Thompson Products, Inc.

In the Matter of THOMPSON PRODum , INC. and INTERNATIONAL UNION, UNITED AuToioBILE, AIRCRAFT AND AGRICULTURAL IMPLE- MENT WORKERS OF AMERICA (U. A. W.-C. I. 0.) Case No. 7-C-1266.-Decided August 15, 1946 DECISION AND ORDER* On August 25, 1945, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had not engaged in the unfair labor practices affecting commerce alleged in the complaint, and recommending that the complaint be dismissed, as set forth in the copy of the Intermediate Report at- tached hereto. Thereafter, the respondent and=the U. A. W.-C. I. O. each duly filed Exceptions to the Intermediate Report and a support- ing brief. On February 28, 1946, the Board at Washington, D. C., heard oral argument, in which the respondent and the U. A. W.- C. I. O. participated. The Board has considered the rulings of the Trial Examiner at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings and conclusions of the Trial Examiner, with certain important modifications. The Board agrees with and adopts all the factual findings of the Trial Examiner, including the following: (1) On September 14, 1942, the Society was certified by the Board as the exclusive representative of the respondent's employees in an appropriate unit; (2) on October 1 and December 29, 1942, the U. A. W.-C. I. O. requested exclusive recognition as the bargaining representative for the employees in the same unit; (3) the respondent refused to comply with the U. A. W.-C. I. O.'s demand because of the outstanding Board certifi- cation of the Society; (4) the strike which began on December 29, 1942, was for the purpose of compelling the respondent to grant ex- clusive recognition to the U. A. W.-C. I. O. in the face of the existing certification of the- Society, and not for any of the other purposes or reasons asserted by the U. A. W.-C. I. 0.; (5) later that day the re- 'Vacated and set aside, 72 N. L. R. B., No. 150. 70 N. L. R. B., No. 3. 13 14 DECISIONS OF NATIONAL LABOR RELAT-IONS BOARD spondent, through a, notice posted on its bulletin board and at a conference with a state concilator and a U. A. W.-C. I. 0. represent- ative, promised to reinstate the strikers without discrimination, whereupon it was agreed that the strike would be called off; (6) the strike of December 30 and 31 was not a new, or second, strike, but was a continuation of the strike of December 29; and (7) the respondent discharged the members of the U. A. W.-C. I. 0. committee on Jan- uary 2 and 4, 1943, and thereafter refused to reinstate them, as Plant Manager Graham testified, "Simply because they had said they were going back to work and didn't," and "because they were the leaders of the strike" and "were out in front picketing the second day." The Trial Examiner found, and the respondent urges, in reliance on the American News case,' that the complainants are not entitled to the protection of the Act because they engaged in a strike to compel the respondent to violate the Board's certification of the Society. In arriving at this conclusion, however, both the Trial Examiner and the respondent disregarded the reason for which the respondent dis- charged the complainants. In this respect we believe they are in error. As previously stated, we agree with the Trial Examiner that the pur- pose of the strike was to compel the respondent to recognize the U. A. W.-C. I. 0. and thereby to violate its obligations under the Board's certification of the Society. If the respondent had discharged the strikers for that reason, the doctrine laid down in the American News case would, in the Chair- man's opinion, be applicable, a factor which is taken into consideration in determining the appropriate remedy. However, as the Trial Ex- aminer found, the respondent made the discharges, not because of the original purpose of the stoppage, but simply because, after respondent had condoned their original action, the complainants engaged in other and different concerted activities on behalf of the U. A. W.-C. I. 0. which respondent found objectionable. The respondent's complete lack of concern, in actual fact, with the original purpose of the strike (our emphasis upon which is not dependent upon what Mr. Reilly calls respondent's contemporaneous failure to "spell out its legal' theory"), is forcefully shown by its having elected, on the very first day of the stoppage, to pass over the complainants' conduct by agree- ing to reinstate all the strikers, including the complainants, without discrimination.2 Indeed, even when the men were discharged, re- Matter of The American News Company, 55 N. L. R B. 1302 , decided in 1944. s The fifth and seventh paragraphs of Mr Reilly 's opinion bear this out. This case is largely governed by the principle enunciated in Stewart The Cashnm Corporation v. N. L R. B., 114 F. (2d) 849, 855-6 (C. C. A. 7), cert. den'd 312 U. S. 680', 'mod'g and enf'g 14 N. L. R B. 872. There the Court, said : That such an act upon the part of a group of employees is unlawful is now recognized generally. We have no doubt but that petitioner [employer ] would have been justified in discharging such employees and thereby, severing such relation , but petitioner did THOMPSON PRODUCTS, INC. 15 spondent made no allusion, and apparently gave no thought, to the earlier impropriety; the issue was raised for the first time during the proceedings before this Board. It would therefore ill become us to deny, in 1946, the very reinstatement which the respondent was ini- tially willing to grant in 1942. For it is clear that the respondent later violated the Act by effecting the discharges for. the different reason which actually motivated it.3 Nor can the respondent defend its action by pointing to the coexistence of grounds which, if they had been the reason for the discharges, might have been sufficient to estab- lish a non-discriminatory motive on its part.4 The respondent also asserts that the Board should withhold relief from the complainants because they called the strike in violation of a Michigan statute. This contention is without merit. As the Board held in Matter of Eppinger dd Russell Company,' the requirements of a State law furnish no defense to a violation of the Act. " The respondent next argues that the instant proceeding violates a Board policy against accepting charges after they have been with- drawn for a period of more than 6 months. There is no merit in this contention. The Board has no such unconditional policy as the re- spondent claims, but customarily accepts delayed charges where there are extenuating circumstances for the delay. Thus, in the instant not do so-in fact , in dealing with those who were on a strike it made no distinction between those who had participated in the sit-down strike and those who had not. It offered-in fact, urged and solicited-all former employees , without discrimination, to return to their jobs Petitioner having raised no question concerning the status of such employees either prior to, or at the time of the strike settlement, we conclude it could not do so afterwards . See also N. L. R. B. v. Aladdin Industries, 125 F. (2d) 377, enf'g 22 N. L R B. 1195. The Fansteel ( 306 U. S. 240 ) and Southern Steamship ( 316 U -S. 31) cases are distinguishable, in that they involved direct violations of law by the employees who were discharged rather than (as here and in American News ) an attempt on their part to induce improper conduct by their employer . Court decisions leave the Board freer to determine the effect to be given employer condonation in the latter type of situation. i See the testimony quoted under ( 7) in the second paragraph preceding. Matter of United Aircraft Manufacturing Corporation, 1 N L. R. B. 236 ; Matter of Armour and Company, 25 N L. R. B. 989; Matter of Kokomo Sanitary Pottery Company, 26 N L. R. B. 1; Matter of The Holmes Silk Company, 26 N. L. R. B. 88 ; Matter of Wilson & Co , 30 N L R B . 314, Matter of United Dredging Company, New Orleans, Louisiana, 30 N. L R B 739 , Matter of Great Southern Trucking Company , 34 N. L. R. B. 1068; Matter of Sport-Wear Hosiery Mills, 41 N. L. R. B 674. 4 See, e g, Matter of Kentucky Fire Brick Company, 3 N. L R. B 455 , 464-5, enf'd 99 F. (2d ) 89 (C. C. A 6 ) ; Matter of Columbia Products Corporation, 48 N. L R B. 1452, enf'd 141 F. ( 2d) 687 ( C. C. A. 2 ) ; Matter of Piedmont Shirt Company, 49 N. L. R B. 313 , 318, enf'd 138 F. ( 2d) 738 ( C C. A 4 ). See also those cases in which the Board finds discrimination in view of the employer 's unlawful motive, but expressly states that it does not condone the conduct in which the employees engaged and for which the employer could properly have disciplined or discharged them, and that the employer might discipline or discharge them for a repetition of such conduct in the future e g , Matter of Allen Boat Company , 52 N L. R. B. 751 ; Matter of English Freight Company, 61 N. L. R. B . 375, Matter of Carl L. Norden, Inc, 62 N. L. It. B. 828; Matter of Life Insurance Company of Virginia, 65 N L. R B. 1140, Matter of Climax Engineering Company, Division of General Finance Corporation, 66 N. L. R. B. 1359. e 56 N. L R B. 1259 See also Matter of Kalamazoo Stationery Company, etc., 66 N. L R B 930. I 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . case the discharges occurred on January 2 and 4, 1943; the U. A. W.- C. 1. 0. filed a proper charge a few days later, on January 7, 1943; the U. A. W.