, of the Union, and employee Hills, appeared on behalf of the striking employees. According to the testimony of both the General Counsel's and Respondent's witnesses, the parties were informed by Springer that under that agency's procedure, the United States Eniploylnent -Service would be unable to refer any job applicants to the Respondent if its lack of help was due to a pending labor dispute at the plant. Most of the discussion related to the question of whether there was or was not a labor dispute at the plant. Myers contended that there was no labor dispute involved. According to the credited testimony of Hills and Gustafson, Myers at first took the position .that the men had all quit and later modified his position by stating that Bevan had been discharged and that the others had quit. Springer advised the parties that as far as he could see there was a labor dispute at the plant and that he would be unable to refer any polishers to Respondent. During the course of the discussion at the United States Employment Service Office, the subject of taking the men back to work was raised. At one point in the discussion, Myers offered to take back the women who were out on strike but later agreed to take back everyone, except Bevan, Hills, and Carlson20 The repre- sentatives of the employees made no response to this offer. About a week after this meeting the Union filed an unfair labor practice charge with the Board against the Respondent. In the meantime, the strikers continued their strike and continued to picket the plant. Actual picketing continued until about October 25, 19400 - 28 The foregoing findings are based on the testimony of Gustafson which was largely corroborated by Myers. The only substantial difference in their testimony was with regard to the condition attached to the men's being taken back Gustafson testified that Myers would not take back Bevan, Hills, and Carlson, but that he would consider rehiring the others after a talking to if they reapplied individually. According to Myers' testimony, he agreed to take back all of the employees "if they were willing to re-apply for work," but "that there were three men among this group, namely, Carlson, Bevan, and Hills, whom I wanted to talk to when they came back to apply for work, and I wanted to see them and talk to them for reasons of my own." Since the testimony discloses that the discussion between Gustafson and Myers involved, primarily, the issue of getting the men back to work, it seems unreasonable to suppose that the employees would have declined to accept a proposal to take all the men back. There was no claim by Myers or by his brother that Gustafson wanted to discuss the wage question or any other possible grievance at this meeting, or that the latter insisted on settlement of other issues before the men returned. According to Myers' own testimony, Gustafson did not insist on any discussion as the repre- sentative of a majority of Respondent's employees but only on behalf of those men on strike Myers agreed to recognize him in that capacity. Considering the probabilities of the situation, the nature and quality of the testimony of these witnesses and their de- meanor on the stand, the undersigned is satisfied that the testimony of Gustafson more accurately represents what actually occurred on this occasion. 29 Myers could not recall that there wag any conversation at this conference as to taking back any of the employees. His brother, David, however, testified that Myers had stated he would take all the employees back, the only reservation that be could recall was that his brother wanted to talk to three of the men . Gustafson and Bailey both testified that Myers offered to take back all of the employees, except the three mentioned above, and their testimony in this respect is eredited. 3° Haeggquist testified that since the other men were married and he was not, he told them to get other jobs, but that they were expected to help out on the picket line from 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The final meeting between representatives of the company and of the employees occurred sometime in November 1946. This meeting was arranged by Mrs. Jewel Briggs, a Field Examiner of the Board, and was held in Respondent's office. In addition*to Mrs. Briggs, there. were , present. Gustafson of, the Union,, the, Myers brothers and their attorney, Shelby Large. The subject of taking the strikers back occupied a considerable portion of the discussion at this meeting After some talk, the company agreed that it would take back all of the striking em- ployees, including Bevan, Hills, and Carlson 81 , At that time, 50 to 60 percent of Respondent's other employees were idle due to a shortage in steel but Myers stated that as soon as normal operations were resumed he would take back all of the strikers who wished to return. According to Myers' uncontradicted testimony, Briggs informed Respondent's representatives that in addition to taking the strik- ing employees back, a settlement of the matter would involve payment to them of the money lost during the period that they were not working.' Although Respondent's representatives were agreeable to taking the employees back, they were unwilling to agree to any money payment. The employees, on the other hand, were unwilling to come