Pacific Powder Co.

In the Matter Of PACIFIC POWDER, COMPANY and LAWRENCE SELTZER, AN INDIVIDUAL Case No. 19-0-1573.-Decided June 14, 1949 DECISION AND ORDER On August 9, 1948, Trial Examiner Maurice M. Miller issued his Intermediate Report 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. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended that the complaint be dismissed with respect to such allegations. Thereafter, the Respondent, the General Counsel, and the complainants filed exceptions to the Intermediate Report and support- ing briefs. The Board 1 has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rul- ings 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, conclusions, and recommendations of the Trial Examiner, except insofar as they are inconsistent with this Decision and Order. 1. The Trial Examiner declined to find that Superintendent Conner in his address to the employees on July 28, threatened to discharge employees who attended the meeting of strikers in Miller Sylvania Park.2 We adopt this disposition, as there is a conflict of testimony concerning the substance of Conner's remarks, a conflict which was apparently left unresolved by the Trial Examiner. A witness for the General Counsel testified that Conner advised the employees that they might attend the scheduled meeting, if they wished, but added that 1 Pursuant to the provisions of Section 3 (b) of the Act , as amended , the Board has dele- gated its powers in connection with this proceeding to a three -member panel [ Members Houston, Reynolds , and Murdock]. R See footnote 65 of the Intermediate Report. 84 N. L. R. B., No. 31. 280 PACIFIC POWDER COMPANY 281 the complainants, characterized as "trouble makers" in his speech, were "through" at the plant, and that any employees who attended the meet- ing would indicate their desire to associate themselves with the com- plainants by that act .3 Witnesses for the Respondent, on the other hand, denied that any such statement was made by Conner. There being no exception taken to the Trial Examiner's failure to determine explicitly whether or not the alleged threat was uttered on this occasion, we find it unnecessary to make any finding thereon. 2. We agree with the Trial Examiner's conclusion that the employ- ment offered to Royce Coen following his discriminatory discharge was not such reinstatement as to fulfil the Respondent's remedial ob- ligation to restore Coen to his former or a substantially equivalent position, and that in the alternative the Respondent's treatment of Coen amounted to a constructive discharge. When Coen reported for work on October 2, Foreman Watson, in departure from the practice which had prevailed prior to Coen's dis- charge, told Coen that he would have to keep his tools and clothing in a cabinet under the Company's lock and key and that he would not be permitted to attach his own lock to the cabinet.4 As Coen's tools, which he was required to use in the Respondent's employ, were valuable, the denial of the privilege of keeping them under his own lock and key, as he had done in the past, was a sub- stantially prejudicial alteration of the conditions of his employment. The Respondent offered no explanation for this change, and we find that it was due to the Respondent's resentment of the concerted ac- tivity in which Coen had participated. We find that Coen's resig- nation on October 2 was directly caused by this renewed discrimina- tion against him, and that he was thereby constructively discharged in violation of Section 8 (a) (3) of the Act .5 We also affirm the Trial Examiner's finding that, viewing Coen's resignation as a rejection of the Respondent's offer of reinstatement, Coen was justified in treating this offer as a nullity, for it did not contemplate bona fide reinstate- ment to his former or a substantially equivalent position. In the circumstances, the Respondent's duty to reinstate Coen under non- discriminatory conditions remained unaffected. 8 If the remarks attributed to Superintendent Conner by this witness were found to have been made in fact, such remarks would have been violative of Section 8 (a) (1) of the Act, for they contain a clearly implied threat of discharge. 4In making this finding the Trial Examiner credited Coen's version of this conversation, rejecting by implication Foreman Watson s denial that he had made such statement Since there is nothing to show that the Trial Examiner 's credibility finding was erroneous , Coen's version of the conversation is accepted as true 5 Matter of American Rolling Mill Co., 43 N. L R. B. 1020, 1141 ; Matter of American Patrol Service, 75 N. L. R. B. 662, 669; Matter of Republican Publishing Company, 73 N. L. R B. 1085 , 1091 , 1105; Matter of Kalamazoo Coaches, 66 N. L. R B. 171, 181. 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record we find as did the Trial Examiner that the Respondent violated Section 8 (a) (3) of the Act in causing the termination of Coen's employment on October 2,1947.6 3. The Trial Examiner found that Schoenfeld's resignation, which followed his conversation with Superintendent Conner on October 2, was not voluntary but induced by Conner's unlawful and discrimina- tory treatment and harassment of Schoenfeld. We do not agree. Schoenfeld reported for work on September 30 together with other complainants in response to the Respondent's offer of reinstatement. As a relief driver he was sent with other drivers to take a physical examination. Upon their return to the plant the whole group was dismissed for the day and told to come for work the following day. Schoenfeld however did not come to work the next day, nor did he notify the management of reasons for his staying away. When he appeared at the plant on October 2 Conner asked him for an explana- tion of his absence the day before. Schoenfeld replied that he had been ill. Conner asked why he did not telephone. Schoenfeld, who had no telephone at his residence, replied that he was too sick to call. To this Conner replied with the observation that he was a "g . . d ... liar," and that he had been seen in a beer parlor, and ordered Schoen- feld to get to work. This however the latter did not do. Instead, according to his own testimony he said "That's a heck of an attitude to take . . . maybe you don't want me out here, . . . I don't feel like working for a guy that feels like that. And [Conner] said: `Well, why don't you go home?' and I said `By gosh, maybe I will,' and so I went home." 7 While denying that he had been in a beer parlor on the day he was absent from the plant, Schoenfeld admitted on cross-examination that late in the afternoon of that day he went to a lunchroom (where beer was served) and also that the Respondent's Tenino office which was located across the street from his house had a telephone and that it had been previously used to convey to him messages from the plant. Under the circumstances we are not convinced that Conner's repri- mand of Schoenfeld was prompted by discriminatory motives rather than by Conner's belief that Schoenfeld merited the reprimand. Schoenfeld could have called the plant, and he admitted going to the lunchroom, thus affording justification for Conner's comment that he was seen in a beer parlor, and for •Conner's expressed belief that he was malingering. Hence, we cannot find, as did the Trial Examiner, that Conner's "choler" was anti-union and that Schoenfeld was justi- G In reaching this conclusion we do not rely upon the Respondent's refusal to furnish Coen with a better place to work 7 Superintendent Conner and Foreman Reinke's versions of the incident are substantially in accord with this testimony of Schoenfeld. PACIFIC POWDER COMPANY 283, fled in believing that he was being subjected to further discrimination in regards to the terms and conditions of his employment. We find that Schoenfeld quit the Respondent's employ in protest against Con- ner's reprimand and the manner in which it was made and that this resignation was not induced by any renewed or continued unlawful discrimination against him. The Trial Examiner's finding as to the termination of his employment on October 2 therefore is hereby reversed." Upon the entire record we find, contrary to the Trial Examiner, that the Respondent did not unlawfully discriminate against Schoenfeld in regard to termination of his employment on October 2, 1947. 4. We agree with the Trial Examiner that Superintendent Conner failed to carry out Respondent's instructions and did not give the regular drivers effective reinstatement after initially discharging them in violation of the Act .9 We also agree with the Trial Examiner that the Respondent's failure to reinstate the drivers under nondiscrimina- tory conditions was not the cause of their separation from the Re- spondent's employment. However, we do not adopt the Trial Exam- iner's finding that the drivers' refusal to take out the trucks until they were put in a condition to meet the I. C. C. standards was in the nature of insubordination; and that they were for that reason dis- charged. Rather, we find that the drivers' concerted refusal to work until the trucks were placed in a better state of repair was an economic strike and that the Respondent did not discharge them on October 3 or subsequently. The circumstances attending the drivers' cessation of work on Octo- ber 3, and their contacts with the Respondent during the next few days contained all the essential elements of a strike, even though these four employees did not formally picket the plant or otherwise de- clare that they were on strike. It is clear that, without intending to sever their employment relationship with the Respondent, and while laying claim to their jobs, they attempted by means of concertedly withholding their labor, to enforce their collective demand that the Respondent place its trucks in a better state of repair.10 As the main- 8 Matter of St Joseph Lead Company , 65 N. L R . B. 431 , 441 ; Matter of Young Patrol Service, 75 N L R. B. 404 1 In reaching this conclusion we rely upon the Respondent 's failure to give the drivers their usual work assignments at the plant between runs , making them wait for runs while at the same time sending out trucks manned by employees hired or transferied to replace the drivers following their initial discharge , imposing new and burdensome conditions such as withholding keys to the plant gate , and requiring them to submit their driver 's logs, papers, and expense money to the watchman at night rather than to the office the next morning We do not rely , however , on Conner's surly manner , or his failure to retract his expressions of opinion which generated the hostility of the other employees. 10 Matter of Kennametat Inc , 80 N L R B 1481, 23 L R R bI 1265; Matter of Phoenix Muttatl Life Insurance Company, 73 N. L. R B 1463 , enfd. 167 F ( 2d) 983 (C. A 7), cert, den 335 U. S 845 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tenance of the trucks was a matter relating directly to their conditions of employment, the drivers enjoyed, under the Act, the protected right to discuss this subject collectively with the Respondent, to present grievances and demands with respect to it, and, if they saw fit, to reinforce their demands by striking." They did not forfeit their status as employees by doing so. On the other hand, the Respondent's refusal to accede to the drivers' requirement that the trucks be brought up to I. C. C. standards forthwith was not violative of the Act. The record does not warrant a finding that the Respondent took the position it did, in the dispute over the condition of the trucks, because of the drivers' union and concerted activity. Nor were these employees asking, merely, for restoration of the working conditions under which they had been employed before their discriminatory dis- charge in July. On the contrary, the object of their strike was to secure new and improved working conditions. The allegedly unsafe condition of the trucks was an old grievance, one which the drivers had asked the Respondent to remedy as early as the collective bar- gaining conference in July. Their union representative renewed this request on September 30, when the discharged employees reported for reinstatement. We find, therefore, that the strike was not caused by unfair labor practices, but was economic in its origin. It follows that, on and after October 3, the Respondent was no longer under an un- qualified duty to reinstate the drivers to their former positions, and that it was privileged to replace them permanentfy.12 We are constrained to reject the Trial Examiner's finding that the Respondent discharged the drivers in October. In its answer to the complaint, and at the hearing, it denied that it had done so, and its conduct on and after October 3, 1947, is consistent with this contention. Superintendent Conner did not tell the drivers that they were dis- charged; he merely refused to make the concession upon which they insisted as a condition of continuing to work, and, instructed them to leave the plant if they did not choose to take the trucks out on their assigned runs. Nor does the record otherwise indicate that the Re- spondent treated the four drivers' departure on October 3 as a final termination of their employment.13 Instead, when the drivers offered to return to work provided that the trucks were repaired, the Respond- ent declined to meet this condition and, as the Trial Examiner observed, the impasse continued. 11 Styles v. Local 760, International Brotherhood of Electrical Workers, A. F. of L., 80 F. Supp. 119 (D. C. Tenn ) ; See, also, Matter of Local 760, International Brotherhood of Electrical Workers (AFL), 82 N. L R B. 696. 11 N. L. It. B. v. Mackay Radio & Telegraph Co., 304 U. S. 333. 13 Respondent points to the evidence showing that it paid the drivers' wages at the regu- lar pay day and not immediately, and that their tax withholding receipts were not mailed to them until the end of the current year. PACIFIC POWDER COMPANY 285 For these reasons, we,find, as did the Trial Examiner, that the Re- spondent did not violate Section 8 (a) (1) or (3) of the Act by discharging or otherwise causing the separation of Kirwin, Evans; Tobin, and Zimmerman in October 1947. The Remedy Since it has been found that the Respondent engaged in and has continued to engage in certain unfair labor practices we shall order the Respondent to cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. It has been found that the Respondent discriminatorily discharged its truck mechanic, Royce W. Coen, on July 28, 1947, and that it did not thereafter effectively reinstate him. It has been also found that on or about October 2 the Respondent again, in effect, discrimina- torily discharged Coen after reinstating him under discriminatory conditions. We shall, therefore, order the Respondent to offer Coen immediate and full reinstatement to his former or substantially equivalent employment,14 and make him whole for any loss of pay he may have suffered by reason of the discrimination by payment to him of a sum of money which he normally would have earned as wages from the date of the initial discharge to the date of the rein- statement offered pursuant to this order, less the net earnings during such period.15 We have found that the Respondent discriminatorily discharged Collins and Schoenfeld on July 28, 1947, but that each of these em- ployees resigned on October 2, 1947, following his reinstatement. Accordingly, we shall order the Respondent to make whole each of them for any loss of pay he may have suffered by the payment to him of a sum of money equal to the amount which he would have earned in wages from the date of the initial discrimination against him to the date of the reinstatement, less his net earnings 16 during such period. Since it has been found that the Respondent discriminatorily dis- charged drivers Evans, Kirwin, Tobin, and Zimmerman on July 28, 1947, and that it never offered them effective reinstatement, but that on October 3, the drivers went on an economic strike, we shall order that the Respondent make them whole for any loss of pay they may have suffered as a result of the discrimination by payment'-to each of them of a sum of money equal to the amount which each of them would have earned in wages from the date of the initial dis- u See Matter of The Chase National Bank of the City of New York, an Juan, Puerto Rico, Branch, 65 N L R B. 827. 15 See Matter of Crossett Lumber Co., 8 N. L. R B. 440; Matter of Republic Steel Corp. V. N. L. it. B., 311 U. S. 7. 16 See Matter of Crossett Lumber Co., supra, Matter of Republic Steel Corp., supra. 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD crimination -to October 3, 1947, less his net earnings during such period. As there is no showing that these employees ever thereafter applied unconditionally for reinstatement, we shall not require the Respondent to offer them reinstatement, or to make room for them by discharging any employees hired in their places. However, in this case, we believe that it will effectuate the policies of the Act to require the Respondent to reinstate the four drivers in the future, if they apply for reinstatement and work becomes available for them. The original discrimination against these employees was never remedied. On the contrary, the Respondent's hostile and discriminatory treat- ment of the drivers, and of Coen, too, when they returned to work in October 1947, showed that it was persisting in its policy of punish- ing employees for the exercise of rights guaranteed by the statute. In the circumstances, we believe that there is real danger that these individuals will be forever barred unlawfully from the Respondent's employ in the future-even if they apply at a. time when work is available for them-because of their participation in union and con- certed activity in the past 17 Moreover, unless we make some pro- vision for the reinstatement of these four drivers, who were once discharged for attempting to bargain collectively with the Respond- ent and never reinstated in good faith, it is doubtful whether the Respondent's other employees at this plant will ever realize that they enjoy, under the Act, the right to engage in self-organization with impunity. The Respondent's discrimination against these employees undoubtedly tended to restrain all its employees from exercising their statutory rights. In order, then, to dissipate these effects of the unfair labor practices, and to safeguard the drivers, who went on strike in October 1947, against unlawful discrimination against them in the future, we shall order the Respondent to give preference to these driv- ers in filling vacancies as they occur in the future. If the drivers elect to apply unconditionally for reinstatement within a reasonable time after the issuance of this Order, the Respondent will be directed to place their names upon a list of its temporarily laid-off employees and thereafter to offer them employment in the order of their seniority on the list when suitable positions become available, before hiring other persons 18 Like the Trial Examiner, we find that the Respondent's violations of the Act were such as to justify an order requiring it to cease and desist not only from the unfair labor practices herein found, but also from in any other manner infringing upon the rights of its employees guaran- teed in Section 7 of the Act. 17 Phelps Dodge Co? poration V N. L R B , 313 U. S 177. 18 American Manufacturang Concern, 7 N L R B 752 , 763, J. G Boswell Company et al., 35 N L R B 968, 1026-7 eufd 136 F. (2d) 585 (C. A 9) PACIFIC POWDER COMPANY CONCLUSIONS OF LAW 287. 11. The group of employees which undertook to negotiate with a representative of the Respondent in regard to the wages, hours, and conditions of employment of truck drivers and the truck mechanic in the employ of the Respondent, and the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, affili- ated with the American Federation of Labor, which these employees later designated as their bargaining representative, are labor organiza- tions within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Royce W. Coen, Harry Schoenfeld, William F. Collins, Thomas D. Evans, Leo Kirwin, Edward W. Tobin, and Harold L. Zimmerman on July 28, 1947, thereby discouraging their participation in concerted activity by a labor organization and further discouraging membership in the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, affiliated with the,American Fed- eration of Labor, the Respondent did engage and has continued to engage in unfair labor practices within the meaning of Section 8 (3) of the Act, and Section 8 (a) (3) of the amended Act. 3. By discriminating in regard to the terms and conditions of employment of Royce W. Coen, Thomas D. Evans, Leo Kirwin, Edward W. Tobin, and Harold L. Zimmerman on and after September 30, 1947, and by discriminating in regard to the hire and tenure of employment of Royce W. Coen on and after October 2, 1947, thereby discouraging their participation in concerted activity by a labor organ- ization and further discouraging membership in the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, affiliated with the American Federation of Labor, the Respondent did engage and has continued to engage in unfair labor practices within the meaning of Section 8 (a) (3) of the amended Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent did engage and has continued to engage in unfair labor practices within the meaning of Section 8 (1) of the Act and Section 8 (a) (1) of the amended Act. 5. The unfair labor practices found are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 6. The Respondent did not engage in unfair labor practices within the meaning of Section 8 (a) (3) of the amended Act, in connection with the separation of William F. Collins, Thomas D. Evans, Leo 1, 1 288' DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kirwin, Edward W. Tobin, Harold L. Zimmerman, and Harry Schoenfeld from its employ, on or after October 2, 1947. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Pacific Powder Company, Tenino, Washington, its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, affiliated with the American Federation of Labor or any other labor organization of its employees or participation by its employees in concerted activities for the purpose of collective bargaining or other mutual aid or protection, by discriminatorily discharging or refusing to reinstate any employees, or by discriminating in any other manner in regard to the hire or tenure of their employment, or any term or condition of their employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist a group of their fellow employees or the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, affiliated with the American Feder- ation of Labor, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection and to refrain from any or all of such -activities. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer Royce W. Coen immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges previously enjoyed, and make him whole for any loss of pay he may have suffered as a result of the discrimination practiced against him, by payment to him of a sum of money equal to the amount which he normally would have received as wages from the date of the initial discrimination practiced against him to the date of the reinstatement offer, less his net earnings during such period; (b) Make whole William F. Collins and Harry Schoenfeld for any loss of pay they may have suffered as a result of the discrimination practiced against them, by payment to each of them of a sum of money PACIFIC POWDER COMPANY 289 equal to the amount which he normally would have received as wages from the date of the initial discrimination practiced against him to the date of his reinstatement in October 1947, less his net earnings during such period; (c) Make whole Thomas D. Evans, Leo Kirwin, Edward W. Tobin, and Harold L. Zimmerman for any loss of pay they may have suffered as a result of the discrimination practiced against them, by payment to each of them of a sum of money equal to the amounts which he normally would have received as wages from the date of the initial discrimination practiced against him to October 3, 1947, less his net earnings during such period; (d) Upon their application within a reasonable time, place drivers Thomas D. Evans, Leo Kirwin, Edward W. Tobin, and Harold L. Zimmerman upon a list of employees temporarily laid off and offer employment to them in the order of their seniority on the list-when employment becomes available before hiring other persons; (e) Post at its plant near Tenino, Washington, copies of the notice attached hereto marked "Appendix A." 11 Copies of such notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being duly signed by a representative of the Respondent, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. Notify the Regional Director for the Nineteenth Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges the discriminatory discharge of William F. Collins, Thomas .D. Evans, Leo Kirwin, Edward W. Tobin, Harry Schoenfeld, and Harold L. Zimmerman on or after October 2, 1947, by the Respondent. APPENDIX 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, as amended, we hereby notify our employees that : in In the event that this Order is enforced by decree of a Circuit Conic of Appeals, there shall be inserted before the' words , "A DECISION AND ORDER ," the words, "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING " . 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any 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 a group of their fellow employees or the INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA, affiliated with the AMERICAN FEDERATION OF LABOR, or any other labor or- ganization, to bargain collectively through representatives of their own free choice, and to engage in concerted activity for the purposes of collective bargaining and other mutual aid or protec- tion, and to refrain from any or all of such activities. WE WILL offer to the employee named below immediate and full reinstatement to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed and make him whole for any loss of pay suffered as a result of the discrimination practiced against him. Royce Coen WE WILL MAKE whole the employees named below for any loss of pay suffered as a result of the discrimination practiced against them. Thomas D. Evans Leo Kirwin Harold L. Zimmerman Edward W. Tobin William F. Collins Harry Schoenfeld Upon their application within a reasonable time, we will place the employees named below upon a list of employees temporarily laid off and offer employment to them as drivers in the order of their seniority when employment becomes available before hiring other parties. Thomas E. Evans Edward W. Tobin Leo Kirwin Harold L. Zimmerman All our employees are free to become or remain members of any labor organization. We will not discriminate in regard to hire and tenure of employment or any term or condition of employ- ment against any employee because of membership in or activity on behalf of any labor organization, or because he has engaged in concerted activity for the purposes of collective bargaining and other mutual aid or protection. PACIFIC POWDER COMPANY, Employer. Dated---------------------- By ------------------------------- (Representative ) ( Title) This notice must remain posted for sixty (60) days after its date, and must not be altered, defaced, or covered by any other material. PACIFIC POWDER ^ COMPANY b 290-1 INTERMEDIATE REPORT AND RECOMMENDED ORDER Mr. Melton Boyd, for the General Counsel. Mr. Lawrence Seltzer, of Seattle, Wash., for the Complainants. Mr E. K. Murray, of Tacoma, Wash., for the Respondent. STATEMENT OF THE CASE Upon amended charges filed on February 26, 1948, by Lawrence Seltzer, as the legal representative of certain employees, herein designated collectively as the Complainants, the General Counsel of the National Labor Relations Board, herein called the General Counsel,' on behalf of the National Labor Relations Board, herein designated as the Board, by the Regional Director of its Nineteenth Region (Seattle, Washington) issued a complaint dated February 27, 1948, against the Pacific Powder Company of Tenino, Washington, herein designated as the Re- spondent, which alleged that the Respondent did engage and has continued to engage in unfair labor practices affecting commerce within ' the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act, and Section 8 (a) (1) and 8 (a) (3) and Section 2 (6) and (7) of the statute as amended and reenacted in the Labor Management Relations Act of 1947, also designated herein at times as the Act.' Copies of the complaint, the amended charge and a notice of hearing were duly served upon the Respondent and the legal representative of the Complainants. With respect to the unfair labor practices, the complaint, as amended, alleged in substance. (1) that certain employees of the Respondent, on or about July 26, 1947, agreed to form a committee and to act in concert, with regard to negotiations with the Respondent on the wages, hours, and conditions of employ- ment for truck drivers and truck mechanics, and with regard to other activities for their mutual aid and protection; (2) that this committee, on or about July 27, 1947, met representatives of the Respondent and submitted written proposals with respect to the wages, hours, and conditions of employment for truck drivers and truck mechanics, to be considered by the Respondent and to be made the subject of negotiation between the Respondent and the committee; (3) that the representatives of the Respondent refused to negotiate with the committee and censured them for their concerted activity, and that they were notified that the employees involved would refuse to perform further services for the Respondent until its representatives agreed to negotiate with the committee on its proposals; (4) that the committee, by virtue of the concerted activity which it had under- i This designation includes the attorney on the staff of the General Counsel who pre- sented the case in his behalf. 2 Public Law 101, 80th Congress , Chapter 120, i st Session , June 23 , 1947 , 61 Stat 136. When essential in the interest of clarity , the statute will be cited in this report , however, as "the amended statute," "the Act as amended," or "the amended Act." The original charge in the instant case was filed in accordance with the terms of the National Labor Relations Act before the effective date of its amendment and reenactment in the Labor Management Relations Act The provisions of the original Act as to which violations are alleged in the instant case, Section 8 ( 1) and (3) of the Act, are continued without material amendment, however, insofar as their application to the facts of the instant case are concerned, in Section 8 (a) (1) and ( 3) of the Act as amended . In this report , there- fore, the term "The Act" will be used to refer to these provisions , and others which were reenacted without material change and which apply uniformly throughout the period with winch the report is concerned , and such terms as "the amended statute," "the Act as amended ," or "the amended Act," will be used when reference is made to provisions the application of which is limited to the portion of that period which followed the reenact- ment of the statute. 290-2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD taken, constituted a labor organization within the meaning of Section, 2 (5) of the Act; (5) that certain additional employees joined the committee, after its meeting with the representatives of the Respondent, in other concerted activity ; (6) that the Respondent, on or about July 28, 1948, discharged' and failed or refused to reinstate the employees named below because they had engaged in such concerted activity, and because it wished to discourage membership in their labor organization : Royce W. Coen. Leo Kirwin Harry Schoenfeld. Edward W. Tobin. William F. Collins. Harold L. Zimmerman. Thomas D. Evans. (7)- that these employees, on or about July 28, 1947, before the receipt of informa- tion as to their discharge by the Respondent, had offered unconditionally to resume their customary work, but that the Respondent refused them access to their place of employment, refused to reinstate them thereafter, for the reasons already cited, from July 28, 1947, to September 30, 1047, and assigned their work to other employees; (8) that the Respondent, on or about September 30, 1947, reemployed each of the seven individuals previously separated, but later again discharged them, on or about the dates listed after their names, because of their concerted activity for the purposes of collective bargaining and other mutual aid or protection, and because of its desire to discourage membership in their labor organization or any other labor organization : Royce W.Coen --------------------------------- September 30, 1947. Harry Schoenfeld______________________________ October 2, 1947. William F. Collins------------------------------ October 3, 1947.. Thomas D. Evans_______________________________ October 3, 1947. Leo Kirwin____________________________________ October 3, 1947. Edward W. Tobin ------------------------------- October 3, 1947. Harold L. Zimmerman__________________________ October 3, 1947. (9) that the Respondent has failed and refused to reinstate these employees to their, former or substantially equivalent employment; (10) that the Respondent by its course of conduct has discriminated in regard to the hire and tenure of these employees, to discourage membership in their labor organization, in viola- tion of Section 8 (3) of the Act and Section 8 (a) (3) of the amended Act; (11) that the Respondent, by its course of conduct, by its surly treatment of the employees named, by its failure or refusal to reinstate all of these employees to their former positions and normal work assignments, on September 30, 1947, and by its action; through agents and employees, in making disparaging remarks about the employees named and their efforts to bargain collectively, has inter- fered with, restrained, and coerced these•employees in the exercise of rights guaranteed' by the Act; and (12)• that the Respondent thereby did engage and has continued to engage In a violation of Section 8 (1) of the Act and 8 (a) (1) of the amended Act. Pursuant to notice .a hearing was held at Olympia, Washington, on various dates between March 16 and March 24, 1948, both dates inclusive, before Maurice M. Miller, the.undersigned Trial Examiner duly ,designated by the Chief Trial Examiner.. Counsel for ,the Respondent, at the outset of the hearing, stated for the record that the Respondent admitted the jurisdictional allegations of the com- plaint ,but that it 'denied the commission of any unfair labor practices. Counsel for the General Counsel thereupon waived his 'objection to the•failure of the Respondent to file a written and notarized answer within the period specified; PACIFIC POWDER COMPANY 290-3' by the Rules and'Regulations-such an answer was, however, filed thereafter, while the hearing was in progress. Throughout the hearing the General Counsel, the Complainants, and the Respondent were represented by counsel ; all of the parties participated and were afforded a full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues. At the close of the case counsel for the General Counsel presented a motion to, conform the pleadings to the proof with respect to formal matters. The motion was granted. Counsel waived the right to present oral argument and indicated their desire to file briefs with the undersigned. Briefs have been received from the legal representative of the Complainants, counsel for 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 I. THE BUSINESS OF THE RESPONDENT The Pacific Powder Company, hereinafter called the Respondent, is a corpora- tion duly licensed under the laws of the State of Washington, which maintains its principal office in Seattle and another office in Tenino, Washington. It op- erates a plant in the vicinity of Tenino, at which it is engaged in the manufacture, distribution, and sale of high explosives. In connection with the operations of its plant at Tenino, the Respondent uses raw material valued at about $480,000, annually ; about 90 percent of the raw material used at its plant is derived from sources outside the State. Its finished products are valued in excess of $600,000 annually ; about 60 percent of its finished products are sold and transported in -interstate commerce. Upon the record, and in its answer, the Respondent admitted that it was en- gaged in commerce within the meaning of that term as defined in the Act. II. THE ORGANIZATIONS INVOLVED The group of employees which waited upon the representatives of the Respond- ent and undertook to open negotiations upon a set of proposals with respect to the wages, hours, and conditions of employment of truck drivers and truck mechanics was, by virtue of its activity in this connection, a labor organization within the meaning of the term as defined in the Act.' International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, affiliated with the American Federation of Labor, herein called the Teamsters, which the employees later designated as their bargaining representative, is also a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES' A. The setting in which the unfair labor practices occurred 1. The physical plant Although the Respondent maintains an office and certain other facilities in the village of Tenino, its plant for the manufacture of high explosives is located 5 8 See Matter of Tovrea Packing Company, 12 N. L. R. B. 1063, 1069-1070. * The conclusions set forth herein are based upon a preponderance of the reliable, proba- tive and substantial evidence in the record as a whole. Significant conflicts,in testimony 853396-50-vol 84-20 290-4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD miles west of that community, three-fourths of a mile from a tract of parkland known as Miller Sylvania Park. -The plant, which is completely surrounded by a double fence, covers 50 acres adjacent to the highway which runs from Tenino to the park and beyond. The outer fence, which abuts upon the highway, con- tains a gate identified as the front gate, while the inner fence, which encloses the productive area of the plant, contains a gate for trucks and a foot traffic gate, identified collectively as the plant gate. The Respondent maintains an office immediately adjacent to the plant gate ; and the buildings in which the productive operations are conducted are distributed on a curve in the form of a horseshoe, within the productive area. Certain structures not directly involved in produc- tion are situated within the area defined by the curve on which the other buildings are located. 2. The organization. of production Joseph Denn, the president and general manager of the Respondent, has held his present position since the formation of the Respondent in January of 1945. His immediate subordinate at the plant, throughout the period with which this report is concerned, was Riley Conner, the superintendent in charge of production. Other responsible representatives of management at the plant included Fred Munz, the office accountant, Richard Watson, the truck dispatcher, Fred Reinke, the production foreman, and several employees who might be described as lead- men or senior employees, in charge of the several employee groups engaged in dynamite production. The Respondent has limited facilities. for the storage of its finished products, and attempts, as a general rule, to ship its explosives as soon as possible, after the completion of production. For the purposes of transportation it maintained, at the outset of the period with which this report is concerned, a fleet of six trucks ; " two of the trucks, however, were devoted almost exclusively to the trans- portation of certain byproducts from the plant to the other facilities of the Respondent in Tenino. Four of the trucks, according to the record, were in regular use for the transportation of dynamite and other company products to customers of the Respondent e In the spring and summer of 1947, at the outset of the period with which this report is concerned, the Respondent employed 4 regular drivers at the Tenino plant, Tobin, Zimmerman, Kirwin, and Evans, and a truck mechanic, Royce W. Coen, who was also employed occasionally as a driver.' Two plant main- tenance mechanics, Schoenfeld and Collins, also received occasional assignments to deliver dynamite by truck. The Respondent employed about 40 men, exclusive of the individuals named, in connection with its regular productive operations. and questions of credibility have been noted Other conflicts and variations in testimony, not directly relevant to the issues, have also been considered , they are disregarded, how- ever, as immaterial. 6 These have been identified as follows • Truck No 1, a 1941 Chevrolet which could carry 3% tons ; Truck No. 3, a 1937 Ford which could also carry a 33/1 ton load; Truck No 5, a 1945 International which could carry 51/2 tons ; Truck No 6, a 1942 G M C , known gen- erally as the "mule," which could carry a 7-ton load ; Truck No 7, a 1946 Chevrolet which could carry 41/2 tons : and Truck No 9, a 1946 Chevrolet, which could carry a 4-ton load 6In August of 1947, on a date which does not appear on the record, the Respondent purchased another truck for the transportation of its finished products-a 1947 Chevrolet, rebuilt, which could carry a 10-ton load 4 The record establishes that the drivers also worked in the plant for a substantial part of every week, while awaiting assignments, and that they were paid a fixed hourly rate of $1.20 per hour for such work. PACIFIC POWDER COMPANY B. The general course of the unfair labor practices 1. The July discharges 290-5 The operations of the Respondent, which are largely seasonal, reach their peak in the spring and summer of the year. During this period, therefore, de- liveries are frequent; the record shows that there were few, if any, occasions in the spring and early summer of 1947 when all the regular drivers were together at the Tenino plant. Late in July, however, the Respondent announced that a picnic of its employees would be held on the 26th, a Saturday, at Miller Sylvania Park, and the drivers were informed that their delivery schedules would be arranged in such a fashion as to permit them all to attend the picnic. Previously, the regular drivers and Coen, in general conversation, had made manifest to each other their general dissatisfaction with the Respondent's rate of pay, their hours of work, and the conditions of their employment. The record indicates that several of the drivers had made individual representations to Superintendent Conner in regard to one or another of these matters, but that such representations had produced no concrete results! When the drivers as- sembled at the picnic, which was the very first occasion on which they were able to meet as a group, one of them suggested that they ought to take advantage of the opportunity to consult with one another, and that they ought to meet that evening to discuss their common grievances.' The suggestion was accepted by Coen and all of the other drivers ; arrangements were made, forthwith, to pick up Kirwin and to meet at Zimmerman's home that evening At the meeting, which had been adjourned to the home of Coen, the men dis- cussed a possible affiliation with the Teamsters, but decided, after discussion, to eschew affiliation with the union pending the outcome of negotiations with Superintendent Conner. Pursuant to this decision, they prepared, forthwith, a set of proposals with respect to rates of pay, hours of work, and conditions of employment which was reduced to writing by Coen. To this document they attached a covering letter, which called upon the Respondent, in effect, to accept the proposals of the group as a basis for negotiations in regard to the wages, hours, and conditions of employment for the drivers and truck mechanic. The draft was completed at or about 11 p. in. on Saturday : and Zimmercan was asked to telephone Superintendent Conner and to arrange a conference on the following day, at which the proposals of the group could be submitted This was done Superintendent Conner, when reached, agreed to meet the employee group on the following day in Tenino. Zimmerman, however, reported that Conner's acceptance had been grudging and ungracious. The group decided, therefore, to visit the home of Watson, the truck dispatcher and the immediate subordinate of the superintendent, with the thought in mind, as expressed by Coen, that Watson could be persuaded to make certain that Conner kept the appointment. In accordance with this suggestion, the employees called upon Watson in a body, aroused him from sleep, exhibited the draft of their proposal and the covering letter, requested his opinion as to the justice of their claims, and asked him, as an interested party, to make sure of Conner's attendance at the conference on the following day. Watson, according to the record, advised the employees that their abrupt approach in this connection would probably antagonize Superin- 8 was denied by Conner The undersigned does not credit his denial 9 Kirwin, it would appear was not present at the time, returning from a trip to Colville, Washington at some time on the morning of the date in question. 