-C. I. 0. then withdrew this charge without prejudice and submitted the discharges and other disputed matters for adjudication to the National War Labor Board; the later tribunal finally refused jurisdiction of the discharges on December 9, 1943, on the ground that they were for the National Labor Relations Board to determine; and the original charge in the instant proceeding was filed a little over a month later, on January 17, 1944. On the entire record, we find that the respondent discharged and refused to reinstate the complainants for a reason proscribed by the Act; namely, because they had engaged in a concerted activity on be- half of the U. A. W.-C. I. 0. and for their mutual aid and protection. The right to engage in such activity is guaranteed to employees in Section 7 of the Act. We find that by discharging the complainants because of their strike activity, the respondent interfered with, re- strained, and coerced its employees in the exercise of the rights guar- anteed in Section 7 of the Act, and thereby violated Section 8 (1) of the Act. We also find that the respondent's conduct in thus discrimi- nating in regard to the hire and tenure of employment of the com- plainants discouraged membership in the U. A. WT.-C. I. 0. and hence also constituted a violation of Section 8 (3) of the Act. Whether the respondent's discriminatory conduct is viewed as a violation of Section 8 (1) or (3), we find that effectuation of the policies of the Act re- quires the remedy set forth below. Having found that the respondent discharged the complainants and thereafter refused to reinstate them in violation of the Act, we shall order the respondent, pursuant to our, customary practice, not only to cease and desist therefrom but also to offer the complainants reinstate- ment e We shall not, however, award them any back pay in view of their conduct, acting pursuant to the express power granted the Board in Section 10 (c) of the Act? Effective administration of the Act, and particularly of Section 9 (c), requires that all parties, including these complainants, honor a Board certification which has been out- 'This order of reinstatement without back pay is supported by the opinions of the Chairman and Mr. Houston Mr. Houston would also have directed back pay, whereas Mr Reilly favors neither remedy. _ We are satisfied that under the circumstances the complainants , by participating in a peaceful strike to compel the respondent to recognize the U. A. W.- C. I. 0., did not render themselves unsuitable for further employment by the respondent , and that their mere reinstatement would not tend to encourage such strikes , in view of our denial of back pay tor the reasons hereinafter set forth. See cases cited in footnote 4, supra, Matter of Republic Steel Corporation . 9 N. L. R B 219. 392, enf ' d in this respect 107 F. ( 2d) 472 (C. C A. 3 ), cert. den'd in this respect 309 U S. 684. See also N. L. R. B . v. Illinois Tool TVorks, 153 F. (2d) 811, 17 L. It . R 946 (C. C. A. 7, Feb. 26, 1948). 7 Section 10 (c) of the Act authorizes the Board to order a respondent to take such affirmative action, including the reinstatement of employees "with or without back pay," as will effectuate the policies of the Act. THOMPSON PRODUCTS, INC. 17 standing only 31/2 months s and refrain from acts designed to compel its violation by employers. As the Supreme Court said in the Phelps Dodge case,' the Board's back-pay orders must take into "fair account ... every socially desirable factor . . . to attain just results in di- verse, complicated situations." Former Chairman Millis, even though dissenting in the American News case (55 N. L. R. B. 1302, at 1319-20), objected merely to the view of the then majority (composed of Messrs. Reilly and Houston) that men who strike to compel a viola- tion of law by their employer lose their status as "employees"; he held that it would have been a correct exercise of discretion for the Board to have denied them back pay. That is.precisely what is done by grant- ing the limited remedy directed here. Chairman Herzog considers this case distinguishable from Matter of Columbia Pictures Corporation, et al., 64 N. L. R. B. 490, involving a strike to compel the employer to recognize a certain labor organiza- tion while a representation petition was pending before the Board, but in the absence of an outstanding Board certification of any other union. He still believes that that case was correctly decided on its facts. That case, however, unlike the instant one, was a representa- tion proceeding; it did not involve a strike to compel the violation of the employer's affirmative obligation to deal with an already certified union and with no other labor organization. Moreover, the question of whether the employer would have committed an unfair labor prac- tice by bargaining with the striking union was expressly left unde- cided by the majority (Messrs. Herzog and Houston) in the Colum- bia Pictures case. Here, however, there is no doubt that bargaining with the U. A. W.-C. I. 0. would have laid the foundation for an 8 (5) proceeding initiated by the certified Society. Furthermore, the Columbia Pictures case does not state, expressly or by implication, that the Board would have exercised its discretion under Section 10 (c) to award back pay to the discharges. It holds only that an em- ployer cannot, by the unilateral action of "discharging" such strikers, "deprive them of the right to vote in a Board election" (64 N. L. R. B. 490, at page 513). It is one thing to hold that Section 13 of the Act protects concerted activities so as to bar such a result; it would be quite a different thing to construe it so as to require the Board to 8 The fact that the Board directed an election in February 1943, does not in any way establish that the certification was vulnerable in December 1942 ; nor, since we are all accepting the Trial Examiner 's view of the facts, are we free to assume that the com- plainants were motivated by a belief that it was so vulnerable . Scrutiny of the Board's decision in the later representation case ( 47 N. L. R. B. 619, at 621) reveals that the election was directed , not because the respondent's contract with the certified Society was held to be no bar, but because it was soon to expire ( on April 29 , 1943 ). Therefore the Board, as is customary in such cases in order to avoid duplication of effort, issued an anticipatory election order , which provided that any new certification should only be effective after the existing contract expired. 9 Phelps Dodqe Corporation v. N. L. R. B., 313 U. S. 177, 198-200. 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD blind itself to qualitative differences between such activities, in deter- mining what remedy is appropriate in a particular-case. Certainly, even though the discharges here were not motivated by the complainants' action in striking to compel a violation of the com- ,pany's obligation to bargain exclusively with the Society pursuant to our certification, it remains incumbent upon us to take such conduct into consideration in directing the remedy, a matter which lies wholly within the Board's discretion. Were we to exercise that discretion in the manner suggested in Mr. Houston's separate opinion, thereby awarding full back pay to men who strike for such a purpose, we would be putting a premium upon conduct which can only bring the Board's processes into disrepute. Unless we are to abandon Ameri- can New8 altogether, the least this Board can do to honor its own certifications is to decline to award back pay to those who seek to force employers to disregard them. There would be neither moral, legal, nor practical justification for our requiring employers to respect our certifications if we were unwilling to respect them ourselves. i ORDER -Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Thompson Products, Inc., Detroit, Michigan, and its officers, agents, successors , and assigns shall': 1. Cease and desist from discouraging membership in International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (U. A. W.-C. I. 0.), or any other labor organiza- tion of its employees, by discharging or refusing to reinstate any of its employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment, because such employees engaged in concerted and union activity for their mutual aid and protection. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act; (a) Offer Clair V. Atwell , Sam Prast Cinquemani , Henry Cygan, Orbie Gray, Mitchell Lentocha , William Mishark, Phillip Pirrello, Irene Prylo, George S. Reavely , Steven Sessie, and Eddie G. Wells, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; (b) Post at its plant at Detroit, Michigan, copies of-the notice at- tached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Seventh Region , shall, after being duly signed by the -respondent's representative, be posted THOMPSON PRODUCTS, INC. 19 by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (c) Notify the Regional Director for the Seventh Region in writ- ing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. MR. GERARD D. REILLY, concurring in part, dissenting in part: Since I believe this case falls squarely within the doctrine enunciated by this Board in the American News case,10 I can concur with only that portion of the Order denying back pay to the discharged employees and must disagree with those provisions granting them affirmative relief. As neither of my colleagues takes the same view of the case, a brief summary of the facts, as found by the Trial Examiner, would seem to be pertinent. Reduced to simplest terms, the facts found by the Trial Examiner, with whom I concur, were as follows : The respondent company had entered into a valid collective agree- ment with an independent union, the Society of Tool and Die Crafts- men (hereinafter called "the Society"), which was not to expire until April 29, 1943. Although the original contract, of which this was a renewal, had been entered into prior to the certification of the Society as the bargaining agent, there was no doubt of its validity since the Society was certified as the bargaining representative on September 14, 1942, as a result of having defeated the charging union, the UAW- CIO, in an election conducted by this Board in 1941, certification being delayed by objections filed by the losing CIO union and charges subse- quently dismissed alleging that the Society was company-dominated, in violation of Subsection 8 (2). Nevertheless, 2 weeks after the certification, the CIO again claimed a majority and demanded recognition as the bargaining agent. When the respondent did not reply to this telegraphic demand, the Union, 1 week later, filed a petition with the Board. About 3 months later the CIO appointed a plant committee to call upon the company officials and make the same demand, threatening to strike unless the company recognized the CIO forthwith. The com- pany informed the union committee that it had a contract with the 1 Matter of American News Co., Inc., 55 N. L. R. B. 1302. This case, although criticized by the CIO, was never appealed to the courts. The rule of decision in the case , however, has been noted with approval by the Circuit Court of Appeals for the Seventh Circuit in a decision which found that the factual situation before them was such that the Board should have applied the doctrine. ( See N. L. R. B. v. Indiana Desk Co., 149 F. (2d) 987 (C. C A. 6), enforcing as modified 56 N. L. R. B. 76. 712344--47-vol. 70-3 .20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Society which had been certified by the Board and to recognize any other union as a bargaining agent would be a violation of the Act. The, company promised that if their organization was certified by the Board, the company would bargain collectively with it. Immediately after this interview the union committee called a strike, and about a third of the day shift walked out. \ The company thereupon posted a bulletin stating that the "people who took part [in the walk-out] were misguided," and that "applying to us for their jobs, we'll put therm back to work in the interest of all our war production." Through the intervention of a State conciliator, the principal union representatives then agreed to call off the strike and assured the striking employees that they were free to return without being dis- charged. During that evening a conference was held in the con- ciliator's office, at which a Field Representative of this Board was present. At the instigation of the CIO, the Society and the company were asked whether they would agree to, a consent election to be held .under the auspices of this agency. Both the Society and the company refused to agree." , On the next day, prior to the workers' reporting for the morning shift, certain union committeemen who had arrived early again threw a picket line around the plant. The pickets turned away some trucks loaded with materials from the plant, after making representations to the drivers. Two of the company officials observed the situation from their office window and immediately determined to discharge the committee members "because they were the leaders of the strike." One of them subsequently explained that the action was taken "simply because they were going back to work and didn't." It is abundantly clear from the foregoing recital that the strike which ensued upon the union committee's unsuccessful attempt to secure recognition was for an illegal purpose. The Society had just recently been certified as the exclusive representative. Had the company recognized any other union as the representative of all or even a few of the employees in the bargaining unit, it would have violated its duty under Section 8 (5). Had it yielded to the Union's demand, the Society had a right to file a charge and the company would have found itself without any means of answering a complaint for violation of Section 8 (5) of the Act, since it has been well-estab- "It should be noted in passing that both the Society and the Company were fully within their rights in refusing to agree to a consent election , not only because of the provision in the Act which affords the parties to an election petition an opportunity for hearing but because no rule of the Board is better established than the one which deems a contract entered into between a certified union and an employer as a bar to an election in the middle of the contract term. When the petition which had been filed by the CIO reached the Board, it took precisely this position . In other words , although the Board did conduct an election , it did so only for the purposes of selecting a representative to act for the employees in the negotiation of a new agreement at the end of -the contract term. See Thompson Products, Inc, 47 N L. R. B. 619, at 622 THOMPSON PRODUCTS, INC. 21 lished in numerous cases that the refusal to deal with a certified union because of a strike threat or other economic coercion is not a defense.12 Yet under these circumstances it is urged that the employees who in- stigated the strike activity designed to bring about such a result- are nevertheless entitled to reinstatement and back pay. In the American News case 18 a majority of this Board, heeding the admonition of the Supreme Court in the Southern Steamship case 14 that this Board should not pursue its own policies "so singlemindedly that it may wholly ignore other equally important Congressional objectives," re- fused to grant affirmative relief to a group of employees who had been refused reinstatement after going on strike to compel their employer to grant them a wage increase in violation of the Wage Stabilization Act. In that case one of the principal points of disagreement between the majority and the minority was whether or not the Wage Stabiliza- tion-Act was an "equally important Congressional objective." In the instant case, however, there is no room for debate on the relative importance of different statutes since the 'object of this strike was to override an express objective of the very Act which this Board administers-namely, the right of the certified majority repre- sentative to have exclusive recognition. I assume that on this view of the case there would be no disagree- ment on the part of either of my colleagues. Nevertheless, Mr. Hous- ton, although he joined with me in the majority opinion in the Ameri- can News case,15 now states that it should be overruled though his opinion gives no clue as to how he avoids the impact of the Supreme Court decisions which we regarded as compelling in that case, nor any defense for the policy of giving relief under this Act to workers who resort to self-help to defeat its most important objectives. My other colleague, Chairman Herzog, takes the same position on the facts le as I, but he attempts to distinguish the American News case 12 See Matter of Seattle Times , 43 N. L. R. B 823; Matter of National Broadcasting Co., 61 N. L. R. B 161 , enf'd, 150 F. (2d) 895 (C. C. A. 2) ; Matter of Gluck Brewing Co., 47 N. L R. B. 1079, enf'd, 144 F. ( 2d) 847 (C. C. A. 8). 13 See footnote 10, supra. 14 Southern Steamship Company v. N. L. R. B., 316 U. S. 31. 1a See footnote 10, supra. 19 The text of Mr. Houston's opinion does not expressly state his views on the factual issues , except that his contention that the strikers had a justifiable reason for thinking that it would not have been a violation of the law for the company to have granted them immediate recognition would seem to imply that he accepts the Union's version of the facts As has already been noted, however ( see footnote 11), our own decision in the representation case, in which he joined, made it clear that the change in representatives was to negotiate an agreement after the contract with the Society expired, and the demand which precipitated the strike occurred several months before that date. Moreover, since the Board was unanimous in the Matter of Midwest Piping and Supply Co., Inc., 63 N. L. R. B. 1060, and other cases laying down the principle that it was an unfair labor practice for an employer to give advance recognition to either of two contending unions during the pendency of a petition , it is difficult to understand how the concerted activity which he believes was protected by the Act in this instance could have had any objective other than to compel this employer to violate the law. 