American Manufacturing Co. of Texas

226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union prevented Esparza from being employed on the job , it will be recom- mended that they jointly and severally make him whole for any loss he may have suffered as a result thereof by paying to said Esparza an amount equal to that which he would have earned from July 3, 1950, to July 18, 1950, the date when in the normal course of events he would have been laid off for lack of work, less his net earnings ' during said period. That he was hired for temporary work is plain, but the exact time during which his employment might have continued is somewhat speculative. There was evidence, however, that would justify a finding that he would have been employed until about July 18, and I so find.' CONCLUSIONS OF LAW 1. International Hod Carriers' and Common Laborers' Union of America, Local 300, AFL, and Los Angeles Building and Construction Trades Council are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Paul IEsparza and other employees, by executing and giving effect to an illegal closed- .shop contract, thereby encouraging membership in the Union, Speer has engaged in and is engaging in unfair labor practices within the meaning of Section .8 (a) (3) of the Act. 3. By the conduct stated in paragraph 2, above, Speer has interfered with, restrained , and coerced his employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8 (a) (1) of the Act. 4. By causing Speer to discriminate in regard to hire and tenure of employ- ment of employees in violation of Section 8 (a) (3) of the Act by means of an unlawful closed-shop contract executed by the Council and given effect by the Union, the Union and Council each has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 5. By restraining and coercing employees in the exercise of the rights guaran- teed in Section 7 of the Act, as herein found, the Union and the Council each has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] 8 Crossett Lumber Company, 8 NLRB 440. O Since there is no showing that the Council participated in the conduct affecting Esparza, it will not be recommended that it participate in making him whole . See New Yorit State Employers Association, Inc., 93 NLRB 127. In computing back pay, see F. W Woolworth Company, 90 NLRB 289, to the extent applicable here. AMERICAN MANUFACTURING COMPANY OF TEXAS and UNITED STEEL- WORKERS OF AMERICA, CIO. Case No. 16-CA-233. February 21, 1952 Decision and Order On June 6, 1951, Trial Examiner Arthur Leff issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in, and was engaging in, certain unfair labor 98 NLRB No. 48. AMEIRICAN MANUFACTURING COMPANY OF TEXAS 227 practices, and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dismissal of these allegations. There- after, the Respondent filed "exceptions and objections" to the Inter- mediate Report and the Union filed exceptions and a supporting brief. The Respondent's request for oral argument is hereby denied, as the record, the exceptions,-objections, and brief, in our opinion, ade- quately present the issues and the positions of the parties. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, objections, and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the exceptions and modifications noted below. 1. The Trial Examiner found, and we agree, that the Union's notice to the Respondent on March 15, 1950, about the termination of the unfair labor practice strike constituted an incomplete back- to-work application, which had to be perfected by the individual strikers presenting themselves for work or otherwise making known their availability. As fully set forth in the Intermediate Report, Union Representative Metker, in a telephone conversation on March 15 with the Respondent's general m Inager, Messer, informed Messer that "the local union had voted to call the strike off unconditionally and send all the men back to work who were currently off the job." Messer agreed that the men should report individually to indicate their availability, and to ascertain whether or not their jobs were still available. The Union therefore informed the strikers to make individual applications. Furthermore, the Union itself filed indi- vidual back-to-work applications with the Respondent on behalf of a substantial number of the strikers. Although the Union on March 15 wrote the Respondent that all the strikers were available for work, the letter expressly confirmed the earlier telephone conversation.' The Respondent therefore had no reason to believe that by this letter the Union intended to indicate a withdrawal of the offer to have the strikers perfect individually the Union's reinstatement request. Accordingly, we find, as did the The letter read in pertinent part as follows This iNill confirm our telephone conversation of this date wherein you were advised that the people who were on strike had voted unconditionally to return to work. This is to further advise that all such men involved in the strike have voted to return to work immediately and were, as of our telephone conversation of this date, available for wm 1, 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trial Examiner, that