The Perfect Circle Co.

In the Matter of THE PERFECT CIRCLE COMPANY and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLE- MENT WORKERS or AMERICA, LOCAL 370, C. 1. O. Case No.11-C-1232.--Decided August 06,1946 Mr. Arthur R. Donovan, for the Board. Mr. Malcolm M. Edwards,of New Castle, Incl., Mr. Clyde Ho ff'maaia, of Hagerstown, Ind., and Messrs. T. C. 'Kammholz and Henry N. Thullen, of Chicago, Ill., for the respondent. Mr. Eugene Yergin, of New Castle, Ind., for the Union. Mr. Herbert C. Kane, of counsel to the Board. DECISION AND ORDER On-May 27, 1946, Trial Examiner Wallace E. Royster 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 exceptions to the Intermediate Report and a supporting brief. On July 9,"1946, the Board heard oral argument at Washington, D. C., in which the respondent participated. The Board has reviewed the rulings on motions and on objections to the admission of evidence by the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner except as hereinafter modified. ' In the Intermediate Report the Trial Examiner inadvertently stated that the complaint herein was dated March 29, 1945, when it was , in fact, dated March 29, 1946. The Trial Examiner further stated that the respondent 's motion to dismiss the complaint was not renewed after it had been denied The record shows that the respondent renewed this motion in its argument before the Trial Examiner at the close of the case. This motion is hereby denied 70 N. L. R. B., No. 40 526 c THE PERFECT CIRCLE COMPANY 5827 1. The respondent's employees went out on strike on August 27,1945, and immediately established picket lines at the plant. Pickets in- formed employees Ratcliffe and Griffin, who attempted to reenter the plant on the first day of the strike, that they could not do so, whereupon Ratcliffe and Griffin turned and left the vicinity. The following day Plant Manager Bancroft approached the plant and there occurred what the Trial Examiner discusses as "the incident at the gate." On August 31, and as a result of this incident, the respondent discharged four striking employees allegedly for "debarring the plant manager from access to company property under threat of violence." The Trial Examiner found that the four employees in question did not debar Bancroft from the plant under threat of violence and that the re- spondent did, in fact, discharge these employees because they had engaged in a lawful concerted activity protected under the Act. We agree with these findings. The respondent contends that the Trial Examiner failed to give any weight to the afore-mentioned circumstance that the striking employ- ees had previously prevented Ratcliffe and Griffin from entering the plant; and the respondent further urges, in this connection, that this' earlier incident establishes an intent to debar Bancroft from access to the plant. Although the debarment of the two employees may have given Bancroft reason to believe that he too was debarred, we are satis- fied and find that this presumption of a similar course of conduct is _ refuted, directly and conclusively, by the testimony of an impartial observer, Police Chief Long. Long's testimony not only establishes that the four discharged employees did not debar the plant manager under threat of violence, but precludes even a suggestion of intimida- tion in their conduct.2 In its brief to the Board, the respondent adverted to the "positive and friendly relations which had existed between the Company, the Union, and the Union leaders for many years." It is true that a history of favorable or unfavorable labor relations is helpful in interpreting the conduct of parties, and we have considered such history in this case, nevertheless, such background is-not controlling ,3 particularly where, as in the instant case, there is direct evidence of discrimination. 2. The respondent also contends that, in any event, it was justified in discharging the four employees herein so long as Plant Manager 2 The respondent adduced testimony to the effect that Lye, one of the discharged employees, phoned Bancroft on the day prior to the "incident at the gate" and told Bancroft that management would be kept out of the plant during the strike The respondent claims that this call supports its contention that Bancroft was denied access to the plant . Lye denied having made this call and the Trial Examiner credited his denial . However, we do not find the resolution of this conflict to be determinative of the ultimate issue herein. For, even assuming the respondent's version of this call to be credible , we should nevertheless find that Bancroft was not debarred from the plant, particularly in view of Long's con- vincing testimony, as set forth in the Intermediate Report. Matter of Union City Body Company Inc., 69 N. L. R. B. 172. 