290-6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tendent Conner ; he counseled moderation in connection with the presentation of the proposals 10 He did promise, however, that he would do what he could to assure the presence of Conner at,the meeting which he had already agreed to attend. On Sunday, July 27, Superintendent Conner, accompanied by Watson, met the employees in question at the City Hall in Tenino.1Y Coen, who had previously been selected as the spokesman of the group, called the meeting to order, and opened the discussion with a statement, which he read . A draft of the statement, which was received in evidence, reads as follows : We are gathered here for the purpose of negotiating a workable plan whereby Employer and Employees may both enjoy the fruits of our efforts. We hope to hold this meeting in an agreeable manner. There are now conditions existing which we feel are not fair to the Employees and hope to improve these conditions. It is recognized beyond doubt that a working man's only assett [sic] is his ability to labor and that his physical capacity can be prematurely exhausted as is evident ...'Z Each and every clause of this contract must be discussed .. 3° We feel that this contract is fair, just and in line with present living conditions. This is not a hastily drawn contract but drawn after hours of careful study and consideration Nor is it intended to cause hard feeling in any way. Conner was given a copy of the proposals which the men had drafted and a copy of the letter, already mentioned, which had been signed by each of the five employees." Coen, however, went on to read the covering letter and the pro- posals aloud while Conner followed the reading with his copy ; immediately thereafter, Conner proceeded to read and discuss each proposal in order. No useful purpose would be served by a recital of the detailed discussion which followed.16 It is sufficient to say that Conner indicated clearly that he had no real desire or intention to negotiate with the employees, in the accepted sense of the term, with regard to the matters embodied in the proposals.54 He pro- ceeded, instead, to consider them, separately, and to discard them all, with one exception, as completely inacceptable to the Respondent. The single exception involved a request on the part of the employees that they be paid at the fixed rate of $1.20 per hour, with time and one-half for work in excess of 8 hours per day, instead of 5 cents per mile for all work on the highway. Conner agreed 10 Kirwin testified, in addition,-with the concurrence of Evans and other witnesses- that Watson had cited the opposition of Conner to group action, that he had stated the men would get "farther" If they went to Conner individually, and that they would be "sorry" about their action soon. 11 Conner testified, at first, that he had had no specific knowledge, before the meeting, of the proposals which the employees intended to present. The record establishes, however, that he had, in fact, received a brief summary of the proposals from Watson. 12 Several words are stricken at this point. Examination of the document indicates that they were probably stricken with the instrument which was used to compose the document. 13 At this point in the original there appears the phrase "and agreed to." The phrase has been stricken. Examination of the document reveals that it was probably stricken with an instrument different from the one which was used to compose the document. 14 The record indicates that the document had been typed, that morning, by an attorney in Tenino. A copy of the proposals appears as an appendix to this report. 1s The conference lasted about 2 hours. - Witnesses for the General Counsel testified, credibly, that Conner reiterated the sug- gestion that the men' ought to deal with him individually-and that he told the -men they ought to know they could not "push" him in the face. PACIFIC POWDER COMPANY 290-7 to change their method of compensation in such a way as to fix their regular rate of pay at the hourly rate requested." In addition, however, it would appear that the employees agreed to waive their request for fixed allowances with respect to expenses. At the conclusion of the discussion, after Conner had indicated clearly his unwillingness to accept the major proposals of the employee group, Coen asked his colleagues whether they wished to accept the situation and return to work, or whether they wished to "stand pat" and to insist upon the changes which the superintendent had rejected.18 It was indicated unanimously that the em- ployees wished to press their contentions with respect to the matters embodied in the proposals, and that they would refuse to perform any services for the Respondent until such changes had been made 1° Zimmerman, one of the group, then mentioned a load of dynamite which was scheduled for delivery at a lumber camp in National, Washington, on the following day. Conner stated at once that the load would be delivered on schedule, in spite of any unwillingness on the part of the employees present to continue in the service of the Respondent."' Upon this note the conversation ended.21 In a consultation which followed, the employees agreed, apparently, that Superintendent Conner would probably ask Harry Schoenfeld to deliver the load in question ; it was decided forthwith that some of the employees ought to visit Schoenfeld, to inform him of the action taken by the group, and to solicit his cooperation in the plan to withhold their services from the Respondent. This was done. Schoenfeld received and read a copy of the proposals which the em- ployee group had advanced and heard a report of the conference from which the men had come. He indicated approval of their objective, and stated that he would join them in their concerted refusal to continue in the service of the Respondent, until the proposals were accepted ri On the morning of July 28, Coen, Tobin, and Kirwin stationed themselves at the plant's front gate, prepared to intercept the production employees and to offer an explanation of the reasons for their concerted refusal to continue in the service of the Respondent. It was raining. A preponderance of the credible evidence indicates that Coen, Tobin, and Kirwin approached a number of the cars which attempted to enter the plant that morning, that they exhibited a copy of the proposals to the other employees or that they attempted to do so, and that they reported the unwillingness of Superintendent Conner to accept the proposals, in substance, as a basis for any further negotiations. t "The record contains no indication that he concurred in the proposal with respect to overtime rates for work in excess of 8 hours per day. 18 The record indicates that the Complainants were primarily concerned about the apparent refusal of Conner to accept the proposals calculated to insure adequate repair and maintenance service on the company trucks 19 The superintendent stated that he had asked the men to continue at work pending further discussion , but that they had refused to do so . Although it is clear that the employees in question decided to withhold their services in an effort to induce the super- intendent to accept the proposals, the undersigned is not satisfied, upon the entire record, that Conner offered , in fact, to continue collective negotiations if they remained at work. "The load, in fact, was not delivered on schedule, according to Conner. "The record indicates that the Complainants later met Line Foreman Reinke, that they showed the proposals to him and discussed their conference with superintendent Conner, and that they declared-again-their intention to see that deliveries were halted on Monday. "The record indicates that Watson telephoned Schoenfeld on Sunday afternoon-after the conference-and requested that he telephone Conner Schoenfeld did so, and was asked if he would make the delivery at National. He informed the Superintendent that he did not "want" to do it, and the conversation ended. 290-8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Coen, Tobin, and Kirwin insisted, at the gate, that they did not intend to give the impression by their conduct that a strike had been called at the plant, or that a picket line had been established. Whatever the facts in this connection may be, it is clear in any event that each of the men took occasion to advise the other employees that there would be a meeting of all the employees at noon in Miller Sylvania Park to discuss the situation, and that representatives of the Teamsters would be present to accept applications for membership. Collins, a maintenance worker, who had served, upon occasion, as a driver, was per- suaded, however, to join the group which had decided not to work ; after being advised of the dispute by Coen at the gate, he returned to his home forthwith. The other production and maintenance employees entered the plant.23 Schoenfeld, who was among the employees who reported for work, was asked by Superintendent Conner to make the delivery at National. He refused Conner stated in reply that he "might as well" go home-and Schoenfeld left the plant forthwith 24 . Zimmerman and Evans, in the meantime, went to National, on the basis of a previous discussion, to consult with the union representatives there, and to determine whether the union members would refuse to unload the dynamite scheduled for delivery on the 28th, on the ground that it had been rendered "hot" by virtue of the dispute in which the employees were involved 25 They were referred to the business representative of the union, who advised them that ,their request would involve the union in a secondary boycott, and that the union would not be willing to take such action unless it could be shown that the employees involved in the principal dispute were members of a union which had authorized their concerted action. Zimmerman said Evans then re- turned to report the results of the interview to Coen, Tobin, and Kirwin. These employees, after leaving the front gate of the plant, had driven into Olympia and had filed applications for membership in the Teamsters after inviting two representatives of that organization, Norris and Westover, to the projected meeting at Miller Sylvania Park. They left Olympia to locate Zimmerman and to secure his report on the course of events at National. While on their way past the plant, they were passed by one of the trucks owned and operated by the Respondent. A company employee unknown to the Complainants, who had never made deliveries for the Respondent before, was at the wheel, and Conner was at his side. One of the three employees, whose identity is not re- vealed by the record, flagged the truck as it passed ; and the driver halted it, in response to the signal, within a short distance The Complainant's car, which was being driven by Coen, halted also, and Kirwin alighted. While the latter walked back to the truck, Coen drove some distance down the highway to a point at which the car could be turned, and then drove up behind the truck. In the meantime, Kirwin had asked the driver of the truck, Joe Beinick, to describe the contents of the truck and its destination. The information was provided by Conner. One of the other Complainants, who had now arrived on foot, inquired as to the identity of Beinick. When the latter was identified, one of the Com- 23 Superintendent Conner, who reached the plant at some time after this incident received a report from Case House Foreman Phillips that the drivers and the mechanic had asked the other employees not to go to work. Upon the entire record, the undersigned ii not satisfied that this report was accurate 24 Conner testified, vaguely, that he could not recall his remarks to Schoenfeld, and then stated that he had told the man it was up to him-and that Schoenfeld had left the plant of his own flee will The undersigned finds this version of the incident unworthy of credit 11 The union is not reliably identified, in the present record ( - 1 PACIFIC POWDER COMPANY 290-9 plainants referred to the fact that the regular drivers of the Respondent had agreed to withhold their services, and suggested that Beinick, as a member of the Teamsters, ought not to drive in their place. Conner then volunteered to take the wheel. No objection was raised with respect to this suggestion. The conversation ended, and each of the parties proceeded on its way: At the plant, the action of the drivers and the maintenance man had, aroused considerable discussion among the employees. This discussion had been reported to Conner before he left for Tenino There is no indication that he expressed an intention to take any action in that connection at the time. After the incident on the highway, however, and upon his arrival at the Tenino office, Conner called the plant, and advised Line Foreman Reinke that he intended to address the employees in regard to the situation. He asked the latter to notify them of his intention. Thereafter at or about the time of the regular noon recess, the employees were called to a meeting in the lunchroom, at which the superintendent related the circumstances under which the proposals of the dissatisfied employee group had been presented to him on the previous day and read the document which he had been given by these employees ." He told the men that the Complainants had threatened to "close" the plant, and went on to express the opinion that the absent employees had demonstrated a preoccupation with selfish interests by the presentation of proposals which demonstrated their failure to consider the welfare of the production employees, and by their refusal to continue service in connection with deliveries. He characterized the action of the drivers as a strike, and expressed the opinion that their action was illegal because it had been taken without any sanction by a labor organization In closing, he referred to the meeting scheduled by the Complainants at noon in Miller Sylvania Park. Although the record reveals a conflict as to the substance of his remarks in this connection, the undersigned finds that Superintendent Conner, in substance, ad- vised the employees that they might attend the scheduled meeting if they wished, but added that the Complainants-characterized as "troublemakers" in his speech-were "through" at the plant, and that any employees who attended the meeting would indicate their desire to associate themselves with the Complain- ants by that act. 26 The testimony with respect to this incident is sharply in conflict-and the recital given above represents a reconciliation of the aN ailable evidence in the light of the probabilities . The undersigned finds no logical basis for the conclusion that Beinick halted the truck voluntarily, as the Complainants contend On the other hand, however, it is clear that the action of the person who "flagged" the truck could not coerce its occupants, since the car had already passed the truck. There is no indication that the car had been driven in such a way as to block the highway. Upon the entire record, the undersigned concludes and finds that one of the Complainants "flagged" the truck, but that this action was a gesture-in the figurative sense-and that the truck was stopped by Beinick for reasons not apparent in the record, which probably arose out of curiosity. The testimony of Beinick to the effect that the demeanor of Tobin, Kirwin, and Coen gave him the impression that they inight resort to violence is not credited He was a vague, erratic , and unconvincing witness, whose testimony is not supported by that of Conner in this connection Upon the entire record, the undersigned finds that Tobin, Kirwin , and Coen attempted to induce him by fair persuasion , to withhold his services as a driver, in support of their concerted action--and that Conner's assumption of the responsibility, which was calculated to eliminate the need for a decision by Beinick, was acceptable to them Z' Connor testified, at first, that he had spoken to the employees before his departure for Tenino His later testimony and that of Line Foreman Reinke , however, establishes that the meeting in the lunchroom was convened after his return. 290-10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The statements of Superintendent Conner, and the discussion which followed, took substantially all of .the regular luncheon period 2' When the meeting ended, therefore, most of the men returned to work. No one, it would appear, ever left the plant to attend the meeting at Miller Sylvania Park. Coen and the regular drivers , in the meantime, had repaired to the park, according to plan, with two representatives of the Teamsters, Norris and West- -over. They were joined by Collins and Schoenfeld . Zimmerman, Evans, and, Collins, who had not had a previous opportunity to meet the union representa- tives, filed application for membership in the Teamsters . None of the other. -employees were present . At 1 p. in., the entire group repaired to the plant to -confer with Superintendent Conner. Upon their arrival at the plant gate, the party found it locked. Norris and Westover, however, clambered over the foot-traffic gate, already mentioned ; they were conducted to the superintendent, in the office, by an employee. In the course of a lengthy conversation they were advised by Conner that the Com- plainants had been discharged that morning. Norris communicated this infor- mation to the Complainants, at the gate, in the presence of Conner 23-and .suggested in a private conversation with the group that they ought to ask for reinstatement under the terms and conditions then in effect. He advised the men, in substance, that the Teamsters could do nothing for them until the Respondent had acknowledged their status as employees, and suggested that the union would be able to act on their behalf after their reinstatement had been assured. Coen, on behalf of the group , then requested reinstatement , without qualification. It was refused. Superintendent Conner then stated that the men would be required to turn in company papers and property in their possession and draw their final check; he went on to say, by way of conclusion, that any employee reinstated would have to start "from scratch" as a new employee. He indicated, however, that he Would be willing to confer with the employees, at their request, on the following day in Tenino and to discuss their "hire" again at that time. The Complainants thereupon left the premises ; 3" several stopped at the office, however, and received their final checks. Early in the afternoon of the following day the entire group reported at the Tenino office. Superintendent Conner informed them, however, that most of the production and maintenance employees had indicated their resentment at the action taken by the Complainants ; he stated that he had received a reliable indi- cation that many of these employees would leave their employment if the Complainants returned, and went on to say that he had communicated with other officials of the Respondent in this connection, and that they had advised him not to reinstate the Complainants, under the circumstances.31 "Various witnesses for the Respondent , and Superintendent Conner-when called as a witness by the Respondent-testified that the meeting ended before the regular luncheon hour at the plant Testimony which the undersigned credits, however , including a flat admission by employee De Graw, indicates that it was held at noon , and this conclusion Is supported by testimony to that effect by Conner at the outset of the hearing, when called as a hostile witness by the General Counsel. Nathaniel Smith, a witness for the Respondent , testified that he "smoked a few cigarettes and took a little rest " after the meeting ended , which he certainly would not have done if the meeting had ended before the start of the regular lunch period at the plant. 20 This was the first information that the regular drivers, Collins, and the mechanic had with respect to the action of the Respondent. 30 Coen, according to the record , had to secure' the, assistance of Watson in removing his tools , which weighed approximately 500-600 pounds 31 The records of the Respondent indicate that 2 loads were dispatched on Tuesday- the load to National , delivered by Reinke , and a second load delivered by Joe Dean, Jr. PACIFIC POWDER COMPANY 290-11 Shortly thereafter , on a date which does not appear in the record , the dis- chargees consulted an attorney in Olympia , with regard to the action which they might take to secure reinstatement 82 Sometime later, the initial charges in the ,instant case were filed. 