the Union agreed with the Respondent that individual applications by the strikers were necessary to perfect its collective application, and therefore that those strikers who applied, from about 3 to 10 months after the termination of the strike, and those who never applied, abandoned their employment 2 and were not dis- criminated against by the Respondent.' We are not, as the dissent suggests, inferring abandonment of employment by these strikers solely from the fact that there is no evidence that the strike continued. As we have found, the Respondent was notified on March 15 that those strikers interested in returning would apply for reinstatement. Their failure to do so, or to communicate with the Respondent within a reasonable time thereafter, convinces us that they abandoned their employment with the Respondent. The Trial Examiner also found, and we agree, that the Respondent violated Section 8 (a) (1) and (3) of the Act by failing to reinstate, because it had replaced, unfair labor practice strikers who perfected the Union's March 15, 1950, reinstatement application by applying individually for reinstatement.' We further find that whether the Respondent's discrimination against these employees is viewed as a violation of Section 8 (a) (3) or of Section 8 (a) (1) of the Act, or both, the remedy as set forth in Section V of the Intermediate Report, entitled "The Remedy," is appropriate and necessary to cor- rect the unfair labor practices involved herein. 2. In support of his finding that the strike of the 12 foundry em- ployees was a protected concerted activity, the Trial Examiner re- ferred to Douds v. Retail Store Union, 173 F. 2d 764. Whatever the impact of that decision on the rights of minority employee groups apart from a certified representative, we find it unnecessary here to rely on the cited case. As noted by the Trial Examiner, although the Union's international representatives did not authorize the work stoppage of the foundry employees before it took place, the Union itself ratified and approved the strike and dealt with the Respondent concerning it. 3. The Trial Examiner's finding that the Respondent violated Sec- tion 8 (a) (1) of the Act by the coercive remarks of Foreman Sam Gillard to the wife of employee Ernest A. Schulbach is based upon the testimony of Mrs. Schulbach. The General Counsel, however, presented Mrs. Schulbach's testimony in rebuttal for the limited purpose of attacking the credibility of Foreman Gillard, who denied 2 The record does not indicate that the strikers who did not apply continued on strike. 3 The instant case is to be distinguished from one in which a union attempts to waive reinstatement rights of strikers ( Old Town Shoe Company, 91 NLRB 240, 243 ). Here the Union did not attempt to waive such rights. By not making a complete reinstatement request, and agreeing that the strikers would apply individually , it merely left the assertion of their reinstatement rights to the individual strikers. Old Town Shoe Connpany, 91 NLRB 240 , Kansas Milling Company, 86 NLRB 925. AMERICAN MANUFACTURING COMPANY OF TEXAS 229 making the remarks, and not as affirmative evidence in support of the allegations in the complaint. We therefore must find that this incident did not violate Section 8 (a) (1) of the Act.' Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, American Manufacturing Company of Texas, Fort Worth, Texas, its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in United Steelworkers of America, CIO, or in any other labor organization of its employees, by discrim- inating in regard to their hire or tenure of employment, or any term or condition of their employment. (b) Discharging or discriminatorily refusing to reinstate employees for the reason that they engaged in strike or concerted activities pro- tected by the Act. (c) Unlawfully soliciting individual employees, where such em- ployees are represented by a collective bargaining agent, to discon- timie or abandon strike activity. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their 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 con- certed activities for the purpose of collective bargaining or other mutual aid and 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 organization as a con- dition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer the employees named in Schedules 1 and 2 of Appendix D of the Intermediate Report immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, as provided in Section V of the Intermediate Report, entitled "The Remedy." 6In discussing whether Foreman Cecil Clay's back-to-work solicitation of employee B L Parry violated Section 8 (a) (1) of the Act, the Trial Examiner inadvertently referred to incident ( c) in Section F of the Intermediate Report as incident (g). The Intermediate Report is hereby corrected so that the discussion of this incident in the last two paragraphs of Section F will refer to incident ( c) instead of incident (g). 