Patterson Steel & Forge Co.

PATERSON STEEL & FORGE COMPANY 129 WALTER PATERSON, SR., DOING BUSINESS UNDER THE TRADE NAME'AND STYLE OF PATERSON STEEL & FORGE COMPANY and UNITED STEEL- WORKERS OF AMERICA, CIO. Case No. 2-CA1154. September 12, 1951 Decision and Order On March 5,1951, Trial Examiner Reeves R. Hilton issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that he 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. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner except as modified herein.' We agree with the Trial Examiner that on the afternoon of May 2, the Respondent's employees abandoned the strike to which they had resorted in protest over Bailey's discriminatory discharge. All promptly presented themselves at the hour the Respondent named in its telegram directing them to report for work. The men did not try to parley with the Respondent before returning. They simply punched in at the time clock as regular-employees who expected to work and also to be paid for their time, and there is no evidence that there was any prior understanding among them that their return should be other than unconditional. Although the Respondent, apparently not expecting the return of its-employees in response to its telegram, had stated in its telegram that work would resume that afternoon, the Respondent had not started its plant fires and the men found themselves, in consequence, unable to pursue their usual tasks. In spite of this, some changed into their working clothes. All then remained quietly on the plant premises and waited until the Respondent should give them work in- structions. Paterson, Jr., arrived, but, instead of giving the employees orders regarding work to be done, he started to "negotiate with them and to seek to raise issues, which until then clearly were nonexistent. He first asked the employees, obviously waiting to go to work, what their "intentions" were. Arthur Hultman, as spokesman for the men, 1 The Intermediate Report includes John A. Lucich among the employees discriminatorily discharged on May 2, 1950 . However, Lucich did not participate in the strike and the Respondent never discharged him. We therefore find no violation as to Lucich. 96 NLRB No..11. 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD feplied that the Respondent had called them for work and added, "Here we are." Hultman, having thus been drawn into conversation with Paterson, Jr.,• and having thus affirmed the men's intention to go to work, then added an inquiry as to what the Respondent was going to do about Bailey. This was a natural question in the circumstances, and we - find no evidence that the men, who had already clocked in, were thereby making Bailey's reinstatement a condition of their re- turn. Paterson, Jr., replied that Bailey was to stay fired and pressed his' inquiry as to the men's "intentions." Hultman told Paterson, Jr., that the men were ready to work for the balance of the day.. He could not say as to the following -day, but asked Paterson, Jr., to speak to the union representative, Lavery, who was due at the plant shortly in con- nection with the scheduled union-security. election. However, the Re- spondent would not wait. Instead, it rushed one of its officials to the bank for cash, although this was not the plant payday, discharged the men, and hurried them off the premises .' Lavery soon arrived and Paterson, Jr., spoke with-- him, but failed to mention the question he had just put with such insistence to the individual employees 2 When the Respondent raised the question whether the abandonment of the strike .was complete, it was under a duty to afford the employees a reasonable time in which-to answer through their bargaining repre- sentative.3 The Respondent, however, refused to do this and ignored their representative who could have removed any uncertainty. Thus, the Respondent had the power readily to ascertain the truth but elected that its question be unanswered. It is fairly evident that the men, re-, turned to , the plant unconditionally and we so find.- Order Upon the'entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Walter Paterson, Sr., doing business under 'the trade name and style of Paterson Steel & Forge Company, Stratford, Connecticut, and his-agents, successors, and assigns, shall: - 1. Cease and desist from : (a) Refusing to'bargain collectively with United Steelworkers of America, CIO, as the exclusive representative of all production and maintenance employees, including shipping and receiving employees 2It is significant that although Respondent called the men back to work under pain of discharge for absenteeism, it had its plant in an inoperative condition when they responded to its summons. .l 8Compare Gullett Gin Co.; 83 NLRB 1,'2, enforced 179'F. 2d 499, 501 (C. A. 5). The 'circuit court's decision was reversed on another point 340 U. S. 361. PATERSON STEEL & FORGE COMPANY 131 and truck drivers, but excluding office and clerical employees, profes- sional employees, guards, watchmen, foremen, and other supervisors as defined in the Act. (b) Discouraging membership in United Steelworkers of America, CIO, or any other labor organization, by locking out or discharging or refusing to reinstate-any of his employees, or by discriminating in any other manner in regard to their hire and tenure of employment or any term or condition of employment. (c) Interrogating or attempting to poll his employees concerning their union affiliation, activities, and sympathies, or threatening them with discharge or other economic reprisals, because of their union membership or activities. (d) In any other manner interfering with, restraining, or coercing his employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Steelworkers of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of, the Act : (a) Upon request, bargain collectively with United Steelworkers of America, CIO, as the exclusive representative`of the above-men- tioned employees with respect to rates of pay, wages, hours of em- ployment, and, if an understanding is reached, embody such under- standing in a signed agreement. (b) Make whole each of his employees for any loss of pay suffered by reason of the discrimination against him on January 19, 1950.. (c) Offer to Benjamin Bailey, Carl A. Hultman (also known as Charles A. Hultman), and the employees named in Appendix B an- nexed to the Intermediate Report except John A. Lucich, immediate and full reinstatement to their former or substantially equivalent po- sitions, without prejudice to their seniority or other rights and priv- ileges, and make each of them whole for any loss of pay suffered by reason of the discrimination against him,4 in the manner provided in the section of said Intermediate Report entitled "The remedy." (d) Upon request, make available to the National Labor Relations Board or its agents, for examination and copying, all payroll records, ,social security records, time cards, personnel records and reports, and 4 The Respondent discriminated against Carl A. Hultman on July 11, 1950 , and against the others on May 2, 1950. • 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all other records necessary to analyze the amounts of back pay due and the rights of reinstatement under the terms of this Order. (e) Post at his plant in Stratford, Connecticut, copies of the notice ,attached hereto and marked Appendix.5 Copies of the said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by Walter Paterson, Sr., or his representative, be posted by him immediately upon receipt thereof and maintained by him 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 him to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the Second Region in writing,. within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith., MEMBER REYNOLDS, dissenting and concurring in part: I agree with the majority that on May 2, 1950, the Respondent discharged its employees in violation of Section 8 (a) (3), but I dis- agree with the majority's further finding that the dischargees are entitled to back pay from May 2. Normally, back pay for illegally discharged persons accrues from the date of their discharge, but since the discharges here coincided with strike action, I believe that the -back-pay issue is controlled by that line of cases6 which tolls back- pay liability for the discharge of strikers until such time as the dis- chargees shall thereafter unconditionally apply for reinstatement or abandon their strike. Unlike the majority, I find no substantial evidence that when the strikers returned to the plant on May 2, they had unconditionally abandoned their strike and were ready to work on the Respondent's terms. The strike arose over the discharge of employee Bailey and was still current when the employees received the Respondent's tele- gram directing them to report to work. Obviously, the unresolved strike issue was paramount in the minds of all parties when they met on May 2. Consequently before incurring the expense of readying the plant for operations, the Respondent reasonably sought to deter- mine from the men whether they really were going to work. That the strikers had not then unqualifiedly decided to abandon the strike is apparent from their equivocal responses. Thus, they first replied, "Here we are" and at the same time raised the strike issue of Bailey's discharge. After the Respondent stated that the Bailey discharge stood, the men refused to commit themselves to work beyond the bal- I In the event that this Order is enforced by a decree of the United States Court of Appeals , there shall be inserted, before the words, "A Decision and Order," the words "A Decree of the United States Court of Appeals Enforcing." 