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bancroft reasonably believed that they debarred him under threat of violence. Even if Bancroft had believed this to be the fact, this cir- cumstance would not excuse the respondent's conduct, as we held -in rejecting a similar contention in Matter of Mid-Continent Petroleum Corporation: 4 The respondent's good faith in discharging them [the strikers] because of the respondent's honest although mistaken belief that these employees had participated in ,a sit-down strike is not dis- positive of the issue whether the discharge was discrimina- tory . . . Once it is pleaded that the discharge was for unlawful conduct inseparably connected with the strike the bur- den was on the respondent to show that all the striking employees discharged therefor had, in fact, been guilty of unlawful conduct. 3. The Trial Examiner recommended that the four discharged em- ployees be made whole for loss of earnings from the date of their discharge until the offer of reinstatement. Since the record shows that the discharges were made during the strike and at a time when the plant was not in operation, we shall direct that the initial date for reimbursement shall be October 18, 1945, the terminal date of the strike.5 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, The Perfect Circle Com- pany, New Castle, Indiana, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, Local 370, C. I. 0., or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or by discriminating in any other manner in `regard to the hire or tenure of their employment or any term or condition of their employment. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Offer to Edwin Lye, Howard Emerson, Luther Thrasher, and Roy Catron immediate and full reinstatement to their former or sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges; 4 54 N. L. R. B. 912, 933. " See Matter of Federal Engineering Company, 60 N. L. R B 592, 593. THE PERFECT CIRCLE COMPANY 529 (b) Make whole Edwin Lye, Howard Emerson, Luther Thrasher, and Roy Catron for any loss of pay they may have suffered by reason of the respondent's discrimination against them, by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period from October 18, 1945, the date on which the strike terminated, to the date of the respondent's offer of reinstatement, less his net earnings during said period; (c) Post at its plant in New Castle, Indiana, copies of the notices attached to the Intermediate Report herein marked "Appen- dix A." 6 - Copies of said notices, to be furnished by the Regional Director for the Elevc1ith Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon the receipt thereof, and maintained by it for sixty (60) consecu- tive 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; (d) Notify the Regional Director for the Eleventh Region in writ- ing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. CHAIRMAN HERzoo took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT Mr. Arthur R. Donovan, for the Board. Mr. Malcolm M. Edwards, of New Castle, Ind., Mr. Clyde Hoffman, of Hagers- town, Ind., and Messrs. T. C. Kammholz and Henry N. Thullen, of Chicago, Ill., for the respondent. Mr. Eugene Yergin, of New Castle, Ind, for the Union. STATEMENT OF THE CASE Upon a charge duly filed by International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, Local 370, C. I. 0., herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Eleventh Region (Indianapolis, Indiana), issued its complaint, dated March 29, 1945, against The Perfect Circle Company,' 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) and Section_2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and the charge, accompanied by notice of hearing, were duly served upon the respondent and the Union. 6 The notice, however, shall be, and hereby is, amended by striking from, the first para- graph thereof the words "The Recommendations of a Trial Examiner " and substituting in lieu thereof the words "A Decision and Order." I Incorrectly named in the complaint as Perfect Circle Company. 530 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD With respect to the unfair labor practices, the complaint alleged in substance that: (1) on or about August 31, 1945, the respondent discharged Edwin Lye, Howard Emerson, Luther Thrasher, and Roy Catron and since that date has .continually failed and refused to reinstate them or any of them because of their membership in and activities on behalf of the Union, thereby discouraging mem- ,bership in the Union, and (2) -the respondent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. - In its answer the respondent admitted the allegations of the complaint with respect to its corporate existence and the nature of its business, admitted the discharge of the four individuals on or about the date alleged, but denied the commission of any unfair labor practices. Pursuant to notice a hearing was held in New Cattle, Indiana, on April 23 and 24, 1946, before the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondent, and the Union were rep- resented by counsel and participated in the hearing. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the conclusion of his case-in-chief, and again at the close of the hearing, Board's counsel moved to conform the pleadings to the proof with respect to minor variances in dates, names, and other matters not of substance. Both motions were granted without objection. At the close of the Board's case, respondent moved to dismiss the complaint in its entirety. The motion was denied with privilege to renew. No further motion of such character was made. Counsel for the Board and for the respondent argued orally before the undersigned and the respondent filed a brief. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. THE .BUSINESS OF THE RESPONDENT The Perfect Circle Company is an Indiana corporation operating plants-and factories in Hagerstown, Tipton, Richmond, and New Castle, Indiana, and in 'Toronto, Canada. The principal production of the New Castle plant, which alone is here concerned, is piston rings and gray iron castings. During the past year purchases for the New Castle plant, exceeded $500,000, in value, and during the same period sales exceeded $1,000,000 in value. More than 75 percent of respond- ent's production is shipped to points outside Indiana and approximately 90 per- cent of the raw materials used are shipped to the respondent from points outside Indiana. The respondent concedes that it is engaged in interstate commerce.2 H. THE ORGANIZATION INVOLVED International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, Local 370, affiliated with the Congress of Industrial Organi- zations, is a labor organization admitting to membership employees of the re- spondent. in. THE UNFAIR LABOR PRACTICES A Background and events surrounding the discharges In 1942 the Union became the bargaining representative of respondent's em- ployees and, so far as the record reveals, had continued to occupy that status. There is no suggestion that other than a harmonious and stable relationship existed prior to August 27, 1945. 2 These facts were stipulated at the hearing THE PERFECT CIRCLE COMPANY " - 531 At about 3 o'clock on the morning of that date the employees struck and later in the day the plant closed, not to be reopened until the strike was settled by agreement with the Union on October 18. While the occasion for the strike does not appear in the record, it is clear that it was spontaneous and at its inception was unauthorized by the Union.' About 3:30 in the afternoon of August 27, a picket line formed before the plant entrance and was maintained thereafter in varying strength until the strike ended. Shortly before 4 p. m. on the same day two draftsmen employees, Ratcliff and Griffin, who had left the plant on respondent's business, when they attempted to reenter, were told by a picket, whom they identified as Howard Emerson, that they could not do so.4 At approximately 4: 30 p. M. on the same day, according to the testimony of respondent's plant manager, Richard Bancroft. Edwin Lye telephoned Bancroft to advise that "all management" would be excluded from the plant.5 On August 28, the next day, at about 8: 30 a. m., Bancroft drove to the plant, walked to the entrance where pickets were stationed, and then, after a colloquy about which there is dispute, abruptly returned to his-car and drove away. About August 31, Edwin Lye, Howard Emerson, Luther Thrasher, and Roy Catron were discharged allegedly for "debarring the plant manager from access to company property under threat of violence." ° - B. The incident at the gate The Board contends that Lye, Emerson and Thrasher on August 28, 1945, were engaged in normal and legitimate picketing, in support of the strike and that the respondent was not thereby barred from entering its property. Under these circumstances, the Board argues, since the individuals were participating in lawful union activity without resort to violence or threats of violence, their conduct found protection in the Act and their discharges were unlawful. Catron, assertedly, was not present on the occasion in question. It is the Board's theory, however, that even if the respondent, believing Catron to have acted in concert with Lye, Emerson, and Thrasher, discharged him for that reason, it is again guilty of discrimination. $ On August 27 an International Representative of the Union "authorized" the strike and on the same day the Union in meeting took similar action 4 Emerson's denial of participation in this incident is not credited although the under- signed finds him in general to be a credible witness and other portions of his testimony are believed. 