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the ground that the company officials did not discharge the striking employees because they sought to attain an illegal objective. This is no distinction at all of the facts in the American News case, for the record there shows that the company gave no explanation to the strik- ers. In both cases, however, the respondents had previously told their employees that they were compelled by law to refuse the union de- mands, so that when subsequent strikes ensued the situation was crystal clear to both sides. It is admitted that the employer in this case, and the Chairman's opinion apparently so concedes, discharged the employees for continuing the strike. If the company had a right to drop the strikers after the first walk-out, it scarcely seems that an offer to condone their misconduct if they returned to work would transform activity which up to then had been,concededly unlawful (and hence, under the doctrine of the American News case, not pro- tected by the Act) into the kind of concerted activity for which'they were protected against reprisal. To say that the respondent, before discharging the men, had to spell out its legal theory adds a refinement to the American News case which I submit is untenable, in view of the Chairman's acquiescence in the Trial Examiner's findings that the re- sumption of the strike on the second day was for the same illegal pur- pose as the original stoppage. It would be quixotic to assume that' when employers discharge strikers after an illegal stoppage, they do so in order to vindicate the law. The records in the sit-down'strike cases 17 and the breach of contract strikes 18 reveal that the discharges stemmed, as here, from resentment over the economic or physical damage resulting from the strike itself. The real question in all the illegal strike cases is whether or not the strike is protected by the Act. If this question is answered in the negative, the motive becomes immaterial 1' In support of this result, however, we are cited to the Stewart Die Casting case 20 which the Circuit Court of Appeals distinguished from Fanstell 2l holding that strikers engaged in unlawful activity had no right to reinstatement irrespective of an employer's hidden motive, on the ground that the facts in that case showed that since the employer had condoned the sit-down strike, he could not later assert the sit-down as a defense to a refusal to reinstate. The resemblance between the Stewart Die Casting and the case at bar is more superficial than real. In the Stewart case, as the Court expressly noted, the company did not 11Matter of Mid-Continent Petroleum Corp., 54 N. L. R. B. 912 ; Southern Steamship Company v. N. L. R. B., 316 U. S. 31. 18N. L. R. B. v. Sands Mfg. Co., 306 U. S. 332, aff'g 96 F. (2d) 721 (C. C. A. 6), setting aside 1 N. L. R. B. 546; Matter of Scullin Steel Company , 65 N. L. R. B. 219. 19N. L. R. B. v. Fansteel Metallurgical Corp., 306 U. S. 240, aff'g as mod. 98 F. (2d) 375 (C. C. A. 7), setting aside 5 N. L. R. B. 830. 20 Stewart Die Casting Corporation v. N. L. R. B., 114 F. (2d) 849 (C. C. A. 7). 21 See footnote 19, supra. THOMPSON PRODUCTS, INC. 23 confine its disciplinary attitude to the sit-down strikers or even attempt to identify them by name. It simply refused reinstatement to all persons who participated in either a sit-down strike or a subsequent strike for a lawful purpose conducted in a lawful manner who refused to yield to a company ultimatum that the strike be discontinued after a certain date. In the instant case, if we accept the Trial Examiner's findings, there was never any time in which the discharged employees were participating in or instigating a strike for lawful objectives. Moreover, the dictum with respect to condonation in the Stewart case must be regarded as having been overruled, sub silentio, by the Supreme Court in the Southern Steamship case,22 where the dis- chargees, at the request of their employer, actually worked for 6 days after the strike settlement. But even on the view of the facts urged by the charging union, the Stewart Die Casting case is not in point. The consideration' for con- doning the illegal strike was that the men should return to work im- mediately, and even though the findings of the Trial Examiner were disregarded and the view taken that the strike of the next day was called for a different purpose, it should be noted that until the plant committee had ceased its strike and accepted the company's terms, there was a failure of consideration for the promise of amnesty. It seems to me regrettable, in a period in which the Labor Relations Act is the one statute in the United States Code of Laws which tends to bring about certainty in labor relations, that this Board should give relief to employees who strike to effect a violation of this very statute. This case simply adds confusion to the dubious attempt to distinguish the American News doctrine 23 in the Columbia Pictures 24 case and places even the most law-abiding employers in a difficult dilemma. MR. JOHN M. HOUSTON, concurring in part, dissenting in part: Although I concur in the conclusion of the Chairman that the respondent violated Section 8 (3) of the Act by discharging and failing to reinstate the complainants, I must record my disagreement in prin- ciple with an observation made in his opinion and set out those con- siderations which have persuaded me that the complainants are en- titled to the customary remedies employed by this Board in dissipating the effects of an employer's discriminatory practices. The decision of the Board in the Colwm,bia Pictures case, although dealing with certain factual differences, appears to me to be dispositive of the issue presented here. In considering, in that case, whether the action of employees who struck to obtain recognition during the 22 See footnote 14, supra. Is "A case which has been distinguished is no longer distinguished."-Thomas Reed Powell. 21 Matter of Columbia Pictures Corporation et al., 64 N. L. it. B. 490. 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pendency of a representation proceeding, debarred them from partici- pation in an election, after they were discharged, this Board stated : "We find nothing in the Act, its legislative history, or in the court deci- sions thereunder, which points to the conclusion that the strikers' con- duct herein removes them from the ambit of the Act. On the contrary, thee language of the Act and the decisions of the Board and the courts make plain that a strike of this character-to obtain recognition and collective bargaining-is within the `concerted activities' contemplated therein and cannot render strikers vulnerable to loss of their status as - 'employees' because this is their purpose." The Board unequivocally recognized that employees who resort to concerted activities to obtain a result which they might have achieved by invoking the procedures designed by the Board do not forfeit any of the rights which accrue to them as employees within the meaning of the statute. The conduct of the complainants in this case provides no basis for a different disposition of their claims. In the Columbia Pictures case, as in this case, a., defense based upon the doctrine of the American News case was urged. That argument was rejected in the Columbia Pictures decision upon the clear authority inherent in the statement quoted above. I fail to perceive that it is entitled to, any higher con- sideration in this case.25 Nor do I therefore agree, as the opinion of the Chairman indicates, that if the respondent here had stated as its reason for the discharges, when they were effected, that the strike was unlawful in that its success would have caused abreach in the respond- ent's duty to honor our certification, then the American News doc- trine would become applicable to insulate the conduct of the - em- ployer. I cannot subscribe to reasoning which would appear to adjudicate the legality of a strike solely upon the character of the ex- cuse offered by the respondent to interfere with it. The legality of this strike must be judged upon the basis of its statutory sanction alone, and upon this basis we have said that the Act tolerates no infringement of the rights of those who participate in it. Nor do I find any valid consideration in the record or in any of the arguments addressed to the Board which should inhibit the ex- ercise of our remedial discretion to order the customary back pay award. If it is once conceded that this strike was lawful, I can find no lack of morality in its conduct. Moreover, although the strike occurred at a time when a certification of the Board was outstanding, it would appear from the record that the employees who struck had just cause to believe that the certification was not a statutory bar to their representation efforts. Indeed, the Board so held in the sub- sequent representation proceeding.26 I can find nothing, therefore, 25I have reexamined quite carefully the premises and principles expressed by the Board in the American News case. I have become convinced that they are not valid. For that reason I would overrule that decision. 26 47 N L. R B. 619, at page 622. THOMPSON PRODUCTS, INC. .- 25 which supports the view that a denial of back pay in these circum- stances would conduce to the maintenance of the dignity of our certifying function. APPENDIX A' NOTICE TO ALL EMPLOYEES 'Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : We will 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: Clair V. Atwell Phillip Pirrello Sam Prast Cinquemani Irene Prylo Henry Cygan George S. Reavely Orbie Gray Steven Sessie Mitchell Lentocha Eddie G. Wells William Mishark We will not discourage membership in International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (U. A. W.