998669-vol 98-53--16 ' 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Make whole the employees named in Schedules 1, 2, and 3 of 'Appendix D of the Intermediate Report, in the manner set forth in Section V of the Intermediate Report, entitled "The Remedy," 6 for any loss of pay they may have suffered by reason of the Respondent's discrimination against them. (c) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other rec- ords necessary to analyze the amounts of back pay due and the rights of employment under the terms of this Order. (d) Post at its plant at Fort Worth, Texas, copies of the notice at- tached to the Intermediate Report and marked "Appendix E." 7 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon re- ceipt thereof and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including 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. (e) Notify the Regional Director for the Sixteenth Region in writ- ing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations of the complaint relating to the employees listed in Schedule 4 of Appendix D of the Inter- mediate Report, as well as such other allegations of the complaint not affirmatively sustained in the Intermediate Report or in the Decision herein, be, and they hereby are, dismissed. MEMBER STYLES, dissenting in part: Unlike my colleagues, I would find that the Union's notice to the Respondent on March 15, 1950, that it had voted to call off the strike unconditionally and send all the men back to work, was a complete and unconditional application for reinstatement. It seems unrealistic to construe Metker's statement to Messer that the strike had been called off unconditionally and that the strikers were being sent back to work as an agreement that there would be no unconditional appli- cation until the strikers applied individually. In this connection it 6 That portion of Section V of the Intermediate Report, entitled "The Remedy," which reads "It is , therefore found that the 12 strikers listed on Schedule A are entitled to back pay from March 6, 1950," is hereby amended to read "It is , therefore , found that the 12 strikers listed on Schedule 1 are entitled to back pay from March 6, 1950." 7 This notice , however, shall be and it hereby is amended by striking from the first paragraph thereof the words , "The Recommendations of a Trial Examiner " and substituting in lieu thereof the words , "A Decision and Order." In the event that this order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." AMERICAN MANUFACTURING COMPANY OF TEXAS 231 is to be noted that Metker's reply to Messer's refusal to reinstate re- placed unfair labor practice strikers was, "I just wanted to let you know the action taken by the local union." Certainly any ambiguity as to whether or not the Union agreed -that individual applications would first have to be made, is clarified by its letter of March 15, 1950, which was unquestionably a clear, complete, and unconditional appli- cation for reinstatement, to which the Respondent made no reply. Nor do I construe the fact that the Union filed individual applications on behalf of some strikers as evidence of the alleged agreement, but rather as an exertion of special diligence by the Union to get the strikers back on their jobs. As the Union's reinstatement request was, in my opinion, complete and unconditional, the Respondent was re- quired to make a valid reinstatement offer 8 However, it illegally refused to reinstate any unfair labor practice strikers it had replaced,9 although it had refused, when requested on several occasions, to iden- tify the strikers who had been replaced, a matter peculiarly within its own knowledge. I would find that the Respondent by its unlawful conditional acceptance of the Union's unconditional offer to terminate the strike and return the employees to work discriminated against all the strikers, and accordingly I would grant them reinstatement and back pay from that date. But even if I were to agree that the Union's application was not complete, I see no convincing reason for departing in this case from the Board's usual practice of affording unfair labor practice strikers the right to reinstatement upon a current request.10 In comparable situations-where there has been no request for reinstatement or the request has been inadequate-it has been the Board's policy to order the employer to reinstate upon application those strikers who have not theretofore applied, dismissing replacements if necessary, and to make such employees whole for any loss of wages they may suffer as a result of the employer's failure to honor such application 11 As a minimum, in certain situations, the Board has required the employer to place unfair labor practice strikers who apply for reinstatement and for whom no employment is immediately available at the time of application, upon a preferential hiring list to be offered reinstatement to their former or substantially equivalent positions before other per- sons are hired for such work, with back pay from the date such em- ployment becomes available to the date the Respondent offers them 6 De Soto Hardwood Flooring Company , 96 NLRB 382 ; Cathey Lumbei Company, 86 NLRB 157. e F. A Laboratories, Inc , 90 NLRB 625, 686, footnote 50. 111 see no warrant foi drawing the conclusion , as my colleagues have done , that the strikers involved here abandoned their employment solely from the fact that there is no evidence that they continued to strike. 