4 5 Bancroft testified that he recognized Lye's voice on the telephone but did not testify as to any prior occasion when he had opportunity to'hear Lye's voice over a telephone circuit He also testified that he saw Lye in the vicinity of the guard house at about the time the call was received but was unable from the window of his office to see who, if anyone, was using the guard-house telephone. Upon these rather tenuous circumstances, Bancroft concluded that the voice he heard was the voice of Lye and that the telephone call was placed from the guard house. Personnel Manager Fromuth testified that standing beside Bancroft in the latter's office, he could see, what Bancroft admittedly could not, that Lye at the time the call was received was using the guard-house telephone. George Wilkinson, the guard on duty that afternoon, testified that it was his belief that Lye used the guard-house telephone on this occasion but admitted that he did not hear any of the conversation. Wilkinson was a confused and -uncertain witness and no weight is attached to his testimony. The undersigned finds that Bancroft's conclusion as to this incident is based partially upon the conjecture and partially upon an unconvincing identification of voice. Fromuth's testimony is not credited inasmuch as Bancroft with the same opportunity was unable to see Lye at the guard-house telephone. Wilkinson, as has been said, was not a reliable wit- ness. The denial by Lye, a credible witness, that he made the telephone call attributed to him is believed. 6 The quoted phrase appeared on the -notices of termination of employment received by Lye, Emerson, Thrasher, and Catron as the reason for their discharge. -- 712344-47-vol 70--35 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent asserts that Manager Bancroft was barred from entering the plant on August 28, by Lye, Emerson, Thrasher and Catron ; that it was thereby illegally deprived of the use of its property; and that, under the decisions in the Fansteel,' Clinchfield e and Indiana Desk ° cases, such conduct removed the participants from the protection of the Act and constituted valid grounds for the discharges 10 The undersigned finds no substantial question of law in issue here. The cases cited above by the respondent clearly stand for the principle that the Act does not affect an employer's normal right to hire and discharge so long as under cover of that right he does not intimidate or coerce his employees with respect to the rights guaranteed them in Section 7 of the Act. Thus employees are free to form, join or assist labor unions and to engage in concerted activities without discrimination in regard to their hire or tenure of employment. However, when in the course of a strike or other collective action, individual employees or groups of them seize their employer's property, the Act provides them with no shield from a discharge based upon their unlawful activity. Hence, the issue here narrows to one of fact and the case turns solely upon a determination and evaluation of the words and actions of the individuals named in the complaint at the time when Bancroft appeared at the gate entrance of the plant. The respondent's version' of this incident was related principally in the testi- mony of Plant Manager Bancroft who, at about 8: 30 in the morning of August 28, accompanied by Plant Engineer Juday, drove to the respondent's plant. Ac- cording to Bancroft, he parked his car at a point about 25 or 30 feet from the main plant entrance and then walked toward the gate. As he approached, he testified, Lye and Emerson, among others, ran toward the gate, and Bancroft, as he passed the guard house which was situated just inside the fence adjacent to the gate, called to the guard to open the gate for him." He further testified 7 N. L R. B. v. Fansteel Metallurgical Corp., 306 U. S. 240. 8 N L. R. B v. Clinchfield Coal Corp., 145 F. (2d) 66 (C. C. A. 4). 6 N. L. R B. v. Indiana Desk Company, 149 F. (2d) 987 (C C. A. 6). 10 That no other consideration motivated the respondent in taking its action is clear from the testimony of Manager Bancroft here set forth : Direct examination Q. What were the reasons for the discharge of these four individuals from the employment of the company? A. For debarring the plant manager under threat of violence. Q You used the term debarring. Debarring him from what? A. From access to the plant. Cross-examination by Mr. DONOVAN. Q. Mr. Bancroft, is the sole reason for the discharge of these four individuals who were named in the complaint for the alleged reason that they debarred your entrance to the gate's ' A. That is right. Q There is no other reason for the discharge of these men? A. There is not. • t • * r n s Q. Did I understand you correctly? The Board is to consider solely the company's reason for the discharge of these men was that they allegedly debarred you from the entrance to the gate? A. Correct. 11 Although Bancroft, Fromuth and Lye-testified that the guard was on duty and in the guard house, Bancroft admitted that there was no answer to his call Bancroft testified that although "It was a normal August morning," It, "Wasn't excessively hot" and that the windows to the guard house were closed. The record does not reveal with certainty the identity of the guard on duty at the time of this incident. Personnel Manager Fromuth testified that he was unable to make such identification although he later testified that he knew the names of all the guards who were working on August 27 and 28. On cross- examination Bancroft recalled that he said "George, open the gate." Alonzo Waltz was the THE PERFECT CIRCLE COMPANY 533 that when he reached the gate,' Emerson stood with his body covering the-gate latch and with his right arm outstretched across the gate so that Bancroft's .entrance was