-C. I. 0.), or any other labor organization, -by discharging or refusing t& reinstate any of our employees or by dis- criminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment, because such employees engaged in concerted and union activity, for their mutual aid and protection. THOMPSON PRODUCTS, INC. Employer Dated -------------------- By --------------=-------------- (Representative ) ( Title) NoTE. Any of the above-named employees presently serving in the armed forces of the United States will be offered full re- instatement upon application in accordance 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. INTERMEDIATE REPORT Mozart G. Ratner, Esq , for the Board. - Stanley and Smoyer, by Harry E. Smoyer, Esq., and Donald M. 31-arshman, Esq., of Cleveland, Ohio, for the respondent. Maurice Sugar and N. L. Smokler, by N. L. Smolder, Esq, of Detroit, Mich., for the Union. 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD STATEMENT OF THE CASE On a second amended charge duly filed May 29, 1945, by International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO), herein called UAW-CIO, the National Labor Relations Board, herein called the Board, by the Regional Director for the Seventh Region (De- troit, Michigan), issued its complaint dated May 31, 1945, against Thompson Products, Inc., herein called the respondent, alleging that the respondent' had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice of hear- ing thereon were duly served upon the respondent and UAW-CIO.1 In respect to the unfair labor practices the complaint alleges in substance (1) that on or about January 2, 1943,'the respondent discriminatorily discharged Clair V. Atwell, Henry Cygan, Orbie Gray, Mithell Lentocha, Phillip Pirrello, Irene Prylo, George S. Reavely, Stephen Sessie and Eddie G. Wells, and on or about January 4, 1943, discriminatorily discharged Sam Prast Cinquemani and William Mishark, and has since the dates stated failed or refused to reinstate them because they joined and assisted the Union or engaged in concerted activi- ties with other employees in the plant for the purpose of mutual aid and pro- tection ; and (2) by these discharges the respondent has interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed them under Section 7 of the Act. On or about June 25, 1945, the respondent filed its answer which admits the facts alleged in the complaint as to its corporate organization, the nature of its business, that the Union is a labor organization within the meaning of the Act and that it discharged the complainants on the dates stated in the complaint. The answer denies, however, that the respondent has committed any unfair labor practices. The respondent avers in its answer that the complaint should be dismissed because : The Union -did not avail itself of the grievance procedure set forth in a valid contract which remained in force until April 29, 1943; the call- ing of a strike on December 29, 1942, as a result of which the discharges were made, contravened a statute of the State of Michigan ; and the complaint in the instant proceeding violates a Board policy "against accepting charges after they have been withdrawn for a period of more than 6 months " Pursuant to notice, a hearing was held at Detroit, Michigan, on June 26, 27, and 28, 1945, before the undersigned Trial Examiner, Charles E. Persons, duly designated by the Chief Trial Examiner. The Board, the respondent, and UAW- CIO were represented by counsel and participated in the hearing. 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 close of the Board's presentation the respondent moved that the complaint be dismissed as to each of the persons named in the complaint as having been discriminatorily discharged. This motion was denied without prejudice to its renewal later in the proceeding. The respondent renewed this motion at the close of the hear- ing at which time the undersigned reserved decision. The motion is hereinafter disposed of by` the undersigned's recommendation that the complaint be dis- missed. At the close of the hearing the Board and the respondent joined in a .motion to conform the pleadings to the proof. This motion was granted. The Board, the respondent and UAW-CIO participated in oral argument at the con- elusion of the taking of testimony. The parties were duly notified that they had the privilege of presenting briefs for the consideration of the Trial Examiner. No briefs have been received. THOMPSON PRODUCTS, INC. 27 From the entire record made, and from the undersigned's observation of the witnesses, the undersigned makes, in addition to the above, the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT 1' The respondent, Thompson Products, Inc., is a corporation organized under the laws of the State of Ohio. It has its principal office and place of business at Cleveland, Ohio, and maintains and operates a plant at Detroit, Michigan, where it is engaged in manufacturing, selling, and distributing divers parts used in the automobile, truck, tractor, aircraft, and marine engine industries. During 1944, the respondent purchased materials for use in the operation of its Detroit, Michigan, plant, valued at approximately $3,900,000. About 33% percent of such materials was shipped to this plant from places outside the State of Michigan. In the same year the products of the Detroit plant were valued at approximately $8,600,000 and about 45 percent of these goods was shipped to places outside the State of Michigan. The respondent concedes that it is engaged in commerce within the meaning of the Act. H. THE ORGANIZATION INVOLVED International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO) is a labor organization admitting to its mem- bership employees of the respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES On a petition filed on April 15, 1941, by UAW-CIO, the Board, after hearing duly held, in which the UAW-CIO and the Society of Tool and Die Craftsmen, herein called the Society, participated, issued its Decision and Direction of Election 2 on September 10, 1491. An election was held on September 25, 1941, at which neither the UAW-CIO nor the Society received a majority. Thereafter the Board on October 9, 1941, issued its Supplementary Decision and Second Direction of Election.' A run-off election was held on October 24, 1941, in which the Society received 429, and the UAW-CIO 325, of 754 valid votes cast. Certification of the Society, however, was delayed. On November 3, 1941, the UAW-CIO filed Objections to the Conduct of the Ballot and the Election Report and on November 5, 1941, filed Amendments thereto. On November 1, 1941, the UAW-CIO filed charges with the Board alleging, tinter alia, that the respondent dominated and controlled the formation and administration of the Society. On July 14, 1942, after an investigation, the Regional Director refused to issue a complaint on these charges Thereafter on September 14, 1942, the Board issued its Supplementary Decision and Certification of Representatives declaring that the Society "has been designated and selected by a, majority of all hourly rate and production employees of the Detroit plant of Thompson Products, Inc., excluding supervisory employees, foremen, assistant foremen, watchmen and office and confidential employees, as their representative for the purpose of collective bargaining 14 1 These findings are based on a stipulation of the parties and on allegations in the complaint admitted by the respondent in its answer. 2 35 N. L. R. B. 323, Case No. R-2834 8 35 N. L. R. B. 329. 4 43-N. L. R. B. 1379. 28 DECISIONS bF NATIONAL LABOR RELATIONS BOARD Contractual relations between the Society and the respondent were first es- tablished on April 29, 1941. The original contract was renewed on April 29, 1942, for a period of one year.' It will be noted that this renewal, while later than the run-off election in which the Society received a majority, was prior to the Board's decision on the UAW-CIO's objections and its certification of the Society. On October 1, 1942, i. e, 2 weeks after the Board's certification of the Society, the UAW-CIO sent a telegram to the respondent reading as follows : The International Union UAW-CIO represents the majority of the employees at the Detroit plant who have designated us as exclusive bargaining agent for them. As such bargaining agent we request that you enter into collective bargaining in respect to rates. of pay and. wages, hours of employment, and other conditions of employment. - Although this telegram was signed by Leo Lamotte as Regional Director of the UAW-CIO, it was the credited testimony of James Jennings, an International representative of that organization, that he had written the telegram. The re- spondent did not reply to this communication. On October 8, 1942, the UAW-CIO filed a Petition for Investigation and Certifi- cation of Representatives with the Board. This document states over the signature of Jennings , inter atia: Petitioner has advised the employer that it represents a majority of the employees and has requested exclusive bargaining rights which the employer refuses to grant. On December 28, 1942, Jennings instructed a plant committee composed of 14 members 8 to interview William F. Goltz, personnel manager for the respond- ent, next morning. Jennings and 2 members of the committee, Orbie Gray and George C. Reavely, testified that his instructions were, as Jennings stated, "that they had enough membership and they were entitled to an election, and I felt they should go in and ask for recognition for their members until an election could be held." Gray and Reavely further testified that the committee, through its spokesmen Mitchell Lentocha and Reavely, carried out Jennings' instruction' However, both Goltz and his assistant William M. Ferguson 8 testified that the UAW-CIO committee demanded recognition as exclusive representative of the employees and proposed to begin bargaining in that capacity immediately. This demand was supported with a strike threat. Goltz further testified very posi- tively that no one at the conference asked whether the respondent would consent to a Board election. 