9 Massey Gin and Machine Works, Inc., 7$ NLRB 189; Kallaher and Mee, Inc., 87 NLRB 410; Globe Ttireless, Inc., 88 NLRB 1262; Porto Rico Container Corporation, 89 NLRB 1570; Happ Brothers Company, Inc.; 90 NLRB 1513. 'PATERSON STEEL & FORGE COMPANY 133 ante of the afternoon, suggesting that the duration of their return to work be discussed with their union representative, who was sched- uled to appear shortly at the plant. Such a temporary commitment can hardly be regarded as an unconditional abandonment of the strike or as a sufficient offer for the purpose of fixing back-pay liability. That the Respondent may have acted unreasonably in refusing the employees' request to await the arrival of their union representative, cannot serve to make the employees' response less equivocal. Nor did the Respondent's precipitate action preclude the union representa- tive, when he shortly thereafter appeared on the scene, from making an unconditional application for reinstatement on behalf of the em- ployees. But no such- application was in fact made until June 19. Consequently, I would award back pay to the dischargees from June 19, when they unconditionally applied for work, and not from May 2, when they were discharged. In all other respects I concur in the majority decision. Appendix NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations, Act, as amended, I hereby notify my employees that: I WILL NOT discourage membership in UNITED STEELWORKERS OF AMERICA, CIO, or any other labor organization of my employees, by discriminating in regard to their hire or tenure of employment or any term or condition of employment. I WILL NOT interrogate or attempt to poll my employees concern- ing their union affiliations, activities, or sympathies, or threaten them with discharge, reprisal, or other economic loss because of their union affiliations, activities, or sympathies. I WILL NOT in any manner interfere with, restrain, or coerce my employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist UNITED STEELWORKERS OF AMERICA, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment, as authorized in Section 8 (a) (3) of the National Labor Relations Act. I WILL make whole each of my employees_for.any loss of pay suffered by him as a result of the discriminatory lockout on Janu- ary 19, 1950. 974176-52-vol. 96-10 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I w ILL offer the following named employees immediate and full reinstatement,to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination against them on or after May 2, 1950, by way of discharge or refusal to reinstate, in the manner and to the extent set forth in the Decision and Order : Benjamin Bailey Carl A. Hultman, also known as Charles A. Hultman Ross DePrimo - Joseph Opelia Gabriel Vince Frank Unsderfer James Binda John Jaundzen Stefan Grzebski Louis Kish Peter Rosso Arthur Hultman, Jr. Joseph Detrik Joseph Janucik Mike Waj da (or Wagda) John Komar John G. Peterson William D. Steeves Paul M. Massaria Sisto A. Bardinelli James Boardbin Adolph Boehmke I WILL bargain collectively, upon request, with UNITED STEFa. WORKERS OF AMERICA, CIO, as the exclusive representative of all employees in the bargaining unit described herein with respect to wages, rates of pay, hours of employment, or other conditions of employment and, if an understanding is reached, embody such understanding, in a signed agreement. The bargaining unit is: All production and maintenance employees at my Stratford, Connecticut, plant, including shipping and receiving em- ployees and truck drivers, but excluding office and clerical employees, professional employees, guards, watchmen, fore- men, and other supervisors as defined in the National Labor Relations Act, as amended. All my employees are free to become or remain members of the above-named union or any other labor organization. I will not dis- criminate against any employee because of membership in or activity on behalf of any such labor organization. WALTER PATERSON, SR., DOING BUSINESS UNDER THE TRADE NAME AND STYLE OF PATERSON STEEL & FORGE COMPANY, Employer. By ------------------------=---------------- (Representative) (Title) Dated -------------------- PATERSON STEEL & FORGE COMPANY 135 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 and Recommended Order STATEMENT OF THE CASE , Upon a charge filed on January 27, 1950, by United Steelworkers of America, CIO, herein called the Union, the General Counsel of the National Labor Re- lations Board, herein called the General Counsel and the Board, by the Regional Director for the Second Region (New York, New York), issued a complaint dated November 2, 1950, against Walter Paterson, Sr., doing business under the trade name and style of Paterson Steel & Forge Company, herein called the Respondent or the Company, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (1) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charges, the complaint, and a notice of hearing were duly served upon the Respondent and the Union. - . With respect to the unfair labor practices, the complaint alleged in substance that the Respondent: (1) On or about January 19, 1950, unlawfully locked out its employees for 1 day; (2) on or about May 2, 1950, discriminatorily dis- charged Benjamin Bailey, which resulted in the employees engaging in a strike; (3) on the same day discharged the striking employees ; (4) on or about July 11, 1950, discriminatorily discharged Charles Hultman; (5) on and after May 2 and July 11, 1950, refused to reinstate the striking employees to their former or substantially equivalent jobs, except that 14 of the 22 employees were re- employed by the Respondent at various intervals; (6) on and after March 2, 1950, refused and continues to refuse to bargain collectively with the Union, the duly certified representative of the employees in an appropriate unit ; and (7) on and after January 18, 1950, interrogated the employees concerning their union affiliations, attempted to conduct a poll among the employees to determine their union affiliation, warned the employees to refrain -from becoming or re- maining members of the Union, and threatened the employees with discharge or other reprisals, including a closing down of the plant, if they joined or assisted the Union. • The, Respondent duly filed an answer, dated November 10, 1960, wherein he admitted certain allegations of the complaint but denied the commission of any unfair labor practices. Pursuant to notice a hearing was held in Bridgeport, Connecticut, on Decem- ber 5, 6, 7, 12, and 13, 1950, before the undersigned duly designated Trial Ex- aminer. The General Counsel, the Respondent, and the Union were represented by counsel. All participated in the hearing and were afforded an opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertaining to the issues. At the outset of the hearing counsel for the Respondent moved to amend the answer to admit the allegations in the complaint that the employees, on May 2, 1950, went on strike. The motion was granted, without objection, by the undersigned. At the close of the case the General Counsel moved to conform the pleadings to the proof as to matters of form which motion was granted without 'objection by the undersigned. At the same time the General Counsel moved to delete paragraphs, numbered 9 and 10, of the 'com- plaint, alleging that the employees engaged in an unfair labor practice strike on May 2, 1950, for the reason that rthe evidence adduced failed to support these allegations. Counsel for the Respondent opposed the motion on the grounds 136 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD that the case was tried on the theory of those, allegations and that it was unfair for the General Counsel to change his position after the evidence had been received. The motion was taken under advisement by the undersigned. This motion, for the reasons set forth below, is now denied. The parties waived oral argument at the conclusion of the hearing. The parties were also advised of their right to file briefs and thereafter; counsel for the Respondent and the Union filed briefs with the undersigned. • Upon the entire record in the case and from my observation of the witnesses„ the undersigned makes