2. The October discharges The charges were investigated informally , shortly thereafter , by an agent of the General Counsel-and in September, about the 26th of the month , the man- agement of the Respondent determined to offer reinstatement to the Complain- ants. Notices , couched in language customarily used by the Board, were dispatched to each of the dischargees . The notices proclaimed the intention of the Respondent to refrain from interference , restraint, or coercion with respect to the rights of the employees, its intention to offer the Complainants immediate and full reinstatement to their former or substantially equivalent positions with- out prejudice to any seniority or other rights and privileges enjoyed, and its intention to refrain from discrimination in regard to the hire or employment tenure, or the terms and conditions of employment , of any employee because of his union membership or activity on behalf of any labor organization . The notice contained the further declaration that : WE WILL as soon as mutually convenient discuss and enter into negotia- tions with said employees or their representatives to determine any loss of wages they or any of them may have suffered by reason of any act of ours which may be determined to have been in violation of said Act. Copies of the notice were dispatched by registered mail, on September 27, 1947, to each of the discharged employees-and a copy was posted by Line Foreman Reinke in the lunchroom at the plant. Coen and Kirwin , who received their copies of the notice on the 27th, at the Tenino post office, consulted an attorney on the following day with respect to the procedure they ought to follow in connection with their return . They were advised to await receipt of the notice by the other dischargees , and to present themselves for reinstatement in a body. On Monday, September 29, Superintendent Conner called a second meeting of the production and maintenance employees , at about 11 : 30 a. in., to discuss the reinstatement of the Complainants . The record establishes that he referred to the notice which had been posted in the lunchroom , that he read a copy to the employees , and that he reaffirmed the intention of the Respondent to reinstate the Complainants without prejudice . His announcement was followed by a general discussion, in the course of which several employees indicated dissatisfac- tion with respect to the reinstatement of the discharged employees. Someone suggested that the production and maintenance employees ought to organize a group of their own, and Milton Phillips , the Case House leadman, asked forthwith On the 30th , 3 loads were dispatched . In every case , these loads were delivered by persons normally assigned to other work in the plant . The record indicates that permanent replace- ments for the employees discharged were not hired until some time thereafter. 32 Early in August, also-on a date which dogs not appear in the record-the dischargees presented a formal complaint about the trucks and the conduct of the Respondent, to a representative of the Interstate Commerce Commission . Within a short space of time thereafter-and presumably within the first 2 weeks of August-representatives of the Commission conducted a personal inspection of the equipment at the plant , and the com- pany records . The present record does not reveal the extent of that investigation or the nature of the findings made-although Conner and Watson as witnesses did admit that the records o,[ the company revealed substantial violations of the regulations with respect to hours of riork for drivers. 290-12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if "plant rule" would be acceptable to Superintendent Conner. Upon his indica- tion in the affirmative, the men proceeded to discuss the organization of a repre- sentative committee and Conner left the meeting.' In the meantime, all the Complainants, with the exception of Coen and Kirwin, had received their notices of reinstatement in the mail. Thereafter, in the evening, they met as a group with Norris and Westover of the Teamsters, and an attorney, at the Olympia Labor Temple, to discuss the procedure which they ought to follow with respect to reinstatement. It was agreed that .Norris and Westover would accompany the men on the following day, and several of the dischargees offered suggestions with respect to the contract which Norris and Westover expected to negotiate in their behalf. On Tuesday, the following day, the Complainants, accompanied by Norris and Westover, reported at the plant in the morning. The entire group was received by Superintendent Conner in the office, after some delay. Without the civility of a greeting, he subjected the Complainants to a silent, "stony," antagonistic stare for several minutes, and finally broke the silence with the comment that he "took" it the men had received their notices of reinstatement ; he advised the men that they were being reinstated without prejudice. Norris, on behalf of the group, then acknowledged that the Complainants had returned to resume their old employment, and went on to declare that he and Westover, as the representatives of the group, were prepared to negotiate an agreement with the Respondent in regard to their wages and hours, and the conditions of their employment. Conner asked if they had come with a written proposal. When Norris replied in the negative, Conner indicated that, under the circumstances, there was nothing to discuss ; the union representative, however, indicated that they could prepare a proposal in short order. A period of silence, during which Conner continued to glower at the group, ensued. It was broken by a comment on the part of Norris that the Complainants expected full compliance with regard to the regulations of the Interstate Commerce Commission in connection with their employment. Conner did not reply ; whereupon Norris inquired directly as to whether he intended to operate in accord with the regulations of the Commission. Conner, by way of reply, snapped out, "What the h-l do you think I am, a kid?" and the subject was dropped After a conference outside the office, in which the men selected Coen as their shop steward and in which the representative of the Teamsters advised the Complainants to resume their employment while awaiting the negotiation of a collective agreement, Norris and Westover made arrange- ments with Superintendent Conner to return on the following day with a set of specific proposals ' The union representatives then left. Conner continued to glower at the men for several minutes-and finally in- formed them that the "drivers" among them would have to secure a physical examination in Olympia before the Respondent could permit them to resume their employment" One of the regular drivers requested Conner to identify the 33 The record establishes that the organization of the employees was completed with the election of officers and committee representatives from each of the operational units in the plant There is no indication, however, that the group was ever called upon to func- tion on behalf of the employees, or that it ever sought to negotiate with the Respondent. 34 The record indicates that Conner indicated acquiescence by a nod, but that he did not speak 33 The position taken by Superintendent Conner in this connection represented com- pliance with the requirements of the Interstate Commerce Commission-requirements which had not been observed by the Respondent in the past. PACIFIC POWDER COMPANY 290-13 physician at whose office they ought to report. Conner, however, refused to pro- vide this information, and instead repeated, with obvious irritation, his previous instruction that the men secure a physical examination in Olympia. The group, which included Coen, then moved to the door in a body. Superin- tendent Conner, however, recalled the mechanic with the caustic question, "Are you a truck driver?"-and upon the latter's reply in the negative, instructed him to remain. After several minutes in which Conner continued to glower at Coen, the latter broke the silence with the observation that he had reported for rein- statement ; he requested instructions. In response to a question by Conner, he indicated, however, that he did not have his tools ; he was instructed forthwith to bring his tools to the plant-and left at once in order to do so, using Zimmer- man's car. The regular drivers and the relief drivers, who had gone to Olympia, returned at approximately 12: 30 p in.; they reported immediately at the lunchroom and awaited instructions. Coen, who had returned with his tools, was also present. one of the men received an assignment, however ; Superintendent Conner, at about 1 p m., instructed all the Complainants to prepare a time slip for the morning hours, and to report for work the following day. The record, with one exception, contains no evidence as to the activities of any Complainant during the atternoon. As to Coen, however, it indicates that be spent some time in the Teamsters' office, conferring with union representatives in regard to the contract which they planned to present, and that he proceeded thereafter to a garage in Olympia at which he had been employed before his recall by the Respondent. There, while engaged in some repair work on Tobin's own car, Coen sustained an injury to his eye-and later, in the evening, called Watson to report that he intended to see a doctor and would not be at work on the following day3° On Wednesday, the 1st of October, the regular drivers reported for work, in accordance with the instructions of Superintendent Conner. They were accom- panied by Collins.' The superintendent, according to credited evidence in the record, refused to greet the men on their way to the lunchroom Shortly after their arrival, however, he summoned Collins and assigned hum to the mainte- nance shop, where he was asked to do the same type of work as that which he had done at the time of his original employment. The regular drivers were permitted to sit in the lunchroom to await an assignment 38 Shortly after the day began, Watson came to the lunchroom and called out two men who had been hired as drivers during the period in which the regular drivers were absent. The record indicates that these men were assigned to load a truck or trucks for delivery. It was not until 10. 30 a in., however, that Kirwin and Evans received an assignment ; 3° then they were asked to deliver a load to Packwood, Washington, "The record indicates that he spoke to Zimmerman also , and that he requested the latter to convey this information to Watson in person 37 Schoenfeld and Coen, however, did not report 38 Although the record is not entirely clear, it would appear that the reinstated employees encountered several production workers in the lunchroom, and that all of these workers left after one had stated that "it stinks in here" after observing their presence Employee De Graw who heard that statement made, testified that it was probably made because he and some of the other production workers gave forth an order which originated in their place of work. The undersigned finds this apologia unworthy of credit 31 The record establishes that it had never been the practice to keep drivers waiting for an assignment on the premises so long-and that the drivers had usually been given other work around the plant while waiting for a load The Respondent offered no explanation for its change in policy, at the time , or in the instant case. 290-14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the "mule." They left at once.4p At 11: 30 a. m., Tobin and Zimmerman were assigned a load to be delivered at Mill City, Oregon, on Truck No. 9; they received specific instructions to deliver the load that evening and to return on the following day with a load to be picked up at Portland.91 The drivers were instructed by the superintendent that they were to operate the trucks to which they were assigned on 4-hour shifts, that their daily driver's log ought to reflect the actual conditions encountered in connection with the delivery, and that they were to return all papers, money, and credit cards to the watchmen who would admit them if they returned after hours.42 In the meantime, at 10 a. m., Norris and Westover reported at the plant with a written contract proposal on behalf of the drivers and the truck mechanic. Conner came in at 10: 45 a. m. An extended discussion with respect to various provisions ensued ; 42 at the conclusion, it was agreed that Superintendent Conner, who had made no definitive commitments, would confer with other officials of the Respondent in regard to the proposals made, and that he would advise the union representatives thereafter, as to the reaction of the management." For reasons to be detailed herein, however, there have been no further contacts between officials of the Respondent and the union representatives. 9° Their testimony indicates that the tires of the truck carried less air pressure than usual and that they had to drive it for about 14 miles at a very slow speed before they had an opportunity to inflate the tires properly. Witnesses for the Respondent, however, testified that the air compressor at the plant was in good condition, and left the implication that Kirwin or Evans could have inflated the tires properly at the plant before their departure. The undersigned credits their testimony in this connection. The undersigned was asked to take judicial notice that the load on this particular truck- which included dynamite and mechanical caps-was unsafe and illegal under the safety regulations of the Interstate Commerce Commission. No regulation was cited, however, and the undersigned finds no regulation relevant in this connection. 41 The use of 2 men on each truck represented a clear departure from previous practice. While some basis for the change in policy might be warranted in the case of the delivery at Mill City, 200 miles from the plant, the Respondent gave no reason for the change at the time-nor did it do so at the hearing. The undersigned can find no logical basis for the assignment of 2 men on the truck for Packwood, which was only 95 miles away The record indicates that the Respondent returned to a system of single assignments after the drivers were separated for the second time The issuance of specific instructions to Tobin and Zimmerman , with respect to the time of delivery at Mill City, also represented a departure from previous practice. ' No reason for it was given by the superintendent. 42 The orders of the superintendent with respect to the return of all delivery papers, money, and credit cards, and the failure of Conner to supply the drivers with a key to the plant gate, represented variations from previous practice. Frank White, the designated watchman, testified on direct examination that he was ordered to enforce these rules as to "these here" drivers only No reasons for the variations in procedure insofar as they affected the regular drivers has been offered. While the record supports a conclusion that strict accuracy in the use of the daily log had not been required previously, the undersigned will make no finding herein that the requirements imposed in October with respect to the use of the log were arbitrary or unreasonable. 42 A copy of the proposed agreement is appended to this report. 44 Superintendent Conner testified that the discussion resulted in a tentative agreement on certain changes in the proposed agreement, and that the conference ended with an understanding that the union representatives would have the revisions incorporated In a second draft and submit it for transmittal to the management of the Respondent. Upon the entire record, the undersigned finds no merit in this version of the conference. The union representatives, according to the record, raised no question as to the amount of back pay due the Complainants, and Conner volunteered nothing in this connection. The record indicates that the subject has never been discussed by the Complainants or their representatives with representatives of the firma PACIFIC POWDER COMPANY 290-15 At 10:30 p. in. on Wednesday, Kirwin and Evans returned to the plant96 Having been deprived of the keys to the inner gate, they were forced to await their admission by the watchman, and they were in fact admitted after some delay. Pursuant to the instructions previously received from Superintendent Conner, the delivery tickets signed by the customer, the credit cards, ' and the daily logs they had completed were turned over to the watchman. Kirwin, however, refused to return the unexpended funds, which they had, received for expenses, without a receipt, and the watchman, Frank White, agreed that Kirwin might hold the money until the following day. Also, on the evening of October 1, Coen, who had not reported for work, telephoned Watson to ask whether he would be required to return on the following day. Watson, however, did not acknowledge the question ; he informed the mechanic that he ought to submit a written resignation if he did not intend to return. Coen agreed to do so, whenever he "made up [his] mind" to resign. On the following day, at 7: 30 a. m., Coen reported for work with his tools and communicated at once with Watson, who was in the stockroom. Coen asked if there was a place in which he could keep his tools; Watson replied in the affirmative. Coen then asked where he would be expected to work ; Watson, with a dramatic gesture, indicated the open area outside of the stockroom door-which was currently marked with puddles of muddy water and misted by rain-and stated in loud and determined tones that the mechanic would have to work "out there" as before. Watson then indicated a cabinet in which he would -be permitted to keep his tools, but advised him that the cabinet would be kept under lock and key by the Respondent, and that he, the mechanic, would not be permitted to keep the cabinet under lock and key himself-which he had pre- viously been permitted to do.46 Coen did not receive any keys for the plant gate or the boiler room, keys which he had carried in his previous period of employment. He then inquired as to the disposition to be made of some tools and overalls then in the cabinet and Watson advised him that he could remove the tools to make room for his own A7 When Coen protested the circumstances under which he would be required to work, Watson, according to Coen's credited testimony, stated, "Well, you can put your tools in there and you can work out there, or you can go home." Coen's testimony, with respect to his response, reads as follows: Well, I said, "Joe Stalin himself wouldn't ask a man to endure those conditions." "Now," I said, "when you get a place for my tools give me a key to the gate and put me back to where I was without prejudice, give me a ring.,' He left the plant at once and has since performed no services for the Respondent. 41 In the meantime, during the afternoon, Truck No. 10, with Brown and Owens, had been dispatched to Wolf Creek, Oregon, and San Francisco, California. Allen, another new driver, took a load to Portland on Truck No. 7. '° Coen testified, without contradiction, that be had about $1,000 worth of tools which he would have had to keep at the plant. The record shows that he had been permitted to keep his tools under personal lock and key in every previous employment. 17 Coen contended at the hearing that any such action wound run counter to the ethics of the trade. The Respondent apparently contends that there were no tools or clothing in the cabinet at the time, except for some heavy duty tools owned by the company. The mechanic who had replaced Coen in August-as noted elsewhere in this report- testified that he had removed his tools and clothing after being laid off on September 30. Upon the entire record, the undersigned finds that this mechanic was not "laid off" when Coen returned, and credits the testimony of Coen that some clothing and portable tools were in the cabinet on the 2nd of October 290-16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the meantime, at 8 a. m. on the date in question, Kerwin and Evans, accom- panied by Collins and Schoenfeld, reported for work. Collins, it would appear, proceeded at once to the assignment which he had been given on the previous day. The others, however-in conformity with their previous practice-proceeded to the lunchroom to await an assignment . Shortly after the start of the day, Super- intendent Conner summoned Schoenfeld to a conference in the stockroom and inquired as to his whereabouts on the previous day. Schoenfeld replied that he had been ill, to which Conner responded immediately with the observation that he was a "g- d- liar," and that he had been seen on the previous day in a local tavern. This was denied by Schoenfeld. Superintendent Conner then taxed him with his failure to telephone; Schoenfeld, who had no telephone at his residence, replied that if he had been well enough to reach a telephone he would have been well enough to work. At this point, then, the superintendent abandoned the discussion and ordered Schoenfeld, angrily, to get to work. This, however, the latter did not do Instead, he indicated to Conner that he found his attitude distasteful, that he did not believe he ought to work in the face of obvious indications, that his presence was resented and that he intended, therefore, to resign. Conner's rejoinder, "Well, %vhy don't you go home?" was matched at once by Schoenfeld, who answered, "By gosh, maybe I will." He left the plant forthwith. At or about the same time, also, Superintendent Conner sought Kirwin and berated him about his failure to return the expense money in his possession and about an allegedly erroneous entry in his daily driver's log. Kirwin prepared a log to conform to the instructions of Conner, and submitted it forthwith Pur- suant to the intentions of Conner, he returned the money and received a receipt. At 10: 30 a. m., after something over 2 hours spent in the lunchroom without an assignment, Kirwin and Evans were informed by Superintendent Conner that a load which he had expected Kerwin to take to Eugene, Oregon, was not yet ready for shipment He suggested that they leave and return on the following day. Kirwin, however, took advantage of the occasion to report several alleged mechanical defects in the "mule" which he and Evans had noted on the previous day; he suggested that they ought to be "fixed" before the truck was used. Conner, however, replied that the maintenance and repair of the truck was a matter for which he was responsible " Kirwin and Evans then left the plant" At noon of the date in question, Superintendent Conner was approached by Collins, who pointed out that the Respondent had agreed to reinstate him without prejudice and stated that he had considered this commitment to include a promise that he would be restored to work as a driver. Conner insisted, however, that his principal experience in earlier employment had been that of a maintenance mechanic and stated that the Respondent regarded him as a relief driver only, subject otherwise to assignments elsewhere in the plant. Collins declared, in reply, that the attitude of Superintendent Conner represented a failure on the part of the Respondent to abide by the commitment to reinstate him withn'it prejudice, and left the plant forthwith. 