Olin Industries, Inc.

In the Matter of OLIN INDUSTRIES, INC., WINCHESTER REPEATING ARMS COMPANY DIVISION and 1AARVIN C. GOLD Case No. 1-"107,-Decided September t9, 1949 DECISION AND ORDER On November 24, 1948, Trial Examiner Charles E. Persons 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. Thereafter the Respondent filed ex- ceptions to the Intermediate Report, and a supporting brief. The Respondent also requested oral argument. This request is hereby de- nied because the record, exceptions and brief, in our opinion, ade- quately present the issues and the positions of the parties. The Board 1 has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.2 The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the exceptions, modifications, and addi- tions noted below : s i Pursuant to the provisions of Section 3 (b) of the Act, as amended , the National Labor Relations Board has delegated its powers in connection with this proceeding to a three- member panel [Members Houston, Reynolds, and Murdock]. 2 The Respondent contends that it was prejudiced by the Trial Examiner's refusal to admit evidence purporting to show (1) that the Union , which is not in compliance with the filing requirements of Section 9 (f), (g), and ( h) of the amended Act, requested Gold to file the instant charges and turned over to him its files and exhibits including the names and addresses of all the complainants and (2 ) that Gold was not authorized by the com- plainants to execute a charge on their behalf. The charges on which the instant case is based were filed by Gold as an attorney at law . It is immaterial that he might be acting on behalf of the Union and that the Union might derive an incidental benefit from a finding that unfair labor practices were committed in the case . N. L. R. B. v. Indiana h Michigan Electric Co., et at., 318 U. S. 9, 17-18; Matter of Augusta Chemical Company, 83 N. L. R . B. 53. Furthermore, no authority to file a charge is necessary. Matter of Duro Test Corporation, 81 N. L. R. B. 976 and cases cited . Accordingly, we find that the Respondent was not prejudiced by the Trial Examiner 's rulings and we shall therefore adopt them. 8 For the reasons stated in Matter of Cathey Lumber Company, 86 N. L . R. B. 157, we affirm the Trial Examiner 's ruling permitting the General Counsel to amend the com- 86 N. L. R. B., No. 36. 203 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. At the hearing, the Respondent moved to dismiss the complaint on the ground it was not validly issued under Section 10 (b) of the amended Act 4 The Trial Examiner denied the motion and the Re- spondent has excepted to the ruling. In support of its position, the Respondent argues that copies of the charges on which the complaint is based were not served upon the Respondent within 6 months after August 22, 1947, the effective date of the Act. The original charge was filed on July 30, 1947; an amended charge, on August 4, 1947; a second amended charge, on August 6, 1947; and a third amended charge, on August 15, 1947. It appears that the Respondent was served with a copy of each of the charges before August 22, 1947, and that a copy of the third amended charge upon which the complaint is based was served upon Respondent on August 18, 1947. The Board has previously held that the limiting language of Section 10 (b) should not be accorded retrocative effect and that a complaint may properly issue in any case in which the charges were filed and served either before or within 6 months after August 22, 1947.8 Here, the charges were filed and served before August 22, 1947, and consequently, the prohibi- tion of Section 10 (b) is inapplicable. We therefore reject the Re- spondent's contention and affirm the ruling of the Trial Examiner. 2. The Respondent excepts to the Trial Examiner's ruling deny- ing its motion that lie disqualify himself and withdraw from the proceedings. The motion filed a few days after the hearing com- menced alleges bias and prejudice on the part of the Trial Examiner and assigns 10 grounds in support of the claim. In its exceptions, the Respondent elaborates on the 10 allegations of bias described in its motion and in addition charges the Trial Examiner with other biased acts in his conduct of the case. It asserts that he made arbitrary rulings, acted as a prosecutor, and prevented the. Respondent from making a full record. plaint by adding the names of Thomas Lipsit and Robert A . Shepard to the employees listed in Appendix A. 'Section 10 (b) of the amended Act reads , in pertinent part, as follows: . . . no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made. . . . After the close of the hearing, the General Counsel filed a motion with the Board re- questing that the record be reopened to permit offer of proof of service of the charge and amended charges upon the Respondent pursuant to Section 10 (b) of the Act and Section 203.14, of the Board's Rules and Regulations . Thereafter, on March 16, 1949, the Board issued a notice giving the parties until March 28, 1949 , to show cause why the Board should not incorporate in, and make part of the record here proof of service of the charge and amended charges upon the Respondent . No answers were filed to the notice to show cause and on April 11, 1949, the Board ordered that the aforesaid proof of service be incorporated in, and made part of the record herein. 6 Matter of Itasca Cotton Manufacturing Co., 79 N . L. R. B. 1442 ; Matter of Vanette Hosiery Mills, 80 N. L. R . B. 1116. OLIN INDUSTRIES, INC. 205 In view of the charges leveled against the Trial Examiner , we have carefully scrutinized the record and find that the evidence does not sustain these charges. With respect to the Respondent's motion to disqualify, we agree with the Trial Examiner that the 10 allegations of bias offered in support of the motion are lacking in merit and that they do not in any case constitute grounds for disqualification. We are of the opinion that the Trial Examiner conducted the hearing in this case with commendable fairness and impartiality and that there is absolutely no basis for any finding of bias or any reason for dis- qualification . Accordingly , we shall overrule the Respondent 's excep- tions in this respect. The Respondent also attacks the Trial Examiner 's findings on the ground of bias and prejudice . It argues (1) that the Trial Examiner did not consider all the evidence bearing on certain issues and (2) that he credited only the witnesses for the General Counsel. As to the first contention , the failure of the . Trial Examiner to detail com- pletely all. conflicts in the evidence does not mean, as the Respondent infers, that this conflicting evidence was not considered . Indeed, the Trial Examiner stated in the Intermediate Report that his findings are based upon the record as a whole. Moreover, we have independ- ently considered all the evidence and, while we do not agree entirely with the Trial Examiner's resolution of all issues, we are satisfied that his findings were made on the basis of all the available evidence and that he was not prejudiced against the Respondent . As to the second contention , we find that it is not supported either in the Intermediate Report or the record . Furthermore, the importance of observation of witnesses to any finding of their credibility is such that we will not overrule the credibility findings of the Trial Examiner unless they are clearly erroneous.7 3. Baldino, Bonito, and Destadio were admittedly discharged be- cause of their participation in the 15-minute work stoppage which the rolling mill employees on the first shift called on September 21, 1946. The Trial Examiner found, and we agree, that the work stoppage was protected concerted activity and therefore , the discharges of Baldino, Bonito, and Destadio were a violation of the Act." In its exceptions, Matter of Minnesota Mining and Manufacturing company , 81 N. L. R. B. 557. The material facts on which these findings rest are substantially undisputed and were testified to by several witnesses of both the General Counsel and the Respondent. Among the accredited witnesses on whom the Trial Examiner relies for these findings is Destadio whose testimony was taken from a deposition which was made before the hearing began and which was received in evidence over the Respondent 's objections . The Respondent excepts to the Trial Examiner 's reliance on the testimony in the deposition on the ground that the parties raised objections to certain of the testimony as it was being adduced, and while the deposition notes these objections, they have never been ruled on . We find merit to the Respondent's contention . Therefore , unlike the Trial Examiner , we place no reliance on the testimony of Destadio for our findings with respect to the work stoppage and his discharge or to any other issues on which he gave evidence. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent contends that it was within its rights in dismissing the three men because the work stoppage was illegal in its objective. As fully discussed in the Intermediate Report, the work stoppage in question was called in order to present the grievances of the rolling mill employees to the Respondent.9 The Respondent argues that the Union was not the exclusive bargaining representative of the em- ployees at this time and, consequently, the Respondent was under no duty to meet with the union committee with respect to the grievances. While the Respondent was under no legal obligation to meet with the Union, there is nothing in the Act which removes from its protection -concerted activity aimed at securing a meeting between the Employer and the Union to discuss grievances. Accordingly, we find no merit in the contention of the Respondent that the purpose of the work -stoppage was illegal. 4. The Trial Examiner found that the Respondent discriminatorily locked out 10 the employees listed in Appendix A of this Decision, Group II, during the period from September 21 to September 29, 1946, and that on the latter date, the lock-out was converted into an unfair labor practice strike when the employees voted to reject the Respondent's offer of reemployment and to remain away from work until the Respondent reinstated Bonito, Baldino, and Destadio. He further found that concomitant with the lock-out an unfair labor practice strike was being pursued by the following five employees : -loses Brown, John Raffone, Frank Lonergan, Frank Wilson, and Patrick Considine. We agree with these findings. The record shows that Brown, Raffone, Lonergan, Wilson, and Considine voluntarily left their work shortly after the lock-out was instituted and refused to return until the locked out employees were reinstated. As unfair labor practice strikers, these five employees together with the em- ployees listed in Appendix A Group II who became such strikers on September 29, 1946, were entitled to immediate reinstatement upon their conditional application therefor. The Trial Examiner found that such applications were made on October 21, 1946, and were refused. 9 For reasons amply set forth in the Intermediate Report, we reject the Employer's claim that the employees should have resorted to the plant grievance machinery rather than a work stoppage for the presentation of their grievances. 10 The Respondent contends that it was prejudiced by the Trial Examiner 's findings with respect to the lock-out because the complaint does not specifically allege a lock-out. The issues with respect to the lock-out were fully litigated at the hearing and an opportunity was afforded the Respondent to adduce testimony to refute the charge that it locked out the employees in question . Accordingly , we find immaterial any variance between the allega- tions of the complaint and our present finding thereon . Matter of Fulton Bag & Cotton Mills, 75 N. L. R. B. 883 ; cf. Matter of Marshall & Bruce Company, 75 N. L. R. B. 90, footnote 10 and the cases cited therein. OLIN INDUSTRIES, INC. 207 . Of the strikers who are herein found to have requested reemploy- ment on October 21, 1946, only 29 appeared and testified at the hear- ing. As to the requests of these strikers, the Respondent does not take issue. It contends, however, that proof was not adduced at the hear- ing'to show that strikers other than those who testified made applica- tion for reinstatement on October 21, 1946. This contention is lacking in merit. Numerous witnesses testified without contradiction that pursuant to a vote conducted at a union meeting, all the strikers went to the plant on October 21, 1946, to report for work 11 This testimony, moreover, is to some extent corroborated by one of Respondent's own -witnesses '12 who estimated that about 250 strikers assembled in front of the personnel office on October 21, 1946, and that approximately 50 were rehired. In view of this undisputed evidence, further testimony on this issue would merely have been cumulative. We find that the record sustains the Trial Examiner's finding that all the strikers herein involved offered to return to work on October 21, 1946, and accordingly affirm that finding.12 5. The Trial Examiner recommended that the strikers listed in Appendix A of this Decision, Group IT, and Brown, Lonergan, Raf- fone, Wilson, and Considine be made whole by payment to each of them of a sum of money equal to the amount they normally would have earned as wages during the period of the lock-out and from the date of the unconditional offer to return to work to the date of the Respondent's offer of reinstatement. We disagree with the finding insofar as it is applicable to Brown, Lonergan, Wilson, and Considine, because these employees were unaffected by the lock-out. As to them, we shall order that their back pay run from the date of their uncondi- tional offer to return to work to the date of the Respondent's offer of reinstatement. 6. We also disagree with the Trial Examiner's recommendation that the back-pay periods for Martindale and DelStritto begin to run from the date of their release from medical care. As set forth in the Inter- mediate Report, Martindale lost his left hand in a plant accident in 1944 and thereafter he received workmen's compensation benefits until some time in 1947. He was hospitalized on numerous occasions after his injury because it was slow in healing. Despite his physical condi- tion, Martindale was able to resume work at the plant between his intervals at the hospital. He was working as an inspector in the rolling mill on the first shift when the work stoppage occurred on 11 These witnesses include Romeo, Morton, Samuels, Evans, Conte, Los, Raffone, Weaver, Ballard, Reid, Woods, Wilson, Muir, and Martindale. ' willers. 13 In making this finding, we, as the Trial Examiner, and for the same reasons, attach no significance to the evidence relating to Hovey's activities in connection with the strike. 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD September 21, 1946. On the following day, he went to the plant but was denied admittance. Since Martindale was qualified to and did work while he was under medical care, we shall grant him the same relief as the other employees listed in Appendix A, Group II. As to DelStritto, it appears that he injured his leg on September 15, 1946, and from that time until his release from medical care on Oc- tober 7, 1946, he was unable to work. Although fit for duty after October 7, 1946, he refused to return to the plant and joined the strikers. He was present at the mass application for employment on October 21, 1946, but was not rehired. As DelStritto was qualified to work at the time of his request for reemployment, we shall order that his back pay begin to run as of that date. . 7. The Trial Examiner found, as fully set forth in the Intermediate Report attached hereto, that by certain conduct of its supervisors and officials, the Respondent violated Section 8 (1) of the Act and 8 (a) (1) of the amended Act. We agree. We limit the grounds for our findings, however, to the following : (a) The conduct of personnel department officials Sullivan and Willers in soliciting promises from Raffone when interviewing him for a job, that he would have nothing to do with the Union if he was hired; (b) The requests of Sullivan and Willers that Raffone report em- ployees who engaged in union discussion; (c) The announcements of Sullivan, Foreman DeSantis, Personnel Counselor Goin, and Personnel Adviser Pettyjohn to employees 14 that their activities on behalf of the Union would cost them their jobs; (d) Pettyjohn's interrogation of employees Perry and Samuels con- cerning their union interests and the union activities and sympathies of their coworkers; (e) The activities of Goin, Pettyjohn, Willers, Supervisor Ray Smith, and Foremen Daniels and Mitchell 15 in soliciting striking em- ployees to abandon the strike and return to work and in threatening the strikers with loss of employment if they were absent from the plant for more than 2 weeks; 16 (f) Carlson's 17 statement to striking employee Perry on October 21, 1948, when considering Perry's application for reinstatement, to 14 Namely, employees weaver , L. Baldino , Wormley, Evans, Morton, Samuels. 15 We rely only on Mitchell's status as foreman of the flashlight department in holding the Respondent answerable for his conduct. The record does not sustain the Trial Exam- iner's finding that Mitchell also had a recognized station in the personnel department. We therefore reject this finding. 16 We agree with the Trial Examiner , for the reasons set forth in the Intermediate Report, that the plant rule permitting the discharge of employees after 2 weeks of unex- cused absence was not properly enforced against the strikers. 14 Carlson 's supervisory status is not contested . He is in charge of interviewing, selecting, and placing new employees. OLIN INDUSTRIES, INC. 209 the effect that Perry would be expected to forego union activity if he were reinstated; (g) Goin's questioning of striking employee Reid concerning his intention to remain in the Union when Reid offered to return to work on October 21, 1946. The Respondent contends that it is not responsible for the acts and utterances of Goin and Pettyjohn. As more fully set forth in the Intermediate Report, Goin and Pettyjohn are on the staff of the personnel department. Goin's duties include interviewing prospec- tive employees, advising superintendents and foremen on matters affecting employees who are members of minority groups, and assist- ing employee's with the solution of personal problems which otherwise might impair their productivity. Pettyjohn, as personnel adviser, introduces new employees to their jobs, acquaints them with the plant benefits and advantages, investigates the absences of employees and assists them and their families, in the event of accident or death. He also aids in assessing the value of employees suggestions and in de- termining the award they deserve. We are of the opinion that the Respondent's employees had just cause to believe that Goin and Petty- john were acting for and on behalf of the management in the situa- tions under dispute and therefore liability for their conduct is properly attributable to the Respondent.- 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, Olin Indus- tries, Inc., Winchester Repeating Arms Company Division, New Ha- ven, Connecticut, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in labor organizations, by discrim- inatorily discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire and ten- ure of employment, or any term or condition of 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 any labor organization, to bar- gain.collettively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargain- 18 Matter of J. S. Abercrombie Company, 83 N. L. R. B. 524 ; International Association of Machinists v. N. L. R. B., 311 U. S. 72; Cf. Matter of Macon Textiles, Inc., 80 N. L. R. B. 1525. 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing or other mutual aid or protection; or to refrain from any and all such activities except to the extent that such right may be affected by all agreement requiring membership in a labor organization as a con- dition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer all the employees named in Appendix A hereto, immediate and full reinstatement to their former or substantially equivalent posi- tions without prejudice to their seniority or other rights and privileges ; (b) Make whole all the employees named in Appendix A for any loss of pay each may have suffered by reason of the Respondent's dis- crimination against him, in the manner provided in the section of the Intermediate Report entitled "The Remedy" and hereinabove; Post at its plant in New Haven, Connecticut, copies of the notice attached hereto marked "Appendix A." 19 Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained. by it for a period of 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material; (c) .Notify the Regional Director for the First Region, within ten (10) days from the date of this Order, what steps the Respondent has, taken to comply-herewith. APPENDIX A NOTICE TO ALL Ei1IPLOYEES Pursuant to a Decision and Order of the National Labor Relations, Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT 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 any labor organiza- tions, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- 19 In the event this Order is.enforced by decree of a United States Court of Appeals, there- shall be inserted in the notice , before the words, "A DECISION AND ORDER" the words,. "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." OLIN INDUSTRIES, INC. 211 pose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL OFFER to the employees named below immediate and full reinstatement 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 discrimination. Ruth H. Bucci Harry H. Gordon Nora B. Mumford Frederick J. Baldino Benjamin Bonito Frederick J. Destadio Louis Baldino Harold Ballard Wellington C. Beal Angelo Conte James T. Evans Austin Gianelli Otis Johnson Otis Adams Joseph Aranjo Benjamin Arter Angelo Bellini Johnnie Best Lawrence Birdo Allen L. Brown Richard W. Brown Uga Calderoni James Carr Gade L. Carter Alfred Ciccarelli Frank Curtin Robert Daniels GROUP I Joseph P. Los Louis Morton Joseph L. Ta.rdie John J. Wayert William-Weaver Raymond Woods Moses Brown Patrick Considine Frank Lonergan John J. Raffone Frank Wilson Paul DelStritto GROUP II Ozell Gooding John Grant John Gray Jacob Greene Jimmie W. Greer Frank Gunn James Haley Rudolph V. Heath William Higgs Outing Hilliard William Hugie Joseph Jarvis Alvin Jefferies Dewey Johnson 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT Robert E. Green, Esq., and Robert S. Fuchs, Esq., for the General Counsel. Allan Seserman, Esq., of Boston, Mass., for the Respondent. Marvin C. Gold, Esq., of New Haven, Conn., for the Charging Party. STATEMENT OF THE CASE Upon a third amended charge' duly filed on August 18, 1947, by Marvin C. Gold, an individual, herein called the Charging Party, the National Labor Rela- tions Board, herein called the Board, by its Regional Director for the First Re- gion (Boston, Massachusetts), issued its complaint dated April 8, 1948, against Olin Industries, Inc., Winchester Repeating Arms Company Division, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Sec- tion 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act, and of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Labor Management Relations Act of 1947, 61 Stat. 136, herein called the amended Act. Copies of the complaint and of the third amended charge, accompanied by notice of hearing thereon, were duly served upon the Respondent and the Charging Party. With respect to the unfair labor practices the complaint, as amended at the hearing, alleges in substance that the Respondent: (1) discharged Nora B. Mumford on August 6, 1942, Ruth H. Bucci on August 15, 1942, and Harry H. Gordon on August 19, 1942, and discharged Benjamin Bonito, Frederick J. Baldino ;nd Frederick Destadio on or about September 21, 1946, and has at.all times since failed and refused to reinstate them, for the reason that they joined or assisted the Union and engaged in other concerted activities for the purposes of collective bargaining or other mutual aid or protection; (2) on or about October 1946, discharged the 100 employees named in Appendix A,2 and has at all subsequent times failed and refused to reinstate them for similar reasons ; and (3) by other specified acts interfered with, restrained, or coerced its employees in the exer- cise of the rights guaranteed in Section 7 of the Act and of the amended Act. On May 12, 1948, the Respondent duly filed its answer in which it admits the facts alleged in the complaint as to its corporate organization, the nature and extent of its busipess, and that it is engaged in commerce within the meaning of the Act. It further admits that the six employees named above were dis- charged "as alleged in the complaint." It denies, however, that the Union is a labor organization within the 'meaning of the Act, and further denies the commission of any unfair labor practices. It states certain affirmative defense phrased as follows : Further answering the respondent says that the Board has no jurisdiction over the subject matter of the complaint since the alleged unfair labor ' At the hearing Respondent called for the submission of all charges filed preceding that on which the complaint was based. The General Counsel thereupon produced and offered : the original charge docketed July 30, 1947 ; the amended charge, docketed August 4, 1947, and the second amended charge, docketed August 6, 1947. Respondent objected to the receipt of these documents insisting that they had never been served on the Respondent. The General Counsel thereupon produced from his file and showed to the Respondent's counsel carbon copies of letters sent to Respondent and its counsel transmitting copies of all charges filed. 2 This list includes Thomas Lipsitt and Robert A. Shepard , added by amendment at the hearing, and omits Nicholas I+ranco struck by consent of the parties . The 6 employees named and the 100 listed in Appendix A are herein jointly referred to as the complainants. OLIN INDUSTRIES, INC. 213 practices are barred by Section 10 (b) of the amended Act which reads as follows : That no complaint shall issue based upon any unfair labor practice occur- ring more than 6 months prior to the filing of the charge with the Board and the service of a copy thereof upon the persons against whom such charge is made, etc. And assigns for reasons therefor the following: 1. All the charges in the present complaint were filed more than 6 months after the occurrence of the alleged unfair labor practices, and 2. Since the complaint was issued by the General Counsel on behalf of [the Board] on the 8th day of April 1b48, the complaint was issued under the authority of the amended Act and, therefore, the Board is barred by the Statute of Limitation contained in said amended Act. Pursuant to notice, a. hearing was held on dates beginning May 17, 1948, and ending July 15, 1948, before the undersigned, Charles E. Persons, the Trial Ex- aminer duly designated by the Chief Trial Examiner. The General Counsel, the Respondent, and the Charging Party were represented by counsel. Full oppor- tunity to be heard, to examine and cross-examine witnesses and to introduce evidence bearing on the issues, was afforded all parties. At the beginning of the hearing the General Counsel moved to amend the complaint by adding the names of employees Thomas Lipsitt and Robert A. Shepard to those listed in Appendix A. This motion was granted over Respondent's objection. On Respondent's motion it was ruled by the undersigned that the rule for exclusion of prospective witnesses from the hearing room would be enforced. At this time also Respond- ent moved to quash the proceeding and dismiss the complaint on grounds stated in its answer and quoted above. After hearing argument at some length ad- dressed to the reasons given, this motion was denied. Respondent thereupon requested the Board to review this ruling.' By orders dated May 25, 1948, and .July 1, 1948, the Board dismissed Respondent's request for leave to appeal.' In the earlier of these orders the Board granted a motion of the Respondent to limit sessions of the hearing "to the extent that the Trial Examiner shall schedule no session on Saturday except by consent of all parties." On May 20, 1948, dur- ing the hearing, Respondent filed a Motion for Disqualification of Trial Examiner. Acting under Section 203.37 of the Board's Rules and Regulations the under- signed, after due consideration, ruled that the motion was filed with due diligence but was insufficient on its face. Accordingly he declined to disqualify himself, so ruled on the record, stating the grounds for his ruling and proceeded with the hearing.' Respondent moved the Board for leave to appeal this ruling. By order dated June 21, 1948, the Board denied this motion, stating that it would "consider the Trial Examiner's ruling in reviewing the entire record upon exceptions." 3 Respondent further moved for an adjournment to prosecute injunction proceedings on this issue in the Federal Courts. This motion was denied. This matter inter alia is set forth in Appendix B. 3 Respondent further moved to dismiss the complaint on the ground that the Board has exceeded its authority by spending funds to conduct this hearing contrary to the rider attached to the applicable Appropriation Act." This matter was deferred at the time pend- ing Respondent 's production of the exact language of this Appropriation Act. Since this was not done and since the Act referred to has no such provision , the undersigned assumes that no ruling is here necessary. Respondent 's Motion for Disqualification and the undersigned's statement of grounds for ruling that he would not disqualify himself are appended in extenso as Appendix B. 867351-50-vol. 86-15 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Before presenting its witnesses the Respondent moved to dismiss the complaint and each significant paragraph thereof for failure of proof and other reasons stated. This motion was orally argued at length and denied by the undersigned as to the complaint as a whole and as to each paragraph assailed. At the close of the hearing the General Counsel moved, and was joined by the Charging Party, to strike from Appendix A the name of Nicholas Franco. This motion was granted. All parties waived the opportunity to argue orally before the undersigned. A brief was filed with the undersigned by the General Counsel and a memo- randum by the Respondent. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Olin Industries, Inc., Winchester Repeating Arius Company Division, is a Dela- ware corporation engaged in the manufacture of ammunition, guns, and radiators at New Haven, Connecticut. During the year 1947, finished products valued at more than $10,000,000 were shipped from the New Haven plant, of which approxi- mately 95 percent was transported to points outside the State of Connecticut. "Approximately 90 percent of the raw materials used at the plant annually, consisting chiefly of copper, zinc, steel, and wood, is shipped there from points outside the State of Connecticut e During the period material here the Respond- ent was largely engaged in the production of munitions for the United States and allied foreign governments. The Respondent admits, and the undersigned finds, on the basis of these data and of the entire record, that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED United Electrical, Radio & Machine Workers of -America, affiliated with the Congress of Industrial Organizations, and its Local No. 2S2, are labor organiza- tions admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Background and related proceedings before courts, the Board and other administrative agencies The Union began its organizational campaign in Respondent's plant in the fall of 1941. The Board first became involved in matters material here on May 8, 1942, when a charge was filed by the Union alleging violation of Section 8 (1) and (3 ) of the Act.' The earliest charge alleged but one 8 ( 3) violation. Sue- 6 The data in this paragraph are quoted from Section I of the Board 's Decision in Case No. 1-R-1732, handed down on May 6, 1944. The parties stipulated at the hearing that there had been no material change in these facts for the calendar year 1.947. 