back' unless the payments were made to' them. The meeting finally broke up without any definite conclusions having been reached' No further meetings or discussions were held regarding the reinstate- ment of the strikers. C. Concluding liulings 1. The discharge of Bevan A determination of the nature of Bevan's termination of employment on August 22, 1946, involves a consideration of the following questions: (a) Was Bevan discharged when he was given his check by the foreman or had he volun- tarily quit? (b) If he was discharged at that point, was he on the same day reinstated or offered reinstatement by the foreman and/or by Myers? (c) As- suming that Bevan was discharged on August 22, 1946, did such discharge have a discriminatory genesis? The undersigned's conclusions on these essential issues are as follows : (a) The undersigned finds and concludes that Bevan was discharged on August 22, 1946, by Respondent when he was given his check and withholding statement by the foreman, Benson.' The uncontradicted testimony shows that Benson reprimanded Bevan, Hills, and Brickson, for allegedly "loafing," that in the verbal exchange which followed between Benson and Bevan the former finally time to time. According to his uncontradicted testimony he remained on the picket line until October 25 or 27, 1946. 81 Gustafson testified that a considerable part of the discussion pertained to taking Carlson back, that Respondent contended he had nothing to do with the dispute of the polishers, but that it finally agreed to take him back along with the other employees s'' The testimony of Myers and Gustafson was substantially in accord that the company had offered to take back all of the employees. There was some discrepancy on the figure which the Respondent would be required to pay before the men would return According to Myers, this amounted to $2,000, while Gustafson testified that $850 was the amount to be paid. It is immaterial, for present purposes, to determine the actual figure mentioned at the meeting. 0 According to Gustafson's testimony, when the meeting broke up the Respondent, through its attorney, Mr. Large, was supposed to inform the Field Examiner whether it would be willing to make any payment. Myers did not recall that Respondent was to inform Briggs of its intention in this respect. For purposes of the conclusions hereinafter reached, it is unnecessary to determine whether the Respondent's representatives had prom- ised to communicate to Briggs their intention with respect to the making of payment to the employees. MYERS PRODUCTS CORPORATION 45 told Bevan to get his check" Bevan's reply- to this, as testified to by both parties to the argument, was, in effect, that he wouldn't get his check, and that if Ben- son wanted him to have it, he (Benson) would have to get it. When Benson went to the office he told Myers, according to his own testimony, "I had a fellow back there by the name of John Bevan who refused to work and that I wanted his check." When Benson returned and gave Bevan his check and withholding statement, he found that the latter had already returned to work. These facts all point clearly to a discharge rather than to a voluntary quitting. Myers' position as to whether Bevan had quit or been discharged was some- what confused and faltering. At one point he testified as follows : Q. Is that your contention now, that he quit? A. Well, realizing the facts, yes, so far as I know, he quit. The circum- stances are that he asked the foreman for his check. It was his own volun- tary action. We did not force it on him. Q. You had no cause for discharging him at that time? A. I don't think so, no. We had had two reports against him , and if I had received that third report I would have had a nice long talk with him which might have resulted in his being discharged. In its answer the Respondent specifically alleged, as a "further answer to said complaint" that : Each of the employees mentioned in the complaint voluntarily terminated their employment with the exception of one John Bevan, and that the said John Bevan was discharged for inefficiency, failure to perform his work, and on account of insubordination. When this statement in the answer, which bore Myers' signature, was called to his attention on cross-examination, he stated : "Well, he was guilty of all these charges, whether you want to call it voluntarily quitting or discharged, it doesn't make any difference. He was certainly guilty of all these charges you have mentioned." Under all the circumstances, the undersigned is satis- fied that Bevan's termination of employment was in fact and in law a discharge, and did not result from any voluntary quitting on his part ee (b) Respondent endeavored to show through its witnesses, Benson and Myers, that irrespective of whether the circumstances attendant upon Bevan 's receiv- ing his check amounted to a discharge or a quit, he was immediately thereafter offered an opportunity to return to his job, first by Benson and then by Myers. Benson testified that when the other men gathered around Bevan after he had received his check and was starting to leave the polishing room, that he (Benson ) asked the men to go back to work. He stated that his direction also included Bevan. Myers similarly testified that his request, when he arrived on the