48 Conner, when called as a hostile witness, could not recall any conversation with Icirwin about his log or in regard to the condition of the truck. 49 Company records show that Brown and Owens, two new drivers. had taken out a load at 9 , a. in. and that Truck No. 7, a 1946 Chevrolet, left for Kosmos, Washington, at some time on the 2nd of October,, in the custody of a driver who had been assigned to that work in the absence of the regular drivers. Conner 's testimony indicates that the load was dispatched at 2 p. M. PACIFIC POWDER COMPANY 290-17 Later, in the course of the afternoon, several of the persons involved in these events got in touch with the Portland office of the Interstate Commerce Commis- sion. Tobin and Zimmerman, pursuant to instructions, had stopped in Portland at noon to take on a load for delivery at Tenino, and while Tobin stayed with the truck and supervised the loading operation, Zimmerman, according to his credited testimony, visited the office of the Interstate Commerce Commission in person- Analysis of the record indicates that his purpose in doing so was to determine the propriety of Conner's instruction that the responsibility for driving the truck on a lengthy trip should be divided in 4-hour shifts. His report of the interview, at the hearing, contained no reference to any observation by representatives of the Commission, as to the propriety of a 4-hour shift. He was advised, however, that both members of a two-man crew, on trucks without a berth, carried equal responsibility for the operation of the vehicle, whether the particular member was a driver or a rider at the time." In addition, although the record is not entirely clear, it would appear that Superintendent Conner , telephoned the regional office of the Commission on Thursday afternoon. A preponderance of the evidence indicates that he ques- tioned a representative of the Commission as to the availability of an inspector to determine the condition of the Respondent's trucks. He was told, according to his undenied and credited testimony, that the Commission maintained a limited number of inspectors in the area, that inspectors could not be sent out on demand, and that the Respondent and its drivers would have to share responsi- bility for the condition of any trucks which the Respondent might choose to use in meeting its delivery schedules. Kirwin, who had been advised that he would have to take a load to Eugene on the "mule," which he and Evans had previously driven to Packwood, Wash- ington, also telephoned the Portland office of the Commission to inquire as to whether he was obligated to make deliveries on a truck alleged to be defective, in accordance with the requirements of the Respondent. His undenied and credited testimony indicates that a representative of the Commission approved his action in calling the alleged defects of the truck to the attention of Super- intendent Conner, and informed him that he might properly refuse to drive a defective truck, but went on to advise him, however, that he ought to report for work on the following day since the Respondent might have decided to fix the truck or to send him out on another. After the return of Tobin and Zimmerman to the plant, which occurred that evening, the regular drivers conferred at Zimmerman's home, exchanged infor- mation as to the condition of the trucks which they had driven, and determined that they would refuse to make any deliveries thereafter until assured that sufficient work had been done on the trucks to enable them to meet Interstate Commerce Commission standards 61 When Kirwin and Evans reported for work on the morning of the , following day, the 3rd of October, Superintendent Conner ordered Kirwin to drive the so Zimmerman was told, apparently, that time spent on the truck as a rider was to be counted as "driving" time and not as time off duty. 61 Kirwin , in cross-examination , testified that the men agreed not to drive the trucks until they were inspected by a representative of the Commission Subsequently, however, he stated that the men had agreed to withhold their services until the trucks had been serviced and placed in sufficiently "good condition" to warrant an "OK" by the Commis- sion. Upon the entire record, the undersigned finds that Kirwin's later testimony reflects the actual decision of the men more accurately than his apparent "admission" in early cross-examination. 290-18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "mule" to Eugene; he also ordered Evans to hold himself available for a trip on Truck No. 9, the 1946 Chevrolet, to an unspecified destination . Kirwin, after inspecting the truck, refused to take out the load on the "mule" as ordered, on the ground that it was not in sufficiently good repair to meet Interstate Com- merce Commission standards with respect to highway operation-and Evans refused to take out Truck No. 9 on the basis of information received from Tobin and Zimmerman with respect to its condition .52 He did not repeat the informa- tion he had received. The discussion in this connection was not extensive; Conner informed both Kirwin and Evans that if they were not prepared to take out the loads to which they had been assigned they might "just as well" go home. Accordingly, Kirwin and Evans left the plant . The record shows that they met Tobin and Zimmerman at the gate and that they informed the latter of the events which had led to their departure. In any event, it is indicated that Conner asked these drivers also to make the delivery at Eugene," that they refused to do so on the ground that the trucks could not meet Commission standards, and that they received instructions similar to those given Kirwin and Evans, from Superintendent Conner. They left the plant at once." Com- pany records indicate that the Respondent made five deliveries on that day. Truck No. 9 which Evans had been asked to drive, made a delivery to the maga- zine of the Respondent in Portland, driven by a worker named Allen who had been hired as a regular driver during the period in which the Complainants had been absent. Trucks Nos. 5 and 7, which had not been offered to any of the regular drivers, were dispatched to points in Washington and Oregon in the custody of drivers who had been transferred from work in the plant in the absence of the Complainants. Truck No. 1 was dispatched with a load to an unspecified destination-and the "mule" was finally dispatched to Eugene, Oregon, late in the evening of October 3 or early on the following day, in the custody of a man who had been hired as a driver in September of 1947. On the following day, a Saturday, the regular drivers again reported for work. Upon their arrival at the plant gate one of them hailed Watson and asked if any of the trucks were "in shape" to go out`s Watson replied in the 52 Superintendent Conner contended that the drivers based their refusal to drive on the fact that representatives of the Interstate Commerce Commission had not inspected the trucks The undersigned , upon the entire record, finds no merit in this contention. 53 Tobin testified , in direct examination , with confirmation by Zimmerman , that he had engaged in a general discussion with Superintendent Conner immediately after his arrival at the plant His testimony indicates that he, Tobin, opened the conversation with a question as to the accuracy of his driver's log, in the light of the information received by Zimmerman at the Portland office of the Interstate Commerce Commission . After some discussion in this connection , Tobin reminded Conner that the Complainants had come back to work "without prejudice" and reiterated the belief that he had previously done good work for the company. Conner acknowledged that he had done good work but went on to say that "you still would be if you hadn't got your d- a- In the wrong rut." Tobin protested that his actions had been proper-and Conner replied with the observation that he had never known how to do a day ' s work and that if he was, not at work in the plant he ought to get his "g- d- a-" out of the plant and keep it out. Tobin's testimony with respect to the conversation has not been denied or contradicted. " Conner testified that he had not responded to the refusal of the drivers to make the delivery at Eugene ; he contended that he had merely gone about his work, and that the drivers had left the plant . Any attempt to attribute such a course of conduct to the superintendent and the drivers presupposes a drastic change in their previous attitude; the undersigned finds it unworthy of credit. 61 Several witnesses for the General Counsel testified that Watson had been asked whether any trucks were "ready" to go out-while Watson stated that he had been asked whether the trucks had been inspected , as yet. Evans did admit , in cross-examination, that the drivers inquired-after several days-as to whether a representative of the Commission PACIFIC POWDER COMPAN'Y' 290 -19 negative';'the drivers then left the premises of the Respondent. No-one reported' on the following day, a Sunday, although the records of the company' indicate' that Truck No. 5 was dispatchediwith' a load to Kalama, California, in'the cu'stody' of Joe Denn, Jr., and Joe Beinick, on that date. On 'the 6th of October, when the drivers again reported to ask' whether ' any trucks were "in shape" to go out, Watson replied, as before, in the t negative, although the record ^ shows that Truck No. 10; the' 1947 Chevrolet,' went 'to Brothers, Oregon [sfe] on'that date, presumably in the custody of''Brown and' Owens. The incident was repeated on Tuesday the 7th of October, at which, time' the drivers were informed again by Watson that there were'no triicks "`in sliape" ' to go out on that day. In fact, Truck No. 1" the 1941 Chevrolet, was driven by employee Allen, with a load,, to Mineral, Washington " Upon the record,' it'would appear that Tobin; Zimmerman, Kirwin, and Evans'made no further effort to' seek employment with the Respondent. C. Conclusions . 1. The July discharges and the refusal to reinstate The Complaint alleged, and the General Counsel contends, that the Complain- ants were discharged on July 28, 1947, and that the Respondent refused them reinstatement thereafter. The Respondent, in its answer, has denied both allegations and contends that these employees left their employment voluntarily; in'its brief, however, the Respondent concedes that it did refuse "to accept them back as employees" on the date in question. A fair analysis of the record'*ill support the conclusion that the Complainants were discharged on the 28th of July, and that the action of the Respondent in this connection was more than a tactical maneuver-and the undersigned so finds 67 A determination of the instant case, however, need not rest upon this conclusion only. The discharges, which appear to have been effective at the start of the working day, were not made known to the employees-with one exception-until their return to the plant in the afternoon. Their offer to resume work under the terms and con- ditions which had prevailed in the past, and the refusal of the Respondent to reinstate them, occurred within a very short space of time thereafter. In fact, therefore, the Respondent did discharge and refuse to reinstate these employees on the date alleged, as charged by the General Counsel. Any attempt to differen- tiate between the various elements in the course of events must be dismissed as a barren exercise in semantics. It is sufficient in the opinion of the under- signed, to say that the Respondent dispensed with the services of these em- ployees, on the date in question, in circumstances which raise a question as to whether its motives involved a violation of the Act. The General Counsel contends that the Complainants lost their employment because they had engaged in concerted activity incidental to the achievement of a had been at the plant to inspect the trucks ; he testified , however, that the inquiry had been prompted by a statement of Kirwin, after his call to the Portland office of the Com- mission, that an inspector would be sent to the plant. Upon the entire record, the under- signed believes and finds that the initial inquiry of the drivers was intended only to determine whether the trucks had been repaired and serviced by the Respondent. ac Two additional loads were carried from Tenino to Portland in a truck which the Respondent owned but which it regularly assigned to the Portland area-the utilization of which is not directly relevant in connection with the instant case. 57 Counsel for the Respondent , in cross-examination on one occasion, cited the action of Superintendent Conner in issuing final checks to the men as a type of action typical in cases of discharge 853396-50-vol. 84-21 290-20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective bargain and other mutual aid or protection, and because of a desire on the part of the Respondent's superintendent to discourage membership in the labor organization which they had formed in that connection. The under$igned. finds merit in both of these contentions. Clearly, it-may now be taken as datum that the voluntary association of employees for the preparation of demands to be served on their employer in regard to their wages, hours, and conditions of work, and the participation of such employees in a conference with representatives of their employer at which these demands are discussed, represent types of con- certed activity which the Act was designed to protect The law and the cases, also, clearly support the conclusion that employees who act as a gi oup for the purposes outlined in the statute constitute themselves, thereby, as a labor organization within the meaning of the Act. Counsel for the Respondent, indeed, does not deny that the activity of these employees, in connection With the prepara- tion and presentation of their proposals, represented concerted activity within the purview of the Act, or that the employees involved in such concerted activity constituted a labor organization, in the statutory sense. Instead, it is argued, in effect, that the Respondent recognized the right of the employees to concern themselves with such matters, to associate themselves for the effective presenta- tion of their views, and to discuss their mutual concerns with a representative of the management-and that it did so by the action of Superintendent Conner in attending a conference at the request of the employees, freely discussing their proposals in full, conceding the justice of their proposals in certain respects, and requesting them to stay at work pending further negotiations. 5e The Respondent goes bn to argue, then, that it dispensed with the services of these employees in July because of the misconduct on their part which followed the conference at which the representative of the Respondent had made its position known The brief of its counsel in this connection reads as follows : A fair analysis of the situation shows that these men . . tried to ac- complish their purpose through a show of violence in trying to tie up the trucks and resorting to an attempted secondary boycott for that purpose, and . . . so conducted themselves as to gain the ill will of the other em- ployees of the plant and make it dangerous to retain them at a plant of the character of that operated by Respondent It is submitted that the ill will which arose against these particular employees was the result of their pro- ceeding without discussion with any of the other employees in the plant or consideration of them in trying to tie up the plant and of their precipitous action and peremptory demands in so doing. These men were not discharged by reason of the fact that they embarked upon a program of concerted action in an effort to bargain with the Company . . . However, when they did at- 58 Superintendent Conner, in an effort to establish his neutrality with respect to the matter of employee organization, testified that the employees regularly met as a group to discuss the problem of safety, and that he had permitted union representatives to address the employees at the plant on Iwo occasions While the record does establish that union representatives were permitted to address the employees on two occasions, the undersigned finds the evidence insufficient to support the conclusion that Conner had ever conferred with the employees, as a group The General Counsel offered testimony, in this connection, that Superintendent Conner- after 1 meeting at which the employees had been addressed by a union representative- started to employee Zimmerman that he would not-be opposed to employee, organization, but that "they" would never get his name on a contract The testimony was offered to establish, the motive for the action of the employee group,tin presenting the proposals without a reference, to outside affiliation-but the undersigned does not consider it probative in that respect. _ 11, PACIFIC POWDER COMPANY 290-21 tempt to ,tie up the Company's plant on'Monday and, accompanied this with threats and a show of violence and created a dangerous disturbance at the Company's plant, it did decline to accept them back as employees of the Com- pany by reason of such conduct on their part, but this conduct was on the part of the employees . . . Under the circumstances the Company feels that there was no violation of the Act on its part at this time, but that in the interest of all concerned and under the law, the action which it took, was proper and jusified. The Respondent does not specify the particular acts of misconduct which motivated its decision to dispense with the services of the employees. An analysis of the record establishes, in the opinion of the undersigned, that its position is not well taken. Tlie'decisioli of the Complainants at 'the Conclusion of their Sunday conference with representatives of the Respondent-that is, their decision to withhold their services until the Respondent indicated its will- ingness to accept the proposals they had made-cannot be considered miscon- duct.38 Essentially, this was, in fact, a decision to strike.°0 The Act, as it stood in July, however, recognized the right of employees to strike, and the mere decla-- ration of an intent to take such action cannot be said to place these employees= beyond the pale of the law's protection Counsel for the Respondent argues with vigor that the employee group had pressed for the immediate acceptance of their "demands" and contends, in effect, that it was the employees who revealed themselves to be both arbitrary and inflexible. The undersigned does not so interpret the facts. The Complainants may have lacked finesse, it is true Thew expectations with-regard to the acceptability of their proposals lna,^ haN e been somewhat naive Their reaction to the blunt rejection of the proposals, in the main, may have been somewhat cv Counsel for the Respondent attempted, in ci oss-examination, to show that the pro- posals of the employee group were designed to promote particular selfish interests, that they were based on imagined grievances, and that they represented an invasion of the prerogatives of management This point of view has not been pressed in the brief-and the undersigned finds, in any event, that the wisdom or propriety of the demands that were made is immaterial c0 The General Counsel contends that Conner's obvious resentment of the action taken by these employees, and his cavalier disposition of the proposals which they advanced indicate it design on the part of the Respondent to interfere with, restrain and coerce employees in the exercise of rights guaranteed by the Act, and that the refusal of the Complainants Jo make any further deliveries, therefore, was the result of an unfair labor practice on the part of the Respondent. The undersigned, upon the entire record, is not prepared to say that this was in fact the case Although Superintendent Conner gave no explicit descriptions of his intention at the time, it would appear that he did, in fact, accept the invitation of the employees to negotiate, although it is clear that he did so without enthusiasm, that he did consider the proposals on their merit-from the Re- spondent's point of view as he understood it-and that he did make certain limited con- cessions, in the course of the general discussion Upon the entire record, therefore, the undersigned concludes and finds that the subsequent decision of the employees to "stand pat" on the proposals and to press for the acceptance of the document as a whole, was indicative of dissatisfaction with the negotiations-and that the decision to withhold their service was, in fact, an economic strike The question, however, is academic The employees were discharged on the day when they acted to implement their decision. And even it it be assumed that they continued to be strikers, it is clear that the strike, as such; was bioken on the afternoon of the (lay when it began, that the strikers made an uncondi- tional offer to return before the Respondent had made any arrangements to replace them, and that their offer was rejected, nevertheless. The law, in the premises, is well settled econonuc strikers who have not been replaced are entitled to reinstatement upon their unconditioned offer to resume the employment which they have forsaken-in the absence of special circumstances, which are not present here ,flatter of Autopert Manufacturing, Company, 78 N. L. R. B . 