71n Case No. II-C-4569, Matter of Western Cartridge Company, Winchester Repeating Arms Company Division and United Electrical, Radio ct Machine Workers of America, C. I. 0. The name of the Respondent has been changed to that appearing in the caption of this Intermediate Report. The area in which the case arose was transferred to the Board's First Region. By order, dated April 29, 1943, this case was transferred to that Region as Case No. 1-C-2213. Throughout this section the undersigned has discussed Board cases with reference to the original records. OLIN INDUSTRIES, INC. 215 cessive charges b increased the number of violations alleged under this section to 27. The amended charge filed on August 17, 1942, included Mumford. The second amended charge of August 25, 1942, added Bucci and Gordon among others. The Union appealed late in 1942 to the recently established National War Labor Board, herein called N. W. L. B. On February 5, 1943, that Board issued its Directive Order ° which, among other matters not material here, di- rected that grievance machinery should be established by the Respondent for all employees and that the "cases of the employees who recently have been discharged for whom the Union has filed charges with the [Board] shall be referred to and handled through" this grievance machinery. In this order the N. W. L. B. adopted the recommendations, as amended, of its mediation panel which pre- viously had been received. The Respondent petitioned N. W. L. B. on February 9, 1943, for reconsideration of the case. By letter dated March 5, 1943, N. W. L. B. denied Respondent's petition as of that date. It further substituted in the earlier order the following paragraph with reference to the employees covered by the Union's charges filed with the Board: With respect to the employees who were recently discharged by the [Respondent] and whose discharges are the basis of unfair labor practice charges filed with [the Board], the Union shall have the option of request- ing permission from that Board to withdraw their charges and, if such permission is granted, of submitting the discharges to the grievance and arbitration procedure provided by [N. W. L. B.'s Directive Order]. Under this authorization the Union withdrew its charges" filed with the Board's Regional Office and the cases of Bucci, Gordon, and Mumford, among others, were processed as grievances and submitted for settlement to an arbitra- tor, Judge Henry Ellenbogen, appointed by N. W. L. B. His "final and binding" arbitration awards were made on October 30, November 26, and November 27, 1943. The Respondent, "contending that the arbitrator exceeded his authority in determining the grievances," refused to comply. On May 1, 1943, N. W. L. B. issued its Supplemental Directive Order, unanimously directing that the Re- spondent comply immediately with its prior directive order. On May 11, 1944, a hearing was held before N. W. L. B., "at which the parties presented their respective views as to compliance with the arbitration awards." That Board, industry dissenting, found "that the arbitrator did not exceed the scope of his authority in determining the grievances presented to him." ' On May 11, 1944, N. W. L. B. issued a further Directive Order embodying the findings just quoted. The Respondent, however, did not comply and N. W. L. B.'s Directive Order was still unfulfilled when that body's activities were terminated. Somewhat earlier than that date the Union resumed its activities before the Board. On its petition duly filed, after hearing held on March 23 and 30, 1944, the Board found that a unit of the Respondent's rolling mill employees did not 8 As the Board's records disclose these charges were filed on August 17 and 25, 1942, September 11, 1942, and February 9, 1943. ° In Case No . 443. In its final order of May 11, 1944 , N. W. L. B. gives the Case No. 2571-CS-D. "The Board 's record shows that the charges were withdrawn and the case closed on May 27, 1943, "in compliance with Directive Order of N. W. L. B. (Case No. 443)." 11 The quotations in this paragraph are from the Directive Order of N. W. L. B. dated May 11, 1944. 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD constitute an appropriate unit for bargaining purposes and dismissed the Union's petition." In an order issued on May 27, 1944 , the Board denied the Union's request for reconsideration of this action. Respondent insisted at the hearing on including in the record reference to an earlier proceeding in which the Board handed down its decision on August 14, 1942. 11 This decision was enforced by the United States Circuit Court and certiorari was denied by the Supreme Court ." The Respondent resisted the decree of the Circuit Court and on December 12, 1944 , was adjudged in contempt. At this time the matter of back pay was remanded to the Board . On January 18, 1945, the Circuit Court denied Respondent 's application for an order purging it of contempt . A hearing was thereafter held on the matter of computing back pay. On August 13, 1945, a stipulation , entered into by the Board's and Re- spondent's attorney , was approved by the Board covering the back pay of employee Michael R . Amato, one of the three claimants involved . The other claimants , Charles H . Thompson and Ernest A. Cruze were on overseas service at this time . Upon certification of compliance by the Board with respect to Amato, the Circuit Court purged the Respondent of contempt as to him on October 4 , 1945 . After similar proceedings as to Cruze and Thompson the Circuit Court on November 6, 1946, issued its final order purging the Respondent of contempt." The Union filed a petition 1' on March 22, 1.945 , for investigation and certfica- tion of representatives in a unit defined as including all maintenance machinists, helpers, and blacksmiths in Respondent 's plant. This petition was dismissed in the Board's First Regional Office on grounds that the unit desired was inappropriate. On October 21, 1946 , the Union again petitioned " for a unit including all pro- duction and maintenance employees in the plant . The Respondent sought to en- join Board action in the United States District Court for the District of Massa- chusetts contending that the Board had not fulfilled certain requirements of the Administrative Procedure Act of 1946 . In a memorandum decision'" handed down on June 11, 1947, the Court dismissed the action . A Board hearing was held on June 19, 1947 . On July 28, 1947, the Union requested leave to withdraw its petition . This was done in accord with the Union 's declared policy to bypass the amended Act. On July 31, 1947, the Board issued its order granting the request of the Union to withdraw its petition and closing the case. On charges duly filed by the Union, the Board issued a complaint against the Respondent on April 21 , 1947, alleging unfair labor practices affecting com- merce within the meaning of Section 8 (1) and ( 3).19 The allegations under Section S ( 3) included the discharges of Mumford , Bucci, and Gordon in 1942; those of Bonito , Baldino, and Destadio in 1946; and the discharge "on or about October 1946" of 140 employees named in the complaint . The names listed in- clude many of those included in Appendix A of the instant proceeding. The matter came to hearing on June 30, July 23, 24, and 29, 1947 . On the second day of hearing the Union requested leave to withdraw its charges in Case No. 1-C- 2924 which comprised the discharges in 1946. Its representative stated that this In Cases Nos. 1-R-1732 and 1-R-1804 , 56 N. L. R. B. 332 , May 6, 1944. 13 Case No. C-2165, 43 N. L. R. B.. 179. 14138 F. 2d 551 ( C. C. A. 2 ), cert. denied 321 U. S. 786. 1 This account is based on the original documents in the Board 's formal file in Case No. C-2165. 1a This was Case No. 1-R-2376. 1v Case No. 1-R-3422. 11 79 N. L. R. B. 455. 20 LRRM 2270. as Cases Nos. 1-C-2924 and 1-C-2822. OLIN INDUSTRIES, INC. 217 was done oil instruction of the Union's general counsel and in pursuance of their policy "to have nothing to do with the Taft-Hartley Law," which the Union proposed to bypass. On the fourth and final day of the hearing, the Union en- larged the scope of its requests to cover all charges at issue. After considera- tion the Board's counsel supported the motion of the Union and moved to strike the complaint "without prejudice to any of the rights of the private individuals involved." The Trial Examiner granted the motion of the Union to withdraw its charge and the motion of the Board to strike the complaint.20 The occurrences at Respondent's plant with which this proceeding is concerned gave rise to various court actions to which frequent reference occurs in this record. The Respondent sought an injunction in the New Haven County Supe- rior Court restraining the Union and the striking employees from picketing the plant 2' Witnesses 22 were heard on October 24, 30, 31, and on November 4, 1946. Judge Mellitz handed down a Memorandum of Decision on November 7, 1946, in which he found that "two specific incidents involving unlawful acts in the course of picketing . . . alleged in the complaint were supported by evi- dence." He further found that "so far as the evidence discloses the picketing, except for the two incidents referred to, has been peaceful and has been con- ducted in a lawful manner." Since he regarded these incidents as "isolated and dissociated incidents of abuse" and because he found "nothing in the situation to cause the Court to apprehend that future picketing by the defendants will be con- ducted in other than a lawful manner," Judge Mellitz denied the application for an injunction. For convenience, this proceeding is referred to herein as the Mellitz case. The Respondent brought suit in the United States District Court for the Dis- trict of Connecticut for damages in the sum of $300,000 against Local 282 and 16 named employees.23 When the cause came on to be heard, on March 31, 1947, the parties agreed that a consent decree night be entered against the defendants with judgment of $10 without costs against each of the 16 employees and the local." This case is referred to herein as Civil 1893. Proceedings were instituted in the same court under the Selective Training and Service Act against the Respondent in behalf of certain veterans whose employ- ment had been terinniated as a result of the work stoppage on September 21, 1946.25 Hearings were held beginning June 23, 1947, and closing on July 2, 1947, before Judge Caroll C. Hincks. At the close of the plaintiffs' presentation, mo- tions by the Respondent to dismiss were granted. 2' This proceeding is referred to herein as the Hincks case. Events following the work stoppage also gave rise to hearings before the Un- employment Commission for the Third Congressional District. Two of these hearings are referred to in the record of the instant proceeding. On April 17 and 18, and on May 5, 1947, the Unemployment Commission heard a group case 20 This account is drawn from the transcript of testimony taken in the proceeding. n Matter of Olin Industries, Inc. v. Vincent J. Romeo et at., Case No. 68640. 22 Among the witnesses heard were complainants F. Baldino , Destadio , James Evans, John -Monroe, Louis It. Morton, John J. Raffone, and Robert E. Samuels. 23 In Matter of Olin Industries, Inc. V. Vincent Romeo et at., Case No. 1893 Civil. 24 Complainants involved were Bonito, F. Baldino, Destadio, Angelo Conte, James T. Evans, Louis Morton, John J. Raffone, John H. Wayert, and William Weaver. 25 In the Matter of Destadio et at. v. Olin Industries Inc., Civil 1988. 26 Witnesses heard for the plaintiffs included the following complainants : F. Baldino, Destadio, Allen L. Brown, Jimmie W. Greer, Frank Gunn, Alvin L. Jeffers, Ruben E. Kaiser, Lawrence LaPan, Joseph P. Los, William S. Muir, James P. O'Connell, Marlin J. Shore, Louis E. Stanford, Simpson Washington , and Raymond G. Williams . Other complainants involved were Fred Persico , Henry M. Williams, John E . Grey, and Hudie Moye. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD involving 53 employees of the Respondent who had appealed from rulings of the Commission's examiners 27 This proceeding is referred to herein as Group Un- employment case. Bonito, P. Baldino, and Destadio appealed from a ruling of an Unemployment Commission examiner that their claims for benefits were invalid since their un- employment was due to the existence of a labor dispute at Respondent's plant. On October 30, 1947, after hearing held, the Commission rendered decision that their claims were valid and modified its examiner's rulings accordingly. B. Procedural matters Certain procedural matters are of sufficient importance and aid understanding of the record to an extent that justifies brief exposition. Collecting these topics in this section avoids breaking the continuity of the general discussion. Mat- ters included here are in addition to those referred to in Appendix B. In the cross-examination of the first witness, Romeo, Respondent's counsel quoted from the Mellitz proceeding, as follows : Well, you testified in the Superior Court, Mr. Romeo, in which you said, "Besides holding the regular large (enlarged) organizing committee meet- ings which we held every other week, we also held some other meetings, some departmental meetings of the Winchester brass rolling mill employees who are members of our Union." And you were asked, "How often were there meetings held?" And you said, "Oh, since July they were held fre- quently." Question, "Well, what do you call frequently?" Answer, "Well, I would say on the average about once every week." Respondent's counsel then pointed out a seeming discrepancy in this final state- ment with testimony Romeo had just given, that such meetings had not been held weekly. The General Counsel asked to see the transcript from which the quota- tion was read. Respondent's counsel declined to accede but stated, "The wit- ness may see it any time." Romeo then asked for the transcript and read into the record an omitted final phrase, "once every ten days." Mumford, the second witness heard, testified in direct examination that she did not join the Union until after her discharge on August 8, 1942. Under cross- examination Respondent's counsel read excerpts, which he stated were from sworn testimony by Mumford before Judge Ellenbogen, which stated that she joined the Union in June 1942. When confronted with this, Mumford said, "Listen, they've got that wrong. I was asked if I would join the union, but I did not join the union." The excerpt was then submitted to Mumford and to the General Counsel and found to have been correctly read. On objection by the General Counsel based on the fragmentary nature of the quotation from a document, exceeding 40 pages in length, the undersigned asked Respondent's counsel whether the record was. to receive the entire document. Counsel re- plied, "I don't know at this time whether you are or not, but this is cross-ex- amination. This witness has made a statement under oath." After further interchange, the undersigned, with the Romeo incident in mind, stated, "It's a seeming inconsistency," but unless we have the whole document we will not know. I suggest that you agree to put in the whole document later. This is 27 Among the witnesses heard were complainants F. Baldino, Louis Baldino, Angelo Conte, Paul DeiStritto, and Louis Morton. 28 Matter of Baldino et al. v. Olin Industries, Inc., Cases Nos. 3489, 3458, and 3503-C-46. 28 Mumford became a member of the Union August 8, 1942, after paying the initiation fee. This is shown by her due books in evidence. OLIN INDUSTRIES, INC. 219 mainly for your protection [Counsel]." When Counsel did not agree to this suggestion, the undersigned granted the motion of the General Counsel to strike the quotation and answer involved, subject to the proviso that the matter struck would be restored if the whole transcript from .which the quotation was read, were offered as an exhibit 3° Respondent's counsel did not proffer this document as an exhibit during the hearing. At the time the undersigned stated, "the rule is that if we get quotations taken that way from any transcript we will require the whole transcript." In the cross-examination of Bucci, the next witness, the same procedure was followed by Respondent's counsel. He read excerpts from a document which he stated to be a transcript of Bucci's testimony before Judge Ellenbogen. He refused to show the document to the General Counsel who objected strenuously to this procedure. At this time the undersigned restated his ruling as follows : The rule of the hearing will be that documents from which witnesses are questioned, unless good cause is shown to the contrary, will be entered in evidence. When question was raised by the Respondent's counsel as to the basis for this ruling the undersigned quoted Section (2) of Rule 63 from the Rules of Civil Procedure, regarding the power of masters and examiners, reading : He may require the production before him of (vidence upon all matters embraced in the reference, including the production of all books, papers, vouchers, documents, and writings applicable thereto. Thereafter the examination proceeded under the procedure challenged. At the conclusion of the cross-examination the General Counsel renewed his de- mand for an opportunity to read the transcript from which excerpts had been quoted. Respondent's counsel again refused to submit it. In the cross-examination of employee Louis Baldino a similar incident oc- curred. Quotations were read by Respondent's counsel from a transcript stated to be of an unemployment compensation hearing on December 19, 1946. This was not submitted to the parties nor to the Trial Examiner, although the witness, who had no memory of the testimony quoted was offered and declined an oppor- tunity to read the excerpt quoted. Baldino stated that he had applied for unemployment compensation. His testimony, as of April 18, 1947, in the group unemployment case is in evidence. However, it does not contain the excerpt read by Respondent's counsel. Since the Respondent did not comply with the undersigned's repeatedly stated instruction, buttressed with competent authority, and produce the documents used in cross-examination during the four incidents referred to above, it be- comes a justified reference that consideration of the complete document would not support its contention. The undersigned so finds and has given no weight to these incidents as affecting the credibility of Romeo, Mumford, Bucci, and L. Baldino. During the hearing, in cross-examination of witnesses called by the General Counsel, Respondent's counsel made frequent use of the transcripts in the Hincks 30 Respondent's counsel stated on the record : "I have been experienced enough at the bar to know what you have in mind. And it is not my intent to take excerpts of the testimony that are beneficial to the Respondent when later on the witness might possibly have cor- rected herself. I assure you, Mr. Trial Examiner, that I don't conduct these types of examinations , and if anywhere in this transcript there appeared, to my knowledge, any retraction of that statement I would not have made the examination I did. I may, when I am through with the witness, offer it as an exhibit." 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and in the Mellitz case. This was done with intent to discredit or impeach the witnesses' direct testimony. These transcripts are in evidence. The under- signed has examined and correlated all the passages used in this manner. As a basis for the statement of his conclusions after such study, illustrative pass- ages from the transcript in the instant proceeding are quoted. F. Balclino testified under direct examination that Boak said during the work stoppage on the first shift, quoting in part only, "You fellows don't know what the hell you want. You've got the best damn job in the State of Connecticut." Under cross-examination the parallel passage reads, "You got the best damn jobs in the State of Connecticut. You don't know what the hell you want." Respondent's counsel questioned the ascription of the use of the word "hell" to Boak in the fol- lowing fashion : Q. Did Mr. Boak use the word "hell"? A. I am most certainly sure he did. Q. You are positive of that? A. I'd say he most certainly did. * * * * * * Q. In the [Hincks case] this is what you said Mr. Boak said, "I want you colored people to realize that you've got the best damn jobs in the State of Connecticut, and after this blows over, you want to know what you're going to do. Q. You didn't use the word hell then, did you? Later Respondent's counsel referred to the transcript in the Mellitz hearing, reading inter alia, the following excerpt: You fellows have the best damn job in the State of Connecticut. You don't know what the hell you want. * * * * * * Q. And the word "hell" was used in the Superior Court before Judge Mellitz, wasn't it, according to what I read? A. Yes. The undersigned finds in these comparisons of testimony taken on three rather widely separated occasions no "impeachment" of the testimony of F. Baldino, rather he is impressed by the accuracy of his memory and the verisimilitude of the language in which he has clothed his remembrance of events. After consideration of the entire record and of the demeanor of this witness the under- signed finds him worthy of credence. Samuels had testified in direct examination that he had served as chairman of the picket committee "all during the picketing period," i. e., from September 23 to December 8, 1946. Respondent's counsel during his cross-examination quoted the following question and answer from the Mellitz case : Q. How long were you picket captain or chairman? A. About 3 weeks. Respondent's counsel then called attention to the variance in testimony, querying, "Well, if you said that, that wasn't true, was it?" and pointed out that Samuels' "mind was pretty fresh on events in 1946" at the time of the Mellitz proceeding. The undersigned notes that Samuels' testimony in the Mellitz case was given on November 4, 1946. Since Samuels began his duties as chairman of the picket OLIN INDUSTRIES, INC. 221 committee on September 22, 1946, his earlier testimony was given about 6 weeks thereafter. Further, Samuels testified under Respondent counsel's cross-exam- ination in the Mellitz case as follows : Q. How many union meetings have you had since September 21? A. That I wouldn't venture to say. I had a little sickness in my family that kept me very close to home since these three weeks that I left the plant. I have had to stay home, and from time to time I would call or run into some of the fellows and they would tell me what was going on. I think Mr. Romeo will tell you I haven't been down in two or three weeks. Sainuels suggested in retorting to Respondent's challenge to his veracity that he could explain. Opportunity to do so was not given. The undersigned finds in the testimony just quoted, joined to correlation of the dates of the hearings, adequate explanation for any seeming discrepancy in Samuel's testimony at the two hearings about his service as chairman of the picket committee. Again, employee Conte had testified in his direct examination that he went to the plant to get his pay on his regular pay day which was "the Thursday after the 21st" of September. Respondent challenged the testimony in the following fashion Q. You remember distinctly when you went in to get your pay? A. I went in to get my pay, yes. Q. You know that isn't the truth. The undersigned sustained an objection and warned Respondent's counsel "to avoid such statements on the record." It developed that the challenge was based on a hand-written undated order which Conte admittedly gave his son, also an employee of the Respondent, authorizing him to get a pay check. Willers identified this order as "an authorization to pay out a pay check which I obtained from my files" and stated, "These are filed chronologically and as I remember it this came out of the file for September of 1946." Conte testified as to the author- ization, "That is my signature, but this was not handed in on the day after I went out, because my boy got the pay for me once before when I was sick . . . my boy went down there, before this trouble came up." Conte's employee record card is in evidence and shows that he was out sick on Thursday, August 22, 1946. On this basis and in view of the fact that Conte's demeanor was that of a care- ful and truthful witness, while Willers' dating of the authorization lacked in certainty, the undersigned credits the explanation given by Conte, and finds that this incident does not weaken the evidentiary value of his testimony. In the cross-examination of employee Louis R. Morton, Respondent's counsel read the following excerpt from the Mellitz case transcript : Q. Did you ever hear him [Romeo] say, "Mr. Boak is no damn good?" A. [Well] he's not the only one I heard say that. Morton had answered a similar question in the instant proceeding, "I'll answer it the same as I did before; I never heard Mr. Romeo say anything of the kind but I heard a lot of other people say it." The record was not further extended. However, the undersigned finds that the Mellitz record continues directly as follows : Q. Did you hear him say that? A. Not right directly, no. Q. You never heard him say that? A. Not directly. 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With this legitimate and desirable addition to the record the undersigned finds that it casts no discredit on Morton's credibility as a witness. Without further quotations on this matter the undersigned will state on the basis of his laborious study and correlation of all such instances that, speaking generally, discrepancies pointed out were merely verbal or on incidental and immaterial matters. They do not discredit or impeach the witnesses. Rather, they demonstrate that the witnesses were testifying from their current memory rather than from memorized, or well-conned previous testimony. They illus- trate frequently the proverbial infirmities of the human memory with which all well-experienced judges and examiners acquire familiarity. Except as here- inafter expressly noted the undersigned has acquired, and feels his extensive labors have entitled him to express, a conviction that witnesses in the instant hearing met this exacting test with conspicuous success. Controversy developed at the hearing over the unemployment termination slips given the employees who were on compensation. This matter requires resolution here. In the following exposition the employees concerned are dis- cussed in the order of their testifying. Employee Paul De1S•tritto testified that he received his final pay on September 26, 1946, and that he was given a termina- tion slip at that time marked "left work voluntarily." Respondent's counsel pro- duced two other termination slips one of which carried this notation. They were made out however, after the close of the compensation period. DelStritto- had no remembrance of receiving either of these later termination slips. Under cross-examination he stated that he was "not sure" of the receipt of this slip on September 26, 1946," since he "couldn't find it and didn't know what happened to it." Employee Louis R. Stanford testified very positively that on collecting his final pay, he received a slip with the legend "left work voluntarily" and that he turned it in to the Unemployment Commission. At this point in the hearing, on application to Respondent's counsel, he produced another termina- tion slip issued November 25, 1946, and giving as the reason for unemployment,. "compensation discontinued." At counsel's insistence that this was the only work slip issued to Stanford, it was later received in evidence. James P.. O'Connell similarly testified very positively that on the occasion when he col- lected his final pay on Friday following September 21, he received a termination slip marked "Left work voluntarily." Respondent's counsel stated on the record. that a termination slip was not given O'Connell on that date.'2 The witness pro- tested and stated that a photostat copy of the slip might be found in the record of the Hincks case. After he had left the stand the clerk of this court was- 11 This date was fixed by reference to a receipt for his photo pass which DelStritto pro- duced for the record. " O'Connell's testimony was that he went to the plant to get his final pay on the Friday following September 21, 1946, i. e., on September 27, and at that time received "a little- yellow slip saying I left work voluntarily." The record continues : By GENERAL COUNSEL. Do you have the UC 16 A, Mr. Seserman, of this man at this time? RESPONDENT'S COUNSEL. There was no slip given him on Friday, on September 21. GENERAL COUNSEL. You mean you have none in your files? RESPONDENT'S COUNSEL. There was none given to him on September 21. TRIAL EXAMINER. He said the Friday following September 21st. RESPONDENT'S COUNSEL. There was none given him on Friday following September 21st. GENERAL COUNSEL. That would be the 26th or 27th. You have none? RESPONDENT'S COUNSEL. There was none given. The undersigned notes that in this interchange Respondent's counsel must be understood to be speaking professionally. OLIN INDUSTRIES, INC. 223 called as a witness, and the exhibit produced. This fully confirmed O'Connell's testimony. William S. Muir testified that he refused, without reading, a slip proffered him when he collected his final pay on the understanding that it was similar to others which he had previously seen. He told the clerk that he was on compensation and after consultation with her superiors, she told Muir, as he testified, "You won't need that." Muir's employee record card is in evidence and carries the notation: "LOA," 9/21/46." William Martindale testi- fied that he went for his final pay in the next week after September 21, 1946, and was given a termination slip with the reason for unemployment checked as "left work voluntarily." Respondent's counsel thereupon stipulated that this testimony was correct. In this state of the record the undersigned concludes and finds that each of the five employees under compensation were given termi- nation slips on or about September 26, 1946, which stated the cause of unem- ployment as "Left work voluntarily." During the examination of employee Louis R. Morton, Respondent introduced court records showing that he was convicted of perjury on February 23, 1921, after a jury trial. He was duly sentenced "to be confined for 6 months and to pay costs amounting to $155." Execution of the sentence was suspended and Morton was placed on probation for 6 months. On September 27, 1921, the execution of the sentence was indefinitely suspended. The undersigned notes that this conviction was remote in time. Nothing in the record suggests that Morton had been guilty of similar offenses, or indeed of any offense, in the 27 years inter- vening before his appearance as a witness in the instant proceeding. Neverthe- less, because of the serious nature of his offense and its significance in assessing his credibility as a witness, the undersigned has considered his demeanor as a witness with particular care and has compared his testimony with that of other witnesses testifying to the same events. Practically all of Morton's testimony was corroborated by that of other witnesses found worthy of credence herein. After full and careful consideration of Morton's testimony in the setting of the entire record the undersigned has found no reason for discrediting him on any statement made by him which is material to the determination of the issues in this proceeding. The Respondent contends that the judgment rendered against Local No. 282 and certain complainants in Civil 1893 should be given weight in assessing the credibility of the complainants involved 84 This contention the undersigned finds without merit. The judgment was in an amount, $10 per individual, without costs, which can not be held to indicate a serious offense, nor was it based on evidence received from which the acts of those fined may be judged. On the twentieth day of the hearing, after taking testimony of 32 witnesses and compiling nearly 4,000 pages of testimony 36 and after repeated efforts to shorten the hearing through stipulations by the parties had largely failed, the undersigned, after mature deliberation, instructed the General Counsel to con- clude his presentation within 2 days. This instruction was based on Rule I of the Rules of Procedure for the District Courts of the United States which pre- scribes that the rules shall be construed to insure the "just, speedy and inex- pensive determination of every action." As the undersigned stated, "the recent testimony has been cumulative and highly repetitious, adding very little to the 8' LOA indicates, "Left of own accord." 84 Those fined were Bonito, F. Baldino, Destadio, Angelo Conte, James T. Evans, Louis R. Morton, John J. Raffone, John H. Wayert, and William Weaver. "The record contained in addition the deposition of Destadio which contained over 300 pages. 