barred. According to Bancroft, Emerson said, "You are not going in here." Allegedly, Lye reached the gate at about the same time as Bancroft and so situated himself between Bancroft and the gate as to make entrance im- possible without physical contact. Lye, according to Bancroft, said, "You are not going in and that's final." Two other men, whom Bancroft admitted he did not at the time recognize but who he later concluded were Thrasher and Catron,12 according to his testimony, joined the group at the gate and closed in from the right and from behind Bancroft until the latter was "in the midst' of the group at the gate."" Bancroft did not recall that Thrasher or Catron said anything but testified that there was a general muttering of, "You can't get in there." Concluding that he could not get in, Bancroft testified, he beckoned to the chief of police Donald Long, who, allegedly, stood some distance away and said "Don, come over here," and when Long arrived at the scene, Bancroft said , "Don, open that gate and let me in." When Long refused to do so, Bancroft left the gate and drove from the plant. He did not enter the plant until about September 15, but admitted that in the interim, he made no effort to do so 14 Bancroft's version of this incident was supported in its essential aspects by Plant Engineer Juday who accompanied him on that occasion. Juday testified that he left Bancroft's car, walked slowly behind him toward the gate, and came to a stop about 10 feet away. From this vantage, according to his testimony, he heard Lye and Emerson tell Bancroft that he could not enter, saw Emerson cover the gate latch with his body. and overheard Bancrott's conversation with Chief of Police Long. Juday admitted, however, that he did not know Emerson at the time and that he, himself, was engaged in a conversation with another picket, Vincent Newkirk. Juday made no attempt to enter the plant. Although Juday characterized the attitude of Lye and Emerson as unfriendly and asserted that both spoke loudly, he made no move to join Bancroft. Juday testified that two other men, whom he could not identify, stood about 8 or 10 feet from the group at the gate.36 Personnel Manager Fromuth and Foreman Victor Howell testified that from a point 75 feet distant, they observed Lye and Emerson interpose themselves between Bancroft and the gate Both identified Thrasher as one of the group near the gate and according to Howell, Catron too was among them. guard on duty during the day shift on August 27. George Wilkinson appears to have been assigned regularly to guard duty on the afternoon shift. Plant Engineer Juday, who fol- lowed Bancroft as the latter walked to the gate, could not remember that Bancroft called to the guard . Under all the circumstances , the testimony of Bancroft on this point is unconvincing and is not credited by the undersigned. " Bancroft testified that he saw Thrasher a few seconds before the gate episode and almost immediately thereafter and that he was advised by Foreman Howell and Personnel Manager Fromuth as to the participation of both Thrasher and Catron. Howell did testify that both Thrasher and Catron were near the gate on this occasion but Fromuth identified only Thrasher. 11 Only Bancroft testified that he was surrounded by pickets at the gate. Juday placed the pickets other than Lye and Emerson from 8 to 10 feet away. Foreman Howell and Police Officer Riggs testified to the same effect. The undersigned finds that Bancroft's description of the position of the pickets is inaccurate and that he was not "in the midst of a group at the gate." 14 There-is no testimony that other of respondent's officers or representatives attempted to enter the plant during the strike. 15 In response to a leading question , Juday testified that the pickets formed a semi -circle- around Bancroft. This description is inconsistent not only with other testimony by Juday as to the position of the pickets but also is contradicted by the testimony of other witnesses whom the undersigned credits. As has been found , testimony that Bancroft was surrounded by pickets as he stood near the gate is not believed. 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD John Riggs, a sergeant of the New Castle police force, called as a witness by the respondent, observed the episode from a point about 75 feet distant. Riggs testified that one man stood at the gate and that when Bancroft approached, the man removed his arm from across the gate. Another individual according to Riggs stood 4 or 5 feet away to the"southeast and 2 or 3 others stood 8 or 10 feet behind Bancroft. Riggs testified that no conversation was audible to him. Edwin Lye, an employee of the respondent since 1933 and chairman of the Union's bargaining committee, was captain of the picket line on August 28. Lye testified that he had been instructed by the Union not to use force to prevent anyone from entering the struck plant but to ask those who desired to..enter not to do so 1° According to Lye, he went to the gate on August 28, when he saw Bancroft approach. and. stood facing-Bancroft