6 The Board so found in its decision of February 15, 1943, saying , "While the language of the extension agreement is not free from ambiguity and fails to state explicitly the period of the extended term it appears to have been the intention of the parties to renew their collective bargaining agreement , subject to certification of the Society by the Board, for an additional term of 1 year, I. e., until April 29, 1942." 6 The members of this committee were • Clair V. Atwell, Henry Cygan, Orbie Gray, Mitchell Lentocha , Phillip Pirrello , Irene Prylo, George N. Reavely, Stephen Sessie, Eddie G. Wells, Sam Prast Cinquemani, William Mishark, James Hand, Irland Chaney and Louis Milunovich. 7It was Gray's testimony that Jennings "advised the committee to go in and ask for recognition of our members and for a consent election." Reavely's version was very closely similar in phraseology . An excerpt reads, "The following morning, that was De- cember 29. * * * a committee of the UAW-CIO * * * asked Mr. Goltz * * * for recognition of our members and the consent election." * Both Goltz and Ferguson had left the employment of the respondent . A second as- sistant of Goltz, John Jensen , was also present at the conference . At the time of the instant hearing be was in the United States Navy and not available as a witness. THOMPSON PRODUCTS, INC. 29 Their testimony was corroborated by M. P. Graham, manager of the Detroit plant. Excerpts from his testimony relative to a report by Goltz over the tele- phone read: Goltz said these fourteen, had come up there and demanded recognition and he explained to them how he couldn't give it'to them. He showed them the contract which was already in effect, one of them read it, and as I remember, he said, well, that is the way it was, and he went back to work while the rest walked out * * * I merely remember that Bill [Goltz] called me and said they had been up there and either wanted recognition or were going to strike. It was Graham's further testimony that "very soon" after receiving Goltz's call he saw the strikers congregating out in the yard. ° In resolving this conflict of testimony, the undersigned has been influenced by the demand for exclusive recognition advanced by the UAW-CIO on October 1, 1942, and set forth in its petition to the Board on October 8, 1942,° as well as by what occurred at a Board hearing on January 11, 1943, on the UAW-CIO petition. At the hearing the respondent,-the UAW-CIO and the Society entered into a stipulation to the following effect: On Tuesday, December 29, sometime between nine and ten o'clock A. M. a committee of fourteen employees representing themselves as members of Local 247, UAW-CIO came into the office of Mr. William F. Goltz, personnel manager of Thompson Products Inc., Detroit plant, and demanded recogni- tion, or threatened strike action if they were refused recognition. Jennings was present and testified at the hearing subsequent to the entry of this .stipulation on the record. He voiced no dissent. Moreover under, cross examina- tion he testified, in part, as follows : - Q. State whether, at the meeting [with the committee] you advised the committee to go in and talk to Mr. Goltz. A. I did. Q. What did you advise? A. Told them to advise Mr. Goltz of the bargaining rights. Q. At that time did you know the Society of Tool and Die Craftsmen had a contract? A. Yes. At the hearing in the instant proceeding Jennings admitted that he had been cognizant of the Board's certification of the Society. The hearing on January 11, 1943, was later than the conference of the UAW= CIO plant committee with Goltz by about 2 weeks. In its decision dated Febru- ary 15, 1943, the Board found. "On October 1, 1942 and again on December 29, 1942 the [UAW-CIO] requested the Company to recognize it as the exclusive bargaining representative of the Company's employees in the Detroit plant." Manifestly Jennings' memory of events would be more definite at that time than it was in the hearing in the instant proceeding, some two and one-half years later. The UAW-CIO having on December 29, 1942, supported its request for a Board election by evidence to the effect that it demanded exclusive recognition cannot consistently contend in this proceeding that its request did not go be- yond recognition for its members and for a consent election. Under these cir- cumstances, after considering the whole record and the demeanor of the witnesses concerned, the undersigned finds that the testimony of Goltz and Ferguson stat- ° It is noted that Jennings both wrote the telegram and signed the petition. 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing that the UAW-CIO committee demanded exclusii e recognition is correct. The testimony in conflict therewith is rejected. As to further events at the conference the testimony is in substantial accord. After consideration of the record the undersigned finds that Goltz informed the committee, in substance, that the Society had been certified by the Board and that the respondent had d contract with that organization.i0 He further told them that for the respondent to recognize the IIAW-CIO would be a violation of the Act and advised that they consult with their International officers as to the proper steps to be taken to secure certification of their organization by the Board. If that were done he promised that the respondent would both recognize and bargain collectively with them. James Hand," a committee member, thereupon asked tysee a copy of the contract. Ferguson produced a-copy which Hand and other members of the committee examined to, some extent. Hand stated that Goltz's statement seemed to be correct and that the committee would be well advised to follow his suggestion. The committee thereafter left Goltz's office and returned to their departments. All were members of the day shift. Immediately after their return a walk-out occurred about 10: 30 a. in. Only three departments of the day shift were involved. One hundred and thirty-eight employees walked out including all of the 14 committee members except Hand. He remained at work until the end of his shift but joined the strikers on the following 2 days. At the time the employees were about 840 in number, of whom 500, in round numbers, worked on the day shift, 200 on the afternoon and 100 on the midnight shifts. A picket line at the main entrance was immediately organized and picketing continued until about 4 p. in. that day. On learning of the strike, Graham and Goltz together composed a bulletin posted before noon by Ferguson "on all of the Company bulletin boards." " This read as follows : BULLETIN The incident which occurred this morning is a blemidh on the record of American working men in war plants. The Company can only conclude that the people who took part were misguided and given unfortunate advice. We assume that these people will recognize their mistake and, upon apply- ing to us for their jobs, we will put them back to work in the interests of all-out war production." We have nothing, but praise for the manner in which the larger majority of employees of this plant have performed their war duties and it is most unfortunate that a small minority forgot momentar- ily their obligation to their country. THOMPSON PRODUCTS, INC. 12/29/42 10 Gray's testimony at this point reads : Goltz spoke and said that he could not deal-with us guys, the Craftsmen had a contract, exclusive bargaining rights, they could not consent to an election, it was impossible to give us more money. * ► o s ► * i Q. What did he say about the Wagner Act? A Said it would be a violation of the Wagner Act to recognize us guys. Q. Any mention of the contract? A. He did. Q. Did he say that [the Society] was the only union they could recognize at that time? A. That is what he said. " The parties stipulated at the hearing that Hand was in the Navy. He was, therefore, not available as a witness. " Goltz so testified and was corroborated by Ferguson. 