461, and cases therein cited. 290-22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD extreme The reaction, however, cannot be characterized as so unreasonable, under the circumstances, as to warrant stigmatization as misconduct. ,Anticipation that Schoenfeld might be requested to deliver a load led the regular drivers, and Coen to seek him out and to present their version of the situation. Their action in doing so cannot be described as misconduct. The testimony of Schoenfeld, and the others, indicates that he was given an oppor- tunity_ to inspect .the proposals which had been submitted to Conner and a narra- tive statement of the events which had led to their preparation, together with a description of the way in which the proposals had been received by the super- intendent. Even if it be assumed that the regular drivers and Coen attempted to induce him to refuse the assignment, although the record is silent on the point, there is no indication that the technique employed was other than temperate. There is not the slightest indication that any force or threat of force was used to induce action by Schoenfeld. The conduct of the other Complainants, with respect to him, cannot be described as coercive. Counsel for the Respondent attempted to describe the conduct of Tobin, Kirwin, and Coen, on Monday morning, as an attempt to "tie up" the plant. Upon the entire record the undersigned must reject this characterization as inaccurate. It is true that the Complainants were on strike at the time, in spite of their disclaimers in this connection at the gate, and their presence at the gate could certainly be construed as a picket line. The undersigned is satisfied, however, that they made no effort to persuade the other employees not to enter the plant. The impression, which several witnesses for the Respondent apparently gained, that the strikers intended to "close" the plant appears to be based on an infer- ence-since the effective interruption of deliveries would, of course, bring produc- tion to a standstill." The undersigned, in sum, is satisfied that Tobin, Kirwin and Coen confined themselves to a public announcement of their dispute with the Respondent and a declaration of their own intentions in connection with it. While the declaration that they were not on strike and that they did not intend to picket the premises seems naive, it is patent that their conduct on the occasion in question bore no resemblance to a "dangerous disturbance" of the type suggested by the Respondent. Similar conclusions are appropriate with respect to the action of Tobin, Kirwin, and Coen in "flagging" a company truck on the highway. While the undersigned is satisfied that the truck was halted by its driver on the basis of a signal given by the strikers, there is no suggestion whatsoever that its progress had been impeded by the action of these employees. Upon the entire record, then, the action of its driver in bringing the truck to a halt must be regarded as voluntary. A preponderance of the evidence establishes, to the satisfaction of the under- signed, that the strikers took advantage of the occasion to suggest that the driver, as a member of the Teamsters, ought not to assist in the delivery of company products by truck 02 The action of Superintendent Conner, who took u Conner, apparently, gained the impression that the men intended to close the plant at the Sunday conference. Almon DeGraw, a witness for the Respondent stated, however, in direct and cross-examination, that he had only been told "that the trucks were not going to be allowed to leave the plant," and that this "seemed" to be the "principal" Idea of Tobin, the man who spoke to him. His testimony is confirmed by that of Gilbert Edmunds and Arthur Brown, fellow production employees. Upon the entire record, the undersigned is satisfied that the Complainants did not make any threats to close the plant and that Conner's belief was based on an inference derived from their express inten- tion to halt deliveries only. 62 Although the driver, Joseph Beinick, testified that he relinquished the wheel in the -face of threatened force if he did not do so, his demeanor on the witness stand and the ,general course of his testimony did not impress the undersigned as credible. PACIFIC POWDER COMPANY I ^ 290-23 the wheel, brought forth no objection, verbal or otherwise, on the-part of the strikers. The incident, in its entirety, then, involves but a minor aspect of the -total effort by the strikers to restrict the delivery of company products. The incident at National, which has beeen described as a clear attempt to arrange a secondary boycott was merely that, and nothing more. At the time of the events with which we are concerned, effective boycotts or attempts to cause a boycott were not prescribed by Federal law; no authority has been cited to support the proposition that a mere attempt to arrange such a boycott, by the fair persuasion of the workers involved, was subject to proscription, in equity or at law, in any other jurisdiction. Although the amended Act,- in effect, defines the boycott, when effectuated by a labor organization or its agents-under certain circumstances-as an unfair labor practice, there is considerable doubt, unresolved by any definitive pronouncement, as to whether a mere attempt to induce or encourage other employees, by fair, persuasion, to refrain from handling the products of a struck concern, would constitute an unfair labor practice proscribed by the statute as amended. It is by no means clear, therefore, that the actions of Zimmerman and Evans at National warrant characterization as misconduct sufficient to warrant their discharge or the refusal to reinstate them.83 A review of the events which followed the collapse of negotiations in connection with the proposals of the employee group reveals their participation in a con- sistent course of conduct calculated to implement the demands which had been presented to the Respondent. The proposals of the group involved a set of matters which could properly be the subject of collective bargaining. It cannot be said, then, that the strike or the activities incidental thereto, which followed the rejection of these proposals by the superintendent as detailed above, repre- sented a course of conduct which warrants characterization as illegal or opposed to public policy. The cases do establish that a line exists beyond which the employees may not go with impunity, and under certain circumstances, therefore, misconduct on the part of strikers might well provide a justification for the refusal of an employer to reinstate them. The line, however, must be drawn "between cases where employees engaged in concerted activities exceed the bounds of lawful conduct in 'a moment of animal exuberance' or in a manner not activated by improper motives, and those flagrant cases in which misconduct is so violent or of such serious character as to render the employees unfit for further service." 3' Here, the conduct of which the Respondent seems to complain constituted legitimate concerted action, undertaken by these employees in support of their effort to achieve a collective bargain and for other mutual aid or protection. If, in particular instances, this description cannot be considered entirely apt, then it must be admitted, nevertheless, that the conduct in question was not so extreme as to furnish a justification for the discharge of the Complainants and the refusal to reinstate them-and the undersigned so finds. The Respondent argues also that it refused to reinstate the Complainants be- cause their conduct had aroused the hostility of the other employees, and because the existence of that hostility made it "dangerous" for the Respondent to retain them in its plant. The undersigned finds no merit in this contention. 61 The record contains no indication whatsoever that the action of these employees was known to Superintendent Conner at the time of his decision to discharge the Complainants, or at the time of his later refusal to reinstate them. 44N. L. R. B. v. Illinois Tool Works, 153 F 2d 811, 815 (C. A. 7) Cf. Matter of the Betteher Manufacturing Corporation, 76 N. L R. B 526. 290-24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is no reliable evidence in the record upon which to base a conclusion that the presence of these employees would create a safety hazard. With respect to the existence of hostility among the employees and its possible deleterious effect upon their relationship with the dischargees, it is sufficient to note that the hostility which did exist was the creation of the Respondent, in substantial part. It was the Respondent, by its superintendent, which called the meeting at noon at which the employees were advised of the events which had preceded and accompanied the strike. It was the Respondent, by its super- intendent, which emphasized the fact that the employee group had taken action -without discussion with any production employees and without consideration of their interests. It was the Respondent, by its superintendent, which advised the production employees of the "precipitous" action of the Complainants, and the "peremptory" nature of their demands. By calling the meeting at noon, before the production employees had had any real opportunity to hear the view- point of the strikers, the superintendent made certain that his own views in the matter would be impressed on his audience with all the weight of authority, and made certain also that the men would be unable to attend the meeting of the strikers in the park thereafter. It is contended that the confusion which existed among the employees and their obvious interest in an explanation of the events which led to the strike made the action of Superintendent Conner both advisable and appropriate; it is significant, however, that the superintendent, although fully advised in the premises, took no action before his departure for Tenino, and that he advised Fred Reinke of his intention to call the meeting only after -his initial contact with the strikers on the highway. Upon the entire record, the undersigned does not believe that Conner called the meeting merely to clarify the situation for the production employees. The Respondent also contends, however, that the action of its superintendent is privileged as an exercise of free speech. This position is undoubtedly well taken. Constitutional questions aside, the remarks of Superintendent Conner were clearly nothing more than "views, arguments, or opinions" which contained no threat of reprisal or force or promise of benefit' Any contention that his remarks contained, in addition, a factual report which was calculated to generate ,hostility, and that such factual reporting constituted a "verbal act" outside the purview of protected "free speech" as defined in the amended Act, is clearly without justification in law ; the right to present views, arguments and opinions clearly includes the right to ma.rshall and report the facts upon which the views, the arguments, or the opinions are based. It does not follow, liowever,-merely because the remarks of Superintendent Conner cannot be considered to consti- tute or be evidence of an unfair labor practice-that the Respondent is free to rely upon the consequences of the remark as an element in its defense. It is clear, and the undersigned finds, that Conner utilized the occasion on which he addressed the employees to arouse in them an attitude of hostility to the dischargees which was the counterpart of his own °8 In effect, by speech and ac- tion, Superintendent Conner generated the hostility upon which he later relied as a justification for the refusal to reinstate the strikers. The Respondent cannot be permitted to cite a state of mind which it created and for which it is responsible, as the extrinsic excuse for subsequent action which falls within 65 The undersigned makes no finding, on the present record, that Conner threatened to discharge employees who attended the meeting in Miller Sylvania Park. 66 Arthur Brown, a witness for the Respondent, stated in'cross-examination . "Well, Mr. Conner, you can tell a lot by his face when he is talking, as to how he feels and what he is meaning. He doesn't have to say too much." PACIFIC POWDER COMPANY 290-25 the purview of the Act-and the undersigned, therefore, finds the defense that the refusal to reinstate the discharges was warranted by the hostility of the other employees, to be a defense without merit." Upon the entire record, the undersigned concludes and finds that the Respond- ent, on July 28, 1947, discharged the Complainants and refused to reinstate them because of their concerted action in connection with their efforts to achieve a collective bargain and their efforts to achieve other mutual aid or protection. Concurrently, and in the alternative, the undersigned concludes and finds that the Respondent, by its course of conduct, discriminated in regard to the hire and tenure of their employment to discourage membership in a labor organization. By the aforesaid course of conduct, and by its action in calling a meeting at a time which was calculated to deprive the employees of their chance to attend a meeting of the strikers on their own free time, the Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by the Act. 2. The October discharges a. The offer of reemployment Upon charges duly filed, the conduct of the Respondent in July was investigated, shortly thereafter, by an agent of the General Counsel. It is significant, in the opinion of the undersigned, that the decision of the Respondent to reemploy the Complaintants was reached sometime after the investigator had expressed the opinion to an accredited representative of the Respondent that its conduct on the occasion in question represented a violation of the Act. In spite of this, however, there is no indication in the record that the Respondent made any attempt to dispose of the charges by the execution of a settlement agreement. Instead, it attempted to correct the error by unilateral action-and to this end dispatched to the Complainants a notice couched in terms appropriate to such an agreement. The General Counsel contends that the offer of reemployment implicit in the notice cannot %ie considered equivalent to a genuine offer of reinstatement. Although the matter is not entirely free from doubt, the undersigned finds merit in this contention 08 Counsel for the Respondent argues that its action was taken in "good faith," with the thought that the men "would be back for good" as employees ; it is argued that the Respondent would have taken no action if it had not intended to offer them genuine reinstatement. Counsel concludes with the observation that it would be "ridiculous" to assume that the Company decided to reinstate these employees and that it then embarked, deliberately, upon a course of action calculated to render such reinstatement nugatory. Whatever the merits of this position may be, it is sufficient to note that the action which the Respondent cites was action recommended by its counsel and ordered by its general manager ; it was to be made effective, however, by the action of Super- intendent Conner, who was clearly given full responsibility in this connection 89 The validity of the reinstatement, therefore, must be tested by the good faith of the superintendent, in giving effect to the instructions he received. Upon the entire record it cannot be said that the superintendent, gave the discharged employees effective reinstatement, in good faith, within the meaning of the statute. B' Cf. Matter of Wytheville Knattxng Mills, 78 N. L R B 640, and cases therein cited. w Matter of A. Sartorsus and Co ., Inc., 40 N L. R B. 107, enforced 140 F 2d 203 (C. A. 2). 69 The record indicates that Conner , when questioned about a union contract on the 30th of September, turned to General Manager Dena for advice , and was told , "That is your baby" by the latter. 290-26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon their arrival at the plant on the 30th of September, he received them coldly, silently, and with obvious resentment. His comments with respect to the action of the Respondent were "correct" and formal-yet, when questioned as to his intentions in regard to compliance with the regulations of the Interstate Commerce Commission, his reaction was marked by anger. When pressed for a suggestion with respect to the doctor who would provide the physical exami- nation which the drivers were to be required to take, Conner refused to provide the information requested ; he deliberately left the men in doubt with respect to the willingness of the Respondent to bear the cost of the examination. When Coen, upon the assumption that he was required to take the examination, undertook to leave with the others he was halted by a sarcastic query on the part of Conner, and was subjected to the silent resentment of the latter for several minutes thereafter, before being ordered to leave and return with his tools. While the dismissal of the drivers for the day, upon their return to the plant, might be justified on the basis of the difficulties incidental to a rearrangement of production and delivery schedules, no such justification exists with respect to the dismissal of Coen.7° The Respondent has adduced no evidence to establish that work was not available for a mechanic-such evidence as it did adduce would support an opposed conclusion. In the meantime, on the previous day, after posting a notice of the reinstate- ment offers in the lunchroom, Conner had convened a meeting of the production employees to explain the notice. The Respondent contends that the meeting was called to bring about "future harmony" among the employees. There is no doubt that the notice posted by the Respondent had caused considerable comment and that the resentment of the production employees with respect to the drivers and the mechanics, dormant throughout the latter part of the summer, had been revived. The undersigned has found that the Respondent by its super- intendent, was responsible for the development of this resentment in the original instance. Under the circumstances , reinstatement of the discharged employees without prejudice would have required the Respondent to do everything in its power to dissipate the effects of its earlier conduct. The Respondent, in effect, admits responsibility in this regard by the argument that it did its best to "modify" and "improve" the attitude of the other employees with respect to the individuals who were to be reinstated. Upon the entire record, however, the undersigned is not satisfied that the Respondent fulfilled its obligation under the circumstances.7' It is true that Superintendent Conner reaffirmed the intention of the Respondent to reinstate the Complainants without prejudice, but it is also true that he said he had been "instructed" to do so. He did not retract any part of his earlier remarks. When the production employees indicated, by their response to his remarks, that they continued to resent the earlier action of the 41 The contention of the Respondent that Coen did not return with his tools is bottomed entirely upon the testimony of Conner that he did not "see" him . In final cross-exam- ination, however, he conceded the "belief" that he had seen the mechanic back in the lunchroom at noon . Watson admitted , in direct examination , that Coen had been present when the drives returned Upon the entire record , the undersigned credits Coen in this connection ; his testimony that he had to use the car of another employee to get his tools is undenied-and.it is logical to infer that he would return to'the plant to make the car available to its owner. zs The testimony of Arthur Brown, a witness for the Respondent , reads, in part, as follows-in this connection : I said , "Maybe there is no prejudice on the management's part, but I don't think the laborers are going to like it ." He said, "Well , there is no prejudice on the .part of the management." I said, "You can't control the laborers ." And he said, "That's right." PACIFIC POWDER COMPANY ' 290-27 Complainants, and that they feared the action of the Respondent would result in a revival of "unionism" at the plant, Conner did nothing to "modify" or "improve" their attitude in this respect. Although fully apprized of the fact that the production employees contemplated concerted action to meet the threat of "unionism" from the outside, Conner did not inform the employees that he would disapprove of concerted activity with such an object in mind-and in fact, when asked by a leadman if he would acquiesce in "plant rule" Conner's acqui- escence was given with knowledge , on the basis of the antecedent discussion, that a principal purpose of the organization contemplated 'by the men would be to forestall the advent of outside unionism on craft or industrial lines.72 The incident in its context , then, reveals the readiness of Superintendent Con- ner to acquiesce in the continued expression of resentment toward the drivers and'the mechanics , on the part of the production employees. To the extent that his attitude in this connection represented a failure on the part of the Respondent to restore the conditions of employment which existed at the plant before the discharged employees undertook their , concerted action, it was a failure by the Respondent to give effect to the promise that these employees would be reinstated without prejudice .71 Although the organization which the production employees formed never be- came active , the attitude which had led to its formation was made manifest to the returned employees upon their arrival at work on the day which followed their reemployment. Conner refused to greet them when they reported for work. Upon their arrival at the lunchroom several employees left the room , after one had made a remark which indicated clearly his displeasure at the presence of the Complainants . Collins, who had been assigned to the maintenance shop shortly after he had reported for work, was left in "Coventry " throughout the period he spent there. The drivers, after their arrival at the lunchroom , were left to their own devices for 2 to 4 hours , despite the fact that other drivers, newly employed, were taken out and assigned to work around the plant of the type which the regular drivers had previously done while awaiting assignments . ' Upon the entire record it would appear, and the undersigned finds, that the Respondent in the person of its superintendent , subjected the reinstated employees to har- assment and studied discrimination-and that , it permitted its production em- ployees to manifest resentment with respect to their return-in a manner calcu- lated to demonstrate , beyond any shadow of doubt, that their presence was not desired. b. The termination of the mechanic and the relief drivers Coen, as already noted, returned to work on the morning of Thursday, after his recovery from an injury sustained on Tuesday afternoon in connection with 72 The undersigned, however, makes no finding that Conner suggested the formation of any employee organization, or that he was directly responsible for the suggestion finally made. i3 Cf. Matter of Wytheville Knitting Mills, Inc, 78 N. L. R. B 640 in which the Board stated : Moreover, we are convinced that an operative factor in the refusal to reinstate these two active union adherents was the Respondent 's anti-union bias This is shown by its failure to take any affirmative action to dissipate the hostility of the objecting employees , and by its conduct toward the Union in violation of the Act Indeed, by its action , the Respondent was, in effect , collaborating with the anti-union faction in effecting punishment for pro-union concerted activity . . . To permit the Respondent to accomplish this result by indirection , through the medium of the anti -union faction, would be to sanction a readily contrived device for evasion of the Act. 290-28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD personal business. Although he had made every effort, during his absence, to keep the Respondent advised of his situation, Watson, the truck dispatcher, had accepted the information in bad grace-and, in fact, had gone so far on one occasion as to tell the mechanic that he ought to submit a written resignation if he did not intend to return, in spite of the fact that Coen had made no mention of an intent to resign. When the latter did report to Watson, finally, on the morning of Thursday, he was told in categorical terms, that he would have, to keep his clothing and tools in a cabinet under company lock and key, that he would not be permitted to attach his own lock to the cabinet in conformity with the practice which had prevailed before his discharge, and that he would have to work in the open air, as before, under weather conditions considerably more adverse?