with his body partially blocking the gate opening. From this position, he testified, he said "Please, Dick, don't go in." At this; iilement, according to Lye, Emerson and` Thrasher stood behind Bancroft and Long was ;to Lye's left: 'Lye agreed that Bancroft then requested that Long open the gate and that when Long refused, Bancroft walked to his car and drove away. Lye testified that Bancroft could have entered the gate had he proceeded and characterized the exchange as friendly. He denied that he at any time physically kept any of respondent's officials from entering the plant and denied that when Bancroft approached his arm was extended across the gate. According to Lye, Catron was not present on this occasion. Howard Emerson, a member of the Union, was employed by the respondent from June 1945 until his discharge on August 31 of that year. As.one of the pickets on August 28, he witnessed the happenings at the gate and corroborated the testi- mony of Lye in all its essential aspects. Emerson testified that he was in- structed to indulge in no violence but to ask those who approached the gate not to enter. Emerson denied making any remark to Bancroft, testified that he and Thrasher stood behind Bancroft, and asserted that Catron was not present. Roy Catron, a member of the Union and an employee of the respondent for about 2 years, denied being at or near the gate. Catron testified that he had been on the picket line from about 6: 30 to 7 that morning but then had left for the day.17 - Luther Thrasher, a union member, did not testify A letter from Thrasher stating that he was absent in Kentucky due to the illness of his wife was received in evidence. Donald Long, Chief of Police for the City of New Castle, was called as a wit- ness by the undersigned. It is undisputed that Lou.- and Sergeant Riggs were in a police car parked at a point about 75 feet south of respondent's entrance gate and that they arrived at this point, at approximately 8 a. in. on August 28. Ac- cording to Long, about 20 or 25 minutes after his arrival, as he saw a car ap- proaching the plant, he walked toward the gate but before reaching it saw Bancroft alight from his car and walk toward the same point. Long, testified that Lye was already at the gate and that he reached the gate an instant after Bancroft to find Bancroft facing Lye Long denied that anyone other than Lye stood between Bancroft and the gate and testified that he, Lye and Bancroft, only, were in the group at the gate. According to Long, Lye said, "Please don't go in, Dir. Bancroft," whereupon, Bancroft turned to Long and said, "Are you 16 Hester New, then president of the Union, testified that he instructed Lye oil the morn- ing of August 28 that "if anybody came to go in, to ask them not to go in." Pickets Carl Batchfield , Raymond Brown and Joseph Burden testified that they were instructed to ask workers not.to enter the plant and not to employ violence. 17 As has been stated, Lye and Emerson denied that Catron was present . Board witnesses Batchfield and Burden, also, testified to Catron's absence at the time of the gate incident. THE PERFECT CIRCLE COMPANY 535 going to open that gate so I can go in?" 18 to which Long replied, "I'm sorry, Mr. Bancroft, I can't do a thing" Long further testified that as a police officer he came to the conclusion that the words, actions and attitude of Lye were not such as to hinder Bancroft from entering the gate." Long did recall, however, that within a day or two of the gate incident, Lye had stated that Bancroft and "man- agement were not going in." C. Concluding findings The undersigned finds Long to be a credible witness and his testimony that Lye during the early days of the strike stated that management was "not going in" is believed. While an inference may be drawn that Lye proposed to prevent management personnel from entering the plant, it does not follow that he proposed to do so by other than peaceful and persuasive means. As has been said, the validity of the discharges rest squarely upon the happenings at the gate on August 28. The undersigned credits the testimony of Lye and Emerson concern- ing this incident supported as it is by the police officers Long and Riggs as well as by Board witnesses Batchfield, Brown and Burden. Thus the undersigned finds that Lye, alone, of the pickets stood at the gate and requested Bancroft not to enter and that Emerson and Thrasher were behind Bancroft at a distance of 8 or 10 feet and did not otherwise participate in the episode. It is true that Lye stood partially between Bancroft and the gate but it is found that Bancroft was not thereby barred from entering RO and it is further found that the attitude of Lye, Emerson, and Thrasher was not hostile or threatening.' To prescribe the precise limits of permissible picket-line activity is not necessary here. The under- signed finds that attempts to persuade others not to enter the struck plant when unaccompanied by violence or threats of violence, fall well within such limits. Since picketing is a normal and customary concerted action in support of a strike, it follows that picketing if lawfully conducted is a protected activity within the meaning of Section 7 of the Act. 18 Long's version on this point, which is credited, contradicts-Bancroft The undersigned finds that Long arrived at the gate at about the same time as Bancroft and that he did not come there in response to Bancroft's call or as a result of any signal from Bancroft. 