the following: FINDINGS OF'FACT I. THE BUSINESS QF THE COMPANY Walter Paterson, Sr., an individual doing business as Paterson Steel & Forge Company, maintains an office and plant iii Stratford, Connecticut, where the Company is engaged in the manufacture, sale, and distribution of forged rings, discs, gear 'blanks, bars, and related products. In the course of its operations: the Company, during the year ending January 30, 1950, purchased steel, fuel oil, saw blades, small tools, and other materials valued in excess of $50,000, of which approximately 66 percent was purchased and shipped to the Company's plant from places outside the State of Connecticut. In the same period the Company manufactured products valued in excess of $100,000, of which ap- proximately 75 percent represented shipments to customers outside the State of Connecticut. The Company stipulated that it is engaged in commerce within the meaning of the Act, and the undersigned so finds. II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, CIO, is a labor organization admitting to, membership employees of the Company. III. THE UNFAIR LABOR PRACTICES At the outset it is appropriate to point out that while the complaint and answer frame numerous issues covering rather an extensive field of unfair labor practices, the Company, at the hearing, contested and adduced evidence only in support of three of these issues, namely, the discharge of Bailey and Hultman, respectively, and the alleged unlawful lockout or discharge of the employees on May 2, 1950. In respect to the remaining issues the evidence presented by the General Counsel is undisputed or undenied, hence the con- clusions and findings thereon are based upon the accredited testimony of wit- nesses produced by the General Counsel. A. Interference, restraint, and coercion On January 16, 1950,' practically all of the Company's employees, 22 or 23, attended a meeting conducted by Edward J. Lavery, international representative of the Union, at its hall in Bridgeport, Connecticut, in the course of which each of the employees signed union membership application cards. Upon receiving these cards Lavery informed the group that since the Union had an overwhelming majority of all the employees he would notify the Company by letter that it had been designated as the exclusive bargaining representative and request a I All dates refer to 1950, unless otherwise stated. PATERSON STEEL Si FORGE COMPANY 137 meeting with the Company for the purpose of discussing recognition and con- tract proposals. Lavery cautioned the employees that if his letter caused any reaction on the part of Walter Paterson, Sr? (herein called Paterson), to refrain from engaging in any arguments with him and say nothing whatsoever about the letter. The following day Lavery addressed a communication to Paterson advising him that the Union had been designated as the bargaining representa- tive of his employees and requesting that a conference be held at an early date. The next morning, January 18, Paterson came into the plant shortly after the men commenced work, waving a letter which he held in his hand. Paterson event to Sisto A. Bardinelli, who was working the hammer, shook the letter in front of his face, and accused Bardinelli of being the instigator and cause of the letter. Bardinelli asked what he was talking about and Paterson replied, "You know what I mean. The damn CIO." Bardinelli again stated he did not know what he was talking about, whereupon Paterson declared that Bardinelli was fired and ordered him out of the plant.' Paterson, still holding the letter, went through the shop asking other employees, including Arthur C. Hultman, Frank Unsderfer, and Benjamin Bailey, if they knew anything about the Union and each denied any knowledge' thereof. Bailey when thus questioned requested Paterson to show him the letter but he refused, stating, "The hell with you. That's my letter." Later the same morning Paterson held a meeting of all the employees in the plant. Also present at the meeting were Walter Paterson, Jr., general super- intendent, William H. Robinson, office manager, Joseph Molloy, timekeeper, and Fred Traber, machine shop foreman.' Paterson again asked the employees who started the Union and when he received no answer he declared, "What's the matter with you guys? Yellow? No backbone?" Paterson, Jr., joined in with similar accusations against the men. Ross DePrimo then spoke up and stated he was in favor of the Union and that it would benefit both the Company and the employees. Thereupon Paterson warned the employees, "Well, I'll have no parts of the damn CIO in my shop, and I'm not to be caught hanging out on the limb paying prices that I don't know what they are." Paterson, according to Hultman, threatened the group saying, "If you fellows want the union in here I am closing the plant down. I have been running my business for forty years, and no union, no God-damn union, is coming into my plant and going to show me how to run it." Finally, after informing the group that he could convert the plant into a warehouse and ". . . make just as much money . . . ." Paterson told the employees that an election would be held that day to deter- mine whether or not the employees desired to have the Union. The meeting then concluded and the men returned to work. That evening when the employees, as customary, went to the clock to punch out their time they found that the time cards had been removed from the rack and were being held by Robinson in the timekeeper's office. The employees de- manded that Robinson return the cards to the rack but he refused to do so and informed the men that he had instructions to withhold the card of each employee until he had voted on the question of whether or not he desired to have the Union at the plant.' The employees, particularly Charles Hultman, protested 2 Paterson, Sr , did not testify at the hearing 3 Bardinelli related the incident to Timekeeper Joseph Molloy who told him to keep away from Paterson and that everything would be all right. Bardinelli did so and resumed work shortly thereafter. * The parties stipulated that Paterson, Jr., Robinson, and Molloy were supervisors. The record discloses that Traber was employed as foreman of the machine shop. S Robinson had slips of paper and a taped box in the office to be used in conducting the election. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this action and they unanimously refused to vote as requested. Finally, Molloy secured the cards from Robinson and placed them in the rack and the employees who had remained at the plant during the discussion punched out their time. The Lockout on January 19 The next morning when the employees reported for work they found the usual' entrance locked but entered the plant through the office. Again, the time cards had been removed from the rack and the men further learned that the fires were not up so that the plant was not ready to operate. The employees waited around and after Paterson arrived they asked him what was the trouble and he stated that since they had refused to vote the night before the plant was closed, they were "all through" and he would operate the plant as a warehouse. The employees then asked for their pay and Paterson told them that Friday (the next day) was the regular payday. He further suggested that they go to the CIO "Booby-hatch" and see' Lavery who would pay the men in the future. Paterson thereupon ordered the men to leave the plant, which they did. Bailey and Arthur Hultman immediately telephoned Lavery and informed him of the occurrences and Lavery advised them to apply at once for unemployment com- pensation and to report to the union hall that afternoon. The employees after registering for unemployment compensation met with Lavery and he told them he believed Paterson would recall them to work. In the meantime the Company sent telegrams to the individual employees instructing them to "report for work as usual" the following morning. Accordingly, the employees reported for work on January 20 and worked continuously until May 2. The foregoing undisputed evidence plainly demonstrates that the Company embarked upon a course of conduct designed to frustrate union organizational activities among its employees and to prevent unionization of its plant. It has long been established through numerous decisions by the Board and the courts that the foregoing acts committed by the Company in its campaign against the Union are clearly in violation of the rights guaranteed the employees under the Act and require no further discussion. The undersigned therefore finds that the Company: -(1) Interrogated its employees concerning their union membership or activities; (2) threatened to discharge the employees and to shut down its plant in the event the employees joined the Union or engaged in activities on its behalf; (3) attempted to conduct a poll or election among its employees to determine whether or not they desire to be represented by the Union; and (4) locked out Its employees because of their union membership and activities and because they refused to participate in the conduct of the above poll or election . In view of the foregoing, the undersigned concludes and finds that the Company inter- fered with, restrained, and coerced the employees in the exercise of the rights guaranteed in Section 7 of the Act and thereby engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. B. The refusal to bargain. 