16 Graham explained this passage in his testimony as follows : I merely meant for them to come on back to work and that was all there was to it * * * All we meant was come on back, go to work, that would be the end of it. THOMPSON PRODUCTS, -INC. 31 The officials of the respondent called the strike to the attention of Conciliator Ed Owens of the State of Michigan who came to the plant and interviewed both strikers and respondent's officials. He was shown a copy of the bulletin and, upon his inquiry, was assured that the respondent would be willing to take back the strikers without discrimination Jennings agreed to call off the strike on this basis. Jennings and Owens thereupon addressed the strikers before the plant. It is agreed that each assured the employees that they were free to return and that none of the strikers would be discharged. Board witnesses Jennings, Gray, and Reavely stated in addition that assurance was given that the time cards would be in the racks. Goltz was present and heard the speeches of Jen- nings and Owens. He testified that he had no recollection that either Owens or Jennings said anything to the employees "about time cards being in the racks ,on the following morning." At 5 o'clock p. in. on December 29, 1942, Gray and Reavely, with other em- ployees, came to Owens' office. Representatives of the Society were present ; the Board had a representative there ; and Goltz was present to answer in behalf of the respondent any questions which might arise The parties did not confer but were installed in separate rooms Contact was made by Owens. The Soci- ety's representatives refused to consent to the holding of a Board election. Owens asked Goltz what the attitude of the respondent would be regarding this matter and Goltz replied, as he testified and the undersigned finds, that the Com- pany's answer was "No." The parties thereafter were dismissed by Owens. Gray and Reavely testified that on the way home they decided to come to the plant early next morning and meet employee Joe Smith whose duties as an oiler required him to begin work at 6 a. in It was their purpose, as they testified, to have Smith examine the time card racks and report whether or not the cards of the strikers were there. The testimony of Gray, Reavely and Smith agrees in stating that he entered the plant about 5: 55 a. m. and returned shortly to report that the cards of himself, Eddie Wells," a plant committeeman and a com- plainant in this proceeding, and of Gray and Reavely were not in the racks. These -Board witnesses further testified that Gray and Reavely suggested to Smith that he go to the personnel office and find out where his own card was. Gray testified that on his return Smith stated that he had talked with Assistant Personnel Director John Jensen who made a search for Smith's card but was unable to find it. Reavely's testimony is similar to Gray's except that Reavely stated that Smith reported that "Goltz or personnel couldn't find his card " Smith's testi- mony at this point reads : I went to the personnel office and Mr. Bill Ferguson was there. I said "Mr. Ferguson, where is my card?" He said, "Are you going to work today?" I said, "Sure, I am going to work" He said, "Well, I will locate your card and see if I can find it" He looked all through the cards. He couldn't find it. Smith testified that there were 150 to 200 time cards, in 5 or 6 stacks; lying face down on the table in the personnel office. He further stated that he remained there "approximately twenty or twenty-five minutes" and that after returning and reporting to Gray and Reavely they all decided not to work since their cards were not in the racks. Thereupon they started a picket line. Smith's estimate was that the picket line was reconstituted "around 6:45" a. m. Gray testified that in addition to himself. Reavely and Smith "there were a few more" present whose names he did not remember. 14 Wells' card normally was in the same rack as Smith's. 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Goltz testified that when he arrived at the plant on the morning of December 30, at 6: 35 or 6: 40 he found a picket line of "somewhere between twenty-five and fifty" which "spread open to let me go through into the driveway.", He was corroborated as to the time of arrival and as to the picket line by Ferguson who testified that he drove to the plant accompanied by Jensen, arriving just behind Goltz. Ferguson fixed his time of arrival as between "six-thirty and a quarter of seven." He testified that at that time he found a picket line composed of "Quite a number of people assembled in front of the gates and at the corners of both gates." He stated that he "waited for, a few people to get out of the way" so that he could enter. Ferguson denied very positively that he had any con- versation with Smith that morning. Goltz and Ferguson agreed in testifying that the cards of all strikers had been removed from the racks on the afternoon of December 29 in order to check the time of leaving work. The record shows that the time cards were regularly collected and taken to the pay-roll department on Wednesdays, Thursdays and Fridays in order to prepare the pay rolls. December 30, 1942, was Wednesday and the first day that the cards would regularly be picked up for this purpose. It was intended to replace in the racks the cards of such strikers as had punched out before the employees entered for the day shift at 7: 30 a. in. on December 30. Jensen and Ferguson intended to question those who had not punched out, 48 in number, and recorded this information as the employees entered. The cards were not in the personnel office which was on the second floor of plant No. 2, some 50 feet from the main entrance, but were on a table in a small building near the entrance, used as an office where applicants for employment were inter- viewed. After considering the demeanor of the witnesses concerned in this conflict of testimony regarding events on the morning of December 30, 1942, in the light of the whole record, the undersigned credits the testimony of Goltz and Ferguson and rejects testimony in conflict therewith." It is inherently incredible that respondent's officials would have taken time cards from the racks had a definite promise been made in the course of a strike settlement to the effect that these cards would be in the racks on the morning of December 30, 1942, when the strikers on the day shift returned to their posts. The explanation given by Goltz and Ferguson of their plans for handling the cards is plausible and convincing. The parties stipulated that 48 of the strikers failed to punch out on December 29. The time when they ceased work was essential information for the preparation of the pay roll. Wednesday, December 30, was the day on which the preparation of the weekly pay roll normally began. When Goltz, Jensen, and Ferguson arrived at the plant that morning, they found pickets at the main gate. Smith was in error as to the location of the time cards that morning. They were not in the personnel office as he testified. Nor can his 15 The evidentiary value of Gray's testimony was weakened by the testimony of Assistant ,General Foreman Frank Stevenson. Gray had testified that he did not enter any other -department than his own on the morning of the strike , December 29, 1942. Stevenson, who Is credited by the undersigned, testified that he observed Gray on two occasions that morning between 9: 45 and 10 a. m. talking to individual employees in department C%1 on the second floor of Plant No. 2. Gray's department was IN on the first floor of this plant. On each occasion Stevenson asked Gray what he was doing In CX-1. Gray made no reply and left the department. Shortly after Gray left on the second occasion almost half of the employees In CX-1 walked out. Moreover, Gray's foreman, Frank French, whom the undersigned finds to be a credible witness, testified that Gray was absent from the department, without permission, from 9 a. m. to 10 a. m. on December 29, 1942, and. that on returning Gray told the operators to shut their machines down and get outside. Gray had testified that he indicated to the employees that the committee 's visit to Goltz had been fruitless, but that he made no suggestion that they walk out. THOMPSON PRODUCTS, INC. 33 testimony as to his interview with Ferguson be credited. Goltz and Ferguson found that the strike had been renewed on their arrival. Goltz immediately telephoned to Graham 18 and thereafter to Owens announcing that fact. Ferguson did not enter the plant until after Goltz had arrived. Picketing continued throughout the day of December 30 and on December 31 until 1: 30 p. in. The plant continued in operation. There is no allegation of illegitimate activity on the picket line although peaceful representations were made to the drivers of trucks. It is admitted that some trucks turned away. Graham testified that on December 30 the pickets "were holding up trucks and I remember particularly one of the twenty-wheel jobs that came in loaded with steel that was turned away." Gray testified as a Board witness that the pickets asked the truck drivers not to "go through the line" and that "some did and some didn't." Reavely admitted in his testimony that he saw some truckers refuse to make deliveries. Graham assumed full responsibility for the discharge of the members of the UAW-CIO committee. He reached this decision on December 30, 1942, as he testified, "simply because they had said they were going back to work and didn't." He further testified that he selected the 13 committee members TT for discharge out of over 130 strikers "because they were the leaders of the strike." Goltz' testimony corroborated Graham. He testified that the decision to dis- charge the committee members was made on December 30, 1942. An excerpt from his testimony in point here reads: That was the morning of the 30th. It was sometime in the late morning. The customers' trucks were turned away by the picketers, and just at that time