scene, that the men either get back to work or get out was directed to all the men including Bevan. However, the undersigned is satisfied, as previously indicated, that any request that the men get back to work was directed to the other polishers and was not intended or understood as including Bevan. Bevan u There is no substantial disagreement between the two participants in this exchange that Benson instructed Bevan to get his check. According to Bevan's testimony, Benson told him, "If I didn't like it here to get my check." According to Benson's version, he told Bevan, "If you don't want to go to work , you will have to get your check." as According to Bevan's testimony, if an employee quit it was the usual practice for him to get his own check, while if he were discharged , the foreman got his check for him. Benson confirmed this by his testimony that he got the checks only for discharged employees '1 Whether the discharge was of a discriminatory nature is hereafter discussed. 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had, at that time, received his check and so far as Respondent was concerned his employment relationship was terminated, whether it be designated a dis- charge or a quit. Under such circumstances, it seems evident that if manage- ment wanted to restore matters to the status quo, it would have, in substance, told Bevan to return his check and forget about the incident. Yet, it is con- ceded that neither Benson nor Myers told Bevan to return his check or other- wise specifically indicated that the termination of employment would be re- voked. Indeed, considering the unpleasant argument which had just taken. place, and Respondent's claim of Bevan's insubordination, it is unlikely that management was then in any mood to forgive and forget. As far as the other men were concerned, they were unanimous that they walked off the job because they believed Bevan had been fired. Since the im- mediate occasion for their threatening to walk out was Bevan's discharge, it is incomprehensible that they would have left work if Bevan had been permitted to return. Under these circumstances, the walk-out of the men can be referable only to the termination of Bevan's employment and this, the undersigned finds, resulted from Bevan's unrevoked discharge by the foreman, Benson, which was confirmed by Myers. (c) The discharge of Bevan would not, however, result in a violation of Sec- tion 8 (3) of the Act and 8 (a) (3) of the Amended Act, unless the discharge was discriminatory in character. In this connection, the General Counsel claims that Respondent was aware of the concerted activities of the polishers (includ- ing Bevan), and that Bevan was discharged because he asked for an increase in wages on behalf of the group. The General Counsel bases his claim that Re- spondent was aware of the concerted activities of the polishers on the fact that the various changes in the pay system "necessarily involved consideration of the ten polishers as a group," as well as on the fact that the "concerted stop- page of work on account of Bevan's termination and the subsequent conduct of the polishers could leave no doubt about their taking concerted action over working conditions." The testimony of the polishers reveals that up until August 22, 1946, none of them had ever revealed to either Benson, Myers, or anyone else connected with management, the fact that they had formed a group for their mutual pro- tection or that Bevan had been appointed as their spokesman." When Benson talked to Bevan and the other two employees on August 22, 1946, about loafing, and Bevan brought up the question of a raise, there was no mention of the fact that he was acting as spokesman for a group of employees." There was nothing in what he said which would have suggested to the foreman that the request for a raise arose out of the group action of Respondent's employees. The fact that the various proposals for change in the pay system were made to all of the polishers does not, in the opinion of the undersigned, indicate as contended by the General Counsel, that management was aware of the group activities of its employees at the time of Bevan's discharge. Some of the polishers did not belong to the group that had been formed, and it is clear that the various proposals were made to all of the polishers as employees in the polishing department and not as members of a group engaged in concerted activ- ity. The fact that the other six polishers walked out on August 22, 1946, after 97 Bevan, whoowas supposed to be the'spokesman for the group, specifically testified that he had never informed management about the fact that the employees had formed a group and were holding meetings, or that he had been appointed spokesman for the group. ae Bevan testified that this was the first time he, or any of the other employees, had spoken to management about the question of a raise. MYERS PRODUCTS CORPORATION 47 Bevan's discharge, made it evident that this group of polishers was then acting in concert, but it does not prove that management was aware at the time of Bevan's discharge that the employees had theretofore formed a group, nor does it prove that Bevan was discharged because he was acting as spokesman for the group. On the contrary, the evidence discloses, and the undersigned finds, that