1° Long testified on cross-examination : Q The examiner asked you this, or this in substance ; that in view of the fact that you had been a police officer for five years and in your experience, observing these matters, whether or not Mr. Bancroft' s access to the gate that morning was hindered by Lye's location. He asked you that, and you said you would say it was not? A. That's right. Q. Do you mean by that that Mr. Bancroft's entrance to the gate was not hindered by Mr Lye's location'? Was that what you meant? A. I mean that Mr. Bancroft, if he had gone on and unlocked the gate, he could have gone on in. Q If he had unlocked the gate? A. Or had opened the gate, he could have gone on in. 10 The Clinchfield case, cited in footnote 8, above, and relied upon by the respondent, is distinguishable. There pickets placed a physical barrier, an electric motor, on a key switch thereby preventing the operation of the mine. Distinguishable also in the Indiana Desk case cited in footnote 9, above, where pickets formed a tight group about the plant entrance and refused to open ranks for non-striking employees. 11 The contradiction of Bancroft's testimony on this point by Lye and Long is convincing and is believed Other factors tending further to show that Bancroft's description of the gate incident was inaccurate is that although Bancroft asserted that he, Lye and Emerson spoke in loud excited voices, only Juday who was 10 feet distant overheard them. Fromuth, Howell and Riggs, who were from 60 to 75 feet distant, testified in effect that there was no conversation audible to them and that only by observing the physical movements of the persons near the gate did they deduce that a conversation was in progress. The failure of the guard, who presumably was only a few feet away in the guard house, to appear on the scene strongly supports an inference that the conversations were conducted in a moder- ate tone. Bancroft's testimony that he was surrounded, and thereby intimidated , by pickets on this occasion has already been found to be distorted. I 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is found that Lye, Emerson, and Thrasher were discharged by the respond- ent because they engaged in lawful picketing' in support of the strike. It is un- necessary to resolve the dispute as to the presence of Catron on this occasion for it is clear and is found that Catron was discharged because the respondent believed that he participated in such activity. Having found that Lye, Emerson, Thrasher, and Catron were discharged because they engaged in or were believed to have engaged in such a collective activity as the Act was designed to protect it follows and it is found that the discharges of these four individuals were in contravention of Section 8 (3) of the Act. The fact that no notice was given under the War Labor Disputes Act concern- ing the strike and that it may have been in violation of the Union's by-laws and constitution does not constitute the strike as illegal nor remove the strikers from the Act's protection .22 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 obstructing commerce and the free flow of commerce, V. THE REMEDY Having found that the respondent has engaged in unfair labor practices by discharging Lye, Emerson; and Thrasher because they engaged in lawful col- lective action in support of the strike and by discharging Catron because it believed he had participated in such action, the undersigned will recommend that the respondent cease and desist therefrom. Since the record does not indi- cate a general hostility toward the Union or a disposition on the part of re- spondent generally to interfere with, restrain, or coerce its employees in the exercise of rights guaranteed to them by Section 7 of the Act, the undersigned deems it unnecessary to recommend that the respondent cease and desist from violating. the Act in any other manner. It will be recommended further that the respondent take certain affirmative action which the undersigned finds will effectuate the policies of the Act. The undersigned has found that, by discharging Edwin Lye, Howard Emerson, Luther Thrasher, and Roy Catron, the respondent discriminated in regard to their hire and tenure of employment thereby discouraging membership in the Union and activity on behalf of the Union. The undersigned will therefore recommend that the respondent offer Edwin Lye, Howard Emerson, Luther Thrasher, and Roy Catron, immediate and full' reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and that the respondent also make them whole for any loss of pay they may have suffered by reason of the discrimination against them by payment to each of them of a sum of money equal to that which he normally would have earned as wages from the date of his discriminatory discharge to the date of the offer of reinstatement, less his net earnings 23 I 22 See Matter of Bohn Aluminum ct Brass Corporation, 67 N. L. R. B. 847. 