11 Crowley's Milk Company, Inc , b8 NLRB 1049 ; Julian Freirich Co , 86 NLRB 542 and eases cited therein 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reinstatement " I do not see why either of these approaches should not be employed here. There may be room for reasonable disagree- ment as to the effect of the Union's request for reinstatement, in this, case. But I can see no basis-even accepting the majority's view on that issue-for depriving these unfair labor practice strikers of the job protection to which, under well established authority, they are entitled. MEMBER HOUSTON took no part in the consideration of the above Decision and Order. Intermediate Report STATEMENT OF THE CASE -Upon a charge and amended charges duly filed by United Steelworkers of America, CIO, herein called the Union and at times the CIO, the General Counsel for the National Labor Relations Board, by the Regional Director for the Six- teenth Region (Fort Worth, Texas), issued his complaint dated December 22 1950, against American Manufacturing Company of Texas,' herein called the Respondent, alleging that the Respondent had engaged in and was engaging iii unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the complaint and a notice of hearing were duly served upon the Respondent and the CIO. With respect to the unfair labor practices, the complaint as amended at the opening of the hearing alleged in substance : 1. That on various dates during the month of December 1949 the Respondent discriminatorily laid off nine named employees in violation of Section 8 (a) (1) and (3) of the Act. 2 That on February 2S, 1950, the Respondent discriminatorily discharged and thereafter refused to reinstate 12 named employees in violation of Section 8 (a) (1) and (3) of the Act. 3 That after the conclusion, on March 15, 1950, of a strike caused by the alleged unfair labor practices referred to in paragraph 2 above, the Respondent, in violation of Section 8 (a) (1) and (3) of the Act, refused to reinstate to their former or substantially equivalent positions, 91 named employees who had un- conditionally applied for such reinstatement, 43 of them until certain subsequent dates specified in the complaint, and 48 of them continuously thereafter. 4. That through certain named supervisory employees the Respondent during February and March 1950, in violation of Section 8 (a) (1) of the Act, (a) warned employees that their collective bargaining representative would not get a contract for S months to 2 years and that those who had signed CIO cards would in the meantime lose their vacations, (b) interrogated employees as to their union membership and activities; and (c) solicited individual employees during the strike referred to above to discontinue their concerted activity. The Respondent, in its answer duly filed, admitted it was engaged in commerce within the meaning of the Act, but denied generally the allegations of the com- plaint charging it with the commission of unfair labor practices. '2 Kangas Milling Company, 86 NLRB 925 ; L. A Laboratories, Inc, 86 NLRB 711 The complaint and other formal papers were amended at the hearing to show the correct corporate name of the Respondent as set out above AMERICAN MANUFACTURING COMPANY OF TEXAS 233 Pursuant to notice , a hearing was held at Fort Worth, Texas , between Febru- ary 1 and February 19, 1951 , before Arthur Leff, the undersigned Trial Examiner, duly d'signated by the Chief Trial Examiner. The General Counsel, the Re- spondent , and the Union were represented by counsel Full opportunity to be heard , to examine and cross-examine witnesses , and to introduce evidence was afforded all parties. At the opening of the hearing , motions of the General Counsel were granted to amend the complaint in certain minor particulars . At that time also, a motion of the General Counsel, to require the Respondent to furnish particulars with regard to certain aspects of its defense, was denied . At the close of the General Counsel's case, the following motions made by the General Counsel were granted without objection : ( a) To amend the complaint by deleting therefrom all allega- tions relating to the layoff in December 1949 of the nine named employees, re- ferred to above in paragraph numbered 1;' (b) to amend the complaint by deleting therefrom the names of the following employees who were among those alleged to have been discriminatorily denied reinstatement after the strike : Allen S . Britton , Orville H. Hudson , J C. Hunter , Sam D .larnigan, Eugene C. Luper, E. H. Mapps , V. 0 Seely, F G Swindle , Jr, Don E . Wheeler, and Sam H. Wray, Jr.;' and ( c) to amend the complaint to conform to the proof with respect to the dates when certain other employees allegedly discriminatorily denied rein- statement were ultimately gi anted reinstatement to their former or substantially equivalent positions . A motion of the General Counsel was granted over the objection of the Respondent to amend the complaint by alleging that the Respond- ent refused on March 6 and 11 , 1950 , as well as on March 15, 1950 , to accept the unconditional application for reinstatement of