management had no knowledge of the formation of the group when it discharged Bevan and that his discharge had no connection with his membership in the group or .the fact that he had been appointed as its spokesman. The undersigned is convinced that Bevan's discharge arose primarily out of the unpleasant argument between himself and Benson in which neither would give quarter. and that Myers sustained Benson's action to save face for his foreman." If Bevan's asking for a raise played any part in the discharge, the undersigned is satisfied from the testimony that it was not because he purported to be acting for the group or in concert with others. Under the circumstances, the undersigned will recommend dismissal of that portion of the complaint which alleges that Bevan was discriminatorily discharged. 2. The alleged discharge of the other polishers, and the refusal to reinstate The General Counsel contends that the August 22 walk-out resulted either from a discharge of the employees (actual or constructive), or, in the alternative, that it was a strike. Under the first alternative, it is contended that Myers' "ultima- tum" to the employees on August 22 amounted to a discharge, and that this was motivated by the concerted activities of the employees at that time and was therefore discriminatory in character. Under the second alternative, it is claimed that the strikers unconditionally requested reinstatement and that the offer to reinstate them contained discriminatory conditions which the employees were not obliged to accept. Respondent, on the other hand, contends that the polishers "quit their employment and terminated their employment relationship without just cause, and under such circumstances, the company is under no obligation to reinstate them. ..." Taking up Respondent's contention first, it is too apparent to require any ex- tended discussion that the action of the employees in walking out on August 22 was not a quit but constituted concerted activity of the type protected by the Act. There is no question but that the employees walked out because they thought John Bevan had been wrongfully discharged. Respondent concedes that the polishers told Myers that they were going to strike and picket the plant as they walked out. A strike by employees in sympathy with a discharged employee is no less a "labor dispute" within the meaning of Section 2 (9) of the Act 40 Striking employees, under such circumstances, are entitled to the protection of the Act even though the strike is unprovoked by any unfair labor practice and may even be ill-advised." It is also well settled that individuals engaged in a current labor dispute retain their status as employees under Section 2 (3) of, the Act." Although Respondent could, without violating the Act, discharge Bevan 8B According to Haeggquist's testimony, during the course of the interchange between the polishers and Myers, the latter stated that "he would have to stick with his foreman, right or wrong, and that the only thing we had to do was to go back to,work or get out." 4° Matter of Spencer Auto Electric, Inc., 73 N. L. it. B. 1416; Firth Carpet Co. v, N. L. R. B., 128 F. (2d) 633 (C. A. 2). 41 Matter of Draper Corporation, 52 N. L R B 1477; Firth Carpet Co. v. N. L. R. B., supra; Matter of Auto part Manufacturing Company, 78 N. L. R. B. 461. 42 N. L. R. B. v. Mackay Radio t Telegraph Co., 304 U. S. 333 ; N. L. R. B. v. Remington Rand, Inc., 130 F. (2d) 919 (C. A. 2) ; Matter of Draper Corporation, supra; Matter of Clem D . Johnston d/b/a Roanoke Public Warehouse, 72 N. L. it. B. 1281. 48 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD under the circumstances related above, when the other employees chose to walk out( in sympathy with him, Respondent could not regard them as having quit or consider their employment relationship as terminated. As strikers they were entitled to the protection of the Act, as more fully discussed below. Coming then to the General Counsel's contentions, the undersigned does not believe that his argument that the polishers were discharged on August 22 by Myers' "ultimatum" is worthy of serious consideration. Since they were offered the alternative of going back to work or getting out, there was clearly no actual discharge ; nor may Myers' conduct be deemed a constructive discharge. While the 'action of an employer in subjecting his employees to a "relentless course of persecution" so as to force them to quit may, under some circumstances, amount to a constructive discharge," the statements by Myers to the polishers on August 22 can hardly be said to fall within this category. While the em- ployees had a right to cease working in sympathy with Bevan, Respondent was justified in requesting them to work or leave the plant. That Myers' language may not have been that of the drawing room does not alter this conclusion. Although there was some suggestion, in the testimony adduced by the General Counsel at the hearing, of a constructive discharge based on Respondent's sup- posed action of deliberately increasing the number of items sent back for- rework after the polishers, had failed to accept Myers' pay proposal, the Gen- eral Counsel has apparently abandoned any such contention" In any event, as the undersigned has previously found, there is no evidence to support a