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD facts we have at hand." The General Counsel's representative fulfilled this instruction under protest, maintaining the position consistently that he .was of right entitled to call each of the complainants. He declined to state that he rested his case but assented to the statement by the undersigned, after present- ing 7 additional witnesses, "Under the ruling laid down by this Trial Examiner you have nothing further to offer." C. Discharges in August 1942 Nora B. Mmmford was hired by the Respondent in October 1941 and was dis- charged on August 8, 1942. When terminated she was operating an automatic machine in the primer shop. There is no suggestion in the record that Mum- ford's work as an employee was not entirely satisfactory. On August 6, 1942, Mumford signed a union application for membership card `outside the gate" of the plant. On August 8, 1942, immediately after her dis- charge, she visited union headquarters and while there paid her initiation fee and was inducted into membership. She had previous experience in union acti- vities having joined an AF of L organization in 1923. Miunford's home was immediately adjacent to the plant. She was accustomed to go home for lunch and on occasion was accompanied by other employees. After her discharge she gave out four or five union cards to employees who came to her home. As her dues book shows, Muunford maintained her standing with the Union to the date of the hearing in the instant proceeding. She was duly transferred to Local 243 on December 16, 1946, on taking up employment in a plant where that local had jurisdiction. On August 8, 1942, Mumford on reporting at 7 a. in. was instructed by her supervisor, one Van Sickle, not to punch the clock but to sit in his office. About 8 o'clock Van Sickle took Mumford to the office of Personnel Superintendent Albert F. Snyder. Mumford's testimony as to what occurred there is recorded as follows : [Snyder] said I was there because I had been passing out union cards, and I told him I'd never passed a union card out, because I didn't have any. And lie said a report from one of the girls was that I had, and I asked him to bring the girl in so that she could tell me and I could see her, and he refused to do that. He asked me for my badge, I gave it to him, and he told me I was discharged. Then lie asked Mr. Van Sickle what I was doing, so Mr. Van Sickle told him he didn't know when I could pass out cards as I had to be at my ma- chine-I was at that time operating a big Henry Wright Primary-and he said he'd only known that I left the machine once a day, and I had to call the head adjuster to tend my machine while I went to the ladies' room. And he [Snyder] said he didn't care, he was discharging me for it. * * * * * * * Then he [Snyder] told me if I would give him the names of the girls that belonged to the union that I would be reinstated. * * * * * * * And I told him I didn't know any of the girls. And Mr. Van Sickle came as far as the corner of Munson and Winchester Avenue with me, and Mr. Van Sickle told me that if I wanted to be a good fellow and give him the names of the girls that had joined the union that he would take and give me back my job right away. Then I told Mr. Van Sickle, I said, "I'm no OLIN INDUSTRIES, INC. 225 squealer , and I don't know who the girls are." He told me that he was very sorry that I had to go. The Respondent called employee Harriette G. Flynn as a witness , who testi- lied that on an occasion in June or July 1942 Mumford , whose machine was temporarily down , came to her while she was operating her machine and asked if she would like to join the Union. Flynn replied that she did not think she cared to join since she was a new employee and did not know how long she would be working. Mumford then suggested that Flynn take the card home and think the matter over. It was Flynn's further testimony that her work was not inter- rupted during this conversation and that Mumford cautioned Flynn not to let anybody see her sign the card or return it to Mumford. Next morning as they were coming to work Mumford met Flynn and asked if she had signed the card., Flynn replied that she had not. Flynn testified that she did not report this incident either to her supervisors or to any member of the personnel department . However, she discussed the matter to some extent with fellow employees . Presumably as a result of such discussion she was called to the personnel department "around August" of 1942 and questioned about the matter. At that time, as she testified , she signed it statement which she had not seen since . However , her memory had been re- freshed before testifying by reading an affidavit which she signed at a later (late. As her testimony reads That is how I happn n to remember what I do of it." Snyder was also called as a witness . He testified that several employees, in- cluding Flynn , had reported to him that Mumford was soliciting for the Union during work time 36 He had very slight independent recollection of his inter- view with Mumford . However, lie testified that she denied soliciting during working hours although she admitted that she had done so "outside but not on company time." He did not deny Mumford 's testimony relative to his proposi- tion that she would be reinstated if she would disclose the names of female employees who belonged to the Union . Van Sickle was not called as a witness. No evidence of his unavailability was entered on the record . In consequence Mumford's testimony relative to a similar proposition made to her by Van Sickle is uncontroverted. Ruth H. Bucci was first hired by the Respondent in the spring of 1941 . At this time her work required constant standing. Finding this requirement burden- some, Bucci quit after ineffectual efforts to secure a transfer to it position which allowed her to sit while working. She was later rehired and worked continuously on the 11 p. in . to 7 a. m. shift until discharged on August 15, 1942. Bucci signed an application card for the Union , as her credited testimony states, on August 12, 1942, and on the next day paid her initiation fee and was given a union dues book . At this time Claire Niekind, who was union repre- sentative at that time , appointed her a steward. She was given a book of instructions as to a steward's duties and both a union and steward 's button. She wore these under the lapel of her coat . This was not necessarily for con- cealment. As Bucci stated, they were not the most ornamental things to wear. She had been instructed by Niekind that it was legitimate to solicit employees to join the Union , "anytime, any place , except during working hours. " In con- formance to this instruction Bucci passed out cards during lunch and recess periods and, as she admitted during cross-examination, "covered the department pretty well." Bucci admitted that there was one exception to this procedure 11 In cross-examination Snyder testified that "Flynn testified regarding this Bucci." '226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the case of Florence Robecki;' who worked on a gas annealing job. As Bucci testified Robecki had asked for a card and was given one at the beginning of the shift. At recess time Buccl approached Robecki, who was still operating her machine, about the question of signing the card. It was Bucci's testimony that the conversation did not interrupt Robecki's work. Robecki, as Respondent's witness, testified that Bucci first approached her "shortly after [she] started to work about 10 minutes or so after" and asked if she would sign an application to join the Union. Robecki further testified that Bucci returned about 5: 30 in the morning and brought a card which Robecki refused to sign and tore up. It was Robecki's testimony that she reported the incident to her foreman, Harold Haye.'e At this point Robecki's testimony reads : He said he didn't know there were any union activities in the shop. He said he would take care of it ; he said he would talk to us about it later. Somewhat later Robecki was called to Snyder's office to whom she repeated her version of the matter and for whom she signed an affidavit. Bucci testified that the morning rest period was from 5 to 5: 10 a. in. Her memory was clear that she conversed with Robecki while free from employment during this rest period. The record shows that Robecki had no certain remembrance as to the time when the morning rest period occurred. She admitted that she, on occa- sions, continued her operations throughout the rest period. After considering this conflict of testimony in the light of the entire record and of the demeanor of the witnesses the undersigned credits Bucci's testimony. On August 15, 1942, about 6: 45 a. in. Foreman Haye came to Bucci's machine and instructed her to shut it down. He told her that Snyder had directed him to take up her pass and that she was to go to Snyder's office. Bucci's testi- mony as to her interview with Snyder reads as follows : Mr. Snyder told me I was being discharged, and I asked him why and he said that because of union activities that I could no longer work for the Company, that it was against the rules. When I told him I had read the union rule book, and I figured that it was practically the same as the Company rule book in regard to procedure, I couldn't see anything wrong in belonging to a union. He says, "But you've been passing out cards, and it's against the Company policy and we can't have you here any more." They wanted me to have my dismissal slip immediately. I asked them if I should give up union activities in all ways if I could have my job. He said, "No, you've disobeyed the rules, you cannot." I said my work record attendance was good, but he could do nothing about it. Mr. Snyder said I definitely was breaking Rule 21 because I was on company time and property. I was paid for straight 8 hours, and was employed by the Company for a straight 8 hours. Rest periods were not our own, they were subject to Company rules and time. I said that I thought that the rest periods belonged to us. As he ex- plained it, we are hired at a daily rate of a certain amount per hour which included 8 hours, in my case 11 p. in. to 7 a. in. in the morning. 34 Bucci gave the name as "Beckman" or "Beckwith." However, the record makes clear that the reference was to Robecki. 28 This name frequently appears in the record as Hayes. OLIN INDUSTRIES, INC. -227 Snyder's testimony as to . this interview with Bucci . reads : Well I .questioned this Bucci girl in regard to what had been reported to me. That she had approached these girls during working hours regarding join- ing the Union, gave them cards, and, something of that sort as I recall. * * * * * * * Well I : .. questioned her about it and she denied that she had done so but the information I got from these other girls, why, I thought that was sufficient reason for discharge. Snyder, as Respondent's witness, admitted that he had no memory of the details of this interview. Even after his memory had been refreshed by perusal of a record made by himself in August 1942 he could not testify with specificity as to his interview with Bucci. Under these conditions the undersigned credits the clearly stated testimony of Bucci which was unshaken under lengthy and search- ing cross-examination. Harry H. Gordon was hired by the Respondent in July 1941 and was discharged on August 19, 1942. He worked on the 11 p. in. to 7 a. in. shift. The Respondent 'makes no claim that his services as an adjuster during the final 4 months of his period of employment were not performed efficiently nor that his deportment and attendance records were not entirely satisfactory. Gordon signed a union application-for-membership card on August 3, 1942. On that same night Niekind appointed him a steward. Gordon was given a union button, which he did not wear, and a supply of union cards. He gave out five or six of these cards according to his credited testimony, during the rest period while outside the building "within the next couple of days." About 6: 30 a. m. on August 19, 1042, Foreman Henry Ayre 30 came to Gordon and instructed him to see General Foreman Frank McQueeny 40 before leaving the plant. McQueeny accompanied Gordon to Snyder's office and told Gordon that Snyder wished to ask "something about union activities." With reference to his interview with Snyder, Gordon's testimony is recorded as follows : Mr. Snyder said that he heard that I handed out union cards during working hours, "that you're a union steward," and he started telling me that the time I was hired he gave me a blue book . . . he took out his book and he pointed out the Rule 21 that there couldn't be any solicitation of anything without any consent, written permission from them, and he said, "That's subject to grounds of dismissal for handing out cards during working hours." Mr. Snyder, as I recall, said that he had witnesses that I gave out cards during working hours, to some colored hustler, or something . . . of that sort; claimed that I gave out cards during working hours. I told him I didn't give out any during working hours... . In reference to smoking periods, [McQueeny] told me that-when I told him that I gave it out during lunch period-he said, "Well, you get paid for 89 This name is sometimes spelled Eyres in the transcript of testimony. 40 Gordon gave this name as MacDonald in his direct testimony. Under cross-examina- tion he corrected this statement, stating that he knew this supervisor only as "Mac." 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD your lunch period, that's Company time. I says, "Well you don't pay when you don't work." He says, "Well, that's still the Company' s time." Gordon further testified that McQueeny told him, "It was a pity that I got mixed up with the union, and that my work was very satisfactory, and he was sorry to see me go." The Respondent called as a witness, David W. O'Neil, an employee who had been transferred to work on machines of the type which Gordon adjusted on or about August 13, 1942. O'Neil testified that Gordon came to him while at work about a day or two after his transfer. O'Neil's testimony as to their conversa- tions reads as follows : Well, it is a long time ago, but as best as I can remember, lie [Gordon] came over and told me that Andrew Westbrook, who was the adjuster on my particular machines, had told him to come and speak to me about being in the Union, and if my memory doesn't fail me, I was handed a Union card to join. We got in quite a heated argument. Among other things, I asked him who was the top steward at the shop and Gordon informed me that he was. First thing I knew, Westbrook came over and told us to shut up, said they'd see me outside the clubhouse after lunch the next morning to talk the matter over. Neither one showed up. That was the last time I saw Gordon until I saw him at the last hearing. This testimony may be compared with O'Neil's sworn statement made on August 15. It reads : On Saturday morning, August 15th, at approximately 4: 30 a. m. I was ap- proached at my machine at H.31 by a fellow employee by the name of Harry Gordon, an adjuster on an indenting machine, who asked inc to join the C. I. O. Union. Gordon said that Andrew Westbrook sent him over to talk to me about the Union, so I said I hadn't asked Westbrook anything about the Union. So I went over to see Westbrook-while I was talking to Westbrook, Gordon came over and asked me why I hadn't got into the Union. I told him I would think it over and he said that he would meet me outside after lunch. When Gordon was asked during cross-examination whether he had ever ap- proached O'Neil on union matters, he vigorously denied having done so. He characterized O'Neil as a "company stooge" and declared that he had knowledge of this at the time O'Neil was transferred to his department. Without passing on the validity of Gordon's characterization of O'Neil the undersigned is im- pressed by the sincerity of Gordon's belief that it was correct. It is inherently improbable that Gordon would mention union matters to an employee of whom he entertained such beliefs. It is noted further that Gordon's acknowledged activ- ity in giving out cards occurred some 10 days earlier. If O'Neil's testimony is to be accepted, Gordon's approach to him stands as an isolated incident and its oc- currence during working time was exceptional. No evidence was adduced to show that Gordon approached any other employee during working time. More- over, Westbrook was called by the General Counsel as a rebuttal witness. He fully corroborated Gordon and specifically denied the actions ascribed to him by O'Neil. In this state of the record, considering the manifest discrepancies be- tween O'Neil's testimony and his sworn statement, dated 4 days before Gordon was discharged, and influenced by a distinctly unfavorable impression of O'Neil's credibility gained from his demeanor as a witness, the undersigned credits the OLIN INDUSTRIES, INC. 229 testimony of Gordon and Westbrook and rejects such testimony of O'Neil as it is in conflict therewith. It was Snyder's testimony that lie told Mumford and Bucci the names of these who reported them as soliciting for the Union on company time. As to Mumford he stated, "As I recall. I told her these people had told me that she had solicited them . . . I also told them the names of the peop'-e. Ile also answered affirmatively when asked whether he told Bucci the names of her accusers. Both Muinford and Bucci testified positively that Snyder refused to give them this information. As stated above Mumford challenged Snyder to bring in her accuser. It will be remembered that her testimony was that Snyder spoke of but one and that lie refused to call her in. Bucci's testimony in point here was specific. She testified that Snyder told her he had two signed affidavits and further "He did not tell me any girls, he said he had signed affidavits to that effect, but lie did not mention any mines." - Similarly Gordon testified that while Snyder stated lie had affidavits from employees that Gordon had been soliciting union members on company time lie did not reveal their names. In view of this strong preponderance of creel:ble evidence, after consideration of the demeanor of these witnesses and the specific character of their testimony, the undersigned accepts the testimony of Mumford, Bucci, and Gordon on this point and rejects such testimony of Snyder as conflicts therewith. Contention, of the parties and conclusions Each of these complainants testified credibly that his or her discharge was stated on the termination slip, given them when discharged, to be based on "infraction of company rules." These rules were printed in a booklet given them when hired. As Snyder and these complainants agreed the applicable rule was No. 21. It reads: "Engaging in propaganda or organizing activities during working hours or on company property without specific permission of the man- agenment." Applicable penalties are set forth in a general statement as follows, "Violation of any of the rules of the company is regarded as ground for penalty ranging from reprimand to immediate discharge." It is noted that the extreme penalty of discharge is not definitely attached to Rule 21. In the individual interviews preceding the discharges Snyder called the attention of each of the three to this rule. Copies of the termination slips given them when discharged were not produced. The Respondent did produce a termination slip for Bucci signed on December 24, 1942. This document specifically states that her discharge was foA "Infraction of Rule #21." It states that her last day of employment was August 15, 1942. It will be noted that the rule strictly construed forbids all propaganda or organizing activity on company property whether or not carried on in working time. The Board's policy in this matter has been given definite statement and is well established. The Board said in Peyton Packing Company, Inc.: The Act, of course, does not prevent an employer from making and en- forcing reasonable rules covering the conduct of employees on company time. Working time is for work. It is therefore within the province of an em- ployer to promulgate and enforce a rule prohibiting union solicitation during working hours. Such a rule must be presumed to be valid in the absence of evidence that it was adopted for a discriminatory purpose. It is no less true that time outside working hours, whether before or after work, or during luncheon or rest periods, is an employee's time to use as he wishes without unreasonable restraint, although the employees are on company property. 867351-50-vol. S6---16 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is therefore not within the province of an employer to promulgate and enforce a rule prohibiting union solicitation by an employee outside of working hours, although on company property. Such a rule must be pre- surned to be an unreasonable impediment to self-organization and therefore discriminatory in the absence of evidence that special circumstances make the rule necessary in order to maintain production or discipline" As the quoted testimony above indicates the Respondent's representatives interpreted "Rule 21" to apply to all union activity on company property. Since lunch and rest periods were covered by the hourly wage paid for the full time of the shifts, it was their ruling that such time was "company time" and might not be used by the employees in union activities. As clearly stated by the Board in the Peyton Packing decision the respondent's representatives were in error in this interpretation of "company time." Respondent, in effect, admitted this error through the testimony of Works Manager Boak and Assistant Personnel Director Willers who stated that the interpretation of the rules had been changed shortly after August 1942 and as changed explicitly permitted employees to engage in union activities during their lunch and rest periods. Boak testified that he instructed both Willers and Snyder in late May or early -June 1942 as follows : That we must not discharge anyone for soliciting on Company property as on Company property only. I told . . . the Personnel Department that they could reprimand for soliciting on Company property but in case of discharge it must be determined that the solicitation took place on Company time, actual working time, not smoking periods [or] lunch periods. I was very definite on that. Willers' testimony, in general corroborates Boak at this point. However, all .Respondent's witnesses agree that Snyder was directly responsible for the discharges of Mumford, Bucci, and Gordon. Snyder's testimony does not refer to such an instruction from Boak nor does it convey such an understanding of the application of Rule 21. Unrefuted and credited testimony by Mumford indicates that solicitation for other than union activities was freely carried on in Respondent's plant during 1942. Mumford testified that she spent practically an entire shift, on Respond- ent's time and pay, soliciting membership in the women's auxiliary of the ex- servicemen's club, and collecting the dues therein. This was done with the knowledge and expressed approval of supervisors, Van Siokle and Kramer.42 Mumford further testified that she made other solicitations for an employee, for a female employee's wedding gift and for a female employee who was leav- ing her employment. Although these activities were known to her supervisor and she had not requested permission, she did not incur discipline. Snyder confirmed this testimony stating that solicitation for tuberculosis and similar associations and collections for sickness and for marriages were never questioned. Of the three complainants only Mumford was ever offered reinstatement and this offer was speedily withdrawn. On the 'day of the hearing in the Judge .Ellenbogen arbitration case adverted to above, Mumford was told by a "man from the plant"" that she could come back to work. Mumford went to the 4149 N. L. R. -B. 828 at 843. Enf'd (C. A. 5) 142 F. 2d 1009. Cert. denied 323 U. S. '730. 42 Mumford described Kramer as the "head boss" In her department . She had secured :his permission before beginning her canvass of the employees. 11 Not otherwise identified in the record. OLIN INDUSTRIES, INC. 231 Respondent's employment office and verified this statement with one Miss Olson, .an employee in Respondent's personnel department. Acting on Olson's advice, Mumford secured her release from her employer at the time. However, when she returned later that sauce day and showed Olson the release, Olson told her, "she was very sorry but she couldn't give [her] no job, couldn't give [her] no work." " Conclusions and contentions of the parties Gordon signed a union application card, which is in evidence, on August 3, 1942. That same night he was asked by Union Organizer Claire Niekind to become a steward. He gave out five or six union application cards during smoking periods within the next "couple of days." The only suggestion in the record of other union activities is the allegation in O'Neil's affidavit and testi- mony regarding matters on August 15, 1946. Gordon was discharged on August 19, 1942. Mumford signed a union card outside the plant on August 6, 1942. She paid her initiation fee and became a member on August 8, 1942. On that same day she was discharged. Bucci signed a union card on August 12, 1942. On the next day she paid her initiation fee and Niekind appointed her a steward. Thereafter she actively solicited application for union membership and was discharged on August 15, 1942. Thus the action material here took place within the 2 weeks period August 3 to 19, 1942. The three discharges are thus mani- festations of the same underlying Respondent's policy. Each of these com- plainants had been carefully instructed by union officials not to carry on union activities in working time. After consideration of the record and of the de- meanor of the witnesses concerned it is the considered judgment and finding of the undersigned that these complainants, with very minor exceptions, fulfilled that instruction. However, they did solicit memberships and present union arguments in lunch and rest periods while on Respondent's property. They were discharged for so doing. The Respondent presented no evidence to show that their records were not otherwise free from criticism. In finding that they were discriminatorily discharged the undersigned has been influenced by the undenied and credited testimony of Mumford, who was first to incur this extreme penalty, that both Personnel Director Snyder and Foreman Van Sickle promised her immediate reinstatement if she would reveal the names of union adherents. It would be difficult to imagine actions more revealing of animus against union organization or of the basis for a discharge. Similar animus and a like basis must be inferred to attach to the discharges of Bucci and of Gordon which were closely associated as to time and attendant circumstances. - Respondent contends as to the Mumford, Bucci, and Gordon discharges that : (1) since charges were filed in 1942 and withdrawn in May 27, 1943 "with the consent of the Board" the Board was guilty of laches, and again (2) that since the Board gave over control of these cases to N. W. L. B. this act constitutes a bar to reopening the case later; (3) since there was a "complete and adequate remedy in Connecticut to protect" these complainants of which they did not take advantage before they were barred by the statute of limitation, they are estopped from later application to the Board; and (4) that the action of the United States Circuit Court in final settlement of an earlier case finding that the Re- spondent was in compliance with Section 8 (1) and 8 (3) of the Act estops the Board from prosecuting similar charges filed prior to this Court's final order. "Findings in the paragraphs are based on uncontroverted and credited testimony by Mumford. 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD These contentions will be considered seriatim: (1) the Board has heretofore held "that the equitable principle of laches does not apply to the Board in its administration capacity as an agency in the government." 45 In accord with this pronouncement by the Board the undersigned finds no merit in this contention of the Respondent. (2) As set forth above the Board's first Regional Office did not authorize withdrawal of the charges in the cases of Mumford, Bucci, Gordon and others until May 27, 1943. This action was taken on the understanding that the Re- spondent was in compliance with N. W. L. B. directive order in Case No. 443.45 It will be noted that the action of the Board's Regional Office was taken after the issuance of N. W. L. B. Supplementary Directive Order which unanimously di- rected that Respondent comply immediately with its directive order of February 5, 1943. Since acceptance of this contention of the Respondent would require the undersigned to assent to the doctrine that a munition plant in time of war could evade its responsibilities under the Act by the simple expedient of stub- bornly refusing to obey the orders of the agency set up by the United States Government with intent to insure speedy determination of these matters, he can find no merit in this contention. (3) The Act declares as to the Board's power in preventing unfair labor practices affecting commerce : This power shall be excluaive, and shall not be affected by any other means of adjustment or prevention that has been or, may be established by agree- ment, code, law or otherwise" The statute, then, compels the finding that there is no merit in Respondent's contention relative to applicability of a Connecticut statute. (4) The Board early established the policy and has since consistently main- tained it in a long line of decisions, that it would not disturb action taken by its agents in settlement agreements or stipulations.48 The Board record shows that the 8 (1) charge in the original case involving Mumford, Bucci, and Gordon was still open pending action by the Circuit Court on May 21, 1943. This case was closed by the Board 6 days later, before as set forth above, the Circuit Court issued its decision of November 3, 1943, enforcing the Board's decision. gore- over, the Board's policy has a corollary to the effect that if the Respondent renews its unfair labor practices at a later date, the Board will then reexamine any prior action of the Respondent of like character.49 As set forth below the Matter of Baker Manufacturing Co., 75 N. L. R. B. 1012 , 1013. See also Matter of Gibbs Corporation, 74 N. L. R. B. 1182 and cases cited there in footnote No. 1. 4c Regional Office Closed Case Report in Case No. 1-C-2213. Docketed by the Board June 2, 1943. 4T Section 10 (a) of the Act. 48 Matter of Shenandoah-Dives Mining Go., 11 N. L. R. B. 885 and Matter of Godchaux Sugars Inc., 12 N. L. R. B. 568. Both were issued in 1939. Later decisions are Matter of Canyon Corporation, 33 N. L. It. B. 885 and Matter of Golden Turkey Mining Co., 34 N. L. It. B. 760. 19 See for a recent statement of this policy, Matter of Rice-St iv of Arkansas , Inc., 79 N. L. R. B. 1333. Decision issued October 1.5, 1948, in which the Board said : It is the Board 's established practice not to consider as evidence of unfair labor practices conduct of a Respondent antedating a settlement agreement , unless the Respondent since the settlement has engaged in independent unfair labor practices. For a clear statement of this policy, see Matter of General Fireproofing Co., 59 N. L. R. B. 375 where the Board said, "We have consistently refused to give effect to a settlement or compromise of unfair labor practices" "where [the] employer violates it or continues a course of unfair labor practices." OLIN INDUSTRIES, INC. 233 Respondent is found to have engaged in unfair labor practice under Section 8 (1) and (3) in 1946. Hence under this well established Board policy the Respondent may be held accountable for similar acts committed in 1942. Under these cir- cumstances this contention of the Respondent is without merit. The undersigned finds that by the discharge of Nora B. Mumford on August 8, 1942, of Ruth H. Bucci on August 15 , 1942, and of Harry H. Gordon on August 19, 1.912, and its subsequent failure and refusal to reinstate them, the Respondent discriminated in regard to their hire and tenure of employment and the terms and conditions of their employment and discouraged membership in a labor anion. By these discharges and by the acts and statements of Personnel Direc- tor Snyder and Supervisor Van Sickle, as set forth above, the Respondent inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and of the amended Act. D. 1Vork stoppage in the rolling mill; discharge of Frederick Destadio, Benjamin Bonito, and Frederick J. Baldino; lock-oat and strike Events in 1946 of concern to this proceeding arose from certain work schedule changes in the rolling mill. Operations there were continuous and shifts were scheduled on an "around the clock" basis. The first shift went on at 7 a. m. ; the second at 3 p. m. and the third at 11 p. m. In January and February 1946, as employee record cards in evidence show,"0 the practice was to work Monday through Saturday with frequent additional shifts on Sunday. The employees were paid on the basis of a 40-hour week, with time and a half for Saturday hours and double time for Sunday. In general, weekly hours were reduced, beginning March 10 and continuing through April 27, 1946, to 5 consecutive days normally of 8.3 "' hours giving employees 41.5 hours per week. On April 28, 1946, a new schedule became effective. A fourth, or swing shift, was added and a somewhat complicated system of shift schedules was in- augurated. These were planned on a basis of a 4-week cycle. The first shift operated on a cycle of 2 days off, 7 days on, 2 off, 6 on and 2 off, followed by 7 on and 2 off.12 Since payment was made on the basis of calendar weeks and antler this cycle no more than five shifts fall in any calendar workweek, the men who worked but 41.5 hours each week received no Saturday or Sunday bonus pay. However, they worked three periods of six or seven consecutive shifts and were at work three Saturdays and three Sundays in each 4-week period." Similarly the second shift under the new schedule worked a cycle composed of two shifts on, 2 off, 7 on, 2 off, 6 on, 4 off and 5 on in each 4-week period. The last period of five working shifts is followed by two shifts on in the following cycle. These workers also never had more than five consecutive shifts in any calendar week and so were paid no overtime pay beyond that for the 11/2 hours 20 In interpreting these schedules it must be borne in mind that shifts are assigned to the days in which they begin. Thus employees working the 11 p. m. to 7 a. m. shift are recorded as working on the day in which they work but 1 hour. 31 The.3 hour represented 18 minutes "wash up time" at the close of the shift. 52 Since the next cycle begins with two shifts off these employees had four consecutive shifts off at this point. 83 A sample cycle for the 7 to 3 shift, introduced by the Respondent follows: Dates are for the Sunday beginning the week. 21. Sun. 9-11-46------------------ Off Mon. Off Tues. 7-3 Wed. 7-3 Thurs. 7-3 Fri. 7-3 Sat. 7-3 22. 9-22-46------------------ 7-3 7-3 Off Off 7-3 7-3 7-3 23.9-2946------------------ 7-3 7-3 7-3 Off Off 7-3 7-3 24. 10-6-46------------------ 7-3 7-3 7-3 7-3 7-3 Off Off 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD per week in excess of 40. They also had but one free Saturday and one free Sunday in each 4-week period °i The third shift cycle was more irregular as shown in the margin." No more than five shifts were scheduled for each calendar week. While each Saturday is marked off, it must be remembered that employees on this shift worked from midnight to 7 a. in. on' each of these 4 days. Per contra while they are carried on the schedule as working a shift on three Sundays they were actually at work on this day only for an hour between 11 and 12 p. m. The swing shift schedule, as shown below, was comparable to that of the third shift in irregularity. On two occasions the 4 weeks' cycle called for a single shift to be worked after 2 days off. In each case this isolated shift was followed by another shift off. The schedule had two periods of seven consecu- tive shifts; one in the third and fourth week and the second where the last two shifts of the cycle were followed by the first five shifts of the next 4-week period. Workers on this shift had but one Sunday free each month and two Saturdays. Their work entailed the additional hardship of working during each calendar week at the hours scheduled for each of the three shifts.66 These schedules, which joined a substantial increase in the requirement for week-end work and frequent demands for 7 consecutive clays of labor, with the withdrawal of bonus payments for consecutive work beyond five shifts and for Saturday and Sunday work, aroused dissatisfaction among the employees af- fected. Individuals, as undenied and credited testimony of witnesses called by the General Counsel shows, made frequent inquiry and protests to Larry Thorud, superintendent of the rolling mill," John Boris, general foreman, to their im- mediate foremen; to Ray (Pickles) Richards, grievance man for returned veterans, and to Edward H. Goin, personnel counselor for colored employees attached to the Respondent's personnel department. None of the witnesses testi- fied that he had entered a written grievance under the formal grievance pro- cedure. Unrefuted and credited testimony by Dietrich K. Willers, assistant superintendent of personnel and assistant to Works Manager Thomas I. S. Boak 6s and by Boak himself, shows that none was presented in the period pertinent here. Early in September 1946, a self-constituted committee of S or 10 employees from the first shift including Destadio, Bonito, F. Baldino, Joseph Los, James 64 The Respondent introduced the following schedule for the 3 p. m. shift: 21. 