the striking employees named in the complaint Also at the conclusion of the General Counsel 's case, a motion of the Respondent was granted , over the objection of the General Counsel, to dismiss for want of substantial proof the allegations of the complaint relating to dis- crimination against three of the employees named in the portion of the complaint 1 eferred to in paragraph numbered 3 These employees were L. R Bradshaw, L. E. Mitchell , and C. D. Williams . Another motion of the Respondent to dismiss for insufficiency of proof the allegations of the complaint that the Respondent had violated Section S ( a) (1) by interrogating employees concerning their union membership and activities was granted with the consent of the General Counsel. The Respondent made a number of additional motions to dismiss the complaint as a whole as well as certain specific allegations thereof for lack of proof, but these were denied with leave to the Respondent to renew at the close of the entire case. When such motions to dismiss were renewed, ruling thereon was reserved These motions are now disposed of in accordance with the findings of fact and conclusions of law made below. Counsel for the parties declined to avail them- selves of the opportunity granted them to argue 'orally upon , the record. On April 16, 1951 , briefs were received from the General Counsel , the Respondent, and the Union. Upon the entire record in the case, and from my observation of the witnesses, I make the following : 2 Prior to the motion to amend the General Counsel had litigated fully the subject matter of the deleted allegations With regard to these particular allegations , the amendment is therefore deemed to have the effect of a dismissal with prejudice The employees involved in the deleted allegations were B . D. 1lfoore, C H. Franklin, C. L. Honeycutt , Carl E. Burns, F C. Lemme. G W. Hale, Jacob Carr, H S Corum. and L E. Butler. 3 What has been said in the preceding footnote with regard to the effect of the amend- ment applies equally here 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT American Manufacturing Company of Texas, a Texas corporation, is engaged at Fort Worth, Texas, in the manufacture and sale of oil field equipment and United States ordnance shells. During the 12-month period preceding the hearing, it purchased raw materials consisting of steel, iron, and related products having a value in excess of $1,000,000, of which approximately 75 per- cent was shipped to its Fort Worth plant from points outside the State of Texas. During the same period the Respondent manufactured finished prod- ucts of a value in excess of $1,000,000, of which approximately 35 percent was shipped by it from its Fort Worth plant to points outside the State of Texas. The Respondent admits that it is engaged in commerce within the meaning of the Act, and it is so found. I. THE ORGANIZATION INVOLVED United Steelworkers of America, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the Respondent. Ili. THE UNFAIR LABOR PRACTICES A. Sequence of events On January 13, 1950, the CIO was certified as the collective bargaining agent of the Respondent's production and maintenance employees , superseding the International Association of Machinists which previously had enjoyed con- tractual relations with the Respondent. Negotiations for a contract were begun several weeks later, with the CIO represented at the negotiations by an international staff representative as well as by an employee negotiating com- mittee. At the end of February, when the strike began, the negotiations were still continuing. No formal or regular grievance procedures had in the mean- time been established. On February 27, 1950, a grievance arose in the Respondent's foundry relating to the operation of rattlers on the day shift:' Rattlers are machines commonly found in foundry operations. They are revolving vessels in which castings are placed and tumbled about for the purpose of removing sand and smoothing the surfaces of castings When in operation, the rattlers produce considerable noise and emit a spray of sand dust. The Respondent agreed at the hearing that. the noise and dust were "obnoxious," although it disputed the Union's contention that they created hazardous working conditions. The Respondent has three rattlers in its foundry, one large one and two smaller ones, the large one located immediately adjacent to the area where coremakers and their helpers work, without any separating partition, and the smaller ones located in the cleaning room which is separated from the coremaking area by a 14-foot partition, of which the lower 7 feet is of corrugated sheet metal and the upper 7 feet is of 1/2-inch heavy wire mesh. Normally, the rattlers are not operated on the first shift, but only during the second or third shifts when coremakers and others in the coremaking and cleaning area (except sandcutters and those 4 The foundry. one of several departments in the Respondent's plant . employed at that time about 80 employees distributed over 3 shifts . Just how many were employed on the first shift does not appear The total employee complement in the plant then numbered, approximately 375 AMERICAN MANUFACTURING COMPANY OF TEXAS 235' shop helpers who feed the machines ) are not at work. Before February 27, the rattlers had not been run on the day shift for many months. In late February, however, the Respondent found itself in a position where there had been stored up in the foundry a large surplus of castings awaiting rattling and other cleaning processes preparatory to going to the machine shop. Because this had developed a bottleneck in the Respondent's production schedules, Plant Superintendent Ed Lott instructed Foundry Foreman William Sanders to take corrective measures to expedite the flow of, castings into the machine shop. Consequently, Sanders directed that the rattlers be placed in operation. during the day shift on February 27. 