1. The appropriate unit and the Union's certification The complaint alleges that_all production and maintenance employees at the Company's plant, in Stratford, Connecticut, including shipping and receiving employees and truck drivers but *encluding office and clerical employees, profes- sional employees, guards, watchmen, foremen, and supervisors, as defined in Section 2 (11) of the Act, constitute a unit appropriate for the purposes of col- lective bargaining. PATERSON STEEL & FORGE COMPANY 139 As appears above, Paterson, on January 18, received a letter from the Union requesting a meeting for the purpose of discussing recognition and contract terms. The same day, Paterson telephoned Lavery and, after Lavery acknowledged sending the letter, Paterson declared, "You big, lazy bastard. Go to work. Don't come down to my property or I'll knock your head off." Lavery told Paterson he would come down to the plant anytime he wished and "would work on him," whereupon Paterson hung up. The following day Lavery filed a peti- tion for certification' as the representative of the employees in the above-described unit. The parties stipulated that about February 6 a consent election agreement was executed and pursuant to its terms an election was conducted on February 20, by a representative of the Board, among the employees in the unit for the purpose of determining whether a majority of the employees desired to be rep- resented by the Union for the purposes of collective bargaining. Of the 23 em- ployees eligible to vote in the election, 21 cast ballots in favor of the Union, none against, and on March 1, the Regional Director for the Board duly certified the Union as the exclusive bargaining representative of all the employees in the unit. The undersigned finds that the unit alleged is appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act, and that the Union was at all times material and now is the duly designated representative of all the employees in such unit for the purposes of collective bargaining. 2. The refusal to bargain The complaint alleges that on and after March 2, the Company refused to bargain with the Union in respect to rates of pay, wages, hours of employment, and other conditions of employment. On February 17, the Union held a meeting at Bardinelli's home at which the membership prepared contract proposals to be submitted to the Company and appointed Arthur Hultman and Bailey as a committee representing the em- ployeees in its negotiations with the Company. On March 2, the Union addressed a letter to the Company wherein it stated that it had been duly certified by the Board, and suggested that a meeting be held on March 10, for the purpose of discussing contract terms. The Union also offered to submit contract proposals in advance, provided the Company agreed to meet on the above date. The Company refused to accept delivery of the letter, which was sent by registered mail, and it was returned to the Union about 2 weeks later. On March 15, the Union sent a similar letter to the Company requesting that a meeting be held on March 24. The Company accepted delivery of this letter. In the meantime the Union, on March 13, filed a petition with the Board for authority to make a union-shop agreement,' and on March 17, in the course of the investigation of this petition, a representative of the Board held a meeting with representatives of the Union, Lavery and Bardinelli, and the Company, Robinson and Frank L. Wilder, its counsel. The parties were unable to re- solve the issues raised in the petition, so subsequently the Regional Director for the Board ordered an election to be held thereon and scheduled the same to be conducted at the plant the afternoon of May 2. However, upon the con- clusion of the above-mentioned meeting, Robinson acknowledged receiving the Union's letter of March 15, but stated that no conference could be held because Paterson was out of the city and there was no one at the plant with "authority to meet with the union and negotiate a contract." i " Case No. 2-RC-1794. 7 Case No. 2-UA-5610. 140 DECISIONS OF ' NATIONAL LABOR RELATIONS BOARD On May 5 the Union sent a telegram to the Company requesting that a meeting be held on May 6, but it failed to answer the request and no meeting was held. On June 26, Daniel W. Baker, counsel for the Union, met with Paterson and asked that the Company negotiate with the Union and he answered that "he would think about it." Neither Baker nor the Union ever heard from the Com- pany in regard to this request and no meeting was ever held. No further de- mands were made by the Union upon the Company. The Company offered no evidence in opposition to the testimony adduced by the General Counsel but asserts in its brief that "at no time did Mr. Paterson refuse to sit down and negotiate with the Union, he simply put it off." In considering the foregoing uncontroverted evidence but one conclusion can be reached and that is, that the Company had a fixed determination to do every- thing in its power to undermine and destroy the Union, despite the fact that its employees had unanimously designed the Union as their exclusive bargaining representative. However, the adamant refusal of the Company to recognize the Union or confer with it is entirely compatable with Paterson's openly declared hostility to unionization of the plant and his expressed determination to frustrate organizational activities among the employees. By choosing to ignore the Union's repeated demands for bargaining conferences the Company engaged in flagrant violation of its statutory duty to grant recognition to the employees' designated representative and its obligation to enter into-discussion and negotiations with an open and fair mind and with a sincere purpose to find a basis of agreement concerning the issues and to execute a binding contract upon the terms thus reached. (Globe Mail Service, Inc., 2 NLRB 610, 621; Sheba Ann Frocks, Inc., 5 NLRB 12, 16-17; Suburban Lumber Company, 3 NLRB 194, 203, enforced as modified (in other respects), N. L. R. B. v. Suburban Lumber Company, 121 F. 2d 829 (C. A. 3), certiorari denied 314 U. S. 693.) , The contention that Paterson did not refuse to meet and negotiate with the Union but "simply put it off" is frivolous and is rejected. Equally without merit is the assertion that Paterson was the only company official having authority to negotiate with the Union, hence, negotiations could be conducted only by Pater- son, despite the fact that he remained away from the plant during the period, except for a few days, from about January 20 to the latter part of May or early June. Even assuming Paterson was too busy to give the Union a few days of his time between January and June, it was then his duty to appoint a fully authorized representative to negotiate in his place. (Martin Brothers Box Company, 35 NLRB 217, 238-239; enforced N. L. R. B. v. Martin Brothers Box Company, 130 F. 2d 202, 207 (C. A. 7), certiorari denied 317 U. S. 660.) The undersigned therefore concludes and finds that on March 2, and at all times thereafter the Company refused to bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other conditions of employ- ment, and that by such refusal the Company interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (5) and (1) thereof. C. The'discharge of Benjamin Bailey Bailey was first employed by the Company in July 1944, and worked continu- ously, in various classifications including hammer driver, forger's helper, and crane operator, until May 2, 1950. As appears above Bailey was very active in promoting the Union and was a member of the negotiating committee. While this committee never met with representatives of the Company, Bailey and Arthur Hultman, following instructions from Lavery, went to see Molloy on PATERSON STEEL & FORGE COMPANY 141 March 24, and advised him that a conference between representative§ of the Company and the Union had been scheduled for that day. "'Molloy informed them he had no knowledge of any such conference and told them to go back to work, which they did. Lavery had tentatively arranged a conference for that date but it was called off by the Company and he neglected to so notify Bailey and Arthur Hultman. On Saturday, April 29, Bailey and his wife motored to Middletown, Pennsyl- vania, for the purpose of visiting his father-in-law. Bailey was delayed at Mid- dletown so he telephoned the plant on Sunday to explain his delay but he was unable to talk