29 By "net earnings" Is meant earnings less expenses, such as for transportation, room and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity ,of his seeking employment elsewhere. See Matter of Crossett Lumber Company, 8 N. L. R. B . 440. Monies received for work performed upon Federal, State, county, municipal, or other work- , relief projects shall be considered as earnings . See Republio Steel Corporation v. N. L. R. B., 311 U. S. 7. THE PERFECT CIRCLE COMPANY 537 Upon the basis of the above findings of fact, and upon the entire record in the ease, the undersigned makes the following: CONCLUSIONS OF LAW 1. International Union, United Automobile, Aircraft & Agricultural Imple- ment Workers of America, Local 370, C. I. 0, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Edwin Lye, Howard Emerson, Luther Thrasher, and Roy Catron and thereby dis- couraging membership in and activity in behalf of International Union, United Automobile; Aircraft & Agricultural Implement Workers of America, Local 370, C. I. 0., the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting, commerce 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, The Perfect Circle Company, its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in and activity in behalf of International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, Local 370, C. I. 0., by discriminatorily discharging employees, or by discriminating in any other manner in regard to their hire or tenure of employ- ment or any term or condition of employment. 2. Take the following affirmative action, which the undersigned finds will effectuate the policies of the Act : (a) Offer to Edwin Lye, Howard Emerson, Luther Thrasher, and Roy Catron immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay -they may have suffeked by reason of the discrimination against them, by payment to each of them of a sum of money equal to that which lie normally would have earned as wages from the date of his discriminatory discharge to the date of the offer of reinstatement less his net earnings 24 during that period ; (b) Post immediately in conspicuous places at its New Castle, Indiana, plant, copies of the notice attached hereto and marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Eleventh 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 conspicuous places, including all places where respondent customarily posts notices to employees. Reasonable safegards shall be adopted by the respondent to insure that such notices are not altered, defaced, or covered by any other material ; (c) File with the Regional Director for the Eleventh Region on or before ten (10) days from the receipt of this Intermediate Report a report in writing setting forth in detail the manner and form in which the respondent has complied with the foregoing recommendations. " See footnote 23, supra. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report the respondent notifies the Regional Director in writing that he will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the-respondent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective November 27, 1945, 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 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 motions or objections) 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 ex- ceptions 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 to the Board within .ten (10) days from the date of the order trans- ferring the case to the Board. Any party desiring to submit a brief in support of the Intermediate Report shall do so within fifteen (15) days from the date of the entry of the order transferring the case to the Board, by filing with the Board an original and four copies thereof, and by immediately. serving a copy thereof upon. each of the other parties and the Regional Director. Dated May 27, 1946. APPENDIX A WALLACE E. ROYSTER, Trial Examiner. NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : We will not discourage membership in or activity on behalf of International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, Local 370, C. I. 0., or any other labor organization of our employees by discriminating against any of them with respect to their hire or-tenure of employment. - - We will offer to the employees named below immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. - Edwin Lye Luther Thrasher _ Howard Emerson Roy Catron 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. employ- THE PERFECT CIRCLE COMPANY 539 ment against any employee because of membership in or activity on behalf of such labor organization. THE PERFECT CIRCLE COMPANY, Employer. By ---------------------------------- (Representative ) ( Title) Dated -------------------- NOTE.-Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement 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. G N,