9-15-46------------------- Sun. 3-11 Mon . 3-11 Tues. Off Wed. Off Thurs. 3-11 Fri. 3-11 Sat. 3-11 22. 9-22-46------------------- 3-11 3-11 3-11 3-11 Off Off 3-11 23. 9-29 -46------------------ 3-11 3-11 3-11 3-11 3-11 Off Off 24. 10-6-46------------------ Off Off 3-11 3-11 3-11 3-11 3-11 sa Third, or 11-7 shift: Sun. Mon . Tues. Wed. Thurs. Fri. Sat. 21. 9-15-46-- -----------------11-7 11-7 11-7 11-7 Off 11-7 Off 22. 9-22-46----------------- Off 11-7 11-7 11-7 11-7 11-7 Off 23. 0-29-46 -- ---------------- 11-7 Off 11-7 11-7 11-7 11-7 Off 24. 10-0-46 11-7 11-7 Off 11-7 11-7 11-7 Oft 66 Swing shift schedule: Su Mon es T wed Thurs Fri Sat 21. 9-15-46 ------------------ n. 7-3 . 7-3 . u 3-11 . 3-11 . 11-7 . Off .. Off 22. 9-22-46------------------ 11-7 Of 7-3 7-3 3-11 3-11 Off 23. 9-29-46 ------------------ Off 11-7 Off 7-3 7-3 3-11 3-11 24. 10-6-46------------------- 3 -11 3-11 11-7 Off Off 7-3 7-3 67 Thorud's employment was terminated about August 23, 1946 ; thereafter Boris became acting superintendent. 61 Willers' position as assistant to Boak dates from about October 1946. OLIN INDUSTRIES, INC. 235 T. (Teddy) Evans, and Ernest Ruby 69 assembled the majority of the men on the shift in the washroom where discussion on grievances arising out of the schedule was carried on. A subsidiary question arose over the scheduling of 4 hours' overtime. This was proposed by the Respondent following the institu- tion of a 45-hour week in the plant generally. However, in the complicated schedules in force in the rolling mill the addition of these hours called for the 4 additional hours in some cases to be added to a single shift. Moreover, such addition sometimes fell on a Saturday or a Sunday shift. Destadio addressed the meeting. It was decided that a committee composed of Destadio, Los, and Russell Diedrickson 60 should approach Boris and, through him Works Manager. Boak for a conference on the issues. The committee 'net with Boris on or about September 8, 1946, at 3 p. in. in Boris' office.B1 Destadio and Los testified as to their interview with Boris. Their credited testimony agrees that Boris' attitude was that the schedule as fixed by management must be worked 62 Los and Diedrickson thereupon withdrew and later reported to their fellow employees on the shift that they "couldn't make- no headway with Boris." Destadio persisted in his protest to Boris and an- nounced his intention to carry the matter to Boak. Boris, who was newly appointed acting superintendent, was averse to such action and persuaded Destadio to allow him [Boris] to consult with Boak. After doing so he showed Destadio a new schedule stating that it was to be posted on September 15, 1946. On examination, aided by explanation by Boris, Destadio found this schedule made improvements over that currently in effect. As he testified, it required no more than five consecutive shifts and provided for an additional Saturday and Sunday off in each 4 weeks. Destadio promised Boris that he would explain the changes to the men and expressed his opinion, as his testimony reads, "I am pretty sure they will like it in comparison to what we have now. I don't imagine we will have too much trouble convincing them." Boris testified that on the occasion when the committee called on him he had explained that the schedule in effect was temporary and would be modified when production covered the work in process. This he anticipated would be "in two weeks, possibly three or four." He further testified that he was working on a new schedule to bring the rolling mill in line with a 45-hour week recently in- stalled in the plant generally. Los and Diedrickson then left ; Destadio remained and asked whether the new schedule was to be effective soon. When assured by Boris that it would be, Destadio, as Boris' testimony reads, said : "That's fine, don't worry about it. I will take care of that with the fellows downstairs." The undersigned has considered this conflict of testimony in the light of the full record. He is influenced by the detailed and exact character of the testi- mony by witnesses called by the General Counsel and their successful withstand- ing of lengthy and searching cross-examination. Boris' testimony by contrast was lacking in specificity. He was evasive in cross-examination and exhibited a faulty memory on matters pertinent here. The undersigned credits the testi- w All those named, except Ruby, are complainants in this proceeding. 60 Diedrickson was not a complainant and was not called as a witness. 01 Boris fixed the date as the Saturday or Sunday following Labor Day. This would be September 7 or 8, 1946. "Los' testimony reads, "[Boris ] said that is the way it is going to be. If you guys like it, all right ; if you don't you know what to do . It was all one sided ." Destadio's testimony was to similar effect. It reads , "[ Boris ] said, You are going to work them hours whether you like it or not, or you are going to get out . I am not firing you. but you know what you can do , either work or quit." 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mony of Los and Destadio as to the matter and rejects such testimony by Boris as conflicts therewith. A new schedule was posted and became effective September 15, 1946. Destadio testified that the schedule was less desirable, in his opinion, than the one in effect prior to that date. He testified that he immediately protested to Boris. At this point his credited testimony reads as follows: I said [to Boris], "What are you doing, that ain't the schedule you say we would work with." He said, "Well, that is the one you are going to work." I said, "This one here makes it worse than the old one. This . . . adds a clay to each week. We are working 6 and 7 now. Your new schedule calls for 7 and 8." He said, "Well you are either going to work or quit, . . . I expect a few guys to quit-so what . . . I can hire men to take their places." Destadio, as he testified, thereafter lodged a protest with Richards who made a written record to which, after requesting and receiving authorization, he signed Destadio's name. Richards stated to Destadio that he had presented the matter to Hoak. On further inquiry Richards intimated to Destadio that this protest was ineffectual. This unrefuted testimony by Destadio was corroborated by F. Balclino and is credited by the undersigned. The exact nature of the changes made by the schedule posted on September 15, 1946, was not disclosed fully at the hearing. Boris testified that as acting superintendent of the rolling mill lie was responsible for working out the new schedules. He testified that the only change made was to give the employees an opportunity to work 4 hours' overtime in each week. When asked whether, in the schedule posted, the employees at times were required to work eight consecu- tive shifts, he replied, "I don't remember that close, but it was 6 or 7 is the way the schedule was made up in my recollection." F. Baldino, in his testimony, gave the clearest statement of the changes made on September 15. His testimony in point here, reads : The [schedule] ran practically the same as the last, only instead of work- ing two off, seven, two off, six, four off, they just took two clays off the four days off and just brought it up forward. So, instead of working six and seven, we'd be working seven days, two off, eight days, two off, and continued right on. The record contains 17 employee record cards, with a good distribution among the four shifts. These show the changes made by the new schedule in the first week that it was effective. By this evidence the first shift is shown to have worked an additional shift on Monday, September 16. Employees who worked full time are credited with 49.8 hours for the week. Moreover, six witnesses, from this shift, testified unanimously that they were scheduled for a Sunday shift and reported at the plant gate before 7 a. m. that day. By analogy with the earlier schedule they would also have worked a Monday shift making the eighth consecutive shift. Employee record cards for the second shift show no change during the first week's operation of the new schedule. Full-time em- ployees made 41.5 hours as before. However, the schedules for the third and for the swing shift indicate that the third shift did not report for their Sunday shift on September 20. They are credited with but 33.2 hours for full time in the week. Under the previous schedule they had reported for a Friday shift in each of the 4 weeks in the cycle. The swing shift employees gained by the shift subtracted from the third shift. Employee record cards, confirmed by the record of Moses Brown read into the record, show that they worked an additional shift on Friday, OLIN INDUSTRIES, INC. 237 September 20, 1946, and that those who worked full time made 49.8 hours in the week ending September 21, 1946.63 This evidence further shows that members of this shift worked 8 consecutive days from Friday, September 13, to Friday, Sep- tember 20, both inclusive. It will be manifest from this statement that Boris' testimony regarding the change made was incorrect. Although the evidence is incomplete it refutes with finality his statement that the only effect of the change was to give each em- ployee an additional 4 hours of overtime. By the same token the available evidence supports the testimony of Baldino and Destadio that the change in- creased the number of consecutive shifts to be worked and correspondingly reduced the number of free days. The undersigned, on this record, credits their testimony and rejects so much of Boris' testimony as conflicts with them on this point. The record reflects that the posting on September 15, 1946, of the new schedule and operation under its severer requirements brought to a head the discontent of the rolling mill employees. The employees on the first shift, after further washroom conferences, went to the union headquarters as a group. There they sought and received advice from Union Representatives Vincent J. Romeo, Harry Kaplan, and Joseph Squires. It was determined to call a general meeting of rolling mill employees. Such a meeting of the three shifts not working was held, on or about, September 20, 1946. At this time under guidance and advice by Romeo, Kaplan, and Squires, demands were formulated for presentation to the Respondent reading as follows : DEMANDS OF ROLLING MILL WORKERS 1. Time and one-half for all work over 8 hours in any working day. 2. Time and one-half for all work on Saturday as such. 3. Double time for all work on Sunday and holidays. NOTE.-That, for the purpose of computing overtime, 12 Midnight shall be the beginning of the work-day. 4. That all charities be itemized, and that workers choose the charities they want to contribute to and the amount they wish to give. A committee, composed of seven members, was elected from each shift by vote of employees present." It was decided that a work stoppage of 15 minutes' would be held on each shift following the 1a-minute lunch period at which time the committee, each member of which was given a copy of the Demands, was in- ca This shift in Friday's assignment caused some confusion, manifest in the testimony of employees affected who appeared as witnesses: They remembered the normal schedule better than that effective for a single week. 64 Complainants on these shift committees, so far as disclosed by the record were : First Shift Frederick Baldino Bejamin Bonito Frederick Destadio Tames T. Evans Joseph Los Third Shift Louis Baldino during work stoppage) Second Shift Harold Ballard Angelo Conte Louis R. Morton Joseph Tardie William Weaver (Substitute for Ballard 11 The Respondent contends that the plans made included further lengthening of the work stoppages by 15 minutes on each succeeding day. After full consideration of all evidence and the full record the undersigned concludes and finds that plans definitely voted upon, went no further than the third shift on September 21, 1946. The parties stipulated that the plans for stoppage covered the three shifts working from 7 a. m. September 21 to 7 a. in. September 22, 1946. 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD structed to present them to the management. Employees who attended con- veyors serving the rolling mills and those attending furnaces were instructed to continue their duties lest machinery or materials be damaged. In accordance with this plan, the employees on the first shift on September 21, 1946, did not return to their jobs when their lunch period closed at 12: 15 p. in. Instead they assembled in the vicinity of the washroom. When Foreman William Lloyd ordered them to return to work, Destadio stated that they would not do so until they had an opportunity to talk with Boris or Boak. Lloyd left and on returning said that neither would come and repeated his order that they return to work. When they (lid not do so, Boris and Boak shortly arrived. Re- garding what then transpired the record contains some conflict of testimony. Destadio's testimony, given late in his cross-examination after his memory had been somewhat stimulated, is recorded as follows : Bill Lloyd came in. He says, "Come on you fellows let's go back to work here. It is time to go back." So I went up to him and told him, "You better get John Boris and Mr. Boak because we are not going back to work until we see them." He walked out, turned around and came right back in again and said, "John [Boris] and Boak are standing outside or something like that." He says, "They ain't going to see you until you go back to work." We laughed-I did anyhow. I told him, "You better .get them, that the men weren't going back to work until [we] saw them. . . . Just as he walked out Mr. Boris and Boak walked in. . . . Boak said, "Come on, get back to work, get back to work, call the guards," and he went through that for a few minutes. He jumped up on the bench alongside the wall and kept repeating, "Go on back to work. I will call the guards and throw you all out." Then he said, "You colored fellows, if you don't work here where are you going to work in New Haven?" This one fellow [James T. (Teddy) Evans] answered back, "Yes, we have been figuring that out for about 300 years." And he [Boak] turned around and said, "That's enough from you, funny face. Go on, go on back to work." He says, "There are a bunch of tough guys in the crowd, but I would like to take on anyone of [you] all alone outside." Then the chief of police came in and he started to talk to us and asked us to go back to work." We got to talking back and forth with him and about that time the fifteen minutes was up so I turned around and says, "Let's go fellows, let's go back to work," and we all filed out and went back to work. Elsewhere in his testimony Destadio stated that on Boak's first appearance he [Destadio] approached him and said, "Mr. Boak, I am a representative of a committee of the men," and tried to hand him a copy of the Demands. There- upon, as Destadio further testified, Boak said, "Who are you? I don't recognize anybody. I don't recognize you as long as the mill is shut down. I won't .recognize anybody." Destadio's testimony in general outline is corroborated by that of employees of the first shift who were called as witnesses by the General Counsel. It will be remembered that these witnesses testified independently ; the rule for 66 The reference is to Francis McCartin, chief of police of the Winchester Protective Service. This name is frequently reported as McCarthy in the transcript of the testimony. Further credited testimony as to McCartin's intervention shows that he deprecated violence and was assured there would be none. Baldino, who knew McCartin well, told him the purpose of the stoppage and asked for 2 minutes further time to allow the men to confer. McCartin granted the request. OLIN INDUSTRIES, INC. 239 segregation of the witnesses being in effect. Boak's testimony in point here, conflicts with that just stated in several material respects. His version reads as follows : So [Boris] and I . . . went into the washroom and three men pushed themselves up to me ahead of the rest and said, "We represent the Union. We want to tell you what we want." And I said, "There is no Union in this plant, and furthermore the NLRB in 1944 held that the mill is not an appropriate bargaining unit, you fellows go back to work." And one of them said, "We have some things we want to talk about." I said to them, "You fellows know that we have a well-established grievance procedure in this plant. You should make use of it." And the biggest man of the bunch that I after[wards] learned was Destadio said, "We ain't going to follow the grievance procedure. We are going to work that this way." I said, "Well you can't, you have got to go back to work.. . . I will give you two minutes to get back to work or I will call the guards and ask them to take charge." Well he [Destadio] commenced jumping up and down and ranting and raving, "to hell with the guards, we eat the guards up." And the three or four guards came in with the supervisor [Mr. McCartin]. Boak in his testimony admitted applying the appellation "funnyface" to a negro employee. He was vague in his testimony regarding the exchange with this employee who was identified as Evans. Testimony by Evans and others present fully supports the version given by Destadio. Boris in his testimony identified the three men who approached Boak as Bonito, Baldino, and Destadio. His testimony supports Boak's version in stating that they announced they were a union committee ; that Boak referred to the Board ruling that the rolling mill was not an appropriate unit ; and advised the committee to use the grievance procedure. Further Boris stated that Destadio spoke defiantly regarding the guards. The undersigned finds no support for this testimony of Boak and Boris after consideration of the full record. Bonito, Baldino, and Destadio each testified that they were a committee selected by the employees and that they advanced no claim in speaking to Boak during the stoppage that they repre- sented the Union or had been selected by or authorized by the Union. The testimony of various other employees called by the General Counsel corroborates this testimony. Similar preponderance of credible testimony enforces the con- clusion that the record does not substantiate Beak's testimony that he, at this time, referred to the Board's ruling that the rolling mill was not an appropriate unit ' or that he advised the committee and the employees that they must use the established grievance procedure. This testimony by Boak and Boris is rejected by the undersigned. The parties stipulated that : on September 21, 1946, the employees of the rolling mill department in- volved in these proceedings employed on the first shift, at 12: 15 p. in. in ac- cordance with a plan failed to return to their work though the time allotted by the Company for a lunch period had elapsed and the usual signal for a return to work had been given ; that the said employees of the first shift continued their failure to return to work until approximately 12: 30 p. in. ' Each of these three committee members corroborates , as appears below, Boak 's testi- mony that in their termination interviews he called their attention to this ruling by the Board. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD though Thomas I. S. Boak, Respondent's Works Manager, and others of the Respondent's supervisory personnel, directed such employees to return to work ; that about 12: 30 p. in. all of the employees returned to their work at a signal given by Frederick A. Destadio and continued at their usual employments -until 3 p. in., the usual quitting time for that shift. It is the further understanding of the parties that there are some individuals in- volved in these proceedings who allegedly did not participate in these stoppages clue to the fact that they were employed in continuous operations. This stipulation does not preclude such employees from testifying in these proceedings, nor are the parties in.su,ch cases bound by this stipulation. Between 2 and 3 o'clock on the afternoon of September 21, 1946, Boric sum- moned Bonito to his office. Baldino and Destadio were brought there im- mediately after the close of the shift at 3 p. in. They were interviewed singly. As to the material facts in these interviews there is substantial agreement. Soak's own testimony as to the Bonito interview in point here reads : I told Bonito that in my opinion he was acting very foolish in what he had done, that as I saw it the act that those three men had led had been entirely, illegal without any basis of action and I asked him whether he was familiar with the fact that at a hearing held in March 1944, a decision of the [Board] had been that the mill division was not an appropriate bar- gaining unit for the [Respondent]. * e s s * * 4' He said, "Oh, to hell with that, we are running this now," and I said, "If you have grievances, which I assume you have, you have got a procedure which you can follow," and I said, "We are going to do it this way." Next I said, "Well, if you had this to do over again, would you do the same as you have donr: now? I am talking to you personally." He said. "Yes, I would." I sail, "In that case, I can't do anything other than to recommend to the employment office that you be discharged." It was Boak's further testimony that he "went practically through the same chain of conversation" with Baldino. He ascribed to Destadio, however, cer- tain "profane and personally insulting language." For this there is no corrobora- tion in the record. Boris testified that he was present throughout these termination interviews and that they were alike in character. It is palpably improbable that the use of personal invective directed to the works manager would have failed to attract Boris' attention and lodge securely in his memory. In this state of the record the undersigned rejects this testimony of Boak. There is further conflict in the testimony at this point in that each of the three men discharged testified postively with persuasive detail that Boak definitely dis- charged each man while Boak's testimony was that he told each of them he would recommend the discharge to the personnel department. Thus Bonito's tes- timony reads : Anyway, lie told me how I was an instigator and participated in an illegal work stoppage. He said, he told Mr. Willers and Mr. Sullivan "' to take me out of the office, to take my pass away, that I was all through. Similarly Baldino's testimony reads in part: "You know," [Boak] says, "you're breaking the laws of the land." I told him, well maybe we were, maybe we weren't. I didn't know. Then he says, 11 Austin F. Sullivan, a supervisor in the personnel department, subordinate to Willers. OLIN INDUSTRIES, INC. 241 "Well you leave me no other alternative but to fire you." I asked him what he fired me for. "Well," he says, "because of an illegal work stoppage." Destadio's testimony is of like tenor. It reads : So he says, "Well, I am going to have to fire you. I am going to discharge you. You don't leave anything up to me." I says, "As long as you are going to fire me, let's cut out all this bull and let me get out of here." He didn't answer me. It was Destadio's testimony corroborated by Boak and Boris that at this time he left his copy of the Demands on Boak's desk. The testimony of Boris, who was present at the Bonito interview, in part, reads, "Mr. Boak told him [Bonito] that he would have to discharge him for insubordination. Bonito said lie didn't care. He was taking orders from the Union." °D Boris was asked if Boak consulted him regarding these discharges and answered, "He (lid not." The examination continues: Q. The first you heard about it was when you were called in and heard Mr. Boak say he would have to discharge them? A. That is absolutely right. WTillers testified that Boak recommended the discharges to him after the three were interviewed by Boak and before their passes were taken up. He further stated that Boak's recommendation was made after he had stated to these employees that he had no recourse except to discharge them. Under these circumstances the undersigned concludes and finds that Bonito, Baldino, and Destadio were summarily discharged just prior to 4 p. in. on September 21, 1946, and that this was done without the usual procedure of review by the discharge section in the personnel department." Sometime after the second shift reported at 3 p. in. they learned that Bonito, Baldino, and Destadio had been discharged as a result of the work stoppage at 12:15.' It was then decided by the shift committeemen in consultation with other employees that they would make an additional demand on Boak that these three employees be reinstated, when they presented the demands previously formulated. Events which occurred following the lunch period ending at 7: 15 p. m. were clearly stated by employee Angelo Conte. His credited testimony at this point reads : "With reference to the Baldino interview Boris ' testimony reads : "The conversation was just about the same. In fact , it was the same." As to Destadio , Boris testified, "I brought Mr. Destadio up and the conversation was just about the same as it had been with Baldino and Bonito except that Destadio was more vehement ." When asked , "What did he [Destadio ] say and what did he do that was different ," Boris replied that Destadio threw the Demands on Boak's desk before leaving the office. '0 The undersigned attaches significance to the fact that when it was pointed out to Boris that previous testimony indicated that all discharges were made by the personnel department , Respondent's counsel intervened saying : I think, Mr. Trial Examiner , you might be a bit confused . I think you will find out before this hearing is over that Mr. Boak himself didn ' t actually discharge the men himself ; that they were recommended for discharge by him through Personnel and they were cleared there. Boak 's testimony on the following day was in line with this prediction. 71 Employee Conte , a committeeman , testified that Bonito told him about 3 : 30 p. in. that he had been discharged . Bonito, at the time , was collecting his belongings preparatory to leaving the mill . Employee Harold Ballard , also a committeeman , testified that Baldino and another man, not identified by name, called to him through the window of the rolling mill about 5 p. in. and stated that they had been discharged. 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And at [7: 15 o'clock] when [John Boris] told us to go to work nobody moved. We said no, we want to see Mr. Boak. Mr. Boak didn't bother to coln& over. He grabbed a man by the name of Tyler-I believe that is his name- and he took him by the arm and said, "Get to work." The guy was confused and he stood there. He grabbed him again and he said, "All right, take this, man over." and then . . . Goin'2 came out and took him by the arm and led him out to the door. Then Mr. Boak went over and grabbed another fellow by the name of Joe, a big husky colored fellow, and he started grabbing him and he said, "All right, guards, take this man out." Then Nick [Proto] 73 stepped up and said, "Listen, I am the spokesman: for the committe. Here is the grievances." and Mr. Boak said, "I don't want to bother with that. I don't want no paper. I don't need them." '". And he asked who-to Boris, I guess-"Who is this man?" Boris was stand- ing next to him and he said, "That's Nick." He [Boak] said, "What does he do?" and John Boris said, "He runs a roll." He [Boak] hollered, "Well, take him out." So Boris walked back to get the guards and some one" in the crowd said, "If you take him out, you will have to take us all out." and then finally I believe it was Louis Morton who said, "Let's go in the wash- room. There is a machine running here and it makes so much noise we can't hear ourselves think." At this time the employees retired to the washroom and remained there until 11 p. M. Credited testimony by Willers, referring to the. time when Boak entered the will, reads as follows : Just beside me was Nick Proto and he hollered to Mr. Boak that he was going to do the talking and before the men went back to work he, meaning Mr. Boak, had to reinstate Baldino, Bonito, and Destadio. Unrefuted and credited testimony by Boak confirms this statement. He testi- fied that one of the men stated to him, "Well, we aren't going back to work until you rehire the men you fired this afternoon." Shortly after the employees congregated in the washroom, Sullivan came there and announced that Proto, Morton, and William Weaver were to go to Boak's office. Morton's testimony at this point reads : So, Proto was the spokesman of this committee but I didn't give him any chance to speak that time. I told him [Sullivan], "No, no, we're not going to Mr. Boak's office. We have several offices here in the rolling mill, we have the washroom, and the rolling mill is a big, large place, here's where we want to see Mr. Boak at." So they couldn't get us to go out to Mr. Boak's office, so they go away again. Testimony by employee Robert E. Samuels corroborates Morton at this point. Samuels stated, "Well, they said they didn't want to go up to his office because 72 Edward H. Goin, a personnel counselor. 73 Proto was not a complainant and was not called to testify. 79 It will be remembered that Boak had been given a copy of the Demands by Destadio'. Boak testified that he did not know the names of anyone with whom he had contact on the second shift. 75 Identified by Committeeman Louis Morton as employee John Longhorn. Longhorn was not a complainant and did not testify. OLIN INDUSTRIES, INC. 243. the three fellows in the morning had done that and they were fired." Boak: further stated that he made up his mind about 25 minutes of 8 that the employees. would not return to work. About this time McCartin said that he [McCartin] thought he could persuade the employees to return to their duties. Boak then said he had no objection to his trying to do so. Boak returned to his office.. Around 8: 30 o'clock either McCartin, Willers, or Sullivan called Boak and reported that the attempt to induce the men to go back to work had failed.. Boak's further testimony reads : After that I should say probably about quarter of nine I got ahold of McCartin to tell the guards that the mill would not work on the eleven to. seven shift. At the same [time] I told him to tell the guards who came on Sunday morning that the mill would resume work at seven a. m. Sunday. The record shows that McCartin ordered the men either to resume work or- leave the mill. At this time Committeeman Morton told McCartin that the em- ployees had been warned by Goin and Pettyjohn that failure to report for work on the Saturday or Sunday shift would result in their being "automatically fired." Because of such threatened action Morton, as he testified, proposed that they remain until the end of the shift at 11 p. m.'0 It was Conte's credited testimony that on McCartin's stating that he had orders "to take us off the prop- erty," "I told him that if we were going to be taken off the property they should give us a written agreement from Mr. Boak that everything was okay before we left." Conte further testified, "I told Mr. McCartin, myself, as long as there were machines running, they [the employees] were going to stay there and see everything was all right before we left the plant." When Harold Ballard, a committeeman who, as an annealer in charge of two furnaces, had remained at work, came to the washroom and reported "Everything is okay," " the men changed their clothes and went home. Boak's testimony was that while the men. were told to leave "no physical effort was made to get them out." Although attempts to arrange a stipulation covering events on the second shift failed, the parties did agree that it was not disputed that "there was no work performed [on this shift] except for those on continuous operations from 7: 15 p. in. until the end of the shift at 11 p. in., that the employees "were asked by competent supervisors to go back to work' and they didn't" ; and then "they were asked by the chief of police, Mr. McCartin, to leave the plant, and they did not until 11 o'clock." 78 .76 Morton 's testimony relative to his conversation with McCartin , is worded as follows : [McCartin ] came in and he says, "Well, you men will have to get out of here, we're going to close the will down." "No," I says , "We're not going until 11 o 'clock." He says, "Why?" I says, "Well,. the report was around all week , Goin had even met me in the club and he told me that we'd better come to work Saturday . If we didn't come to work Saturday and Sunday we'd be fired." Pettyjohn stood right by the clock each and every afternoon , practically all that week, and every time that we came in he would say, "Don't you boys forget to be here Saturday and Sunday because if you don 't be here Saturday and Sunday you'll be dismissed." Pettyjohn was a personnel advisor , subordinate to Willers. 77 This quotation is from Conte 's testimony. Ballard gave testimony but was not ques- tioned about this incident. '8 Respondent's counsel fixed the hour of McCartin 's request as "about 9 o'clock." The General Counsel demurred to this stating he was not sure it was "definitely fixed" at that hour. It was Boak's testimony that he gave orders to prepare the mill for a shut-down "between 8 : 15 and 8: 30" p. in. 