find- ing that Respondent deliberately increased the number of items sent back to be reworked by the polishers nor is there any evidence that any such policy was embarked upon to discourage concerted activity among its employees.45 Deserving of more serious consideration is the General Counsel's contention that the employees were discharged on August 23, 1946, by the action of Respond- ent in mailing them their pay checks and withholding statements, and that this discharge was further evidenced by Myers' statement to Gustafson when the employees applied for reinstatement that the men had already quit and would have to reapply individually for reinstatement. The fact that the employees were sent their pay checks through the mails on a day other than the regular pay day and that such checks were accompanied by a statement of the amount withheld from their earnings for income tax purposes suggests that Respondent intended to terminate their employment. The procedure of sending employees their withholding statements was, according to Myers' own testimony, used only when employees quit or were discharged. The undersigned recognizes, of course, that Myers took the position that the men had quit. However, in view of the admitted fact that they informed him they were going out on strike and to, picket the plant, it is inconceivable that Myers could have seriously believed that the men intended to quit Moreover, the fact that 2 days later Myers, in the face of an actual picket line, still maintained that the men had quit and would have to re-apply as new employees and be interviewed individually, is additional evidence of his intention to terminate their employment relationship on August 23, 1946, because of their concerted activities. 43 Matter of Palm Beach Broadcasting Corporation, 63 N. L. R. B. 597, 613 See also Matter of Kalamazoo Coaches, Inc , 66 N. L. R. B. 171 ; Matter of A. Sartomus d Co., Inc., 40 N. L. R. B 107, enforced 140 F (2d) 203 (C. A. 2). 44 In his brief, the General Counsel refers to the increase in the number of items sent back for rework as resulting in a "fancied but psychologically real grievance " 45 As previously found, Respondent was not aware, until, the August 22 walk-out, of any concerted activity among these employees. MYERS PRODUCTS CORPORATION 49 However, the Board has taken the position that the action of an employer, under similar circumstances, in purporting to discharge his employees is not seriously Intended to effectuate a termination of the employment relationship but is a mere "tactical maneuver" designed to induce the strikers to abandon the strike and resume work.' In the Majestic Manufacturing Co. case, supra, the employer advised his employees by telegram on the day they walked out that unless they reported back to work the next day their names would be removed from the pay- roll and someone else would be hired in their place. The employees did not comply with this ultimatum Two days later they received their pay checks with a "Notice of Separation" containing the notation "Quit voluntarily without cause." During the negotiations which took place thereafter for the return of the strikers and settlement of the issues, the company took the position that the strikers were no longer its employees because their employment status had been severed. In reversing the Trial Examiner's finding that the strikers had been discharged by the employer, the Board stated : The strikers ceased work as a result of a then current labor dispute and, therefore, retained their status as employees within the meaning of Section 2 (3) of the Act: yet, as the Trial Examiner found, they had no intention of returning to their jobs until the Respondent acceded to their economic demands. Consequently, the issuance of the separation notices had no actual effect on their tenure of employment. As we have previously observed in similar cases, such notices are primarily intended, not to effectuate a dis- charge, but as a tactical maneuver designed to induce the strikers to abandon the strike and resume work. In the Indiana Desk case, supra, the Board upheld the Trial Examiner's hold- ing that the Respondent's purported discharge was a mere "tactical maneuver," despite a factual showing that each striker was given a separation notice stating that he had "voluntarily" left Respondent's employ "without good cause," was paid his accrued wages in advance of the regular pay period (a procedure ad- mittedly used only when men permanently left Respondent's employ or were discharged), and in the face of the fact that when the strikers reapplied a week later they were told they would only be given consideration if they made applica- tion as new employees. In the Pullman-Standard Car case, supra, the Board over- ruled the Trial Examiner's holding that the employees were discharged, and found the employer's action to constitute a tactical maneuver rather than a discharge, although the strikers were told that if they did not resume work they would be regarded as having quit, were instructed to call at the office for their "drop cards," and when they applied for reinstatement were informed that they would have to go through the employment office individually and be inter- -viewed by the superintendent. It may be observed that in a number of the cases cited the circumstances sur- rounding the initial purported severance of the employment relationship pointed even more strongly than in the present case toward a real rather than a tactical 46 Matter of Majestic Manufacturing Co., 64 N. L. R. B . 