` He had received no keys to the boiler room or to the plant gate-a further departure from previous practice. In the light of the' harassment to which the Complainants had been subjected on Tuesday, Coen was persuaded, and reasonably so, that the superintendent, a responsible official of the Respond- ent, who was in d position to determine the conditions under which they would work, did not desire his reinstatement.R6 As to Coen then, the employment offered by the Respondent cannot be said to constitute a reinstatement, under the circum- stances. It amounted, in substance, to a continuation of the discrimination which had marked his termination in July, calculated to reaffirm the opposition of the superintendent to the concerted action which had led to the termination in ques- tion. As such, it was ineffective to toll the obligation of the Respondent under the statute. In the alternative, it amounted to a constructive and discriminatory discharge.." Schoenfeld, who had also reported on Thursday, was berated severely by Superintendent Conner as the result of his absence on the previous clay. Al- though the record indicates that Schoenfeld was accused of malingering by Conner, on the occasion of his absence, independent and probative evidence in support of the accusation was not offered in the instant case ; and Schoenfeld's affirmation, as a witness, that his illness was real stands without effective con- tradiction in the record. The undersigned infers, and finds, that Schoenfeld's claim of illness was founded in fact, and that the choler of Superintendent Con- ner was nothing more than a further manifestation of the resentment with which he had received the Complainants after giving them a notice of reinstatement 44 The record indicates that the truck mechanic had been permitted to keep his tools in the boiler room, and that the trucks had been repaired in the open ; it will be remembered that the proposals of the employee group in July had included a proposal with respect to the erection of an enclosed repair shop. 46 Conner testified, and the record shows, that a replacement for Coen had been hired shortly after his discharge in July. Although the replacement, Sneed , and Conner-who testified for the Respondent-stated that the former had been laid off on the 30th of September to make room for Coen, and that the replacement had been rehired only after Coen left, Conner's testimony is vitiated by an earlier admission that he had not let the replacement go until October or November. If the superintendent's statement to that effect is accepted as true, it would certainly support the inference that he did not expect Coen to remain-and the undersigned so finds. The Respondent apparently contends that Coen returned on the 30th of September with an intention not to accept reemployment. Sneed, the replacement mechanic, testified to a hearsay admission by Coen, on the afternoon of October 1st, that he "didn't care" about the job, and that he merely wished to show Superintendent Conner that he could come back to work. Coen's version of the conversation is sharply in conflict with that of Sneed; the testimony of the latter is contradictory in several respects; upon the entire record and observation of the witnesses , the undersigned credits Coen 76 Cf. Matter of Harvey Chalmers and Sons, Inc., 75 N. L. R. B . 434. Matter of A. Sartorzus and Co. Inc , 40 N L. R. B. 107, enforced 140 F. 2d 203 (C. A. 2). PACIFIC POWDER COMPANY 290-29 under orders . Although it is true that Conner did order Schoenfeld back to work, the manner in -which he did so warrants the conclusion that the har- assment of Schoenfeld, which had begun on the 30th of September , could be expected to continue . Upon the entire record, then, the undersigned concludes that Schoenfeld , also, was being subjected to treatment which vitiated the terms of the reinstatement offer-to a degree which warranted his resignation.77 Collins, who had worked for a day and a half in the face of obvious disapproval on, the part of his-fellow employees , confronted Superintendent Conner with a de- mand for genuine reinstatement "without prejudice" at noon on Thursday. Upon the entire record, however, the undersigned is satisfied that his demands on that occasion were more than demands for a privilege previously enjoyed. The record indicates that Collins had been an employee of the Respondent for 3 weeks prior to his termination in July. For the major portion of that period he worked in the maintenance shop at the plant, at the regular starting rate. One week before his discharge , it is true , he did receive a raise-but it was a raise to the regular rate in the shop and did not equate his pay with that of the regular drivers. He did a substantial amount of driving in the week which preceded his initial discharge, after getting the raise, but there is no indication that this change in his employment amounted, actually , to a reassignment or promotion.78 Presumably, he received the regular mileage rate, in effect at the time, while employed as a driver. Nevertheless, it would appear, as noted, that his compen- sation for work around the plant was at the rate received by other production and maintenance employees and that lie did not receive the rate received by the regular drivers for such activity . The undersigned is satisfied , therefore, that Collins' service in the week before his discharge was that of a relief or "emer- gency" driver only, and that he had not been transferred or promoted to the status of a regular driver at the time. When Collins confronted Conner, however, after a day and a half on his new assignment , he did more than request of the latter some tangible indication of his status as a relief driver. Collins admitted, and the undersigned finds, that he asked the superintendent , in effect, to confirm his status as a regular driver. This the latter refused to do. Upon this state of the record then, the undersigned concludes and finds that Collins, although subjected to harassment and discriminatory treatment , did not resign because of the superintendent's conduct and that of the other employees in this connection. In effect, he resigned because the superintendent refused to give him a definitive assignment as a regular driver. His grievance, then, involved a refusal on the part of the Respondent to concur in his request for an extension of privileges he had previously enjoyed. Under the circumstances , it cannot be said that his separation , on the 2nd of October , was the result of continued discrimination by the Respondent, and the undersigned will make no finding to that effect. c. The termination of the regular drivers The situation of the regular drivers after their return was not substantially different from that of the other Complainants . As previously noted, they were forced to wait in the lunchroom on the day they reported to work for 2 to 4 hours, "Counsel for the Respondent argues, in passing, that Schoenfeld was a supervisor, and that he is not entitled to the protection of the Act The undersigned finds no merit in this contention . If accepted as true it would justify the further conclusion that Milton Phillips was a supervisor and that the Company is responsible tor his sponsorship of the plant committee in October . The undersigned does not believe that any such -contention would be seriously urged by counsel. 79 Conner described his work as a driver as limited to emergencies ; the record contains no evidence to warrant a contrary inference. 290-30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during which period the other drivers , who had been employed after their dis- charge, were given work around the plant , while they-the regular drivers- received no comparable assignment ." None of the newly hired drivers was dis- charged ; BO, instead , the regular drivers were ordered to double up, without ap- parent need. Upon receiving their assignments , the regular drivers were in- formed that they would receive no keys to the plant gate-a departure from previous practice-and that they would have to be admitted by a watchman if they happened to return after regular working hours. In addition they were advised that they would be required to submit their driver 's log, the papers connected with the delivery , their credit cards and their expense money to the watchmen-a further departure from previous practice 81 The Superintendent's entire course of conduct , in fact, reveals a clear disposition on his part to deal with the regular drivers at . arm's length, and, to harass them by the denial of privileges incidental to their previous employment-in the obvious expectation that a continuation of such conduct would impel them to resign. Kirwin and Evans, as previously noted, completed their assignment on the 1st of October late in the evening and were admitted to the plant by the watchman. Although Kirwin, who had been responsible for the expense money, submitted all the documents in his possession to the watchman , he refused to return the money without a receipt . On the following day when Kirwin and Evans reported for work they were berated by Superintendent Conner for the insistence of Kirwin upon this requirement-which the undersigned finds to have been reason- able. In addition , Conner censured Kirwin for an alleged error in his driver's log and refused to approve it until a correction was made. Although an inspec- tion of the log reveals that it does contain a technical error, the undersigned concludes-upon the entire record-that the error did not involve a substantial inisrepresentation .82 Conner himself admitted , at the hearing , that it would have made no difference in Kirwin's compensation. Upon the entire record, the undersigned concludes and finds that the superin- tendent's treatment of the drivers reveals a fixed intention to humiliate them and to stand upon ceremony in every aspect of his relationship with them, to carp at any minor transgression by them of overly strict instructions , and to subject them, in fine, to inconvenience and harassment in the course of their employment. This course of conduct, in its total impact upon the drivers , represented a sub- stantial change in the terms and conditions of their employment ; it can only be ,characterized as studied discrimination, calculated to reaffirm the resentment .of the superintendent in regard to the concerted action of these employees, to .discourage their membership in a labor organization , and to interfere with, "Although the matter is not free from doubt, the testimony of Kirwin, Coen and Super- intendent Conner would indicate that the drivers received no pay for their "waiting" time 85 Since the record establishes that F C. Brown and Larry Owens had been hired to operate Truck No. 10, a new and larger vehicle with operational problems which dif- ferentiated it from the rest of the fleet , the undersigned does not consider their retention as evidence of the superintendent ' s intent to discriminate against the regular drivers who had been reemployed. 81 Conner designated a new watchman to enforce the rule on the very day of its promulga- tion , the watchman replaced Royce Coen's brother , and he was told upon receipt of the assignment that it would be for a "short time" only 82 The undersigned takes judicial notice, in this connection , that an amendment to the regulations of the Interstate Commerce Commission , which antedated the situation in- volved in the instant case, provides for a revision of the drivers' log form , and that the entry of which the superintendent complained would not have been an error if made on a driver's log of the type required by the Commission ( Amendment to Motor Carrier Safety Regs , 5-6-47). PACIFIC POWDER' COMPANY 290-31 restrain and coerce them in their continued activity on behalf of such a group." In the light of the record,' however, the undersigned is not entirely satisfied that the discrimination practiced by the superintendent with respect to the drivers was the proximate cause of their separation. Although the action of each has been characterized as a resignation , the undersigned believes and finds, that they were in fact discharged.89 The only question , therefore , is the question whether or not they were terminated for cause . And to that question , then, the undersigned now turns. The General Counsel lirgues that the drivers refused to make their scheduled trips, on the 3rd of October and thereafter , because they took the position that the initial assignments they. had received revealed the delivery equipment to be defective and dangerous still-and that the superintendent , upon being advised of their contentions, sent them home and refused to give them assignments there- after. This interpretation of the record , in the opinion of the undersigned , repre- sents a correct analysis of the facts . If the position of the drivers , then, is shown to be founded in reason , it would follow that the action of Superintendent Conner could only be characterized as a discharge without cause-and the inference would be justified that his action had been taken to implement the discriminatory course of conduct already noted . And if the record fails to support the position of the drivers with respect to the condition of the equipment , it would follow that their refusal to make the deliveries was not well founded and that Conner was not unjustified in his insistence upon their performance of the duties to which they had been assigned. The issues in this connection were litigated at length, with respect to the condi- tion of the equipment in July and October. Witnesses for the General Counsel testified, at length, that certain trucks which they were required to use and service, were in such a bad state of repair on both occasions as to constitute a hazard to the life and limb of the drivers and to other persons on the highway. Witnesses for the Respondent testified , albeit in general terms, that the same equipment, in their custody, did not reveal the defects cited and that the trucks, in fact, had passed a State inspection. The Respondent introduced an abstract of its truck maintenance account for the 9 months' period which preceded the final termination of the drivers. It reveals that all of the trucks in use, with the single exception of the 1937 Ford, were subjected to frequent inspection and repair throughout the period in question, at a single repair shop in Olympia , that miscellaneous parts were purchased in quantity throughout the period for use by the company' s own mechanics, and that various trucks in the company fleet had been serviced and supplied with parts upon occasion , by a number of other repair shops and dealers as well. This abstract has not been impeached by the General Counsel. It is true that the total amount it shows as expended for maintenance and repair might be considered sufficient to support an' inference that the trucks in question were continuously in disrepair. Certainly the admission that two of the trucks were sold shortly after the turn of the year would indicate that the company regarded their continued use as uneconomic. Upon the entire record, however, the under- signed is unable to find that they were in sucli a state of disrepair at any given time as to constitute a hazard to life and limb-or that'they failed to meet the '' See Matter of St Joseph Lead Company, et al., 65 N. L R . B. 439. " Although it appears that the drivers were not paid for their services until the next regular pay day, an action consistent with the theory that the men resigned , the under- signed does not consider this unilateral action by the Respondent determinative of the issues in regard to their termination, in the face of other evidence which warrants a contrary inference. 290-32 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD standards of the Interstate Commerce Commission. The undersigned does not intend to imply that the trucks were in good repair. However, it has not been established by a clear preponderance of the evidence that the trucks were in such state of disrepair as to warrant the action of the drivers in refusing to make deliveries with them in October-and the undersigned so finds. It is immaterial, therefore, whether the drivers took the position, as they contend, that they. would refuse to drive until the equipment was placed in shape to pass an Interstate Commerce Commission inspection, or whether they took the position, as the Respondent contends, that they would refuse to operate the equipment until it had actually been inspected and passed by a representative of the Commission. In either event, the undersigned is unable to find, on the present record, that the refusal was warranted by the condition of the equip- ment-and the action of the superintendent, therefore, in dismissing the men with the comment that there was "nothing" that he could do, and that they "might as well" go home, cannot be characterized as unreasonable or dis- criminatory. The conduct of the respective parties in the period which followed the dis- missal of the drivers can only be characterized as an impasse on this issue. The inquiry of the drivers, on each occasion in,the days which followed, as to whether the trucks were "in shape" to go out was, in effect, a reiteration of the con- tention that the equipment was defective and that the responsibility for action lay with the Respondent. And the rejoinder of the truck dispatcher, whatever its significance or content, can only be considered as a reiteration of the con- tention that the position of the drivers was not well founded and that they would have to accept employment on the equipment in its current state of repair, or not at all. These exchanges do not impair the essential conclusion reached. Upon the entire record, then, the undersigned is constrained to find that it has not been established that the separation of the drivers in October involved discrimination in regard to the tenure of their employment to discourage mem- bership in a labor organization, or that it involved interference, restraint or coercion in connection with their exercise of the rights guaranteed by the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States and tend to lead, and in this instance have led, to labor disputes which burden and obstruct commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the Respondent did engage and has continued to engage in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed .to effectuate the policies of the Act. It has been found that the Respondent discharged four of its regular drivers, two relief drivers, and its truck mechanic on July 28, 1947, and that it refused to reinstate them thereafter, because they had joined and assisted a labor organization and because they had engaged in concerted activity for the purposes of collective bargaining and other mutual aid or protection. The Respondent made an offer of reinstatement to the discharged employees on September 27, 1947, which they returned to accept on the 30th of September-and the Respond- PACIFIC POWDER `COMPANY 290-33 eat, by the'actions of its superintendent and other employees subjected them to discriminatory treatment and demonstrations of resentment which amounted to a substantial change in their conditions of employment, sufficient to warrant the conclusion by Royce W. Coen and Harry Schoenfeld that the offer of