to anyone. Bailey then left Middletown late Sunday night and arrived home Monday afternoon, May 1. The next day he reported for work as usual but found his time card had been removed from the rack. Bailey consid- ered this a mistake and went into the shop prepared to work with his gang. However, before any work commenced, Molloy came into the shop and told Bailey "You're through." When Bailey asked the reason for his being discharged Molloy stated, "These are my orders from Walter Paterson, Jr. I got them yes- terday " Bailey and Molloy then went into the office and Molloy gave Bailey his pay envelope which contained a discharge slip stating that he had been discharged because of "frequent absences without explanation." When the other employees heard of Bailey's discharge they came into the office and asked Molloy to call Paterson, Jr., and find out why Bailey had been fired. Molloy called Paterson, Jr., and then informed the men that "Bailey is fired and stays fired." Bailey did not thereafter work for the Company until September 18, when he was reemployed, under circumstances set forth below. Paterson, Jr, testified that he instructed Molloy to discharge Bailey because "he had been continually off," and that he had to establish some discipline at the plant since ". . . the morale of the men had deteriorated to the point where somebody had to do something and I decided to start." Accordingly, when Bailey failed to report for work on May 1, he was discharged for absenteeism. The only issue concerning Bailey is whether he was discharged because of his union membership and activity or because of his violation of any company rule or policy in respect to absenteeism. The employees who testified at the hearing uniformly stated that the Com- pany had no rule or policy covering absenteeism or requiring an employee to notify the Company in the event he was unable to report for work at any given time Thus, Bardinelli said during his employment, covering a period of 8 years, he could recall but one occasion when he reported his inability to work and then only because of illness in his family which necessitated his remaining away from the plant for a period of 2 weeks Further, Louis Kish stated that in the summer of 1948, he and two other employees returned to the plant from their lunch period in an intoxicated condition and the gang leader simply told them to go home. They were not in any manner reprimanded, criticized, or disciplined by any management official for this conduct. The Company did not deny that Bailey was discharged under the circumstances related above. Molloy was unable to specify any company rule pertaining to absenteeism or reporting absences in effect prior to May 2. He did state that notices had been posted on the company bulletin board at various times "but they would be up an hour or a half hour, and then the first thing I knew they would be torn down and someone would say something about the boss, just dirty words or it would be torn down." Even so Molloy admitted that these notices did not require employees to call the Company in advance of any expected absence from work, nor did the employees, excepting a few, ever give such advance notice. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Molloy further conceded that not one employee had been discharged for absentee- ism prior to the discharge of Bailey. Paterson, Jr., testified substantially the same as Molloy concerning the post- ing of company notices. He further stated that he never held a meeting with the employees for the purpose of discussing absenteeism or to advise them that the Company was establishing any rules or policy in respect thereto. ` Unquestionably an employer has the right to discharge an employee for un- authorized absence from work, provided the discharge was not motivated by the employee's union activity (Newport News Children's Dress Co., Inc., 91 NLRB 1521). Here the overwhelming evidence convinces the undersigned that Bailey was discharged because of his union membership and activity and not by reason of his failure to work on May 1, or his failure to give advance notice of his absence to the Company. It is true that Bailey may have had so-called unauthorized absences in the past but it is also clear from the testimony of Paterson, Jr., and Molloy that the Company, at least on May 1, had no rule or policy in respect to absenteeism and Bailey certainly was no more guilty of remaining away from the plant than the other employees. It is equally plain from the evidence that the Company exercised little, if any, control or discipline over its employees and thus openly invited and condoned conduct on their part, such as tearing down the notices and being intoxicated at work, which ordi- narily would constitute proper cause for discharge. But despite the recur- rence of such acts, as well as repeated instances of. employees failing to report for work without giving notice, Bailey was the only one to be discharged for alleged infraction of so-called working rules. In view of the Company's decla- ration of open warfare against the Union from its very inception, the fact that it had no rule or policy bearing on absenteeism, and that it summarily dis- charged Bailey, without previous warning, merely because he missed one day from work, convinces the undersigned beyond any doubt that the Company seized upon Bailey's absence as a pretext for ridding itself of an active union adherent (S. B. Whistler & Sons, Inc., 92 NLRB 1). The undersigned therefore concludes and finds that the Company discharged Bailey because of his membership in and activities on behalf of the Union, thereby discriminating with respect to his hire and tenure of employment in order to discourage membership in a labor organization, in violation of Section 8 (a) (3) of the Act, and thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, In violation of Section 8 (a) (1) thereof. D. The events of May 2 1. The strike Bailey, upon being notified of his discharge, immediately went into the shop before work commenced and informed the members of his gang that he had been fired. Arthur Hultman stated the men thought Bailey "had gotten a raw deal" whereupon a majority of the employees, including Hultman, Charles Hultman, Bailey, Bardinelli, Massaria, and DePrimo, went into the office to talk to Molloy. Charles Hultman told Molloy that the discharge of Bailey was a "funny thing" since it was common practice for employees to take time off without reporting and no one had ever been reprimanded, much less discharged, for doing so. Arthur Hultman asked Molloy if Bailey had been discharged because of his union activities and Molloy said he did not know, that he was simply carrying out orders. Arthur Hultman then suggested that Molloy call Paterson, Jr., and find out the reasons for Bailey's discharge. Molloy telephoned Paterson, Jr., and when he concluded his conversation he told the group that Paterson, Jr., stated PATERSON STEEL &,FORGE COMPANY 143 Bailey stays fired and "If you fellows feel that way about it, close the plant down and send them all home." The group then left the office and returned to the shop but the employees, excepting Charles Hultman, performed no work that morning. Arthur Hultman admitted that the employees did not commence work because of Bailey's discharge. After waiting around the plant for about 1 hour, Paterson, Jr., came in and told them to leave the property, that they were "fired." Molloy in substance testified that on the morning of May 2, about 22 or 23 men reported at the plant and at 7 o'clock he gave the signal to commence work. It was at that time Molloy saw Bailey standing in the shop and discharged him. Shortly thereafter, a group of 6 employees came to Molloy's office and stated in effect that Bailey had been discharged for union activities. Molloy said if the men were of that opinion they should let Bailey fight the case and that they would be foolish for "going out" of the plant. However, Charles Hultman told the men not to "let the Patersons get away" with the discharge of Bailey. Molloy ad- mitted he called Paterson, Jr., and after his conversation informed the men "the situation stands the same." The group then left Molloy's office. About 10 minutes later Molloy went into the shop but he found no one there. He then asked 2 of the men, James Binda and Joseph Janucik, to shut down the furnace and the boiler, respectively, which they did. The Company introduced in evi- dence the time cards for 21 employees who reported that day, and while some of the employees did not punch out, those who punched cards did so before 8 o'clock in the morning. However, Charles Hultman remained at the plant that day and was paid for 8 hours. Paterson, Jr., denied that he told Molloy to shut down the plant and fire the men, or that he ordered the employees out of the plant that morning or that he even talked to them. Having found that Bailey was discriminatorily discharged, the undersigned, upon consideration of the foregoing evidence, concludes and finds that the em- ployees protested the unlawful discharge of Bailey and when they were unsuc- cessful in securing his reinstatement they engaged in strike action against the Company. 