'The start of the rattling operation at' about 12: 30 p. m on February 27 educed an immediate complaint from a number of coremakers. The complaint was made- to Joseph Robinson, a coremaker who was also the president of the CIO plant local and chairman of its negotiating committee. Robinson referred the griev- ance to Lee J. Metker, the CIO staff representative. Shortly before the start of a contract negotiating conference early that afternoon, Metker, in the presence of Robinson and other members of the Union's negotiating committee, advised Plant Superintendent Lott of the employees' complaint.` As explained by Met- ker, the basis of the complaint was that the daytime operation of the rattlers created hazardous working conditions for the men working nearby. Metker tolii Lott the flying dust was injurious to the men's health and the noise was such as to prevent them from hearing warning signals on the overhead cranes. Lott disclaimed familiarity with the situation but promised to look into it and let Metker know. The Union allowed the-grievance to rest there, at least for the time being, and made no further mention of it at the contract negotiating- meeting that afternoon where negotiations were conducted and apparently concluded with regard to the health and safety provisions to be inserted in the contract. Nor was any further mention made of it by the Respondent that day. and the rattlers continued to operate until near the close of the day shift. At about 8: 30 the next morning, the rattlers were again loaded with castings preparatory to continued operations. At that time Robinson inquired of Fore- anan Sanders whether Lott had spoken to him about operating the rattlers on the day shift. When Sanders replied that Lott had not, Robinson repeated to him the complaint ,made to Lott the day before about the hazardous work- ing conditions Sanders' only response was that the work must go on. The- i attlers were not immediately turned on that morning, but at about 12: 30' p. in Sanders notified Robinson that he planned to start the rattlers at about 3 p, m. Nothing further was said by Robinson at the time. During the noon hour, however, a group of about 20 foundry employees, including the 12 who were ultimately discharged, met and agreed that if the rattlers were again started during the day shift they would concertedly walk off their jobs in protest and meet in an alley outside the foundry building At about ' 2 : 30 p. in the Respondent started one or both of the smaller rattlers located in the cleaning room. No sooner did this occur when about 20 foundry employees, almost all of whom worked in the coreroom and cleaning- room, arose and walked out to the alley in accordance with their prearranged plan. They were followed out by Sanders who demanded to know why they were not working.' Sander`s was told that the Respondent's departure from, ' There is a conflict in testimony as to whether other representatives of management were- present at the time. Metker testified that C L. Messer, the Respondent' s general manager, and Harry Graham, ,its personnel director, were also present. This was denied by Messer, Graham, and Lott. -., Robinson in his testimony did not refer to the presence of any man- agement representative other than Lott. Metker's testimony in this respect, to the extent' it conflicts with the testimony of the others, is not credited. 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its usual practice of not running the rattlers when men were working in the immediate vicinity had created dangerous conditions, under which the men were unwilling to work. Sanders agreed to cut off the rattler if the men re- turned to their jobs. At about 2: 45 p. in. the rattler was stopped and the men went back to their stations of work. Shortly afterwards Sanders came to Robinson to inquire why he had acted as spokesman for the group. Robin- son explained that because of the absence of a contract and' a grievance pro-' cedure he had undertaken to speak for the men in his capacity as president of the local. After the first of the two walkouts that were to occur that day. Sanders reported to Superintendent Lott the foundry employees' objections to the operation of the rattler on the day shift and the action they had taken to support their grievance. He also told Lott-although so far as the record shows lie did not tell the men-that he had wet down the rattler, a process which reduces the dust but does not eliminate the noise Lott then came to the foundry, and on his instructions, one of the smaller rattlers was again turned on. It was now about 3 p in , a half-hour before the end of the first shift. Instantaneously with the restart of the rattler operation, 12 of the 20 em- ployees who had walked out earlier that afternoon again arose and left the foundry building. The 12 are those alleged in the complaint to have been dis- criminatorily discharged on February 28, 1950 With exception of 1, W. J Bunch, a cupola tender whose regular station of work at the foundry was some distance away, all worked in the coremaking area of the foundry. In the group of 12 were 7 of the 8 coremakers then employed by the Respondent.