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is agreed that the rolling mill was fully prepared for a shut-down and that the men reporting for the third shift were informed that the mill was closed and were not permitted to enter. Boris described the operations necessary to shut down the mill as "greasing up the rolls so they would not rust, preparing the furnaces . . . to pull the metal that was being milled ; also to shut them down to prevent explosions ." These operations took considerable time. As Boris explained in his testimony some of the material in the furnaces takes 4 or 5 hours to anneal . His further testimony reads : The furnaces had to be cooled down and the metal had to be taken out and that would take anywhere from two to three hours to take out alone. Number three furnace takes approximately two hours and twenty min- utes . . . to empty out. Boris further testified that some of the machinery "was not shut down until mid- night." Nothing in the record suggests that the employees on the second shift made any attempt to interfere with the process of shutting down the rolling mill. Those on continuous operations aided in these operations ; the others remained in the washroom. Although Boak testified, as stated above , that he had instructed McCartin to inform the guards that the mill would resume operations at 7 a. in. on Sunday, September 22, the record discloses that such resumption was of a very limited character. Numerous witnesses testified that on reporting for their shifts that day they found the gates at which they were accustomed to enter closed and were refused admittance by the guards. It was Boak's testimony that he had ordered the guards doubled and that admittance was permitted only through the doors of the guards' shanty.7ll These precautions were taken , as he further testified, because of rumors, to which he gave credence , that plans were afoot to rush the gates and smash the machinery . Boak was at the gate around 7 a. in. on Sunday, Monday, and Tuesday mornings . Consideration of the complete record .enforces the conclusion that admission to the plant on each of the shifts on both Sunday and Monday was limited to such employees , as were approved by Re- spondent's officials . On Monday new passes , different in color, were issued to .employees at work . After that day other workers could gain admittance only after going through a process equivalent to rehiring . Boak fixed the number at .work on Sunday on all 3 shifts at 119. The normal number would have been over 300. It is obvious that those not admitted were, in effect, locked out. Los testified that he reported for work on Sunday morning and found Willers, .Sullivan , Boak, and Boris "all standing on the right hand side" of the hospital gate. One of them said, "you can't get in there, Joe." It was Los' further, un- refuted and credited testimony, that he saw three employees of the rolling mill, whom he named , admitted through the guards' shanty after being beckoned by Boris and after talking with 71im 80 Some 40 or 50 other employees at the gate, however, were not admitted. Employee Moses Brown of the swing shift, worked the third shift 11 p. in. Friday, September 20 to 7 a . in. September 21, 1946. On Sunday Boris came to Brown's home about 9 or 10 p. in. and gave him a special pass to return to the -rolling mill . Brown was a minor supervisor, or leadman , and directed the work of a gang comprising four to six men. On Boris' solicitation , Brown returned to 78 Willers, however, testified that he was present Sunday morning, and saw Boak at the hospital gate, which was open. w Employees Weaver, Evans, and Milner testified that they saw some employees admitted ,on Sunday through the guards' shanty at the hospital gate. OLIN INDUSTRIES, INC. 245 his job and worked the following Monday and Tuesday. On Wednesday, how- ever, Brown told Supervisor Ray Smith, as Brown's unrefuted and credited testimony reads, "I'm going home, I ain't going to work, when the men come to work I'd be back." Unrefuted and credited testimony by employee John J. Raffone, is in point here. Raffone also worked on the swing shift. His last recorded shift on his record card is for Friday, Septembet 20, 1946. Raffone testified the swing shift on that date worked the 11 p. in. to 7 a. in. shift. This means they quit work at 7 a. in. on Saturday. Thereafter, Raffone did not come to the plant until shortly before 7 a. in. on Monday, September 23, 1946. This was in time for his next scheduled shift. He was accompanied by Frank Lonergan,"1 another complain- ant. After finding their usual gate closed they went to the hospital gate. Raffone's testimony reads: So we went down to the hospital gate. We figured we might get in that way . . . and as we were going toward the hospital gate we saw Kerwin Daniels [a foreman] crossing Winchester Avenue from the hospital gate, and he says, "Lonergan, Itaffone go down to the Personnel office and get a special pass so you can go in." Lonergan and Raffone did as directed. Willers gave them special passes and told Raffone that they would have to go "through the shop and over to the roll- ing mill." When Raffone inquired the reason, Willers said, "Well, we had some trouble down there and the men are not working." On hearing this Raffone and Lonergan returned their passes and left the plant. Neither Daniels nor Loner- gan were called as witnesses. Wellers did not refute Raffone's statement. Frank Wilson, of the second shift, testified that when he reported for work before 3 p. in. on Sunday, September 22, 1946, the guard told him that he might enter through the guard shanty. Wilson did not do so. His testimony in point reads: Q. And you chose not to? A. That's right. Q. You made that decision at that moment., did you? A. Well just didn't go through. It is found on this record that employees Moses Brown, Lonergan, Raffone, and Wilson were not locked out but, in effect, joined the strikers on the dates set forth above. With these exceptions, that of employee Considine, and the five compensation cases detailed below, all the complainants, who testified stated that on reporting for their regular shifts after the events occurring on the first 81 Boris testified that Frank Lonergan, on it date not specified , had been upgraded to a supervisory position. He further testified that Lonergan had not worked in 'the rolling mill since September 21, 1946. The issue of Lonergan's supervisory status was not raised at the hearing and the record does not contain data which permit a finding under the definition of "supervisor" in Section 2 (11) of the amended Act. Moreover, it is not clearly shown that Lonergan was performing the duties of a supervisor on September 21, 1946. Admitting, arguendo, but not finding, in the absence of evidence, that Lonergan was a supervisor on September 21, 1946, he nevertheless would lose none of his right to reinstatement because of that fact. See Matter of Marshall and Bruce Co., 75 N. L. R. B. 90; Matter of Republic Steel Corp. (Upson Division), 77 N. L. R. B. 1107; and Matter of Fred Volandri et al., d/b/a Califruit Canning Co., 78 N. L. R. B. 112. In this last case the Board said "notwithstanding the exclusion of supervisors from the coverage of the Act as amended, [the Board] retains the authority to order reinstatement of supervisory em- ployees discriminated against in violation of the Act in force at the time of the discrimi- nation." 867351-50-vol. 86--17 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and second shifts on September 21, 1946, they were not allowed to enter the rolling mill. It is found that they were locked out. On Monday Boak, as his credited testimony shows, consulted with Boris rela- tive to the Demands left on his desk on Saturday by Destadio. Beak's testimony relative to this conference reads: It was to the effect that if the ulen°were objecting to the swing shift, that we would have to just face up to the fact that we couldn't produce brass as we had said we would. We would have to reexamine and reallocate our production and work 135 hours a week rather than 160 hours a week, .. . In line with this conclusion Boak composed a letter, under date of September 24, 1946, which he instructed Willers to send to the employees.$2 After stating that the "misunderstandings and happenings of the last four days" could have been avoided by application of the "well established" grievance procedure the letter's concluding paragraphs read : When the grievance was made known to me, notwithstanding the two unlawful work stoppages, neither of which were necessary, consultation was had between. Management and Supervision and a new schedule of hours worked out which does not involve Sunday work. The present working schedule is 3 8-hour shifts of 5 days each and one 5-hour shift on Saturday; each employee working 45 hours, plus the regular authorized clean-up or wash-up time. The Brass Mill Department is operating and will continue to operate. Accordingly, all employees of the Brass Mill Department are invited to report for work at once on their respective shifts. To this invitation to "all employees" there were three admitted exceptions: Bonito, Baldino, and Destadio. As Willers testified these three were not con- sidered to be employees since they had been discharged. Willers further testi- fied that he gave instructions to clerks under his supervision to mail copies of Boak's letter to all employes on the pay roll covering September 21, 1946. It is impossible to credit this testimony in view of the preponderance of conflicting credible testimony. As set forth in detail below, 13 employees were listed by the Respondent as dis- charged. Eight of them gave testimony. Each stated positively that he had not received Boak's letter of September 24, 1946.a Their testimony is detailed and persuasive. Thus, Conte's testimony reads: "No sir, I did not. . . . I have seen this copy from one of the other fellows, that's how I know." Woods, after stating that he had not received the letter, added, "I never received any letter whatsoever of any kind." a During Willers' testimony evidence was presented to show that 7 copies of the letter, and no more, were returned to the Respondent because the post office was unable, for various reasons, to Wake delivery. Six of, the letters so returned were addressed to complainants in the instant proceeding.' None of the 6 appeared as a witness. The undersigned concludes and finds that ea When asked whether he dictated or composed this letter . Boak replied , "I did : dictated it. composed it, corrected it six times." sa L. Baldino, Ballard , Conte . Evans, Los, Morton. Weaver , and Woods. "`- Evans credited testimony was, "I heard they sent it [ Soak's letter] to some of them. All of then didn ' t get it." Los testified that he did not receive the letter but knew of it because, "other fellows had it." a Gad [or Gade ] Carter, Alvin Jeffers [ Jefferi's]. Ruben Raise [Kaiser], Eddie Murphy, Robert A. Shepard , aid Simpson Washin gton. OLIN INDUSTRIES, INC. 247 the letter was not sent by the Respondent to employees discharged in consequence- of events on September 21, 1946. When the employees found the gates closed on Saturday at 11 p . in. and Sun- day at 7 a. in ., they were advised by union organizers of a union meeting called for Sunday morning. At this meeting reports were made of happenings on the first and on the second shifts . It was decided that a parade , or demonstration, would be held Monday noon and plans were made to establish pickets at the plant gates on a 24-hour basis . The demonstration consisted of an orderly parade up and down Winchester Avenue which extends through the center of the plant. Under Boak 's direction still and moving pictures were made of this parade. Representatives '6 of the Respondent , who were acquainted with the rolling mill employees , on study of these pictures , identified 235 employees of the rolling mill as participants in the parade. Picketing -at the mill gates began after the parade. It continued until December 8, 1946, with two short interruptions ; the first on October 21 and 22, 1946, when the strikers reported for reinstatement in accordance with a vote to abandon the strike as described below, and again preceding November 7 , 1946, at the time of the injunction proceedings instituted by the Respondent. On September 27, 1946 , Respondent's counsel Seserman , the employee's Execu- tive Committee," and Romeo, Kaplan, and Squires , as union representatives, met with United States Mediation Commissioner Charles Ray and Perley M. Hovey of the Connecticut Division of Mediation and Arbitration , in an attempt to compose differences . Seserman at this time read Boak's letter of September 24, 1946, and, gave assurance that the Respondent would employ all those on the pay roll on September 21, 1946, except Bonito, Baldino, and Destadio. Members of the employees' Executive Committee stated that they were instructed to refuse any settlement which did not include the reinstatement of Bonito, Baldino, and Destadio. At a meeting of the striking employees held on September 29, 1946, this action of the Executive Committee was ratified by a vote of the employees present. Late in October Hovey came to New Haven and made efforts to settle the strike. He conferred with Romeo , Kaplan, and Squires and on October 20, 1946, addressed a meeting of the strikers ' At that time the employees present understood that the Respondent had assured Hovey of its willingness to rein- state all the strikers , except Bonito , Baldino, and Destadio, on their application. After discussion the employees voted to withdraw the pickets and report for work at Respondent's personnel office next day. The natter of the three dis- clyarges was to be submitted to the Board on charges to be formulated. by the Union. Accordingly , striking employees to an estimated number of 250 to 300 assembled at the personnel office about 8 a. in. October 21, 1946. There they were lined up on the street and Willers and Ray Smith, a roiling mill foreman, selected certain employees for interview. It was Willers' testimony that he had no previous information regarding this development and that the as- sembling of the men was a complete surprise to him. He was directed by Boak to select for rehire a sufficient number to fill all requisitions for labor in the 88 Boak testified that Goin, Pettyjohn , McCartin, Willers, and others assisted in this identification. 87 Members of this committee so far as they are identified by the record are Bonito, Destadio , Frederick Baldino , Louis Baldino, James T. Evans , John J. Raffone, Carl Russell, and Frank Lonergan . All are complainants in this proceeding. 88 The undersigned infers that Hovey at this time also called on Boak as stated in Boak's testimony set forth below. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rolling mill on file in his department. The process of selection and interview was slow and there was growing disappointment and discontent in the ranks of the applicants. Their impression, as expressed by those called as witnesses, was that relatively few were being chosen. Willers testified that there were available "75 to 100" jobs and that "approximately 50" were filled the first day and "pretty near the same number" on the following day. It is obvious that these figures cannot be regarded as an accurate statement of the result reached. At the close of the second day the employees concluded that their applications were unsuccessful. They withdrew and picketing was resumed. Complainants who gave testimony that they attended the meeting addressed by Hovey declared that he stated in plain terms that lie had assurance that the Respondent would rehire everyone except Bonito, Baldino, and Destadio. They were supported by the testimony of Romeo which was especially detailed and forceful to this effect. It reads: All he [Hovey] told us was that he did reach an understanding with the management of Winchester that they would reinstate everybody in the rolling mill with the exception of the three people that had been fired if they reported to work on October 21, 1946. Now he told this to us; that is to Richard Linsley, who was in charge of the Union work in Connecticut. He told it to Joseph Squires, a field organizer. He told that to Harry Kaplan, a field organizer. And he told that to,myself. And he also said the same thing at a membership meeting of the rolling mill employees, that if they would report back to work as October 21, 1946, that they would all be reinstated. Romeo's testimony is corroborated by several witnesses who attended the mem- bership meeting. Raffone, a member of the employees' Executive Committee, for example, testified : We were called for a special meeting that . . . Hovey was going to address us. At the meeting we were informed by . . . Hovey that he had got in touch with the authorities that be at Winchester, and it was all right with them if we all went back to work outside of the three men and the three men later were going to be taken care of by the [Board] . . . and the union. The Respondent denies that any promise to rehire the employees had been given to Hovey or to anyone else. It was Boak's testimony that Hovey made a call on him on a date not fixed in the record. Boak further testified that Respondent's counsel attended a conference held at Hartford, Connecticut, at the request of the Union, about 4 weeks after September 21, 1940. What trans- pired at this conference was not placed in evidence. A letter from Hovey to Seserman, dated July 8, 1948, was entered as an exhibit by the Respondent. It reads : This is in reference to your telegram dated July 7, 1948 which states in part, "Claim has been made that on October 20, 1946 you informed union at union meeting that you had made agreement with Winchester for reinstatement of all strikers on October 21, 1946." Please be advised that I have made no such statement at a union meeting on October 20, or to anyone on any other date. No such agreement was OLIN INDUSTRIES, INC. 249 made between the representatives of the Winchester Repeating Arms Com- pany and myself during the dispute. Hovey was averse to testifying because of the confidential nature of his work. It was stated that regulations of the State Division of Mediation and Arbitration forbade him to appear as a witness. It is manifest that his letter, not being a sworn statement and not submitted to cross-examination, can not equal in evidentiary value the sworn testimony received which asserts that he did make the statement alleged. However, no finding need be here made, and none is made, that Hovey and the Respondent reached the understanding stated. Two findings are made which are sufficient for the purposes of this proceeding: first, that on October 21, 1949, striking employees made an unqualified offer to return to their employment on the basis of conditions then effective in the rolling will and foregoing their demand for the reinstatement of Bonito, Baldino, and Destadio; and, second that the Respondent rehired such strikers as it chose to rill posts then vacant." As to other matters in conflict here no findings are made and no recommendations will be made in this Intermediate Report. Certain difficulties developed in the course of the hearing as to the status of those terminated following the events of September 21, 1946. Most of them were "cleared" i. e., terminated on September 26 and 28, 1946, and given slips for presentation to the Connecticut Unemployment Commission. Under statutes of the State of Connecticut, the employer is directed to give such a statement to the employee within one business day upon: "Definite termination, as by dis- charge or resignation" or on "Layoff without pay unless the employee" is notified of a date for resumption of work within 7 days of his lay-off. Such notice is to be given within 7 consecutive calendar days if the employee is absent for an unknown cause. Acting Superintendent Boris testified that he knew of no discharges, besides Bonito, Baldino, and Destadio, resulting from the events on September 21, 1946, and that he had not recommended any nor heard of any. Boak testified that he did not recommend any discharges except the three on the first shift and that he had no knowledge that other discharges were made. Willers testified that some additional discharges were made and that it was his "thought . . . that [he] had knowledge of the review" and "went over the thing before we reached [a final determination]." However, he professed complete inability to remember the basis on which six individuals,` about whose cases lie was directly ques- tioned, were discharged. He stated "it was quite possible" that membership on the strikers' committee was a consideration in reaching such a decision and that prominent activity in the work stoppages "might have been a consideration that was given." Direct quotation from Willers' testimony at this point is helpful : Q. A number of the employees other than Bonito, Baldino, and Destadio received discharge slips reading wilful misconduct. Some of them with a note of "violation of Company rules," some of them with a note "instigat- ing and participating in an illegal work stoppage." Do you recall that? A. That-there was some, yes. Q. What was the great majority, I understand, received slips reading "voluntarily quit or left on their own accord." Isn't that correct? A. That is correct. 89 As noted below the men rehired were not "reinstated" as the Board defines that term. 90 L. Baldino, Angelo Conte, Louis Morton, James T. Evans, Harold Ballard, and William Weaver. 250 DECISIONS Or NATIONAL LABOR RELATIONS BOARD Q. What was the line of division? How (lid you determine which would receive which kind of slip? A. At that time there were several facts that we had that determined. Q. What were those facts? A. I don't recall offhand. Information came to us in regard to something that they had clone at the time which I don't recall. Q. At the time, at what time? A. In the period of their terminations. Q. What sort of information, that certain persons had done? A. I am not too clear as to the details on that. Q. Do your best to recall. A. I don't pick anything definite as to what the definite facts were in any case. Willers professed inability to pick from the list of complainants any one who was discharged. Thereafter he was instructed by the undersigned to determine from Respondent's records the names of complainants who were discharged and the date of discharge. He was further instructed to bring in work records cards of 8 named complainants : L. Baldino, Harold Ballard, James T. Evans, Joseph P. Los, Louis 11. Morton, John J. Raffone, William Weaver, and Raymond L. Woods. Both Willers and Respondent's counsel manifested considerable re- luctance to comply with this instruction. However, the work records were furnished and it list of 1.3 complainants who had been discharged was compiled. This included all of the 8 employees whose work record cards had been demanded with the exception of Raffone. The effective date of discharge of each of the 1.3 was stated to be September 21, 1946, except for September 18 in the case of L. Baldino and September 20 for Wellington Beal. The practice of Respond- ent was to date terminations as of the last day worked. L. Baldino worked the shift beginning at 11 p. m. on Tuesday and ending on Wednesday, September 18, 1946, at 7 a. in. According to the schedules in evidence he should have reported Friday, September 21. Baldino's memory was positive that he did so. However, both his work record card and his unemployment termination slip carry Septem- ber 18, 1946, as the last date worked 91 His termination slip under "Cause for Discharge" has a check mark on "Discharged for Wilful Misconduct" and the added notation, "Violation of company rules." The work record card has the notation: "Dis[charged]. Violation of Co[mpany] Rules." Notations for Bal- lard are similar to those for L. Baldino. The work record cards of Conte, Evans, Los, Morton, Weaver, and Woods carry the notation : "Discharged, Instigating and/or participating in an illegal work stoppage." 92 The unemployment termi- nation slip of Morton which carries a similar notation is in the record. During the hearing it was stipulated that the slips of Weaver and Conte carried the same notations as that of Morton. The remaining 5 complainants who were ad- mittedly discharged : Wellington Beal, Austin Gianelli, Otis Johnson, Joseph L. Tardie, and John H. [J.] Wayert did not give testimony. For them neither employee record cards nor unemployment termination slips are in evidence. Beal was discharged as of September 20; the other 4 as of September 21. The 91 The undersigned finds here an example of the confusion arising because of the new schedules posted on September 15, 1946 . Baldino's memory was correct as applied to the prior schedule . The new schedule which did not call for Friday 11 p. in. reporting had been effective for the current week only. 12 This is the same notation as that on the termination slip for Bonito except for the omission of "and insubordination." OLIN INDUSTRIES, INC. 251 undersigned finds it a justified inference th;mt these 5 employees were discharged because of participation in concerted activities September 21, 1946. It was Boak's testimony that "an employee who is discharged would have a much harder job to get back into the Company because of his record than one who is simply cleared." The other complainants in Appendix A, so far as the record shows, were given clearances with the notation "Left of Own Accord." This is usually entered on employee record cards as "LOA." Some further exposition is necessary in the cases of five complainants who were receiving workmen's compensation benefits at the time of the work stoppages. For these employees certain data can be conveniently presented in tabular form. The names are listed in the order in which these complainants appeared as witnesses . Name Nature of injury Compensation Period Paul DelStritto------ Leg injury ------------- Sept. 15, 1946-Oct. 7, 1946 Louis R. Stanford___ Arm cut--------------- Sept. 17, 1946-Nov. 25, 1946 James O'Connell_____Cut finger_____________ Sept. 18, 1946-Nov. 17, 1946 William S. Muir-----Smashed finger--------- Sept. 19, 1946-Nov. 18, 1946 William Martindale- Left hand severed------ 1944-1947 The dates for Martindale's compensation period were not definitely fixed in the record. He was first injured in 1944 and thereafter was nine times hos- pitalized since his injury was slow in healing. He continued to work in the plant between visits to the hospital and to the extent of his ability until September 21, 1946. He continued on compensation until some time in 1947 when a lump sum settlement was made. None of these employees worked after shifts in which the work stoppages occurred. Stanford had been attending for three shifts following his accident although, as he freely admitted in his testi- mony, he did little or no work. Muir left about 1: 30 p. in. September 21, 1946, after the stoppage on the first shift, on the advice of the plant nurse and with the permission of Boris, because his finger was throbbing. Each of these complainants except DelStritto, who at the time was on crutches, reported for their next scheduled shift. Each stated that he found the gate closed. Martindale's testimony was that he went to the usual gate on Sunday, September 22, 1946, "and the cop wanted to know where I worked. I said, the rolling mill. He said, `You can't go in.' They wouldn't let us in. That's all." With the exception of DelStritto each of these five employees participated in the demonstration on Monday. Muir testified that he picketed 5 or 6 weeks, O'Connell, until some time in November. The others participated until pickets were withdrawn about December 8, 1946. DelStritto testified that after con- sultation with the plant nurse and doctor he was told on October 7, 1946, that he was able to return to his employment. His testimony, in point here reads: So I told the doctor and nurse, both of them, that I wasn't going to go back to work until these people settled. So I went out and joined the picket line as soon as I could walk around a little. He further testified : I don't remember anybody coming up to nie personally and asking me if I would join them, because I had my own mind and I knew what I was going to do. 13 This is the date that O'Connell was reported fit for duty. He incurred a permanent disability for which he made a lump sum settlement . Final payment was made December 24, 1946. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under these circumstances the undersigned finds that DelStritto, in effect, joined the strike on October 7, 1946. His case should, therefore be handled on the same basis as that of the other strikers on and after that date. The undersigned will so recommend. Each of these five employees was in attendance during the mass application for employment on October 21 and 22, 1.946. Only DelStritto was at that time fit for full employment. Martindale was capable of the same work he had per- formed before September 21, 1946, and was available for reemployment on that basis. Willers called O'Connell in on October 21, but after an interval spent in the office waiting Willers said to him, "Well, O'Connell, I don't think we have anything for you today. We'll see you later." O'Connell responded, "Well, I'm on compensation." '4 Muir was asked in cross-examination whether he had gone to the plant on October 21, 1946, for the purpose of going to work. His reply reads: Well, the way I figured it out, there was a lot of men up there and their status was the same as mine. If they all went back, I maybe would have. If they didnt, I didn't. When asked in redirect, "What did you figure your status to be at the time that yellow slip was handed or pushed through the window to you?" 95 Muir replied, "I figured I'd been fired." Muir, Standford, and O'Connell were claimants in the Hinclcs case. Martindale made application for reemployment about Januaiy 25, 1948. At the time he was interviewed by Everett Carlson 98 and filled out an application form. Martindale was told to come back later and did so repeatedly but consistently was told there were no jobs open.°T Stanford made application for return to employment, shortly after he was notified that his compensation was to be discontinued on November 25, 1946. As his testimony is recorded: I took it [the notification] over to the personnel office and showed it to Carlson and Carlson told me I'd have to see Willers. So when I gave the form to Willers, he then in turn told me that I had kicked him . . . and there wasn't anything that he could do for me and the form meant nothing. So I walked out. Stanford had previously encountered Willers while on the picket line. At this time Willers told him, "Louis, you're foolish," and invited him to come in any time to talk with him. Later when Stanford was in the line of applicants on October 21, 1946, Willers told Stanford that he "was seen too much." It is significant that Stanford regarded Willers as his best friend. In this state of the record it is a justified inference, made by the undersigned that Willers' re- fusal to reinstate Stanford shortly after November 25, 1946, was caused by Stanford's prominence in collective activity and his presence on the picket line. Another exceptional case was that of Patrick J. Considine, who was a specialist working on repair of electrical instruments . His group worked alternate weeks on either the first or the second shift. While Considine did not certainly remem- ber, he accepted the statement drawn from the company records that he worked 5.3 hours on September 21, 1946. He worked a full shift on Monday and Tues- day and 7.3 hours on Wednesday, September 25, 1946. On Sunday and the fol- 91 These quotations are from O'Connell's unrefuted and credited testimony. 06 It will be remembered that Muir refused the slip without reading it. 91 Carlson was a subordinate of Willers and had charge of interviewing, selecting, and placing new employees. 97 This finding is based on Martindale's unrefuted and credited testimony. OLIN INDUSTRIES, INC. 253 lowing days he entered the plant through the guards' booth. Considine testified that the gate was closed. Oh Tuesday he was given authorization by Squires, representing the Union, to pass the pickets. This privilege was withdrawn on the next day and thereafter Considine did not enter the plant. As he testified, "I couldn't see going in there when the rest of the fellows were out." He joined the pickets around September 27 and did picket duty, as he testified, "probably 5 or 6 times for a three hour period." On October 21, 1946, lie was present dur- ing the forenoon when the strikers applied for reinstatement. After that date he applied for reemployment about January 1, 1947, and again in June 1948. On the first occasion he saw Willers and on the second Carlson, for whom he filled out an application form. Willers told Considine nothing was open and at the date of his testimony he had not heard from his written application. On this statement of fact the undersigned concludes and finds that Considine was not locked out but, in effect, went on strike on September 27. After that date he is entitled to receive the same treatment as is recommended for the general group listed in Appendix D. Plenny C. Wright " testified that on October 21, 1946 be was called from the line of applicants and interviewed by Carlson. Wright's account of happenings thereafter reads: Mr. Carlson told me that my job was no longer open, that I would be employed as a new man, that if there were any vacations or Christmas bonuses that I may not be included, and these bonuses are the privilege of old employees, the same as vacations. My pay. would be reduced to a beginners rate, and I 'd be entirely a new man. Wright refused the job under the conditions stated by Carlson but was persuaded by Goin to reconsider. Goin said , as Wright's unrefuted testimony reads : You should forget what has happened. Go back to work and you can work this out another year and you'll be back probably where you started from. After a day's experience under the new conditions, however, Wright left and had not since been employed by the Respondent. The parties stipulated that six complainants : Johnnie E. Best, Lawrence Birdo, Ugo Calderoni, William S. King, Eddie J. Murphy, and William Wilenski, were rehired by the Respondent on October 21, 1946, or shortly thereafter, and not reinstated as "reinstatement" is used in the Board's decisions. Under this stipulation, it is found that the status of the six complainants so rehired does not differ from that of other complainants who were hired by other employers. These six complainants are entitled to reinstatement and to back pay based on their earnings prior to October 21, 1946. The undersigned so finds. In addition to those of Martindale and Stanford, individual applications, all of which were refused by the Respondent, were made by several complainants. These will be set forth in approximate chronological order. Employee James M. Myles, made application on or about November 1, 1946. At this time he was interviewed by Carlson and Goin. His unrefuted testimony, in point here, reads its follows : I asked Mr. Carlson if there were any chance of getting my job back. He looked up in the files and I guess lie looked at the records, and he said there wasn't any work available. 