2. The mass discharge In the space of a-few hours after the commencement of the strike, Paterson, Jr., sent telegrams to each of the striking employees, except Bailey, instructing them that the shop was working that day and to report for work no later than 2 o'clock that afternoon, "otherwise it means dismissal for absenteeism." Thereupon the striking employees reported at the plant as instructed. As the fires had been shut down that morning the plant was not ready for normal opera- tions so the strikers after punching their time cards gathered about in a group just outside the plait office. Some of the strikers changed to their working clothes. Paterson, Jr., arrived and asked what the men intended to do. Arthur Hultman acted as spokesman and stated that the employees had received tele- grams to report for work and "Here we are." Hultman inquired' concerning Bailey and Paterson, Jr., answered that Bailey "stays fired" and aghin asked what the men intended to do. Hultman said to wait until Lavery arrived but Paterson stated, "That's all ; I've heard enough . . . You're all through ; you're fired. Get off the property." Paterson, Jr., and Molloy then went into the office and about 10 minutes later Molloy returned to the group for the purpose of carrying out the discharge order. He first handed John G. Peterson his pay envelope and when Peterson and the men found out that they were not being paid for that afternoon, I. e., from 2 to 3: 30 o'clock, they refused to accept the, envelopes from 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Molloy. Lavery arrived at this time and although Paterson , Jr., spoke to him he did not discuss or attempt to discuss the events of that day. As stated above the union-authority election had been scheduled to be held at this hour so the striking employees then went into the office for the purpose of- voting therein. Bardinelli and Arthur Hultman had been selected as observers for the Union and when Bardinelli attempted to enter the room where the voting was to take place, Paterson , Jr., pushed him out of the room and told him he had no business there. Paterson , Jr., then announced that Charles Hultman was the "one man eligible to vote" as "all the other men are fired ." Molloy again attempted to pass out the pay envelopes with the discharge notices and again there was argument and discussion as to whether the men should be paid for that afternoon . Apparently some of the men refused to accept the discharge slips, but in any event the parties stipulated that eventually , perhaps 4 or 5 days later, all of the employees reporting that day accepted the notices! Under the circumstances the Board 's representative called off the election that afternoon and it was not held at any time thereafter. The following day the employees picketed the plant carrying placards stating that the employees were on strike. Lavery explained that he was unable to secure lockout signs at that time so in order to identify the Union , he secured strike placards from union headquarters which the employees carried. Lavery at once ordered lockout signs and when he obtained these 3 or 4 days later the pickets discarded the old signs for the new placards . The Union maintained, pickets at the plant continuously until about September 12. Paterson , Jr., said he sent the telegrams of May 2 to find out whether or not the men were willing to work. He stated that he talked to the group for about 15 minutes and "they seemed to stand pat" ; that they would not return to work without Bailey. Paterson, Jr., denied that Arthur Hultman or Bardinelli asked, him to wait until Lavery arrived and to discuss the matter with him .9 He ad- mitted that Arthur Hultman said the men were willing to work the remainder of- the afternoon but he could give no assurance that the employees would return to the plant the next day. This proposal was not acceptable to Paterson so lie took, Molloy by the arm and said, "Let go, Joe," and walked away from the group. Paterson , Jr., then instructed Molloy "to make up the time cards" and discharge the employees. Paterson, Jr., admitted the plant was not ready for normal operations that afternoon and at no time did-he instruct the men to perform any type of work. In substance the Company contends that the employees refused to work on the afternoon of May 2, unless Bailey was reinstated , which it refused to do, and apparently it argues that in doing so the employees simply continued the strike action initiated that morning. However, the Company offers no explanation for its mass discharge'of the employees , other than they were dismissed for absenteeism and were eventually reemployed. Concerning the reemployment of the dischargees , Paterson, Jr., stated that the plant was shut down for about 6 weeks and was not ready to resume opera- e Bailey and Charles Hultman were not tendered discharge notices. John A. Lucich did not report for work that day and similarly was not tendered a notice although Lucich did go to the plant only for the purpose of voting in the election. 9 The General Counsel produced the transcript of a hearing held on October 16 before the Compensation Commissioner of the State of Connecticut , which reveals that Paterson, Jr., stated that the men did request him to meet with Lavery but he refused to do so because the. Company had not recognized the Union and he felt that he should deal directly with the men. He further stated that if the employees desired instructions they should have talked to Lavery and acted accordingly. When confronted with this statement Paterson, Jr., said he did not know whether or not he made the statement because he did not presently understand the question. PATERSON STEEL & FORGE COMPANY 145 tions until the first part of July. However, as early as the night of May 2, he called 4 of the dischargees and asked them if they would be willing to return to work and help him get the plant in operation.10 Each of the individuals refused to accede to this request. The parties stipulated that between June 8 and September 18, 14 of the dischargees were reemployed," and 8 did not return to work.' The stipulation, however, did not provide that valid offers of reinstate- ment had been tendered to any of the dischargees, nor is there any evidence that such offers were made. In the above interval, Baker, on June 19, asked the Company to reinstate the dischargees and Wilder said they would be taken back as needed. Again on June 26, Baker made a similar request to Paterson but he refused to give any answer thereto, other than that Charles Hultman would not be reinstated. By July 13 the Company had reemployed but $ of the dischargees so the Union, on that date, addressed a letter to the Company requesting the reinstatement of the remaining 12 dischargees, including Charles Hultman. While the Company did not reply to this request, 6 of the individuals mentioned in the letter were subsequently reemployed at various times up to September 18. The undersigned cannot agree with the Company's contention that the striking employees refused to work on the afternoon of May 2, unless Bailey was reinstated and in effect continued the strike action directed against the Company. It is undisputed that the strikers could not have performed their usual duties that afternoon and when Paterson, Jr., asked the men if they intended to work, Arthur Hultman, their spokesman replied, "Here we are." Under the circum- stances the strikers could have done no more than report to the plant and await further instructions. Certainly, up to this point, the strikers' action in coming to the plant had all the indicia of an unqualified offer to return to work. Had Paterson, Jr., been sincere in his offer to reemploy the strikers, as set forth in the telegrams, or if he only desired to learn if the strikers would work without Bailey, he could have easily secured this knowledge by simply issuing instruc- tions as to the work he wished the, strikers to perform at that time. But ad- mittedly he issued no such instructions and by his own conduct foreclosed any resolution of the question as to whether the strikers would have worked without Bailey. It may well be that the strikers would have refused to resume work without Bailey and hence their prima facie unqualified offer to return to work would thereby have become conditional and ineffective, but, as stated above, Paterson, Jr., precluded any test on the genuineness of the strikers' offer, so any resolution to the contrary would be purely speculative. It is true that the strikers, as might be expected, did ask Paterson, Jr., if Bailey would be permitted to work and Paterson, Jr., replied that he would not. Upon being so advised the employees then requested Paterson, Jr., to meet with Lavery, who was expected shortly but he refused and immediately instructed Molloy to discharge all of the strikers. Paterson, Jr., denied that the employees requested him to meet with Lavery. The undersigned is not persuaded-by the testimony of Paterson, Jr., in this regard, nor his attempted explanation of the contradictory statement he gave in proceedings before the State Compensation Commission. Accordingly, the undersigned credits the testimony of Arthur Hultman, and finds that Hultman did request Paterson, Jr., to discuss the matter 10 Kish, Peterson, Komar, and Wajda or Wagda 11 Bailey, Opelia, Vince, Binda, Jaundzen, Grzebski, Kish, Arthur Hultman, Detrik, Janucik, Wajda, Peterson, Massaria, and Bardinelli. 