Mr. Graham and I were sitting in his office, discussing the strike, when we noticed from the office window, the trucks being turned away. Right then and there he said, "I am just not going to tolerate that. Those are the fellows perpetrating the strike and they are all through from here on in." Immediately thereafter the bulletin posted on the first day of the strike, which promised immunity to strikers returning, was taken down from the respondent's bulletin boards. Graham also notified both Owens and Edward Miller, a repre- sentative of the Federal Bureau of Conciliation, of his decision. He informed an official of the National War Labor Board, herein called N. W. L. B., on Decem- ber 30, over the long distance telephone, as his credited testimony shows, "that we were going to discharge the leaders." On inquiry as to the reason for this change in the respondent's attitude, graham testified that he replied that "the reason for our change was that they had agreed to come back the night before, and hadn't come back, and they were out in front picketing the second day. They were holding up trucks and wouldn't allow deliveries in [the plant]." On December 31, 1942, N. W. L. B. sent a telegram to the UAW-CIO and a copy to the respondent, appealing to the union leaders to call off the strike which it characterized as "a serious interference with vital war production." N. W. L. B. promised a full investigation if the strikers returned to work and appropriate action under "orderly procedure . . . established for the peaceful settlement of all labor disputes." On receipt of this telegram, Jennings called the employees from the picket line to a meeting in a union hall. At the meeting it was voted to return to work immediately. The plant did not operate on January 1, 1943. When the strikers reported on the morning of January 2, members of the committee were directed 19 Graham testified that he received this call about 6: 40 or 6 : 45 that morning. IT James Hand, a committee member, had not gone on strike on December 29, and was not included among those discharged. i 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to report to the personnel office where they were informed that their services with the respondent were terminated. They were paid in full and given releases. One member of the committee, Eddie Wells, was not stopped at the,gate on entering. His presence in the plant was later discovered and he was discharged at the close of the shift. Two committee members, William Mishark, and Sam Prast Cinquemani, did not report until the morning of January 4, 1943 They were discharged on that day." Concluding findings This proceeding has for determination a single issue. The only unfair labor practices on the part of the respondent alleged are the discharge of the members of the UAW-CIO committee on January 2, and 4, 1943, and the subsequent re- fusal to rehire them The respondent had fulfilled the Board's certification of. September 14, 1942, by recognizing and bargaining with the Society. Its attitude of compliance with the Act was again evidenced when the UAW-CIO won the ,Board election held on March 4, and was certified on March 16, 1943. The re- spondent thereafter recognized the UAW-CIO committee which operated under the contract entered into with the Society until the contract's termination on April 29, 1943. After negotiation a contract was executed with the UAW-CIO on November 2, 1944. Contractual relations with that organization were in effect at the time of the hearing. The sole question presented here is whether or not the respondent's discharge of the UAW-CIO committeemen and subsequent refusal to reinstate them, under the circumstances in this case, constitute unfair labor, practices. The strike initiated on December 29, 1942, followed immediately on the re- fusal of the respondent to accede to the demands presented by the UAW-CIO committee on that date On the basis of the entire record, including the evidence presented at the Board hearing January 11, 1943, it is a necessary conclusion that UAW-CIO demanded recognition as the exclusive bargaining agent of the employees and proposed immediate entrance on collective bargaining negotia- tions. The respondent was correct in answering that under the Board's certifica- tion of the Society it could not under the provisions of the Act comply with these demands. The strike which followed was therefore for an illegal purpose. UAW-CIO proposed to compel the respondent to violate the Act through use of the strike weapon. It is of critical importance to note that the strike was neither provoked nor preceded by unfair labor practices. The record is barren of evidence to show any violation of the At on the part of the respondent or its officials, prior to December 29, 1942. The Board contended in oral argument before the undersigned that the con- tinuation of the strike on December 30, after the agreement to settle arranged on the preceding day was, in effect, a new strike finding its basis in the discovery by Gray and Reavely that some time cards were not in the racks and in their alleged inference that their absence indicated an intention on the part of the respondent to discharge certain strikers. The undersigned finds no merit in this contention As set forth in detail above, the evidence does not sustain this contention. Respondent's officials came to'the plant early in the morning of December 30, 1942, in order to prepare for the anticipated return of the strikers at 7: 30 a. in. They found on arrival that the strike was continuing. A con- siderable picket line was before the plant. No decision to discharge any striker was reached until later that day. The strike of December 30 and 31, 1942, was 18 The record is not entirely clear as to Irland Chancy and Louis Milunovich, members of the committee , who are not named in the complaint . Seemingly, they were discharged on January 2, 1 943. THOMPSON PRODUCTS, INC. 35 a continuation of the walk-out of December 29. It had the same purpose No new demands were presented to the respondent. Jennings admitted that no attempt was made on December 30 to contact the'respondent about the time cards. The fact is the strike was called and continued to compel immediate recognition of the UAW-CIO as exclusive bargaining agent. This was mani- festly an illegal purpose Further, it was in derogation of the provisions of the Act itself. The undersigned finds the facts of The Amei scan News Company case 10 to be so closely analogous to those involved here as to make the Board's decision in that proceeding controlling. The Board there said. "We conclude that a strike prosecuted in order to compel an employer to violate the [Wage Stabilization Act] is not within the concerted activities protected by Section 7." Since the complainants engaged in concerted activities for the illegal purpose of com- pelling the- respondent to violate his obligations under the Act, it cannot be found that according them relief under its provisions will effectuate the purposes of the Act. Accordingly, the undersigned concludes and finds that the respondent has not engaged in unfair labor practices by discharging Clair V. Atwell, Henry Cygan, Orbie Gray, Mitchell Lentocha, Phillip Pirrello, Irene Prylo, George S. Reavely, Stephen Sessie, and Eddie G. Wells, on January 2, 1943, and Sam Prast Cinquemani and William Mishark on January 4, 1943. It is further found that the failure to reinstate these employees thereafter was not an unfair labor practice 20 CONCLUSIONS OF LAW 1. The operations of the respondent occur in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America (UAW-CIO) is a labor organization within the meaning of Section 2 (5) of the Act. 3 The respondent has not discriminated against Clair V Atwell, Henry Cygan, Orbie Gray, Mitchell Lentocha, Phillip Pirrello, Irene Prylo, George S. Reavely, Stephen Sessie, Eddie G. Wells, Sam Prast Cinquemani and William Mishark because of their union membership or activities or because of their concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection within the meaning of Section 8 (3) of the Act. 4. The respondent has not interfered with, restrained, or coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act within the mean- ing of Section 8 (1) of the Act. RECOMMENDATIONS On the basis of the above findings of fact and conclusions of law, the under- signed recommends that the complaint against Thompson Products, Inc., be dis- missed. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective July 12, 1944, any party or counsel for the Board may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 39 55 N. L. it. B . 1302 . See also N. L. R. B. v. Fansteel Metallurgical Corporation, 306 IT. S. 240. - 11 In view of the conclusions here reached and the recommendations made, the under- signed finds it unnecessary to consider the further defenses asserted by the respondent in its answer. 712344-47-vol. 70-4 0 36 _ DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Article II of said Rules and Regulations file with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or-'to any other part of the record or proceeding (including rulings upon all motibns or ob- jections) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing within ten (10) days from the date of the order transferring the case to the Board. CHARLES E. PERSONS, Trial Ewsminer. Dated August 25, 1945. 0 0