11 Wright was not a complainant. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When there was, he would send me a letter calling me, and that was all with hint. So I went back to see Mr. Goin . . . I asked Mr. Goin if there were any chance of geting my job back. He said practically the same thing Air. Carlson said, that there wasn't any work available. So we talked further, and he told me, he said, "Why don't you colored fellows use your head. The CIO union as a whole is pretty good but this particular union, UE, is not any good for negroes" Employee Patrick Considine made an application on a date fixed as approxi- mately December 1946.100 He talked with Willers asking him "if there were any chance of coining back to work." He was told "there was nothing open at that time." In June 1948 Considine again went to the plant and filed an application with Carlson who promised to refer it to Willers. Considine had heard nothing from the Respondent when he gave testimony. L. Baldino testified that he applied for reinstatement "a couple of months after the pickets were withdrawn." This would place the date in February 1947. He was interviewed by Carlson. Baldino's testimony regarding the incident reads : [Carlson] said, "Your name is Baldino, isn't it'?" I said, "Yes." He says, "Well, there is nothing I can do for you. I can't help you out. There is nothing I can do for you." He wouldn't even give me a chance to speak. When I started to leave he says, "If you want to see Mr. Willers, I will go and have a talk and see if he will speak to you." I said, "Sure, I would like to speak to Mr. Willers." So I says to Mr. Willers, "How about giving me a job back in the rolling mill?" He says, "Sorry, can't give you no job." I says, "How about a job anywhere in the factory? I have worked here as an adjuster. I have done a few other jobs in this plant that I worked on." He says, No, I can't help you out." So I says, "Well, what's the idea? What's the reason?" He says, "You took part in that demonstration, didn't you? You was in a parade, we have a picture of you in that parade." I says, "Yes, I did take part in that." So I says, "Well, as long as you are not hiring me I may as well go." So I walked out. A few days later Baldino returned to the plant. After requesting permission of Carlson to see Willers, he was again refused employment. On his own sug- gestion he filed an application with Willers. After waiting a few days and having heard nothing Baldino made still a third trip to the plant, and asked Willers "for a job anywhere in the plant, any job at all." Willers replied, "I can't help you." When Baldino asked for a letter of recommendation as an aid in getting employment elsewhere, Willers said, "I am sorry that is not the policy of our company to give out letters or recommendations." It should be noted in this connection that Baldino was a member of the third shift committee and of the employees Executive Board, and had been discharged , effective September 18, 1946. Employee Robert Daniels applied for reinstatement in April 1947. He talked with Carlson and described the interview , in his testimony , as follows : [Carlson] said, "What happened?" I said, "Well, after the lockout I haven't been employed since." So he got a card and he said there wasn't 98 Myles conversation with Goin is further discussed in the following section of this Intermediate Report. 100 It was Considine's testimony , given June 25, 1948 , that this application was made "about maybe a year and a half ago to be exact." OLIN INDUSTRIES, INC. 255 no lockout. It looked like lie got angry. He said there wasn't no lockout. "You boys all had the chance you want. Well, I haven't got anything to show you today."-01 Sometime in December 1947, Daniels made another application ; because, as he testified, "The boys told me they were hiring over there." He talked with Carlson again and filled out an application form. Carlson said, "I haven't got anything to show you. You can come back in it clay or two." Daniels, however, did not return. Employee I?obert Samuels had occasion to go to the plant in the fall of 1947 on a political mission. While there lie requested to see Carlson and asked him "Whether or not there was any work." After consultation with Willers, Carlson said, "I am sorry, Mr. Samuels, we don't have anything for you." Employee ]loses Brown interviewed Carlson and Willers regarding reemploy- ment in the fall of 1947. His testimony thereto is recorded as follows: "W:11," I said [to Carlson] ''Flows chances of getting it job'?" lHe said, "Nothing doing. Come back tomorrow." I came back tomorrow morning, he said, "I'm sorry, Brown, nothing yet, nothing showed up." So lie told me to come back next morning, and I went back next morning and lie said the same thing. "Nothing doing" so I went to see Air. Willers. He said, "Mr. Brown, well, you walked out with the union, nothing we can do for you now." I said, "\Vell, I can't get a job nowhere else. If I go, people will turn me down." He said there was nothing lie could for me. Employee Jrofes Haley made application for reemployment in November of 1947. He was referred to Carlson by Goin. Carlson stated that the only jobs available were as sheet metal workers. Haley had worked as helper in the No. 7, furnace and received $125 an hour. Sheet metal workers were paid 85 cents an hour. Carlson advised Haley that "the best thing for [him] to do was to look some place else." Contentions of the parties and conclusions As shown above, the Respondent contends that the work stoppage from 12:15 to 12:30 p. m. in September 21, IJ46, was illegal and justified the discharge of Bonito, Baldino, and Destadio, as well as those of employees James T. Evans and Joseph Los from the shift, whom the Respondent admittedly discharged, and whose record cards carry the notation : "Instigating and/or participating in an illegal work stoppage.s 112 The Act provides .in Section 7 that employees shall have the right "to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection." It further declares in Section 13, "Nothing in the Act shall be construed so as to interfere with or impede or diminish in any way the right to strike." These provisions of the Act effectively disposa of this contention of the Respondent. Measured against this language it has, and can have, no merit. Much hearing time and transcript space was expended in discussing the Respondent's grievance procedure and the extent of 101 Under cross-examination Daniels testified that Carlson said, "You boys had your chance, you got letters to come back to your job and you didn 't cone." 102 The undersigned cannot, on the basis of the record , determine the shifts on which Wellington Beal, Austin Giannelli , Otis Johnson, Joseph L. Tardie, and John H. Wayert worked . Since their record cards are not in evidence the cause assigned for their discharge by the Respondent is not known. 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complainants' familiarity and experience therewith. Since these complainants have the statutory right to act concertedly and to use their strike weapon, these discussions have no bearing on matters at issue here. The Respondent mani- festly may not set up provisions for handling grievances on an individual basis and nullify the statutory provisions quoted which authorize concerted and strike action, by requiring its employees to use this grievance procedure in presenting their grievances. Nor are the rights established by the Act confined to majority groups within units found appropriate by Board decisions. Rather, they are inherent rights of all free men and employees. After consideration of the full record, the undersigned finds that the discharges of employees on the first shift in Respondent's rolling mill, for participation in the work stoppage on September 21, 1946, were discriminatory, in derogation of rights guaranteed by Section 7 of the Act, and violative of Section S (3) of the Act and Section S (a) (3) of the amended Act. The Respondent further contends that the work stoppage on the second shift from 7: 15 to 11: 00 p. m. and the refusal of the employees to leave the plant dur- ing that period was an illegal work stoppage, in effect a sit-clown strike and, further, that it was violative of the War Labor Disputes Act, which provided for prior notification of certain State and Federal officials in the case of all strikes in plants engaged in war production. It is noted that the work stoppage on the second shift departed from the prearranged plan. The employees had learned of the discharge of Bonito, Baldino, and Destadio for participation in that plan. The decision to prolong the work stoppage and to add a demand that Bonito, Baldino, and Destadio be reinstated as a prerequisite to returning to work, was made before 7: 15 p. m. by the employees on that shift while in the mill. Nothing in the record suggests that they were influenced in so deciding by advice from the Union or any of its agents. As just found, these discharges were clearly discriminatory under the Act. It follows that the work stoppage on the second shift and the strike thereafter from September 29 to October 21, 1946, were unfair labor practice strikes. The Board has definitely passed on the matter of unannounced strikes under the provisions of the War Labor Disputes Act. In the Republic Steel Corpora- tion case,10 after full examination of the evidence and of the legislative history of the War Labor Disputes Act, the Board said : We conclude that Congress did not intend specifically, or generally as part of its legislative policy, that the rights of employees, whether they be rank and file or representatives under the [Act] be affected by the War Labor Disputes Act. Although we do not condone the conduct of the strikers here involved, we are of the opinion and find that the policies of the Act and our wartime labor policy as a whole will best be effectuated by according to them the protection of this Act. This pronouncement of the Board must be regarded as established doctrine since it was upheld by the United States Circuit Court in the Kalamazoo Sta- tionery case 104 and certiorari was thereafter denied by the Supreme Court. It should be noted that in this case two employees had been discharged because while representing a minority of the employees they instigated and participated 103 Matter of Republic Steel Corporation (98" Strip Mill), 62 N. L. R. B. 1008, 1026 ; cf. Matter of Bolan Aluminum of Brass Corp., 67 N. L. R. B. 847. 101 See Matter of Kalamazoo Stationery Co., 66 N. L. R. B. 930, enfd. (C. A. 6). 160 F. (2d) 465, cert. den. 332 U. S. 762. The Court cases are reported sub nomine Hamilton v. N. L. R. B. OLIN INDUSTRIES, INC. 257 in a wildcat strike. The Company contended that in so doing they violated the War Labor Disputes Act and so were subject to discharge. In passing on this contention the Circuit Court said: But it does not follow that a violation . . . of the War Labor Disputes Act deprives an employee of his rights under the National Labor Relations Act. There is no provision in the War Labor Disputes Act to that effect. Section 10 of the National Labor Relations Act specifically recognizes the right to strike. It deals with employment generally, not merely war pro- duction. The War Labor Disputes Act is limited to war production and is not an attempt to amend or modify the National Labor Relations Act. Its legislative history shows that it was not intended to curtail in any way the rights and protection accorded employees under the National Labor Rela- tions Act. As.to Respondent's contention that the work stoppage on the second shift constituted a sit-down strike, the undersigned finds absence of any of the usual ior,dieia of such an illegal strike. There was no violence, nor threat of violence, and no interference with plant operations beyond abstention from work. Con- tinuous operations were manned-under the plans laid down by the employees. In one case a shift committee man, Ballard, remained at his post until 11 p. in. when his machines were safely closed down. The strikers were aware that the 'plant was being prepared for a shut-down of unannounced length. There is no suggestion in the record of any interference with this operation. The men with- drew from the operating area to the -washroom and remained there. Their announced purposes : to confer with Respondent officials regarding their demands and the added matter of the discharges, known to them, on the first shift; to remain until the end of the shift in order to fulfil Respondent's requirements that Saturday and Sunday scheduled shifts be met ; and to insure that no damage to machinery and materials be ascribed to their absence, are all unexceptional. Conditions existing, as shown by this record, are so closely analogous to those found in the American Manufacturing Company case 106 that the undersigned finds the definitive rulings of the Board and the Courts therein determinative of the issue here. In passing on the matter of an alleged sit-down strike the Circuit Court said: We do not regard the action of these or other employees in standing around the premises for a period of not more than two hours while an attempt was made to persuade the Company to fix a date for collective bargaining with T. W. O. C. as in the nature of a sit-down strike which would permit the termination of the employee relationship. They certainly were not claim- ing to hold the premises in defiance of the right of possession of the owner and we regard the case as no different from that of an ordinary strike where work has ceased because of an unfair labor practice. In the light of these pronouncements by the Board and the Courts, the under- signed finds these contentions of the Respondent to be without merit.100 . It is further noted that the discharges made, and the reasons assigned, prove that the discharges were not based on the allegedly illegal acts of the strikers 306 5 N. L. R. B. 443, enf'd. (C. A. 2) 106 F. 2d 61, 69. Affirmed with modifications, not material here, 309 U. S. 629. "'In this connection the undersigned has considered the consent judgment rendered in Civil 1893, by Justice Hineks. Because of the Board's plenary control in remedying unfair labor practices, it is found that this judgment has no bearing on the issues here. 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but rather that the discharges were made because those employees were believed by the Respondent to be responsible for the plans for work stoppages. Ballard remained at his post during the work stoppage on the second shift. His record card carries the notation: "Discharged. Violation of Company rules." For this notation the Respondent furnished no explanation. The record card of Louis Baldino, of the third shift, carries a similar notation. He took no part in a work stoppage for the sufficient reason that he, with all his shift, admittedly were locked out of the plant for the 11 p. in. to 7 a. in. September 22, 1946, shift. It is significant that both Ballard and L. Baldino were committee members. The discharge, in each case, became effective as of the last day worked. Since the Respondent failed to give a reasonable explanation for these discharges, it is a justified inference, made by the undersigned, that Ballard and L. Baldino were discharged for the part they took in the plan for work stoppages. It is found that the 13 employees listed in Appendix G were discriminatorily discharged for participation in the work stoppages on September 21, 1946. Since the strike initiated on September 29, 1946, was induced and prolonged by the discriminatory discharge of Bonito. haldino. and Destadio, the strikers were entitled to reinstatement on making, on October 21, 1946, an unconditional offer to return to their employment. Such right to reinstatement was uncondi- tional whether or not others had been hired to fill their places. By refusing on that date and thereafter to reinstate them the Respondent discriminated in regard to their hire and tenure of employment and the terms and conditions of their employment. The six employees rehired but not reinstated, Lawrence Birdo, Ugo Calderon!, William S. King, Eddie J. Murphy, and William Wilenski, made no exception here. 107 They are entitled to full reinstatement and like the others listed in Appendix D are entitled to recover any loss of pay suffered because of Respondent's discrimination, after, as well as before, their reemployment. The record clearly shows that the Respondent closed the rolling mill during the 11 p. m. to 7 a. m. shift on September 21, 22, 1946, and that thereafter it locked out the complainants listed in Appendix D until they concertedly went on strike on September 29, 1946. After these employees unconditionally applied for reinstate- ment on October 21, 1946, the Respondent refused to rehire them because of their concerted activities before and on September 21, 1946, and subsequent to Sep- tember 29, 1946. Further light is thrown on Respondent's refusal to reinstate by its treatment of individual applicants. The five employees on compensation were refused reinstatement when their compensation period expired. Other individual applicants were consistently refused reinstatement. In the case of Employees Myles, L. Baldino, Daniels, and Moses Brown, such refusal was expressly based on the employees concerted activities. By such lock out and refusals to reinstate, the Respondent is found to have discriminatorily deprived them of employment in violation of Section 8 (1) and (3) of the Act and of Section 8 (a) (1) and (3) of the amended Act. The rights of such employees, listed in Appendix D, as did not testify are not thereby diminished. The parties stipulated that all individuals named in Ap- pendix A were on the pay roll of the Respondent for the week ending September 21, 1946. These employees, with exceptions noted, were locked out by the Re- spondent on that date. None of them was reinstated on October 21, 1946, when an unconditional application for reinstatement was made after a meeting held and vote taken by the striking employee.s. Under such circumstances the Board 307 The parties so stipulated. OLIN INDUSTRIES, INC. 259 consistently holds as it stated in the Capital City Candy Co.""" case, reversing its Trial Examiner. Under the circumstances, we perceive no valid reason for denying imme- diate relief from the discrimination against these three employees, even though they were unable to testify concerning their union membership. The Trial Examiner found, and we agree, that the respondents terminated the employment of the group of employees here involved in order to elimi- nate the Union from the plant. Inasmuch as the respondents' objective was violative of the Act, it is immaterial that in carrying it out, some of the victims of the respondents' discrimination may not have been union mem- bers. Discrimination in regard to hire or tenure of employment of a group of employees, including non-union members of the group, tends to discourage union membership and activities, no less than discrimination directed against union members alone. Non-union victims of discriminaton are, in such cases, entitled to the same relief under the Act as are the union members. In the Central Minerals Company 108 case the Board ordered the Respondent to make whole each and every employee whom it deprived of employment during a 6-day lock-out. Not only did these employees not appear as witnesses ; they were not even identified on the record. It is found that Respondent's refusal to reinstate the 87 employees listed in Appendix D was a discriminatory act, violative of Section 8 (1) and (3) of the Act and of Section 8 (a) (1) and (3) of the amended Act. . On the basis of the foregoing findings of fact and of the entire record, the undersigned concludes and finds: th<ft the Respondent, by discharging Frederick J. Baldino, Benjamin Bonito, and Fredercik Destadio on September 21, 1946; by the discharge of the 13 employees listed in Appendix C on or about that date; by refusing these 16 employees reinstatement at all subsequent dates; by locking out the employees listed in Appendix D with the exceptions noted, for the period from September 21, 1946, to their going on strike, September 29, 1946; and by refusing reinstatement to these employees on October 21, 1946 and thereafter ; 30D has discriminated in regard to their hire and tenure of employment and the terms and conditions of their employment, discouraged membership in a labor organi- zation and interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. E. Farther interference, restraint, and coercion, It will be convenient to begin this section with a brief account of certain officials in Respondent's personnel department who are prominent in the follow- ing pages. Although Albert F. Snyder, as appears above, is the titular head of the department, he has withdrawn from all duties pertaining to employment. Control of these matter, beginning in the summer of 1942, was entrusted to Diedrich 9. Willers. His title is Assistant Superintendent of Personnel. He has also been since October 1946, assistant to Works Manager Thomas I. S. Boak. Under Willers' supervision are : Austin F. Sullivan, assistant in person- nel and industrial relations matters ; Everett Carlson, who has charge of inter- viewing, selecting and placing new employees ; Edward H. Goin, personnel coun- 1070 71 N. L. R. B. 447. 10159 N . L. R. B. 757, 773, Cf.Ma.tter of General Motors Corporation, 59 N. L. R. B. 1.143, 1146, enf'd. as modified, 150 P. 2d 201 (C. A. 3). 101 Except for certain employees on compensation as a result of injuries , as noted. 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD selor; and Theodore It. Pettyjohn, one of a half-dozen personnel advisers. Goin's duties were plant-wide. His description of them in his testimony was accepted as correct by Willers. Coin's statement reads as follows : My duties consist of consultation on problems of integration of minority groups, advisor to superintendents and foremen on problems which may affect minority groups, preemployment interviews, visiting the employees at home to straighten out any personal problems of health that might have to do with their productivity at the plant. Also, I have done a good deal of work in aiding the physically handi- capped, and advising on school matters pertaining to their children. Also hospital visitation in the case of an injured employee. Also I spend a few hours in the plant whenever possible making myself available to the em- ployees for whatever problems may come to their minds. Goin further testified that his preemployment interviews were with Negro employees in particular, although he handled other groups as well."' Beginning in September or October of 1942 and continuing for approximately 10 months, Goin spent alternate weeks in New York City giving preemployment interviews relative to possible employment with the Respondent. Pettyjohn's duties were primarily concerned with Negro employees on the sec- ond, 3 p. m. to 11 p. in., shift. As appears below, he visited Negro employees on other shifts during the period material in these proceedings. Willers gave a description of the duties of personnel advisors, from which the following suln- mary is drawn : The advisors introduce the new employees to the job, advise them of its dangers and of the conveniences and the perquisites, including group insurance, furnished employees by the Respondent. They assist the employees and their families in case of accidents and deaths. They study suggestions handed in by employees, discuss them with the suggester, assess their value if accepted and determine the award given the employee. They have no obligations in handling grievances beyond, advising the employees to use the grievance procedure and notifying the employee's foreman that he has a grievance."" The Respondent contended at the hearing that Goin and Pettyjohn's positions and duties were not such that their acts and utterances bound it. However, it is clear, as appears below, that they were charged with the duty of executing orders of Willers and that they posed before the employees, and were regarded by them, as speaking for the Respondent. Under these conditions the under- signed finds this contention to be without merit. The events discussed in this section fall into two periods. Those occurring be- fore the close of the clay, September 21, 1946, and those after that date. For convenience, the treatment adopted is roughly chronological within these two periods. The incidents in each period involving Goin and Pettyjohn respectively no Willers testified as to Gain's work : "The personnel counselor has been very definitely interested in the interrogation of Negroes, integration of Negroes." Boak's testimony was that Gain's duties included maintaining "contacts with the colored community" and ex- plaining Respondent's policies "among the people to a limited extent." 111 Boak's testimony included the following statement as to the duties of personnel advisers : To take the position of providing personal contact with a new employee and the management of the Company, to be sure that the new employee of the Company is indoctrinated properly, that he understands why things are done as they are done and to explain policies and regulations to the new employees also to do such favors as can be done for such employees. OLIN INDUSTRIES, INC. 26L are grouped together. Most of the testimony discussed was entirely unrefuted.. In all cases where conflicts of testimony were involved a full discussion is given. In other cases, the unrefuted testimony adduced by the General Counsel is given. full credence by the undersigned. Employee Joseph Los testified that, after his discharge from military service on October 27, 1945, he had a long talk with Willers when he was rehired by the Respondent. At this time, as Los' credited testimony was recorded: He [Willers] was telling me how there were a lot of "Reds" in there, and you want to watch out, they are going to try and.get you in a union. The union is no good. When later, as Los testified, he was approached to join the Union, his first reac- tion was, "Nothing doing-a bunch of Communists." Employee John J. Raffone testified as to an incident, the (late of which was fixed as "around May 1st of 1946." when he was rehired after being discharged for reasons not material here. At this time Raffone was interviewed by both Sullivan and Willers. His testimony regarding these interviews reads: I talked to Mr. Austin Sullivan about two weeks before my rehiring * * * and I told him I wanted to get my job back. I needed the job,. and he says he didn't think there was anything that he could do for me. He says, "You know * * we don't want to have too much * * *' to do with anybody that has anything to do with the union. * * * If you do come back it will be under the circumstances that you have nothing to do with the union." At the time, I promised that I wouldn't ; and about two weeks later I went back to see him and he took me in to see Mr. Willers, and we had conversations with Mr. Willers before lie gave me a pass to go to work the next day. Mr. Willers had me promise that I would have nothing to do with the union, and if I heard anybody talking about the Union,, I was supposed to tell them down at the office. Raffone further testified that he was summoned to Sullivan's office about the last of July or the first of August 1946. At the time, he had some misgivings because he conjectured that he was still in a probationary period. When told of the summons by Superintendent Thorud, he inquired as to its significance. Thorud told Raffone that he did not know but assured him that his work was satisfactory. Raffone's testimony regarding his interview with Sullivan reads as follows : [Sullivan] said to me-this may not be the exact words-"John, do you like your job?" I says "Yes, I do, very much." He says, "I understand that you are squawking and bellyaching all over the rolling mill about unions and different hours." I says, "Well, no, that's not true because when I come to work I go to wort: at 7: 00 o'clock. I don't talk union or anything else during the working hours. After I am outside it is a different story." He says, "Well, we understand that way. You are talking a lot." I told him, "Well, you bring me the man who made any such accusations, and we will find out whether it is true or not." So he says, "Well, all right, I will take your word for it, go back and keep your nose clean, and if you hear anybody talking about union let me know." Sullivan was not called as a witness. While Willers gave testimony, he was not questioned about this matter. Raffone's unrefuted testimony is credited by the undersigned. 867351-50-vol. 86-18 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Destadio testified that Foreman John J. Boris "" frequently talked with him about union activity. About one such conversation, the (late of which Destadio fixed as March 1946, Destadio's unrefuted and credited testimony is recorded as follows : The conversation was he always-maybe not these exact words-but he always spoke how I was foolish for joining the union and I couldn't possible gain or benefit anything by it, that eventually I would probably lose my job, and I will only get into trouble, that the union was no good, and I in turn used to tell him that isn't what you used to say when you were it member of it and when you were trying to get us fellows to join it. Destadio's association with Boris began in 1941. This was before Boris was promoted to a supervisory position. It was Destadio's testimony that Boris was active in the Union as a "shop steward or organizer." Boak testified that the Respondent had full information of Boris' prominence in the Union at the time Boris was made foreman about April 1944 and that he approved the promotion despite such knowledge. Employee Louis Baldino testified that his foreman, William De Santis, called him from his machine about 2 weeks before September 21, 1946. Baldino's testimony regarding the incident reads : [De Santis] says, "You have got a good record . . . I don't like to see you get any trouble . . . Don't join up in the union, don't have nothing to do with the union." So I says, "That's my affair what I do." So he says to me, "Well you know if you should happen to get laid off for something my hands are tied." So I went back to my machine and back to work."3 Employee Livingston Wormley testified that Goin came to him in the mill less than a week before September 21, 1946. Wormley's testimony regarding their conversation reads as follows : Goin came into the mill . . . called me over one side and said, "I'd like to speak to you a minute. . . . They tell me there 's going to be some trouble around here." I said, "I don't know about the trouble ." Then he says, "They tell me the white boys are going to strike . If they do , don't you colored fellows go out with them. They can get jobs at any time, most any place and you can't. You boys take care of yourselves . You, yourself, have a good job." I says , "I'll stick on my job as long as I have been treated right. I have been all the time. I have not had any trouble here." Goin specifically denied this testimony of Wormley's when it was read to him, saying : "No conversation like that, No." After consideration of the full record and the demeanor of these witnesses , the undersigned credits Wormley's account. Employee James T. Evans testified that he had a conversation with Goin in the week before September 21, 1946. This occurred just outside the door of the rolling mill. After some verbal fencing not material here, this testimony con- tinues : [Goin] says, "I just want to know how you are making out in there." I said, "As for me, I'm making out all right." He says, "I mean the other M Boris became a general foreman in April 1946 and acting superintendent of the rolling mill in August 1946. " In cross-examination , Baldino stated , in part, that De Santis said : "Don't have any- thing to do with the union , otherwise when a lay-off comes or similar to that my hands are tied." OLIN INDUSTRIES, INC. 263 fellows too." I said, "Well, there's quite a few of them in there that seem to be joining the Union, I really do believe." And he said to me, "You stay out of that thing. . . . The Union. You stay out of the damn thing because it isn't no good. Look what they did out in Detroit. . . . It don't do no colored man no good. . . . You got a pretty good job here. You know, you've been here a pretty good while. Tell the other boys not to join. . . . Let the white boys do what they want.... Let the white boys carry the ball." I said "That's the hell of it. . . . The white man's been carrying the ball too long. We're all going to carry it together if that's what you're talking about," He continued to tell me that thing was no good, stay out of it, stay in the back, let the other fellow stay in the front. Evans further testified that he broke off the conversation, asserting his intention to remain in the movement "to the bitter end." In the week before September 21, 1946, Goin came to Morton in the Winchester Club saying, as Morton's unrefuted and credited testimony reads : [Morton] "I want to speak to you for a minute." "Okay." So lie says, "Listen . . . there's going to be some trouble, the white boys is going to start something over there and I don't want you colored boys to have nothing to do with it because if you colored boys play neutral, if the white boys Will, you win ; but if you get into it and white boys lose, they'll get their jobs back and you won't have any job." Morton made no reply to Goin, but when he reported for work and Pettyjohn "greeted [him] with the same thing," he asked "What's coming off here?" Petty- john replied, as Morton testified, "I don't know but you'll see." Morton further testified that on the afternoon of September 21, 1946, when he reported for the second shift, Pettyjohn stood by the clock accosting "every colored fellow that cause in to tell him not to have anything to do with what the white boys was going to do, and if they did they was going to get the worst of it." For an understanding of the testimony of employee Percy E. Perry, it is neces- sary to set forth that he is of dark complexion. He explained that he is "half Portuguese." He testified that Pettyjohn Caine to him on several occasions before September 21, 1946."' His testimony at this point reads: It would happen in the evening between * * * 3: 00 and 8: 00. He'd come around and he'd ask me, "Did you hear anything about a union?" I would say I didn't know anything about it, which was the truth at that time. He'd want to know who the leaders were, maybe the next day, he'd want to know who the leaders were. I said, "I don't know anything about the union, and what the boys are doing." He'd say, "There's a lot of excitement" and we'd go on about one thing and another. I didn't know anything about it at the time, and I told him so. That's what the gist of the conversation was at the time, just finding out what's wrong with the fellows and if we liked those hours that we had there. "' Employee Robert Daniels testified that Pettyjohn came to him about 2 weeks before September 21, 1946, while at work on the 11 to 7 a. in. shift, saying, as his testimony was recorded : 114 Throughout his testimony, Perry's handling of dates was within expansive boundaries. His habitual measurement was "a few weeks." - Although Pettyjohn testified as to a conversation he had with Perry after Septeinl:er 21, 1946, he nuule no reference in his testimony to this incident as narrated by Perry. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD You boys got a good job, you're making good money. You'll be crazy to stick your neck out for the union 10 Daniels made no reply. Employee Henry M. Williams gave testimony regarding a. visit paid to him by Pettyjohn while lie was working on the 11 : 00 p. m. to 7: 00 a. in. shift.1' He dated: this incident as occurring "a week or two before September 18, 1940." The testimony regarding the incident reads : [Pettyjohn] asked me how did I like my job * * * I told hint good. * * " And he told me to keep my nose clean and stay out of the union, and I told him, "Don't worry"; and walked away. Williams further testified that he joined the union shortly after this occurrence. Employee Robert Samuels gave testimony relative to two conversations with Pettyjobn in the mill. The first occurred about 2 weeks prior to September 21, 1946. As to this incident, Samuels' testimony read: This was during working time. Mr. Pettyjohn came in the rolling mill. I was working at the time. And he walked over and said, "Good evening," stood around a few minutes, and started a conversation. He wanted to know whether or not I was a member of the union. I told him that I was not. And he wanted to know whether or not I had attended any union meetings.. I told him I hadn't. He wanted to know whether or not I knew of any fellows around that were in the Union and what they were discussing. I told him I didn't know of any. I didn't know anything about it. The second conversation which Samuels dated as occurring "2 or 3 days before September 21, 1940," he related in his testimony as follows : He came in [the mill] again and we spoke and he wanted to know whether or not I had attended a meeting held at the Union Hall. I think perhaps. itwas a day or so before that. And I told him that I had not. He wanted to know whether or not, again, I knew anyone that had or whether or not I knew anything that had been going on, any discussions about something that was supposed to have come off. I told him I didn't know anything. Then he went on to tell me-"Well," he said, "you don't want to be rash. You want to use your head. Remember you've a nice job here. Negroes in this plant have been treated fairly nice, have had nice opportunities. You can make yourself a nice week's pay here. The union doesn't offer anything for you. You want to stay on your job? Do just as you have been doing. Don't have anything to do with these unions." 118 10 Daniels' version in cross-examination was : ,you boys bad good jobs and making good money, and you'd be crazy to stick your neck out for the union because it's no good." 117 Williams further testified that he saw Pettyjohn "talking to a lot of fellows before he came to me." 118 Under cross-examination, Samuels have the following version : Well he walked up to me in the same place, the rolling mill, started another conver- sation. He wanted to know whether or not I attended some big meeting that,he felt practically everyone in the mill had attended. "Most of those fellows attended this meeting downtown the other night," he said, "were you down there with them." I told him that I wasn't. He said, "Well, I wouldn't bother with that union business if I were you, anyway. They aren't going to do too much for you. There hasn't been a union here in the past, and look at the progress the boys have made, here they'll give a colored fellow a break." He pointed OLIN INDUSTRIES, INC. 265 Pettyjohn as a witness evidenced no independent recollection of Samuels. He could only remember him when shown a photograph from Respondent 's files. He testified that lie could not recollect any individual conversations . While he denied certain excerpts from Samuels ' conversation which were read to him, the undersigned attaches no significance to such bald denial in view of the specific, vividly stated , and persuasive character of Samuels ' testimony . As a witness, Samuels was ready, careful, exact and cooperative under cross -examination. The undersigned finds him worthy of credence and credits his testimony as quoted above. Plenny C . Wright 19 was an employee on the second shift. He had been warned by Pettyjohn that Respondent's rule against unexcused absences would be strictly enforced . Later, a few days before September 21, 1946, Pettyjohn came to Wright while at work. Their conversation , as Wright testified, was as follows: Well, he said, that they was some trouble, something , trouble was brung in the mill, and we colored boys should have nothing to do with it, and it was particularly a fight for white boys, and if they won, we won, and if they lost that we didn 't have anything to lose-words to that effect. I told Mr . Pettyjohn that as far as the new schedule was concerned, that I would not work S days a week for anybody and keep my mouth shut and don't say anything , and if he didn 't like that or whatever sent [him], he could go back and tell them the same. Employee Neal A. McLean testified that Pettyjohn carne to him while at work a week before the stoppage and warned him, "You be sure and be here Saturday and Sunday . . . : If you don't be here Saturday and Sunday , your pass will be picked up Monday. . . . That's the orders I got to tell you, so I am just telling you." Testimony was given by employee William Weaver regarding a statement made by Pettyjohn , about 3 clays before September 21, 1946 , to the men on his operation. At this point , the record reads , omitting certain interruptions: Pettyjohn says , "Heard you boys [were] trying to organize the union in here. You colored boys , Mr. Boak says to tell you boys to have nothing to do with it and whatever the white boys get out of it, you will get." I told him, "What do you mean, you trying to divide us and conquer us all." Weaver further testified that Pettyjohn said something to the effect that if they did join the white boys, they would get into trouble . Weaver's cross-examination contains the following : Q. He didn't say to you that is what Mr. Boak said, did he? A. Sure that's exactly what he said. out two or three men that were foremen there. One is a foreman of the truckers, and one or two others that he felt were nice jobs. He said, "You can always look forward to bettering yourself in here. You don't want to fool around with these unions. Leave that to the other fellows. Keep your neck out of it. Nowhere else around town will you get as good a job as you have here, nor will you make as nice a wage. Throughout that conversation, I didn't say a word; I listened to him. When he got through, he said, "Bear in mind what I said to you. Do you know of anyone else around here that might have attended that meeting?" I told him I didn't and he walked away. Wright was not a complainant in the instant proceeding and at the time he testified was not employed by the Respondent. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. He didn't say to you that Mr. Bonk don't: want you colored boys to mix with the white boys, (lid he'? A. He said Mr. Boak told him to tell us not to have nothing to do with the white fellows and the union, with the white boys. You could get whatever they got, whatever they would get, we would get, for us to have nothing to do with them. On the clay following this talk with I'ettyjohn, Weaver was summoned to ',al- livan's office, who stated as Weaver testified, "You have been reported agitating on the job." Weaver responded, "I knowed nothing of it." Sullivan dismissed him saying, "Well, I'm warning you . . . I don't want to hear more reports on you. If I do, well, you will lose your job and what I mean keep your nose clean." In his cross-examination, Weaver further stated, "He [Sullivan] says I was going around talking up the union, talking up the union amongst the boys, which wasn't true." "If I was reported again, I would lose iny- job." Weaver further testified that on September 20, 1946, I'ettyjohn called him aside in the Winchester Club. The record at this point reads : You understand what Mr. Boak's plans are, don't you? I says, "No, what do you mean?" He says, "Well, you boys wasn't going to work Sunday. He told me to warn you all. You, in particular to tell all the rest of the fellows to be sure and come in Sunday, if they don't they will be automatically fired." [Weaver replied] "Okay, I would tell them." Testimony by employee Raymond Woods was that lie had a conversation with Pettyjohn, only dated as before September 21, 1946. It occurred in the first hours of the second shift. Woods' account reads: Well, it oe(urred over by . . . my machine, Roller No. 7 . . . he said, "Woods, I understand you boys are not going to work Sunday." I said we were thinking about it. He said, `Listen, Woods, you got a good job . . . keep it. Don't let the white boys run you into trouble or you'll be out of a job, and they'll have them.` Matters set forth next below, for the most part, fall within the 2 weeks follow- ing the work stoppage and resulted from instructions issued by Willers to Per- sonnel Counseler Goin and to the personnel advisers. WWWiller's testimony contains the following account of these instructions. Well, about the same . . . clay that [Boak's letter was sent out 1. e., Sep- tember 24, 1946], I got the advisors together and I said. "Fellows, this letter is going to be mailed to all the employees of the rolling mill. Now, you have got a good many friends. You know some people in the mill who may not,-who may be illiterates, may have some other reason why they won't know this, and I want you to go among these people wherever you may happen to run into them. Make yourselves available to them so that you can convey the message that they can come back to work. We want them to come back to work and that their job is waiting for them now. I told the advisers that if they weren't acquainted with Rule 1, that rule stated that any employee who was absent from the roll for 14 days was cleared and that they should advise their friends and those . . , that they thought might not be fully acquainted with that rule, that they should ask l20 Under cross-examination, Wood's version was "You'll be out of a job and they' ll still have a job." OLIN INDUSTRIES, INC. 267 them and advise them, that they should return before the 14-day period was up. It was Goin's testimony that Willers gave him individual'' instructions, He fixed the date as September 23, 1946: Goin's version of the instruction was: He stated that the rolling mill was open to all employees. We wanted to get in operation as soon as possible, and I should make myself available to the men who were out, who were hanging on street corners up and down Henry Street and Dixwell Avenue. In the case of key employees, I went to their homes and to urge them to come back to work. Pursuant to these instructions Goin, within the next 10 days, interviewed approximately 173 employees, making most of the contacts on the streets in the principal colored section. He named five "key employees" to whose homes he went. These included Perry and Wormley, whose testimony regarding his visit appears in this section. Goin also admitted that he approached for this purpose "around 10 employees" while they were picketing. Of one of these, a colored man, whose name Goin did not remember, he stated, "I got one man off the picket line and he went back to work." Goin further stated that he "talked to several of the white pickets whom [he] knew." Goin gave the following account of his interviews with the pickets : [I would] ask then if they were interested in going back to work, and if in the case of many who had a lot of time with the company I would discuss their case from that angle from the employment history, try to reason with them to see if I couldn't get them to go back, make application for employ- ment. It was Pettyjohn's testimony that Willers was the only one from whom he received orders and that his instruction on this occasion was, "Get the men back on the job if you can." He further stated that Willers gave "us no instruc- tions as to what to say." Pettyjohn testified that he reported to Willers from time to time how many employees had been interviewed and how many had promised to return. Pettyjohn gave no estimate of the number of employees whom he interviewed. He stated that his interviews were confined to colored employees. In some cases, these employees were solicited at their homes. Pettyjohn testified positively, however, that he accosted no one while engaged in picketing. His account of the content of his interviews was not fluent. Under questioning, he testified, that he talked to them about "coming back to work," and.that "knowing the economic situation" of those concerned . . . "[he] advised them to come back to the job. . . . Perhaps we had to go into a more lengthy discussion in some instances, but that was the burden of the usual conversations that those we wished to get back to work, the importance of the job and the welfare of their families." Further Pettyjohn testified that "in most of the oc- casions that we talked with these men" he told them "in order to save their standing to get back on the job before the two weeks was up." Weaver testified that Goin came to him while picketing and said, "You boys better wake up and go on back and get your jobs back." At the time, Weaver did not answer since his instructions from the shift committee enjoined him not to talk while picketing. H. Williams testified that Goin came to him on the picket line early in the picketing period. Williams' testimony reads : = Goin stated : "He, Willers, talks to his men individually." 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [Goin] walked up to me and he spoke, and he told me I was only kidding myself ; . . . I would never get back in the shop walking with that goddain thing on my back . . . and lie told me, lie said, "Don't be dumb, the white people are cowing back to work. Why don't you come back to work? And I told him . . . if the conditions wasn't changed, I wasn't going back. I didn't want to go back, and lie said "The condition is changed." I told him we was the cause of it too. Goin had no definite memory of Williams. When shown a photograph of him, Goin testified: "To the best of my recollection I didn't have any conversation with that man on any picket line." Goin further specifically denied the testi- mony quoted above when it was read to him. The undersigned notes that Goin admitted seeking out "on Willers' instructions" maybe 175 Negro employees within the 2-week period following September 21, 1946, and that "around 10" of these interviews were on the picket line. Goias further admitted that in these interviews, as his testimony reads : It is quite possible that I might have brought out the fact that the Negro was enjoying unusual opportunities there. Further than that I would not indulge in any discussion on Negro versus white. In view of these partial admissions by Goin and of the cumulative and mutually corroborative character of the testimony of witnesses for the General Counsel who testified to similar interviews, none of which testimony was weak- ened under searching cross-examination, the undersigned rejects these denials by Goin and credits this testimony by H. Williams. Perry testified that Goin came to his house after September 21, 1946. His .account of events there was recorded as follows : Mr. Goin said, "I think you're foolish to go on with these niggers," that's what he told me. I'm half Portuguese, lie knows it. He says, "You don't have to go in with them. Don't be a fool. Corse on back to work. You got a good job, and you can keep it." And I told Mr. Goin that I wasn't brought up that way . . . I told Mr. Goin that I refused to go back to work under those conditions. I didn't like the hours any more than anyone else did. I said also that I went out with these fellows for what we thought was right, and I intend to stick with them whether I had 4 children or not. Oh, lie said I had a big family and couldn't get a job making over $35 a week. . Later Goin called again at Perry's home during Perry's absence and left -word that he wanted to see Perry "right away." Perry, accordingly, went to -Goin's office. Perry's testimony as to this incident reads : It was almost like the same conversation we had at home. This time, he twisted around a little bit. He included all the "niggers" as being a bunch of fools this time, to let the white man fight the thing out, let these white nien fight and these 3 "guineas" and "you fellows will profit one way or an- other, you colored fellows." . . . He wanted me to take a job there using a different gate so I wouldn't be seen, and to report to hiin just what [was] going on in Union headquarters. What made him say that-because we had a little argument down at Union Headquarters. He figured I could break up the Union meeting because the boys-well, they sort of liked me. OLIN INDUSTRIES, INC. 269 , It was Perry's further testimony that Goin assured him he would get him the same job back and a nickel raise. Coin's testimony agreed that he had a conversation with Perry at his home. He fixed the date within the 2 weeks following the work stoppage. Coin's version was recorded as follows : I told him that I thought in view of the fact that he held a very good job as a set-up man on the sliters, drawing a very, very good weekly wage, in view of the fact that he had a wife who is physically handicapped, and also since he is the father of five children, I thought he would be exceedingly foolish to run over the tivo-week period at which time he would get a break in service. It was Coin's further testimony that Perry at this time tried to strike a bargain proposing to come back to the rolling mill if Goin would get him a house. Goin's version of Perrys' call to his office was that Perry came in on his own initiative saying he wanted to return to work. At this time as Goin testified, he did nothing beyond referring Perry to Carlson. The undersigned notes that Coin's testimony admits the central fact that he went to Perry's house and urged him to return to Respondent's employ. There is no denial, except by inference, that he offered the inducements and employed the further arguments testified to by Perry. While Perry was a man of limited education, and manifested in his testimony a certain lack of disci- plined, orderly thinking, the undersigned was impressed with his manifest desire to state all matters exactly and truthfully. Coin's testimony frequently lacked specificity and he was not always direct and frank on matters which involved the interest of the Respondent. The undersigned concludes and finds, after considering this conflict of testimony in the setting of the entire record, that Perry's testimony must be believed and that of Coin rejected at this point. Perry further testified that on October 21, 1946, he was called from the line of applicants and interviewed by Carlson who advised him that if rehired he would be expected to make the customary weekly payment to the Winchester Club, that he was not to engage in any union activity and that he would be reemployed as a new employee. On advice received at "Union headquarters" Perry declined to return under these conditions. As noted above, Carlson was not called as a. witness. Hence, there is no refutation of this testimony.= Stanford testified that Goin came to him at a local bar during the period that picketing was actively going on. Stanford's testimony at this point is recorded as follows : Well [the conversation] led to how he said that this UE gang comes with prejudice, that we had no business going out with the white fellows in the picket line, that we could profit by what they profit by very easily and that I was very foolishly led. And I told him that I had a mind of my own and: could answer all question that arise to me. Stanford further testified that Willers spoke to him while on the picket line,. saying, "Louis, you're foolish" and that Goin asked, "Why you letting people, show you the way to walk." On this occasion, Stanford rejoined "that we were- still the best of friends, that things could be just the same, but.I wasn't going in there." When Stanford received his final notice after his injury informing him 122 Respondent's counsel stated during the hearing that Perry was rehired October 28, 1946, but failed to report. As noted above, it was stipulated by the parties that those rehired on October 21, 1946 were not fully reinstated. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he was fit to return to work, he applied to Carlson and was referred to Willers. At this time, AVillers told hint, as Stanford's tinrcfuted and credited testimony reads : Willers . . . told me that I had kicked him . . . and there wasn't any- thing that he could do to me and the form meant nothing. So I walked out. Goin admitted having a conversation with Stanford at a local bar as Stanford had stated. He specifically denied Stanford's version of their conversation. Goin's testimony regarding the incident reads: Well, he made some remarks relative to the fact that as long as the boys stayed out he was going to stay out. He wasn't coming back. If the boys came back, he was going to stick with the boys. I urged him not to be con- cerned with what the other boys did but to look out for himself since he had some good friends, that he come back to work. In view of this partial admission and after considering the conflict of testi- mony in the setting of the entire record, the undersigned credits Stanford's testimony as substantially correct on matters material here and rejects such testimony of Goin as conflicts therewith. Wormley testified that within the 2-week period following the work stoppage, he met Goin on the street. At this time, Goin spoke to him about coining back into the shop and said, "If you're not back by Tuesday, you lose all seniority you have." . . . Goin testified that he "unquestionably" did have a conversation with Wormley after the walk-out. He gave the following version in his testimony. In view of the fact you are a man with fifteen years service, it seems to me it would be very foolish since I knew him personally, I knew lie was trying to buy a home, I knew he had at least five children, and I don't know possibly more, I urged him to get back to work so he wouldn't break his service record. The undersigned finds in this quoted testimony substantial corroboration for that of Wormley. Employee Jerry Reid gave testimony regarding his experience in the Respond- ent's personnel office on October 21, 1946. He had been beckoned out of the line by Willers, taken into the office and told to wait there. Goin came to him and they held a conversation , recorded as follows : [Goin] asked me, "Did you come back for your job?" I said I guess so that he Millers] brought me in. He says , "Are you through with the Union?" I told him , no, I didn't think I was. He says, "Don't you know it ain't no good for you?" I says, "Well, I don't know. I thought a man had a choice to join any organization that he wishes." So, he says, "Well, that's the way you feel about it," and I says, "Yes, that's the way I feel about it." Later, Carlson called Reid and told him, "Well, your case hasn't come up yet. ... We have no work for you." Goin specifically denied ever having asked Reid if he was all through with the union. Carlson , although available, was not called as a witness. Willers did not refer to the incident in his testimony. Hence, Reid's version of his being called to the personnel office is not challenged. Reid impressed the undersigned as a straightforward, frank witness, worthy of full credence. In the absence of any conflicting version of his experience in the personnel office on October 21, 1946, and in view of the certainty that he was not reemployed there that day, the undersigned credits his testimony. OLIN INDUSTRIES, INC. 271 Myles testified that around the first of November 1946 he went to Respondents personnel office and applied for reemployment. Carlson, whom he first saw, informed him that there was no work available. Thereafter Myles sought out Goin. Their interview is recorded in Myles' testimony as follows : I asked 1\Ir. Goin if there was a chance of getting my job back. He said practically the same thing Mr. Carlson said, that there wasn't any work available. So we talked further, and he told me, he said, "Why don't you colored fellows use your head. The CIO Union as a whole is pretty good but this particular Union, U. E. is not good for Negroes." . . . he showed me in [a certain publication] that the Negro was being discriminated against by the U. E. He also said that before the war, very few Negroes' worked at Winchester, but after the war, Mr. Boak gave the colored people a break by letting them work there. So he told me, "Why don't you use your head?" I told him that I think the Union was beneficial. I think there was some good in it. I think they needed a Union there. Well, after that he summed it all up by saying, "Well, if we have any work for you, we will call you up." McLean testified that Pettvjohn. accompanied by James Mitchell, came to his house on September 22, 1946. It was McLean's testimony that Mitchell did practically all the talking. McLean's testimony reads as follows : [Mitchell] says, "Now, what I am here for-you are an understanding man, so you are supposed to have good common sense. Why don't you sit down, tonight write Mr. Boris a card explaining to Mr. Boris that you done wrong and come on back to work?" I told him . . . Well I tell you, Jimmy, we fellows voted for these fellows to go to Mr. Boak and ask him for some decent hours ; give its time and a half for our overtime. I wouldn't be less than a man to go back and let those fellows stay out . . . I can't go back. I won't do it. "Well," lie asked me, . . . what's the union done for you?" . . . I said, well, nothing as far as I know. I am not going back on these men. McLean's version under cross-examination reads, in part : "Mitchell," I says, "listen-we fellows had a meeting. We voted for these fellows to go to Mr. Boris and ask for some decent hours for us. Now what these fellows ask Mr. Boris for it come out of my mind. too, otherwise we don't want to ask him to do it. What would you think of me if I'd go back to work and leave them out?"' So that was it. The Respondent questions Mitchell's authority to speak for it. However, it appears in Boak's testimony that he was a foreman of the flashlight station and supervised three men and had, at the time pertinent here, a recognized station in the personnel department. Employees Evans, Ozell Gooding, and Samuels testified that they transacted business with him there. The undersigned notes that Mitchell, who, on this occasion, accompanied Pettyjohn, was manifestly assisting in carrying out W Fillers' instructions quoted above. On the record the undersigned concludes and finds that on this occasion Mitchell spoke as Respond- ent's agent. It is apparent from the record that both Pettyjohn and McLean so understood his mission. Pettyjohn testified that he had various conversations with McLean in the mill but that he did not recall any conversation similar to that detailed above. His further testimony confirmed that lie had visited McLean's home in company with Mitchell. His remembrance of what then happened was enfined to the statement, 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Well, we impressed, tried to impress . . . primarily for him to come back on the job before the expiration of the 2 weeks," and stated further, "He promised faithfully to come back; but I don't think he did." He stated that he could not recall whether Mitchell made the remarks quoted from McLean's testimony and stated in cross-examination that lie did not listen to what Mitchell said. Mitchell was not called as a witness. No showing was made of his unavailability. In this state of the record the undersigned credits McLean's testimony. H. Williams testified that Ray Smith, a supervisor in the rolling mill, and his foreman, "Danny" [Kerwin Daniels] came to his house after the work stoppage and warned him that unless lie returned to the plant within 10 days he would be terminated. Williams' testimony regarding this incident reads as follows : Ray Smith and Danny both say the same thing: "In 10 days you know you lose your seniority, and, Henry, do you know you have a good job up there. You should come on back, and if they see you going back-you worked there a long time-everybody will follow you back." I told him . . . just like I was a good Winchester man I am also a good union man. I say, "If I go back I have to work with them fellows. I know All of them personally. If I met them on the street, I don't know how to feel. If I go back, they don't go back, I can't live-I came out with all of them. I will go back with all of them ; since I was locked out, I would "stay out." And he says, "Oh, forget about that incident. The gate was only locked for a couple of days." [I said] "Went to work Monday back on schedule, but you locked us out on Sunday. Who is going to pay for them days'?" He said, "Come back, we will straighten out everything." Concluding findings This record clearly establishes that officials in Respondent's personnel depart- ment, including Willers, Sullivan, Goin, and Pettyjohn questioned employees regarding their union affiliations and concerted activities and solicited employees to bring them information regarding such affiliations and activites. The Board has repeatedly and consistently ruled that such questioning of employees is per se violative of the Act.13 Further, as set forth above in detail, the Respondent engaged in a comprehen- sive campaign to induce the employees to abandon their concerted activities for the Union and return to their employment. This is expressly admitted. Although the Respondent based its action on its rule which terminated employees after 2 weeks of unexcused absence from their employment, this can not serve as a defense since the Act expressly provides that employees "whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice" remain employees. In the prosecution of its cam- paign to induce the employees to abandon their concerted activities, the Respond- ent always impliedly, and frequently expressly, threatened loss of employment. This threat, as the record shows, became an actuality after the expiration of the 2-week period. '].'here was also promise of benefit freely made by the same Respondent officials during these activities. Goin admitted soliciting employees at the picket line and stated that he had successfully solicited the return of one 128 See Matter of Morrison Turning Co., Inc., 77 N. L. R. B. 670 ; flatter of Sohio Pipe Line Co., 75 N. L. It. B. 858 ; Matter of Sewell Manufacturiug Co., 72 N. L. R. B. 85, and further citations therein. OLIN INDUSTRIES, INC. 273 employee while he was on duty as a picket. These activities of the Respondent are found to be derogation of the right to engage in concerted activities guaranteed to employees by Section 7 of the Act.129 The undersigned further finds that the Respondent by its persistent inter- ference with the concerted activities of the employees evidenced by efforts of its 'agents to induce the colored employees to withdraw from association with white employees has violated the Act. As set forth above the Respondent offered inducement of continued employment and advancement. It also threatened loss ,of employment, and later transferred this threat into reality, if these colored employees persisted in their concerted activities in association with the white employees. Such action is found to constitute interference, restraint, and coer- cion within the meaning of Section 8 (1) of the Act and of Section 8 (a) (1) of the amended Act. The undersigned finds that by the acts and statements of Respondent officials and agents discussed in this section ; by the discharge of Mumford, Bucci, and 'Gordon in August 1942; by the discharge of Bonito, Baldino, and Destadio on September 21, 1946; by the discharge of the 13 employees listed in Appendix C on or about that date, and by its failure and refusal to reinstate these employees and those named in Appendix D, the Respondent has interferred with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in -connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices affecting commerce, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action found necessary to effectuate the policies of the Acts. It has been found that the Respondent discharged Nora B. Mumford on August 8, 1942, Ruth H. Bucei on August 15, 1942; and Harry H. Gordon on August 19, 1942; Benjamin Bonito, Frederick J. Baldino and Frederick Destadio on September 21, 1946, and the 13 employees listed in Appendix C on or about September 21, 1°46, and thereafter failed or refused to reinstate them because of their union and/or concerted activities, thus unlawfully discriminating in regard to the hire and tenure of their employment and the terms and conditions of their employment. It will be recommended that the Respondent be ordered to offer them immediate and full reinstatement to their former or substantially equivalent position 126 without prejudice to their seniority and other rights and 124 See Matter of Peoples Motor Express Inc., 74 N. L. R. B. 1597. The Board said, "We are of the opinion, and further find, that by offering inducements to its employees to abandon the Union, the Respondent also interfered with, restrained and coerced its em- ployees in the exercise of the rights guaranteed under Section 7 of the Act, in violation of Section S (1) thereof." 