12 DePrimo, Unsderfer, Rosso, Komar, Steeves, Broadbin, Boehmke, and Lucich. The parties also stipulated that Lucich became ill prior to May 2, was still sick at the time of the hearing, and that the Company was willing to "reinstate" him when physically able to work. 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with Lavery but that Paterson, Jr., declined. By thus refusing to meet with Lavery, the Company further pursued its policy of completely ignoring the certified bargaining representative of its employees in violation of its statutory duty, irrespective of whether the refusal occurred before or after the mass dis- charge of the employees. (Carlisle Lumber Company, 2 NLRB 248, 262-263, enforced 94 F. 2d 138 (C. A. 9), certiorari denied 304 U. S. 575, and 99 F. 2d 533 certiorari denied 306 U. S. 646, Atlanta Broadcasting Company, 90 NLRB 808.) The undersigned has no difficulty in reaching the conclusion that the mass discharge of the striking employees, because of alleged absenteeism, was merely another step in the Company's vigorous campaign against unionization of its plant. Nor can it be said that the action against the strikers was only a tactical maneuver rather than an outright discriminatory discharge of the strikers. Here the quick discharge of the striking employees upon their reporting to the plant pursuant to the telegrams, the actual issuance of discharge notices, with wages to date, completely negates the conclusion that the Company intended the telegrams and notices only as a threat of loss of jobs to the strikers for the purpose of demoralizing them and causing them to abandon the strike. (See Biles-Coleman Lumber Company, 4 NLRB 679, 701, enforced 98 F. 2d 18 (C. A. 9).) The evidence bearing upon the events of May 2, considered in a back- ground of reprehensible conduct on the part of the Patersons by their resorting to every available illegal device short of leading a posse against the union members, convinces the undersigned that the Company in discharging all of its striking employees was motivated by the same desires and followed its pre- determined plan to eliminate and destroy the Union (Ozark Hardwood Company, 91 NLRB 1443). It seems equally clear to the undersigned that the mass dis- charge was further motivated by the Company's desire to forestall the union- authority election scheduled to be held at approximately the same hour as when the discharge occurred and thus effectively prevented the employees from en- gaging in a form of concerted activity specifically authorized by the Act. Finally, the Company urges that because the dischargees picketed the plant the following day, carrying "on-strike" placards, this action demonstrates that the men did not consider themselves as having been discharged but were actually on strike, or continuing the strike of that morning. The evidence is plain that these placards were used only temporarily and were replaced with lockout signs as soon as the Union could secure the same. While the language or slogan adopted by a union in the course of picketing is a circumstance to be considered in determining the purpose or object of such action it is certainly not a conclusive or controlling factor, at least in cases of this character. The Company assertion is therefore rejected. The undersigned therefore concludes and finds that the Company discharged all of its striking employees on May 2 because of their membership in and activities on behalf of the Union, thereby discriminating with respect to their hire and tenure of employment in order to discourage membership in a labor organization, in violation of Section 8 (a) (3) of the Act, and thereby interfering with, restraining, and coercing its employees in the exercise of the rights guar- anteed by Section 7 of the Act, in violation of Section 8 (a) (1) thereof. E. The discharge of Charles Hultman Hultman " was employed by the Company for a number of years as gang leader and had about seven men in his gang including Bailey and Bardinelli. He also "The complaint alleged the discharge of Charles Hultman. At the hearing the dischargee stated his name to be Carl Arthur Hultman, Sr, although he was and is known as Charles Hultman. The General Counsel moved to amend his complaint in this respect, and the undersigned, without objection, granted the motion so that the complaint, as amended, alleges the "discharge of Carl A. Hultman, also known as Charles A. Hultman." PATERSON STEEL & FORGE COMPANY 147 estimated and figured certain work projects for which he received a bonus in addition to his hourly rate of pay. Hultman was working on January 18 when Paterson, as appears above, came into the shop and called a meeting of the employees. That evening when the Company was attempting to conduct a poll of its employees as to whether or not they desired the Union, Robinson told Hultman he could not punch out his time card until he had voted upon that question. Hultman then accused the Company of resorting to "high-handed methods" and that they had no right to do such a thing. He further declared that he had not voted in 20 years and the Company was not going to force him to vote even though his card had been removed, and was being withheld from him. At that point Molloy took the cards from Robinson and Hultman then punched out his time. Again, on the morning of May 2, Hultman protested Bailey's discharge and according to Molloy urged the men not to "let the Patersons put one over on you" and emphatically told them, "I will stick by you." However, Hultman worked that day and in the afternoon, after the striking employees had been discharged, Paterson, Jr., announced that Hultman was the only employee eligible to vote in the election. Subsequent to the employees' leaving the plant property, Paterson, Jr., told Hultman that he would run the hammer for him and that new men would be hired to replace the discharged strikers. Hultman reported for work on May 3 and remained at the plant that day although it did not operate. Similarly, Hultman reported on the morning of May 4, but about 9 o'clock he told Molloy and Robinson he decided to take off a few days to paint at home and "fish a little bit . . . until this situation clarified itself." Thereafter, about May 8, Hultman joined the pickets at the plant and remained with them until about September 12. On June 26, when Baker requested Paterson to reinstate all the dischargees, his only reply was that Charles Hultman would not be reinstated. In early July, Hultman went to the plant to secure his clothes but obviously he was unsuccessful for the Company, on July 5, sent him a letter requesting the combination to his locker and stating the clothes would then be sent to him. The letter also advised Hultman that if he desired a discharge notice to submit a written request to that effect. Upon receiving this letter Hultman went to the plant and requested Paterson to reinstate him to his job. Paterson stated he had nothing to do with the hiring or firing of employees and referred Hultman to Paterson, Jr. Hultman then saw Paterson, Jr., and asked to be reinstated, to which he replied, "Do you want to be reinstated or rehired?" When Hultman said he desired reinstatement Paterson, Jr., answered, "I can't do anything for you." As set forth above the Union, on July 13, requested the reinstatement of Hultman which was refused by the Company. The Company contends that it did not discharge Hultman but that he volun- tarily left its employment. The General Counsel does not contend that Hultman was discharged on May 4, but that the Company in refusing to reinstate him about July 11, thereby unlaw- fully terminated his employment. It is clear from the evidence, and the undersigned so finds, that Hultman openly advocated the Union from the start, that he vigorously protested Bailey's dis- charge, and after the strikers had been discharged and established pickets at the plant he ceased working in order to join his fellow employees on the picket line. In so doing Hultman was engaging in protected concerted activities and the Company's outright refusal to reinstate him upon application because he engaged in such activities is plainly in violation of the Act. (New