950; Matter of Indiana Desk Co., Z6 N. L R. B. 76, Matter of Rockwod Stove Works, 63 N. L R B. 1297 , Matter of Home Beneficial Life Insurance Co., Inc, 69 N . L R B 32, modified, 159 F ( 2d) 280 (C. A. 4) ; Matter of Clem D. Johnston, d/b/a Roanoke Public Warehouse, supra; Matter of American Manufacturing Concern, 7 N. L. R B. 753; Matter of Stackpole Carbon Co , 6 N. L R B. 171; Matter of Pullman-Standard Car Manufacturing Co, 76 N. L. R. B . 1254; Matter of Aldora Mills, 79 N. L. R. B. 1. 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge, in that the strikers were given formal discharge or separation notices" Likewise , as indicated in the cases discussed above, the fact that the employer took the position when the employees applied for reinstatement that they would have to apply individually or as new employees has been held by the Board not to be necessarily inconsistent with the theory that the employer was engaging in a tactical maneuver and did not actually intend to sever the employment rela- tionship. In the light of these and the other cases cited above, the undersigned feels obliged to hold that the purported termination of employment of the polishers who participated in the August 22 walk-out did not constitute a discharge but was a tactical maneuver designed to induce them to abandon the strike and return to work." Since the undersigned has concluded that the employees who walked out on August 22 were not discharged , it is next necessary to consider the General Coun- sel's alternative contention that they were strikers who were improperly refused reinstatement upon an unconditional request to be reinstated in their jobs. As has already been noted , the employees who walked out in sympathy with Bevan did not quit their jobs but struck because of Bevan's discharge. Since the under- signed has concluded that the discharge of Bevan was not discriminatory in char- acter, it is clear that the other employees who struck in sympathy with him were economic, rather than unfair labor practice , strikers. As economic strikers they retained their status as employees within the meaning of Section 2 ( 3) of the Act and when they made an unconditional offer to return, the Respondent would be under a duty to rehire them unless they had been permanently replaced 48 The difficulty with the General Counsel's position in this respect is that the strikers never made an unconditional offer to return . The offer to return, accord- ing to Gustafson's own testimony , was conditioned on Bevan being restored to his job. Without Bevan's restoration , the other employees refused to return to work. It is well settled that the insistence by strikers that an employee previously dis- charged be reinstated or that other grievances be remedied as a condition to their return is not an unconditional application for reinstatement °0 It may be urged that although the offer by the employees to return to work was conditional, the reply to this offer by Myers that he would only take them back as new employees and that he would decline to take back not only Bevan, but Hills and Carlson as well, was discriminatory in effect and relieved the employees of any further obligation to make an offer to return. However, in similar situations, the Board has held that an unconditional offer to return is a sine qua non to putting an employer in the position of discriminatorily refusing to reinstate strikers, even though the employer's reply to such an offer may contain discriminatory condi- tions. Thus, in the Indiana Desk Company case, supra, where the employees' offer to return to work was conditioned on the employer's complying with their 47 Matter of Majestic Manufacturing Co , supra ; Matter of Rockwood Stove Works, supra; Matter of American Manufacturing Concern, supra; Matter of Indiana Desk Co, supra 9s As to whether such action constituted interference, restraint, or coercion, see the dis- cussion below 99 N. L R. B v Mackay Radio it Telegraph Co, supra; Matter of Auto part Manufacturing Company, supra; Matter of Roanoke Public Warehouse, supra. According to Myers' testi- mony, the strikers had not been replaced down to the time of the last meeting with management. 5° Matter of Wilson & Co, Inc, 77 N. L R B 959 (request for reinstatement conditioned on reinstatement of discharged employee ) ; Matter of Horace G. Prettyman, et at., 12 N L R B 640, 670 ( offer to return conditioned on rehiring employees previously dis- charged and recognition of union ) See also Matter of V. 0. Milling Co., 43 N L. R B. 348, Matter of Albert Love Enterprises , 66 N. L. R B. 416. MYERS PRODUCTS CORPORATION 51 wage demands, the Board held that the employer's insistence that he would only take them back as new employees was not discriminatory." Similarly, in the Majestic Manufacturing Company case, supra, the Board refused to find a viola- tion of Section 8 (3), based on the employer's insistence that the strikers would have to come back as new employees, where the strikers conditioned their return to work on a settlement of the issues responsible for the strike. Since the Re- spondent, in the instant case, in the absence of an unconditional offer by the strikers to return to work, did not discriminatorily refuse to reinstate them,52 and since the undersigned has already found that the Respondent did not dis- charge them, it will be recommended that the allegation of the complaint that they were discriminatorily discharged and refused reinstatement be dismissed. 