126 In accordance with the Board's consistent interpretation of the term, the expression "former or substantially equivalent position" is intended to mean "former position wher- ever possible, but if such position is no longer in existence, then to a substantially equivalent position." See Matter of Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 N. L. R. B. 827. 867351-50-vol. 86-18 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD privileges. It will be further recommended that the Respondent make them whole for any loss of pay they may have suffered by reason of the Respondent's discriminatory action, by payment to them of a sum of money equal to the amount they normally would have earned as wages from the date of their respective dis- charges to the date of Respondent's offer of reinstatement, less their net earnings during said period." The undersigned has further found that the employees listed in Appendix D, with exceptions noted, were locked out from September 21, 1946, until September 29, 1946. At the latter date they concertedly went on strike until October 21, 1946, when they made an unconditional offer to return to their employment. As indicated in Appendix D, there are exceptions to this concerted offer to return in the case of employees then on compensation whose return dates, as indicated, are as of the close of their compensation periods. Since, as has been found above, the Respondent locked out these employees from September 21 to 29, 1946, and its Unfair labor practices induced the strike beginning on the later date and the Respondent on October 21 and 22, 1946, and thereafter refused to reemploy the employees listed in Appendix D, it will be recommended that the Respondent be ordered to offer them immediate and full reinstatement to their former or sub- stantially equivalent positions 12' without prejudice to their seniority or other rights and privileges, dismissing, if necessary to provide employment for those to be offered reinstatement, all persons hired since September 21, 1946, for work which they are qualified to perform. It will be further recommended that the Respondent make these employees whole for any loss of pay they may have suffered by reason of the Respondent's discriminatory action, by payment to each of them of a sum of money equal to the amount they normally would have earned wages during the period of the lock-out and from the date of their uncondi- is tional offer to return to their employment, October 21, 1946, except in the case of compensation cases the date of their release from medical care as stated in Appendix D, to the date of the Respondent's offer of reinstatement, less their net earnings during these periods. The record discloses that the Respondent's hostility to the efforts of the employees to organize or to engage in concerted activities has been consistent and long continued, indicating an intent to interfere generally with rights of its employees which are guaranteed by the Act. In order, therefore, to make effective the interdepartment guarantees of Section 7 of the Act, the undersigned will recommend that the Respondent be ordered to cease and desist from in any manner infringing upon the rights of employees which are protected by the Act."' Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. United Electrical, Radio and Machine Workers of America, affiliated with the Congress of Industrial Organizations , and its Local No. 282 are labor organi- zations within the meaning of Section 2 (5) of the Act. 2. The work stoppages on September 21, 1946, on the first and the second shift were legitimate concerted activities and the employees involved therein are entitled to receive the protection of the Act. 1226 Matter of Crossett Lumber Co., 8 N. L. R. B. 497-498. 127 See footnote 125, above. 121 See May Department Stores v. N. L. It. B., 326 U. S. 376, aff'g as modified 146 F. 2d 66 (C. C. A. 8), enf'g 53 N. L. R. B. 1366. OLIN INDUSTRIES, INC. 275 3. By discriminating in regard to the hire and tenure of employment of Ruth Bucci, Harry H. Gordon, Nora B. Alumford, Benjamin Bonito, Frederick J. Baldino, Frederick Destadio, the 13 employees listed in Appendix C and the 87 employees included in Appendix D, thereby discouraging membership in a labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act and Section 8 (a) (3) of the amended Act. 4. By interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act and Section 8 (a) (1) of the amended Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the Respondent, Oliu Industries, Inc., Winchester Repeating Arms Company Division, its officers, agents, successors, and assigns, shall: I. Cease and desist from (a) Discouraging membership in United Electrical, Radio and Machine Work- ers of America, C. I. 0., and its Local No. 282, or any other labor organization, by discriminatorily discharging and refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire and tenure of employ- ment, or any term or condition of employment; (b) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of their rights to self-organization, to form labor organiza- tions, to join or assist United Electrical, Radio and Machine Workers of America, C. I. 0., and its Local No. 282, or any other labor organization, to bargain col- lectively 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 as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effec- tuate the policies of the Act. (a) Offer Ruth H. Bocci, Harry H. Gordon, Nora B. Mumford, Benjamin Bonito, Frederick J. Baldino, Frederick Destadio, the 13 -employees named in Appendix C and 87 included in Appendix D, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges : (b) flake whole those employees for any loss of earnings they may have suf- fered by reason of the discrimination against them by payment to them of a sum of money equal to the amount which they normally would have earned as wages but for the discrimination against them, in the manner set forth in this Inter- mediate Report in the Section entitled "The remedy" ; (c) Post at its plant at New Haven, Connecticut, copies of the notice attached hereto marked "Appendix E." Copies of said notice, to be furnished by the Regional Director for the First Region, after being duly signed by the Respond- ent's representative shall be posted by the Respondent immediately upon the receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are nut altered, defaced, or covered by any other material; .276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Notify the Regional Director for the First Region in writing within ten (10) days from the receipt of this Intermediate Report what steps the Respondent has taken to comply therewith. It is further recommended that unless on or before ten (10) days from the date of this receipt of the Intermediate Report the Respondent shall notify said Regional Director in writing that it will comply with the foregoing recommenda- tions, the National Labor Relations Board issue an order requiring the Respond- ent to take the action aforesaid. As provided in Section 203.46 of the Rules and Regulations of the National Labor 1.1elations Board-Series 5, as amended August IS, 1945, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Inter- mediate Report and Recommended Order or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in support thereof; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Immediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Statements of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if inimeo- -graphed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.35. As further provided in said Section 203.46 should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions, .and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 24th day of November 1948. CHARLES E. PrRsoNs. Trial Examiner. APPENDIX A Adams, Otis Carr, James Funderburg, Otha Aranjo, Joseph Carter, Gade L. Gianelli, Austin Arter, Benjamin Ciccarelli, Alfred Gooding, Ozell Baldino, Louis Considine, Patrick Grant, John Ballard, Harold Conte, Angelo Gray, John Beal, Wellington C. Curtin, Frank Greene, Jacob Bellini, Angelo Daniels, Robert Greer, Jimmie W. Best, Johnnie DelStritto, Paul Gunn, Frank Birdo, Lawrence DeMatteo, Virgilio Haley, James Brown, Allen L. Douglas, James H. Heath, Rudolph V. Brown, Moses Evans, James T. Higgs, William Brown, Richard W. Fisher, Ernest L. Hilliard, Outing Calderoni, Ugo Ford, John T., Jr. Hugie, William OLIN INDUSTRIES, INC. 277 Jarvis, Joseph Moye, Theodore Shepard, Robert A. Jefferies, Alvin Muir, William S. Shere, Marlin Johnson, Dewey Murphy, Eddie Smith, Percy E. Johnson, Otis Murphy, William Stanford, Louis R. Jones, James J. Myles, James Taragowski, Joseph Kaiser, Ruben Newton, James Tardie, Joseph King, William S. O'Connell, James P. Tolbert, Lambert J. LaPan, Lawrence Oglesby, Richard Treadwell, Lawrence LaPorte, Paul Oronzo, Luigi Walker, Lemuel Lipsitt, Thomas Palmisano, Pasquale Washington, Simpson Lonergan, Frank Perry, Percy E. Watson, George Los, Joseph Persico, Fred Wayert, John J. Manning, Minton Polden, Fred Weaver, William Martindale, William Radcliffe, William Wilenski, William McElya, Westley Raffone, John J. Williams, Henry McLean, Neal A. Ragozzino, Frank Williams, Raymond G. Milner, Alex Reid, Jerry Wilson, Frank Monroe, John Robinson, William F. Woods, Raymond Morgan, Reginald Robinson, William H. Wormley, Livingston Morton, Louis R. Russell, Carl W. Moye, Hudie Samuels, Robert APPENDIX B 1. Notion for Disqualification of Trial Examiner Now comes the Company in the above-entitled matter in accordance with the Rules and Regulations of the Board as provided, to wit, Section 203.37, and moves that the Trial Examiner Persons, designated as trial examiner and hear- ing officer in the above matter now in process of hearing, withdraw on grounds of personal bias and disqualify himself from further participating in these proceedings, and assigns as its reasons therefor, the following : The Respondent's 10 allegations following here are quoted in full in the Trial Examiner's statement. In order to prevent unnecessary duplication they are omitted. Wherefore the Company contends that it will be unable to secure a fair and Impartial hearing in Case No. 1-C-3107 so long as the hearing is conducted by Trial Examiner Persons. Respectfully submitted, (S) ALLAN SESERMAN, OLIN INDUSTRIES, INC., Winchester Repeating Arms Company, Division Counsel. II. Trial Examiner Persons The first business this morning is handling a motion for disqualification of the Trial Examiner presented by Respondent. This is an affidavit submitted by Mr. Seserman and attested by a notary public, and is submitted in accordance with certain regulations in the Administrative Procedure Act, and in the Board's Rules and Regulations which I will read : First, in the Administrative Procedure Act, Section 7 (a). I will read the significant part which is the last sentence, and it says : ["The examiner] may 867351-50--vol. 86-19 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at any time withdraw if he deems himself disqualified; and upon the filing in good faith of a timely and sufficient affidavit of personal bias or disqualification of any such officer the agency shall determine the matter as a part of the record and decision in the case." Out of that arises the Board's Regulation, which is Section 203.37, Disqualifica- tion of Trial Examiners: "A Trial Examiner may withdraw from a proceeding whenever he deems himself disqualified. Any party may request the Trial Examiner, at any time following his designation by the Chief Trial Examiner and before filing of his intermediate report, to withdraw on grounds of personal bias or disqualification, by filing with him promptly upon the discovery of the alleged facts a timely affidavit setting forth in detail the matters alleged to constitute grounds for disqualification. If, in the opinion of the Trial Examiner, such affidavit is filed with due diligence and is sufficient on its face, lie shall forthwith disqualify himself and withdraw from the proceeding. If the Trial Examiner does not disqualify himself and withdraw from the proceeding, he shall so rule upon the record, stating the grounds for his ruling and proceed with the hearing, or if the hearing has closed-[which, of course, has no bearing here. ] The Trial Examiner, in accordance with the Board's Rules, will rule that the motion was filed with due diligence upon discovery of alleged facts, and accept the statements, the detailed statements, as they are stated unless there is in the record-unhappily not yet available to us-anything to the contrary. I will rule upon each of the ten detailed statements and as. directed by the Board's Rules state the grounds for my ruling: that I will not under this indict- ment withdraw from this hearing. No. 1. "That the Trial Examiner has had no experience with the rules governing the admissibility of evidence in the Federal District Courts." Now I can find no grounds in that statement for alleging that the Trial Examiner has been guilty of bias and prejudice and should be disqualified. If there be any ruling that I should make, I would say that you might refer to the Board. No. 2. "That he has shown bias to the Respondent by refusal to permit a recess for the purpose of making a telephone call, while he has permitted recesses to others participating in the hearing for the same reason." Now, the record will show that while we didn't technically take a recess, we did say to Mr. Seserman that we would sit and wait while he took his call, that's correct, isn't it? Mr. SFSERMAN. I am not referring to that, sir. The record will also indicate that you permitted the reporter to make a call to her office, and when I requested the same thing you denied Die that request. Trial Examiner PERSONS. I will state What the record may aiot show, that I did not permit the stenographer to make her call to her office. She did so, and as she stated to me later, she was delayed by the annoyances to which telephones are prone and she returned late to the hearing room. The record will show that the Trial Examiner reproved her by noting the fact on the record that we had been delayed by her absence. Mr. SESERMAN. You will also note that the record will indicate no doubt that I requested permission to recess the hearing for the purpose of making a call to the Board in Washington and you refused me that permission. Trial Examiner PERSO\ s. I may state further that we instructed the stenogra- pher to call her office and she ought to have her clay in court, that she expressed OLIN INDUSTRIES, INC. 279 contrition and apologized and I accepted her apology, and I felt the admonition imposed sufficient penalty. Mr. SESERMAN. I don't recall that the record will indicate any admonition. Trial Examiner PERSONS. You will find it in the record immediately when the session opened after that recess. I am prepared to follow the same procedure in the case of any other person participating in this proceeding, and that being true there can be no bias or prejudice shown. No. 3. The Trial Examiner "has berated counsel for the Respondent indicating that counsel for the Respondent was incompetent and that the actions of counsel were contemptuous, all this as a result of the refusal of the Trial Exam- iner to permit a recess for the purpose, as stated by counsel for the Company, of keeping an appointment with the presiding justices of the Federal District Court for the District of Connecticut, located in the same building in which these proceedings are held. The appointment was kept and the Trial Examiner proceeded ex parte without the Respondent being present." I will state that the first intimation the Trial Examiner had of such an appointment and that the recess would be requested was about 11 o'clock. The statement was then made that we take the usual recess, but we expect Mr. Seserman to return and if he did not return the proceeding would go on. If the request had been timely made, for that reason stated, it would have been granted; but, I cannot permit any party to the proceedings to take unto himself control of the hearing-room time. Any party who attempts to do that will be similarly treated to the treatment accorded [the Respondent] without bias or prejudice to any party. No. 4. "That notwithstanding the fact that counsel for the Respondent was discussing matters with the Trial Examiner and raising objections to said action taken by the Trial Examiner the said Trial Examiner closed the record, refused to open same and stated that he would be in full control of the opening and closing of the record without regard to the objections of the Respondent." In answer to that, I have no clear recollection, but accepting the statement on its face : control of the record is in the hands of the Trial Examiner, and all parties will be expected at all times to respect his rulings in that regard. There will be no bias or prejudice shown. The rulings will be made similarly against all parties. Hence, I find no ground for disqualifying myself on that statement. No. 5. "That he has arbitrarily cut off the Respondent from cross-examining a witness during the process of the examination, said witness being the first witness in the case on behalf of the Board. The Respondent alleges the personal bias in this instance and prejudice shown against the Respondent is recorded in the record wherein the Trial Examiner on asking for an estimate from the Company's counsel as to the length of the cross-examination, and counsel for the Company having estimated that it might take as much as three days since the Trial Examiner permitted the witness to testify in the main on hearsay evidence which would otherwise be excluded, the Trial Examiner announced that. the cross-examination would not take that long and he would so guarantee. The Respondent now contends that the Trial Examiner has lived up to that guarantee by arbitrarily stopping the examination of the witness and refusing to permit counsel for the Company to continue his examination of said witness." 280. DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the interest of brevity, I will take certain language from the Federal Rules of Civil Procedure. Rule 1-at the top of the rules it says that they shall govern, and then it says: "They shall be construed to secure the just, speedy, and inexpensive determina- tion of every action." And, again, in Rule 30, talking about the taking of depositions : "At any time during the taking of the deposition, on motion of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the court where the deposition is being taken may order the officer conducting the examina- tion to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in subdivision (b)." Of course it follows, and all of us must agree, that what a court may do in the case of a taking of deposition a responsible hearing officer must do when the pro- ceeding is before him. No examiner has any right, by this language, to so con- duct his examination as to unreasonably annoy, embarrass, or oppress a witness on the stand. I will read also, from the Administrative Procedure Act, Section 7 (c), talking about the rights of the parties. I will only read the section which I require. Parties shall have the rights, among other things, "to conduct such cross-ex- amination as may be required for a full and true disclosure of the facts." Now, as was stated here, the limits of cross-examination are wide, but there are limits, and these sections that I read indicate the nature of the limits upon the cross examination. Further than that, I want to say that when I asked counsel. for the Respondent how long he estimated his cross-examination would furthei take, he stated in the presence of the witness and of another witness in the hearing room that he thought he would not conclude within three days. Well, now, on authority quoted, the Trial Examiner with these passages in mind stated on the record that he would guarantee that that would not be true. He did that in order that these witnesses might be assured of their rights, and that they might not be under that threat which constituted palpable intimidation, of the Board's witnesses. For that no apologies are offered, and that will be the rule applied to all parties in this proceeding without bias or prejudice to anybody's right. No witness on this Federal stand will be permitted to be annoyed, embarrassed, or oppressed unreasonably, and this hearing. officer will guarantee that fact when and if he is here present, at all times for all purposes, and that is not bias or prejudice in his opinion. No. 6. "The Trial Examiner has further shown reason for disqualification by his bias in the instance where the Witness Romeo threatened counsel for the Company from the witness stand and the action of the Trial Examiner in not warning the witness against such outburst but instead he stepped down from the bench , patted the witness on the back, and in a very soft tone appeased and pleaded with the witness to continue his testimony stating the witness to be a good one." The Trial Examiner did step down and interpose his aged body between the Respondent's attorney and the witness fully expecting to receive the blows in- tended for the Respondent's attorney. He took such action as seemed to be desirable to permit the hearing to go on and the testimony of the witness to be OLIN INDUSTRIES, INC. 281 concluded. For that he has no apologies to offer, and that will be his standard of conduct if and when any similar occasion arises in the proceedings. No. 7. "That the Trial Examiner set up an unreasonable schedule for the ses- sions to be held, refusing to give consideration to the prior commitments of the Respondent's counsel, or the fact that counsel for Respondent must have some time off to get back to his office 140 miles away to conclude pending matters, etc." In the opinion of this Trial Examiner there was no unreasonable schedule set up, and the ruling as made, since it applies to all parties, does not show bias and prejudice. Harking back to Rule 1 of the Civil Procedure that it is the duty of the hearing examiner to insure speedy and inexpensive and just determina- tion of every action, and considering that the Trial Examiner has heard what to him are quite startling statements of the length of time that this comparatively simple proceeding is expected to consume, I will rule as to these grounds for my failure to disqualify myself, that extension of the hearing time was plainly called for. It applied to all parties, and the Respondent's counsel while this hearing is going on must Expect to so arrange his affairs that this proceeding may continue on a reasonable basis with consideration not only of the Respondent and Re- spondents' counsel's obligations, but of the other interests represented here. To do less than that, to require less than that, would plainly stamp this Trial Examiner as guilty of bias and prejudice against the other parties here repre- sented. That will not be done. o a a a e s No. S. "That notwithstanding the request of the Respondent for a shorter schedule the Trial Examiner lengthened the schedule to include sittings on Saturdays, without regard to the statement of counsel for the Respondent Com- pany that Saturday was his Sabbath and he did not conduct any work on Saturdays." The Saturday sitting was not held, instead the Respondent was granted Friday and Monday recess. No. 9. "That the Trial Examiner had admitted that he has acted in an ex- traordinary manner in the conduct of this hearing therefore"-I don't understand the "therefore"-"and has never acted in any such manner prior hereto." The answer is: True ; and the answer is that extraordinary circumstances require extraordinary remedies. And the same action, same extraordinary ac- tion, will be applied to all parties impartially should similar circumstances arise. Hence, in the opinion of this Trial Examiner, no bias or prejudice is thus shown. No. 10. Notwithstanding the fact that Trial Examiner is not a lawyer, he nevertheless insists that the motion for dismissal of the Complaint filed by the Respondent was silly, ludicrous and without any legal import." Under this challenge I will quote legal authority. The old "Federal common law rule applicable to both civil and criminal cases was that any amendment of a statute worked a repeal of the prior statute unless the amendment contained a savings clause and upon such a repeal all offences under the former law were forgiven." "In 1871 Congress changed this rule. In an Act entitled 'An Act prescribing the Form of the enacting and resolving Clauses of Acts and Resolutions of Con- gress, and rules for the construction thereof,' Congress expressly provided : `The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforce- ment of such penalty, forfeiture, or liability: " 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Well, now, I'll go a bit further and I will read language much better, I confess, than I could put together from a decision in United States v. Chicago , St. P., M. & O. Ry. Co., 151 F. 84, aff'd 162 F. 835, cert . den. 212 U . S. 579. The court stated on Pages 93 and 94-and I may interject that yesterday in the library I verified this quotation : "They ( Congress) knew that in the hurry and confusion of amending and enacting statutes , in the pressure upon members of Congress , not only by reason of their having to consider all the various matters of legislation for a great nation, but also by reason of the exactions upon their time and attention as to many things not really pertaining to their legislative duties ( and of this few who have not themselves been members of Congress can have any adequate appre- ciation ) words and phrases might inadvertently , or by mistake or possibly by design of those in and out of Congress having an interest in the particular matter legislated upon, find their way into acts repealing penal statutes which might by the application of the accepted and common -law rules of construction release from penalty those who had violated repealed acts; and it was for this reason they originally passed and have ever since recognized and kept upon the statute books section 13 as a part of the general body of the law binding upon the courts. They showed their wisdom in recognizing that they might make mistakes, or be careless or inadvertent , and thus produce mischievous results . They said to the courts , as plainly as words could say : `You shall not, by implying from words that we do use words that we do not use , remove that sentinel.' They said, as plain as they could say, to the courts : `When you come to a repealing statute of this kind you need not-indeed, you shall not-use those keys you have been accustomed to use to unlock the doors of our minds and ascertain our inten- tion as to the release from penalty of those who have violated a repealed law. It will not be necessary for you to consider the niceties of grammatical construc- tion as to whether a word is in the preterit or past tense, a participle, a connec- tive, or a verbal adjective, in order to ascertain whether or not we intend to release violators of the repealed law. If we wish or intend to release such vio- lators we will say so in express words , and not leave it to be implied or inferred. If we insert clauses which we might have left out, or which we should have left out, you shall not from that infer that we intended to put in clauses that we did not put in , and thus release violators of the law.'" APPENDIX C Baldino, Louis Gianelli, Austin Tardie, Joseph L. Ballard, Harold Johnson, Otis Wayert, John J. Beal, Wellington Los, Joseph P. Weaver, William Conte, Angelo Morton, Louis Woods, Raymond Evans, James T. APPENDIX D Adams, Otis Brown, Allen L. Ciccarelli, Alfred Aranjo, Joseph Brown, Moses 1 Considine, Patrick 2 Arter, Benjamin Brown, Richard W. Curtin, Frank Bellini, Angelo Calderon!, Ugo Daniels, Robert Best, Johnnie Carr, James Del Stritto, Paula Birdo, Lawrence Carter, Gade L. DeMatteo, Virgilio 1 Not locked out. Refused to work September 26, 1946. 2 Not locked out. Refused to work after September 26, 1946. 3 Compensation discontinued October 4, 1946. OLIN INDUSTRIES, INC. 283 Douglas, James H. Lipsitt, Thomas Radcliffe, William Fisher, Ernest L. Lonergan, Frank' Raffone, John J.° Ford, John T., Jr. Manning, Minton Ragozzino, Frank Funderburg, Otha Martindale, William' Reid, Jerry Gooding, Ozell McElya, Westley Robinson, William F. Grant, John McLean, Neal A. Robinson, William H. Gray, John Milner, Alex Russell, Carl W. Greene, Jacob Monroe, John Samuels, Robert Greer, Jimmie W. Morgan, Reginald Shepard, Robert A. Gunn, Frank Moye, IIudie Shore, Marlin Haley, James Moye, Theodore Smith, Percy W. Heath, Rudolph V. Muir, William S.8 Stanford, Louis R.8 Higgs, William Murphy, Eddie Taragowski, Joseph Hilliard, Outing Murphy, William Tolbert, Lambert J. Hugie, William Myles, James Treadwell, Lawrence Jarvis, Joseph Newton, James Walker, Lemuel Jefferies, Alvin O'Connell, James P.7 Washington, Simpson Johnson, Dewey Oglesby, Richard Watson, George Jones, James J. Oronzo, Luigi Wilenski, William Kaiser, Ruben Palmisano, Pasquale Williams, Henry King, William S. Perry, Percy E. Williams, Raymond G. LaPan, Lawrence Persico, Fred Wilson, Frank 9 LaPorte, Paul Polden, Fred Wormley, Livingston APPENDIX E NOTICE To ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist United Electrical Radio and Machine Workers of America, CIO and its Local No. 282, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL OFFER to the employees named below immediate and full rein- statement 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. Nora B. Mumford Benjamin Bonito Ruth H. Bucci Frederick J. Baldino Harry H. Gordon Frederick Destadio Not locked ,>ut. Refused to work after September 22, 1946. Subject to limited services as of September 21, 1946. "Compensation discontinued November 18, 1946. 7 Compensation discontinued November 17, 1946. 8 Compensation discontinued November 25, 1946. 8 Not locked out. Refused to work on and after September 22, 1946. 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Adams, Otis Haley, James Oronzo, Luigi Aranjo, Joseph Heath, Rudolph V. Palmisano, Pasquale Arter, Benjamin Higgs, William Perry, Percy E. Baldino, Louis Hilliard, Outing Persico, Fred Ballard, Harold Hugie, William Polden, Fred Beal, Wellington C. Jarvis, Joseph Radcliffe, William Bellini, Angelo Jefferies, Alvin Raffone, John J. Best, Johnnie Johnson, Dewey Ragozzino, Frank Birdo, Lawrence Johnson, Otis Reid, Jerry Brown, Allen L. Jones, James J. Robinson, William F. Brown, Moses Kaiser, Ruben Robinson, William H. Brown, Richard W. King, William S. Russell, Carl W. Calderoni, Ugo LaPan, Lawrence Samuels, Robert Carr, James LaPorte, Paul Shepard, Robert A. Carter, Gade L. Lipsit, Thomas Shore, Marlin Ciccarelli, Alfred Lonergan, Frank Smith, Percy E. Considine, Patrick Los, Joseph Stanford, Louis R. Conte, Angelo Manning, Minton Taragowski, Joseph Curtin, Frank Martindale, William Tardie, Joseph Daniels, Robert McElya, Westley Tolbert, Lambert J. DelStritto, Paul McLean, Neal A. Treadwell, Lawrence DeMatteo, Virgilio Milner, Alex Walker, Lemuel Douglas, James H. Monroe, John Washington, Simpson Evans, James T. Morgan, Reginald Watson, George Fisher, Ernest L. Morton, Louis R. Wayert, John J. Ford, John T., Jr. Moye, Hudie Weaver, William Funderburg, Otha Moye, Theodore Wilenski, William Gianelli, Austin Muir, William S. Williams, Henry Gooding, Ozell Murphy, Eddie Williams, Raymond G. Grant, John Murphy, William Wilson, Frank Gray, John Myles, James Woods, Raymond Greene, Jacob Newton, James Wormleq, Livingston Greer, Jimmie W. O'Connell, James P. Gunn, Frank Oglesby, Richard All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. OLIN INDUSTRIES, INC. WINCHESTER REPEATING ARMS COMPANY DIvISION, Employer. Dated--------- By ----------------------------------------------------- (Itepresentative) (Title) NOTE.--Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatment upon application in accord- ance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.