rein- statement had not been made in good faith and- to warrant their refusal to retain the employment under the circumstances. In order to effectuate the policies of the Act, therefore, it will be recommended that the Respondent offer Coen and Schoenfeld immediate and full reinstatement to their former or sub- stantially equivalent employment 85 without prejudice to their seniority or other rights and privileges, and make whole each of them for any loss of pay they may have suffered by reason of the discrimination practiced against them, by the payment to each of them a sum of money equal to the amount which each of them normally would have earned in wages from the date of the initial dis- crimination practiced against them to the date of the reinstatement offer recom- mended herein, less the net earnings 88 of each of them during such period. With respect to William A. Collins, Thomas D. Evans, Lee Kirwin, Edward W. Tobin, and Harold L Zimmerman, it has been found, however, that the discrimina- tory treatment accorded them by the Respondent was not the proximate cause of their ultimate termination-Collins having left of his own accord for reasons not directly related to the discrimination, and the drivers having been dismissed in circumstances which cannot be characterized as discriminatory. Upon this state of the record, it would not effectuate the policies of the Act to order the reinstate- ment of the e mndiv,duals to their former or substantially equivalent employment. It will be recommended, however, that the Respondent make whole each of them for any loss of pay they may have suffered by reason of the discrimination previ- ously practiced against them by the payment to each of them a sum of money equal to the amount which each of them normally would have earned as wages from the date of the discrimination practiced against them in the original instance to the date of their employment by the Respondent, less the net earnings of each of them during such period. The conduct of the Respondent, as exemplified in the actions of its superin- tendent, revealed a basic intent, for which it must be held responsible, to interfere with, restrain and coerce employees in their exercise of the rights guaranteed by the Act. The discharge of the Complainants in July, and the later refusal to reinstate them, coupled with the use of a strategem to prevent the production and maintenance employees from meeting with the Complainants on free time, when considered in conjunction with the course of conduct on the part of Conner which followed the reemployment of the dischargees, can only be characterized as evi- dence of a basic antipathy to the objectives of the Act. Although the superintend- ent involved in that course of conduct is no longer connected with the Respondent, it is reasonable to infer, and the undersigned finds, that the unlawful conduct for which he was responsible and the underlying attitude of opposition to the policy of the statute which it reveals are sufficient to indicate to employees the possibility that the Respondent might engage in other violations of the statute in the future The preventive purposes of the Act may be frustrated unless the Respondent takes such action as may be required to dissipate the threat. In order to effectuate the objectives of the Act, therefore, and to reassure the employees with respect to the prevent policy of the Respondent, it will be recom- 85 See Matter of The Chase National Bank of the City of New York, San Juan, Puerto Rico Branch, 65 N L R B 827. 86 See Matter of Crossett Lumber Co ., 8 N. L. R . B. 440 ; Matter of Republic Steel Corp. v. N L.• R. B , 311 U. S 7. 290-34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mended that the Respondent declare its intention to cease and desist from' interference with, restraint, or coercion of employees, in any manner, with respect to their exercise of the rights guaranteed by the'Act. CONCLUSIONS OF LAW 1. The group of employees which undertook to negotiate with a representative of the Respondent in regard to the wages, hours, and working conditions of truck drivers and the truck mechanic in the employ of the Respondent, and the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, affiliated with the American Federation of Labor, which these employees lated designated as their bargaining representative, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Royce W. Coen, Harry Schoenfeld, William F. Collins, Thomas D. Evans, Leo Kirwin, Edward W. Tobin, and Harold L. Zimmerman on July 28, 1947, thereby discouraa ing their participation in concerted activity by a labor organization and further discouraging membership in the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen, and Helpers of America, affiliated with the American Federation of Labor, the Respondent did engage and has continued to engage in unfair labor practices within the meaning of Section 8 (3) of the Act, and Section 8 (a) (3) of the amended Act. 3. By discriminating in regard to the terms and conditions of employment of Royce W. Coen, Harry Schoenfeld, William F. Collins, Thomas D. Evans, Leo Kirwin, Edward W. Tobin, and Harold L. Zimmerman on and after September 30, 1947, and by discriminating in regard to the hire and tenure of employment of Royce W. Coen and Harry Schoenfeld on and after October 2, 1947, thereby discouraging their participation in concerted activity by a labor organization and further discouraging membership in the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, affiliated with the American Federation of Labor, the Respondent did engage and has continued to engage in unfair labor practices within the meaning of Section 8 (a) (3) of the amended Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent did engage and has continued to engage in unfair labor practices within the meaning of Section 8 (1) of the Act and Section 8 (a) (1) of the amended Act. 5. The unfair labor practices found are unfair labor practices affecting com- merce within the meaniiig'of Section 2 (6) and (7) of the Act. 6. The Respondent did 'not engage in unfair labor practices within the mean- ing of Section 8 (a) (3) of the amended Act, in connection with the separation of William F. Collins, Thomas D. Evans, Leo Kirwin, Edward W. Tobin, and Harold L. Zimmerman from its employ, on or after October 2, 1947, or in con- nection with its refusal to reinstate these individuals after that date. _ RECOMMENDATIONS Upon the foregoing findings of fact and conclusions of law, the undersigned recommends that the Respondent, Pacific Powder Company, Tenino, Washington, its officers, agents, successors, and assigns should : 1. Cease and desist from : (a) Discouraging membership in any labor organization of,its employees by discriminatorily discharging or refusing to reinstate any employees, or by PACIFIC POWDER COMPANY 290-35 discriminating in any other manner in regard to the hire or tenure of their employment or any term or condition of their employment ; (b) Interfering with, restraining, or coercing its employees, in any other manner, in the exercise of their right to self organization, to form labor organiza- tions, to join or assist a group of their fellow employees or the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, affiliated with the American Federation of Labor, or any other labor organization, to bargain collectively through representatives of their own free choice, and to engage in concerted activity for the purposes of collective bargaining and other mutual aid or protection, as guaranteed in the Act. 2. Take the following affirmative action which the undersigned finds will, effectuate the policies of the Act : (a) Offer Royce W. Coen and Harry Schoenfeld immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges previously enjoyed, and make them whole for any loss of pay they may have suffered as a result of the dis- crimination practiced against them, by the payment of each of them of a sum of money equal to the amount which they normally would have received as wages from the date of the initial discrimination practiced against them to the date of the reinstatement offer herein recommended, less the net earnings of each of them during the period in question ; (b) Make whole William F. Collins, Thomas D. Evans, Leo Kirwin, Edward W. Tobin, and Harold L. Zimmerman for any loss of pay they may have suffered as a result of the discrimination practiced against them, by the payment to each of them of a sum of money equal to the amount which they normally would have received as wages from the date of the initial discrimination practiced against them to the date of their reemployment by the respondent, less the net earnings of each of them during the period in question ; (c) Post at its plant near Tenino, Washington, copies of the notice attached to this report. Copies of the notice, to be furnished by the Regional Director of the Nineteenth Region, as the agent of the Board, should be posted by the Respondent immediately upon their,receipt, after being duly signed by a repre- sentative of the Respondent, and should be maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps should be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. It is further recommended that the complaint'be dismissed insofar as it alleges the discriminatory discharge of William F. Collins, Thomas D Evans, Lea Kirwin, Edward W. Tobin, and Harold L. Zimmerman on or after October 2, 1947, by the Respondent. All parties are hereby advised that upon the filing of this Intermediate Report and Recommended Order and the service of copies upon the parties-as provided in Section 203.45 of the Rules' and Regulations of the National Labor Relations Board, Series 5, effective August 22, 1947-the Board will enter an order trans- ferring-the case to itself, and will serve a copy of the order upon each of the parties, setting forth the date of the transfer. If, within twenty (20) days after the date of service ' of this Intermediate Report and Recommended Order, the Respondent satisfies the Regional Director, as the agent of the Board, that it has complied or will'comply, with the foregoing recommendations it is recommended that 'the National 'Labor Relations' Board issue an order, or take other appropriate action, to close the case on compliance. 853396-50-vol 84-22 290-36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Unless the Respondent satisfies the Regional Director, within twenty (20) days after the date of service of this Intermediate Report and Recommended Order' that it has complied, or will comply with the foregoing recommendations, it is recommended that the National Labor Relations Board issue an order requiring the Respondent to take such action. All parties are advised; however, that any party may, within twenty (20) days after the date of service of the order transferring the case to the Board, file with the Board, Rochambeau Building, Washington 25, D C.-pursuant to Section 203.46 of the Rules and Regulations-an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report and Recom- mended 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 of the exceptions. Matters not included in the Statement of Exceptions may not thereafter be urged before the Board, or in any further proceeding under the Act. 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 a Statement of Exceptions and supporting brief, or the filing of a brief in support of the Inter- mediate Report and Recommended Order the party filing the same shall serve a copy of it upon each of the other parties. Proof of service on the other parties shall be promptly made as required by Section 203.85 with respect to all papers filed with the Board. Should any party desire permission to argue orally before the Board. a request for such permission must be made in writing to the Board within ten (10) days after the date of service of the order transferring the case to the Board. The parties are further advised that, in the event no Statement of Exceptions is filed as provided by the Rules and Regulations, and in the absence of com- pliance, all objections and exceptions to this Intermediate Report and Recom- mended Order shall be deemed to be waived for all purposes-as provided in Section 203.48 of the Rules and Regulations-and the findings, conclusions and recommendations contained in it shall be adopted by the Board and become its findings, conclusions and order. Dated August 9, 1948. APPENDIX I NOTICE To ALL EMPLOYEES MAURICE M. MILLER. Trial Examiner. 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, as amended, we hereby notify our employees that : WE WILL NOT interfere with, restrain, or coerce our employees in any man- ner in the exercise of their right to self-organization, to form labor organiza- tions, to join or assist a group of their fellow employees or the International Brotherhood of Teamsters , Chauffeurs , Warehousemen , and Helpers of America, affiliated with the American Federation of Labor, or any other labor organization, to bargain collectively through representatives of their own free choice, and to engage in concerted activity for the purposes of collective bargaining and other mutual aid or protection. PACIFIC POWDER COMPANY 290-37 WE wli offer to the employees named below immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed and make them whole for any loss of pay suffered as a result of the discrimination practiced against them. - Royce Coen Harry Schoenfeld -WE WILL MAKE whole the employees named below for any loss of pay suffered as a result of the discrimination practiced against them. Thomas D. Evans Edward W. Tobin Harold L. Zimmerman William F. Collins Leo Kirwin All our employees are free to become or remain members of any labor or- ganization. We will not discriminate in regard to hire and tenure of employment or any term or condition of employment against any employee because of mem- bership in or activity on behalf of any labor organization, or because he has engaged in concerted activity for the purposes of collective bargaining and other mutual aid or protection. PACIFIC POWDER COMPANY, Employer. Dated-------------------- By -------------------------------- (Representative ) ( Title) This notice must remain posted for sixty (60) days after its date, and must not be altered, defaced or covered by any other material. APPENDIX II PACIFIC POWDER Co., Greetings: We, the undersigned have agreed to the conditions attached hereto ; We further agree.that.said conditions must, be accepted for negotiations on July 27-,at \,2,: ,00 p. m`., *and: that said ; conditions must be under consideration before further'dblivery: -------------------- (Signed) Seniority shall be respected at all times. Need for new drivers must be sub- mitted for approval by the shop steward before driving, for any reason whatever. In event of conditions necessary to curtail operations the company agrees to allow shop steward alternate driving equally among the four drivers of seniority. In the event the employer feels the services of an employee are no longer needed or are not satisfactory, said employer must submit to a committee for study, a written notice of expulsion of said employee before affecting same. WORKING CONDITIONS That all trucks shall be turned in at the shop on completion of each and every trip for service and repairs and will be returned by shop foreman when he sees fit. All trucks, must carry all safety features as required by law before returning to service. 290=38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The employees [sic] shall furnish a building suitable for service of at least two, trucks at any one time. Said building shall be equipped with lights, heat and air. Said building to be completed within sixty days, to-wit Sept. 26,1947. Shop shall be manned by at least one mechanic and helper 8 hours per day and 5 days per week. Mechanic shall be paid at rate of $1.50 per hour first 40 hours and time and a half thereafter. Helper to be paid $1.20 per hour first 40 hours and one and one-half time thereafter. DRIVING CONDITIONS Each driver shall have issued to him when leaving the plant his delivery ticket, a form carrying the estimated mileage, estimated hours figured at rate of 30 miles per hour. Driver shall be furnished funds for expenses before driving, said funds to be based at $1.00 per meal and $300 for lodging. No driver shall exceed hours and mileage as set forth by Interstate Commerce Commission. No driver shall be required to stand by at home or at the plant except he be paid at the base pay of $1.00 per hour. All hours worked at other than driving shall be paid at rate of $150 per hour for the first 40 hours, and one and a half time thereafter. All driving hours shall be paid $1.20 first 8 hours and time and a half there- after. ' APPENDIX III Agreement THIS AGREEMENT, made and entered into by and between Local #378 TEAMSTERS & CHAUFFEURS UNION of Olympia, Washington, and the Pacific Powder Company of Tenino, Washington. 1. When available, only members of this Union shall be employed. Non- members may be employed for a period of not more than thirty (30) days, provided they receive a clearance from the Union office before reporting for work, and must become members of the Union at the balance of the thirty (30) day period. 2. The Employer and the Union agrees that, merit and ability being equal, length of service shall govern in lay-offs and rehiring. The Employer shall be the sole judge of the competency of his employees. All members of the Union who have been laid off due to slackness of work will be given priority in employ- ment in accordance with length of service. 3. No workman shall be discharged or discriminated against for upholding Union principles, and any man who works under the instructions of the Union, or who serves on a committee shall not lose his position or be discriminated against for this reason. 4. No employee shall be permanently discharged without the employer first notifying the Union for a hearing, but no hearing shall be held in case of drunkenness, dishonesty or refusing to perform the regular duties 5. Eight (8) hours shall constitute a day's work. Forty (40) hours shall con- stitute a'week's work to be worked in 'five (5) consecutive clays. All time worked in excess of eight (8) hours' in any one day or forty (40) hours in any one week shall be paid for at the rate of time and one-half. -PACIFIC-POWDER COMPANY 290-39 - The Union agrees to extend the straight time rate for a period of two (2) days where a driver is on an out-of-town trip, it being understood that these drivers shall be allowed compensating days off before returning to work at the straight time rate. 6 It is understood and agreed that I. C. C. regulations shall prevail. 7. Any steady workman working one-half day or less shall receive one-half day's pay ; over one-half day, but less than a full day he shall receive a full day's pay ; provided that the foregoing shall not apply to time paid at the rate of time and one-half or double time. 8. No workman shall suffer any reduction in wages or working conditions through the operation of this agreement. 9. It is agreed that a Shop Steward will be appointed by the Union, who shall -work under the supervision of the Union, and shall generally be charged with the duty of having working conditions observed by the employer as well as the members of the Union 10. On trips out of town the workman shall pay for the first meal and the ,employer shall pay for subsequent meals at the rate of one dollar ($1.00) a meal and for hotel rooms at three dollars ($3.00) a night. The employer agreed to reimburse an employee for his expenses immediately upon return from a trip. 11. The following days shall be considered holidays, and any work required shall be paid for at the rate of double time : New Year's Day, Washington's Birthday, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, Armis- tice Day and Christmas Day. Should any of the above named holidays fall on Sunday, the following Monday shall be observed. 12. The following wage scale shall be in force and effect from October 10, 1947: Per hour Truck Drivers and Helpers________________________________ $1. 50 Head Service and Repair men_____________________________ 1.60 13. It is agreed that, as far as is possible, work shall be rotated according to the number of hours worked by the employees. 14. Any employee, after being in the steady service of the employer for a period of one (1) year or more shall receive one (1) week's vacation with full pay. After continuous service for three (3) years, the employee shall receive two (2) week's vacation with full pay. 15. Where medical examinations are required, it is understood and agreed that the employer will stand all expenses. 16 It is agreed that there shall be no sympathetic strikes by Local #378 or its members during the life of this agreement, it being further understood that the Union will not be responsible for any unauthorized stoppage of work not sanc- tioned by the Union. 17. Should any dispute arise which cannot be amicably settled between an employer and the Union, such dispute shall be immediately referred to a com- mittee of the Employers and of the Union for settlement. In case these two committees cannot agree, they may select a mutually acceptable person to assist in a solution. In either case, the decision of the joint committees shall be final and binding on both parties. There shall be no cessation of work during the joint consideration of the dispute. 18. This agreement shall continue and remain in effect until the 1st day of October, 1948, and if on said date of expiration any change is desired in this agreement, notice in writing must be given sixty (60) days prior to said expira- 290-40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion date . If no notice is given, then this agreement shall run for another year or until the 1st day of October 1949. It is further agreed that any new agree- ment shall be retroactive to the expiration date of this agreement. 19. This agreement signed this ---------- day of ________________, 1947. TEAMSTERS UNION LOCAL #378, W. W. WESTOVER, PACIFIC POWDER COMPANY Secretary. E