3. Interference, restraint, and coercion Although Respondent's action in threatening and purporting to terminate the employment relationship of the strikers by sending them their pay checks and withholding statements, and by taking the position that they had quit and would have to return as new employees did not constitute a discharge, the Board has held that such tactical maneuvering is coercive in effect and therefore, a viola- tion of Section 8 (1) of the Act. Thus, in the Rockwood Stove case, supra, the Board, after holding that the purported discharge was a tactical maneuver and, therefore, not a violation of Section i8 (3), stated : Inasmuch as the purpose and effect of the Respondent's action in threaten- ing discharge and purporting to discharge the strikers was to restrain them from engaging in concerted activity for their mutual aid and protection, the Respondent thereby interfered with, restrained and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act in violation - of Section 8 '(1) thereof. We find that the strike was prolonged by this conduct of Respondent and hence from then on became an unfair labor practice strike.63 However, unlike the Rockwood Stove case, the undersigned does not find that such conduct by Respondent induced or prolonged the strike. In view of the testimony by Gustafson that the employees refused to return to work unless Bevan was reinstated, it is clear that the employees' insistence in the reinstate- ment of Bevan was the primary cause for prolonging the strike rather than Respondent's purported discharge or insistence that the employees come back as new employees." Likewise, since the employees walked out before the coercive action occurred, it is clear that the strike was not induced thereby. Accordingly, the undersigned finds and concludes that the strike of Respondent's In that case the employees subsequently made an unconditional application for rein- statement, and the employer continued to insist that they apply as new employees. The Board held this subsequent conduct of the employer to be discriminatory 62 It may be observed that despite the lack of an unconditional offer to return by the strikers, Respondent did in November 1946, at the meeting conducted by Mrs. Briggs, offer unconditionally to take back all of the employees The refusal by Respondent to pay the amount claimed to be due as back pay did not affect the unconditional character of Respondent's"offer, since the employees could not condition their return upon the payment to them of the amount due as back pay. (N. L. R B. v. Riverside Manufacturing Co., 119 F (2) 302 (C A 5)). w To the same effect see Matter of Roanoke Public Warehouse, supra; Matter of Ameri. can Manufacturing Concern, supra; Matter of Aldora Mills, eupra. "See Matter of Majestic Manufacturing Co., supra, where the Board found that while Respondent's action in advising the strikers that they had quit and were no longer its em- ployees was erroneous as a matter of law, it did not delay or otherwise prejudice the rein- statement of the strikers. I 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees did not become an unfair labor practice strike but retained its eco- nomic character. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to be unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that Respondent interfered with, restrained, and coerced its employees in the exercise of their rights under the Act by its conduct during the period they were on strike, the undersigned will recommend that Respondent cease and desist from such activities and from engaging in any like or related acts or conduct, and take certain affirmative action designed to effectuate the policies of the Act. Since it has been found that Respondent did not discriminatorily discharge or refuse to reinstate the employees named in the complaint, the undersigned will recommend that the complaint be dismissed in this respect. Moreover, since it has been found that the strike of Respondent's employees was not induced or prolonged by any unfair labor practices, the undersigned will not recommend that the strikers be unconditionally reinstated upon application to the positions which they held prior to the strike. However, since it has been found that the strikers ceased work as the result of a current labor dispute, they retained their status as "employees," within the meaning of Section 2 (3) of the Act 65 Accord- ingly, the Respondent is under an obligation not to discriminate in reinstating them upon application 68 Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. International Association of Machinists, District No. 101, is a labor organi- zation within the meaning of Section 2 (5) of the Act and the Amended Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act and the Amended Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act and Section 8 (a) (1) of the Amended Act. 66 This does