York Telephone Company, 89 NLRB 383, and cases cited) Further the discrimination against Hultman is fully established upon either of two hypotheses, namely, the discharge 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or the refusal to 'reinstate. The complaint alleged that Hultman was discharged and all the parties knew that the matter complained of was his discrimination because of union activities and that issue was fully litigated at the hearing. In any event the precise manner of discrimination does not seem too important for the Supreme Court in passing upon this question in N. L. R. B. v. Mackay Radio & Telegraph-Company, 304 U. S. 333, 349, stated that the distinction between these forms of discrimination was more technical than substantive and where the labor dispute was still current the men retained their status as employees under the Act, wherefore "the refusal to let them work was a discharge." (Accord: N. L. R. B. v. Reed d Prince Manufacturing Company, 118 F. 2d 874, 888 (C. A. 1).) Under all the circumstances the undersigned is convinced that assuming Hultman was not actually discharged, the Company's action about July 11, 1950, in refusing to reinstate him, upon application, was tantamount thereto, and the undersigned so finds. The undersigned therefore concludes and finds that the Company discharged Hultman because of his membership in and activities on behalf of the Union, thereby discriminating with respect to his hire and tenure of employment in order to discourage membership in a labor organization in violation of Section 8 (a) (3) of the Act, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, in violation of Section 8 (a) (1) thereof. The Unilateral Increase in Wages During October 1950, Paterson, without consulting the Union, called a meet- ing of the employees and informed them that he was granting a 10 cents per hour increase in pay, conditioned upon regular attendance at work, and further promised to grant the employees 1 week's vacation with pay the following year. The Company, by ignoring the Union as the employees' exclusive bargaining representative and by dealing with its employees concerning wages and condi- tions of employment at a time when the Union was attempting to negotiate with it, thereby violated Section 8 (a) (1) and Section 8 (a) (5) of the Act. (Mello Photo Supply v. N. L. R. B., 321 U. S 678, 683-684; Great Southern Trucking Company v. N. L. R. B., 127 F. 2d 180, 186 (C. A. 4).) 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 certain unfair labor prac- tices, it will be recommended that he cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent from on or about March 2, 1950, and at all times thereafter has failed to bargain with the Union as the exclusive representative of his employees in an appropriate unit, it will therefore be recommended that the Respondent, upon request, bargain collectively with the Union. Having found that the Respondent locked out the employees named in Appendix A, for 1 day, January 19, 1950, because they joined the Union and engaged in concerted activities for the purposes of collective bargaining, or PATERSON STEEL & FORGE COMPANY 149 other. muttial' aid or protection, it is recommended that the Respondent make them whole for any loss of pay they may have suffered'by reason of their discriminatory lockout by payment to them of a sum of money equal to the amount they would normally have earned as wages that day, less their net earnings, if any. Having found that the Respondent' about May 2 and July 11, 1950, discrimina- torily discharged Benjamin Bailey and Carl A. Hultman, also known as Charles A. Hultman, respectively, and having further found that the Respondent about May 2, 1950, discriminatorily discharged the employees named in Appendix E, because of their membership in the Union and engaged in concerted activities for the purposes of collective bargaining or other mutual aid or protection, it-is recommended that the Respondent offer to each said employee immediate and full reinstatement" to his former or substantially equivalent position,11 without prejudice to their seniority or other rights and privileges, and that the Respondent make each of said employees whole for any loss of pay which he may have suffered by reason of the discrimination against him, 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 discharge to the date of the Re- spondent's offer of reinstatement, less his net earnings 16 during said period. It is recommended that the loss of pay for each employee be computed on the basis of each separate calendar quarter or portion thereof during the period from the Respondent's discriminatory action to the date of a proper offer of reinstatement. The quarterly periods, herein called "quarters," shall begin with the first day of January, April, July, and October. Loss of, pay shall be determined by deducting from a sum equal to that which each employee would normally have earned for each such quarter, or portion thereof, his net earnings, ifany, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. Ii'order'to insure compliance with the foregoing back-pay and reinstatement provisions, it is recommended that the Respondent shall be required upon rea- sonable request to make all pertinent records available to the Board and its agents.14 In th'e' opinion of'the undersigned, the Respondent's conduct discloses a fixed purpose to defeat self-organization and its objectives. Because of the Respond- ent's unlawful'conduct and its underlying purpose, the undersigned is convinced that the unfair' lalioir practices found are persuasively related to the other unfair labor practices proscribed by the Act and that the danger of their com- mission in the future is to be anticipated from the course of the Respondent's conduct in the past. The preventive purposes of"the Act will be'thwarted unless the recommendations are coextensive with the threats. In order, therefore, to make effective the interdependent guarantees of Section 7, to prevent a recur- rence of unfair labor practices, and to minimize strife which burdens 'and' oli= structs commerce, and thus to effectuate the policies of the' Act, it will -be 14 The complaint discloses, and as d'iscusse'd herein, supra, page 145, that 14 of the dis- chargees were subsequently reemployed by the Respondent at various intervals. The evi- dence is insufficient to make any determination as'to whether valid offers of reinstatement were tendered to the dischargees, or that actual reemployment constituted a valid reinstate- ment in accordance with the "principles and policies of'the Act. However, these questions pertain to compliance with-the recommended order-and may be appropriately considered and dl ided'at thht'time:' !The Chase National Bank'•of the'Caty of'ye'w York, Seis'Juan, Puerto Rico, Branch, 65 NLRB 827. - - 18 See-Crossett Lumber Company, 8 NLRB 440, 497-498. 1x F. W. Woolworth Company, 90 NLRB 289. 944176-52-vol. 96-11 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed by Section 7 of the Act 3fl On the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS of LAW 1. United Steelworkers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees at the Company's plant in Stratford, Connecticut, including shipping and receiving employees and truck drivers but excluding office and clerical employees, professional employees, guards, watchmen, foremen, and supervisors, as defined in Section 2 (11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. United Steelworkers of America, CIO, was on March 2, 1950, and at all times material herein, the exclusive representative of all the employees in the above-described unit for the purposes of collective bargaining within the mean- ing of Section 9 (a) of the Act. 4. By refusing on or about March 2, 1950, and at all times thereafter to bargain with United Steelworkers of America, CIO, as the exclusive representa- tive of the employees in the above-described unit, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By discriminating in regard to the hire and tenure of employment of Benjamin Bailey and Carl A. Hultman, also known as Charles Hultman, and the employees named in Appendices A and B, thereby discouraging membership in United Steelworkers of America, CIO, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 6. By interfering with, restraining, and coercing his employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] 18 See May Department Stores v. N . L. R. B., 326 U. S. 376. 0. B. ANDREWS COMPANY and INTERNATIONAL ASSOCIATION OF MA- CHINISTS, LODGE No. 56, AFL, PETITIONER. Cases Nos. 10-RC-1432 and 10-RC-143S. September 12, 1951 Decision and Order Upon separate petitions duly filed under Section 9 (c) of the Na- tional Labor Relations Act, a hearing' was held before Clarence D. Musser, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 1 The cases were consolidated by order of the Regional Director dated June 22, 1951. 96 NLRB No. 18.