not include John Bevan, who, it has been found, was discharged prior to the strike. w The obligation of an employer with respect to striking employees was summarized in the case of N L. R. B. v. Remington Rand, Inc, 130 F (2d) 919, 927 (C. A. 2), as follows: In the Mackay Radio case, [304 U S. 333] the Supreme Court held that an em- ployer whose employees have struck and who has committed no unfair labor practice is not obliged to discontinue his business but may hire others in the place of these strikers. The employer's obligation to reinstate in such case extends only to such of the striking employees as have not been replaced during the strike. . . . Thus, in the instant case, the polishers having gone on strike in a current labor dispute, retained their status as employees for the purposes of the Act and its pro- tective provisions. As such they had a right to apply for and he reinstated If re- spondent was guilty of an unfair labor practice, this right was unconditional. If it was guilty of no unfair labor practice, the right existed, nevertheless, subject, how- ever, to the condition that only such strikers could seek and get reinstatement as had not already been replaced during the strike. f MYERS PRODUCTS CORPORATION 53 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act and the Amended Act. 4. The Respondent has not engaged in unfair labor practices within the mean- ing of Section 8 (3) of the Act and Section 8 (a) (3) of the Amended Act, by discharging Everett Peterson , Elmer Hills, John Bevan , T. R. Jacobs, Ellsworth Brickson , and Oscar Haeggquist, or by refusing to reinstate them. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the Respondent , Myers Products Corporation, its officers, agents , successors , and assigns , shall: 1. Cease and desist from : (a) Threatening to discharge , or attempting to treat as new employees or as having terminated their employment , or otherwise attempting to penalize in their employment status, any of its employees on account of their membership in International Association of Machinists , District No. 101, or in any other labor organization , or for otherwise engaging in concerted activities ; and (b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor or- ganizations, to join or assist International Association of Machinists , District No. 101, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , as guaranteed in Section 7 of the Act and the Amended Act ; 2. Take the following affirmative action which the undersigned finds will effectuate the purposes of the Act : (a) Post at its plant in Rockford, Illinois, copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall , after having been signed by Respond- ent's representative, be posted by the Respondent and maintained by it for sixty ( 60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by other material; and (b) Notify the Regional Director for the Thirteenth Region, in writing within twenty (20) days from the date of the service of this Intermediate Report, what steps Respondent has taken to comply with the foregoing recommendations. It is further recommended that unless on or before twenty ( 20) days from the date of the receipt of this Intermediate Report, the Respondent notifies said Regional Director in writing that it will comply with the foregoing recommenda- tions, the National Labor Relations Board issue an order requiring the Respond- ent to take the action aforesaid. It is further recommended that the complaint be dismissed, insofar as it alleges that the Respondent discriminatorily discharged Everett Peterson, Elmer Hills, John Bevan, T. R. Jacobs , Ellsworth Erickson, and Oscar Haeggquist, and failed and refused and continues to fail and refuse to reinstate said employees in violation of Section 8 (1) of the Act and Section 8 (a) (1) of the Amended Act. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, any party may, 853396-50-vol 84-5 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Inter- mediate Report and Recommended Order or to any other part of the record or proceeding ( including rulings upon all motions or objections ) as he relies upon; together with the original and six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report and Recommended Order Immediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties Statements of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeographed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203 46, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 6th day of December 1948. JOHN LEWIS, Trial Examiner. APPENDIX A 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 threaten to discharge, or attempt to treat as new employees or as having terminated their employment, or otherwise attempt to penalize in their employment status, any of our employees on account of their mem- bership in INTERNATIONAL AssoCIATION OF MAOHINIsrs, DISTRICT No. 101, or in any other labor organization, or for otherwise engaging in concerted activities. WE WILL NOT in any like or related 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 ASSOCIATION OF MACHINISTS, DISTRICT No. 101, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. MYERS PRODUCTS CORPORATION, Employer. Dated------------------------------- By--------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.