° The names of the 12, together with their respective job classification. follow: A J. Hudson Floyd Lenhart O C. Brown W O. Robertson J. J. Robinson Fred Huffman Oliver Jackson W. J. Bunch Clarence Campbell M. C. Mask Wiley Franklin C. J. Smith Coremaker A Coreinaker A Shop helper Coremaker A Coremaker A Coremaker A Shop helper Cupola tender Coremaker A Coremaker A Molder A Shop helper The 12 met as before in the alley, located outside the foundry building on com- pany property. There they were approached by Lott who, addressing Robinson as the spokesman for the group, asked what objections the employees had to the operation of the rattler Robinson, replied that the rattler was noisy,' dusty, and unsafe. He added, however, that if Lott desired to discuss the grievance he would be glad to assemble the Union's negotiating committee with a view toward meeting with Lott and working out a peaceful solution. But Lott refused to discuss the subject further. "Well, for right now," he warned them "either go back to your jobs and go to work or you will be removed from the pay- roll." And when Robinson declared the men would not work with the rattlers running, Lott instructed Sanders to have Godfrey Heidecker, lead man of the coreroom, identify the men in the group of 12 and have their cards removed 6 This is, exclusive of those classified as coremaker C, a classification used by the Respond- ent to describe a shop helper or laborer In the coreroom . There were two in that classifica- tion. AMERICAN MANUFACTURING COMPANY OF TEXAS 237 from the rack. The removal of their cards meant in effect that the 12 were being discharged. When Lott had left, Robinson advised the men in the alley that he would make the rounds of the plant to notify the rest of the Union's negotiating com- mittee what had occurred On his way, Robinson observed that Lott, Sanders, and Heidecker were actually engaged in pulling cards from the rack. Robinson went on to the various plant departments where he apprised the union committee- ment of the recent happenings. He then returned to the 12 and told them to leave the plant property. It was now about 3: 15 p. in., and by this time men were coming out from all parts of the plant. Before leaving the Respondent's premises;'am'announcement•was:made at_the.parking lot that there would be a meeting at the union hall that afternoon. At the union meeting held at 4 It. in , the membership was given a report of what had occurred on that and the preceding clay with regard to the rat- tlers. The membership voted to strike in support of the 12 men who had been discharged that afternoon. The strike, accompanied by picketing of the Respondent's premises, lasted from February 28 until the morning of March 15, 1950' Although the Inter- national of the Union did not give advance authorization to the strike action, it thereafter in effect ratified and approves the action taken by authorizing the expenditures of funds to support the strike and by otherwise upholding the position taken by the strikers. At no time did it assert that it regarded the action taken on the local level as being `wildcat" action. While the strike was in progress, the Respondent continued to operate behind the picket line. Roughly 30 percent of those employed on February 28 crossed the picket lines during the course of the strike. The Respondent sought replacements for striking employees and hired about 73 of them On the first (lay of the strike the Union's international staff representative contacted the Respondent to seek a meeting to negotiate a settlement, but because of the unavailability of the Respondent's attorney, no meeting was held until March 6. On that (lay the CIO submitted a written strike settle- ment proposal The Union proposed: (1) That settlement of the terms and conditions of the contract then under negotiation should not be made a condition precedent for the settlement of the strike, and (2) that all employees then off the job should be returned to work immediately "without reservation or qualification, other than that the company accept its obligation under the Labor Management Relations Act to bargain with the [Union] with respect to wages, hours and other conditions of - work-.", The. Respondent, rejected, the proposal. In substance the Respondent's position was that it would not reinstate the 12 foundry employees whom it had discharged; that it would not return those employees who had been guilty of misconduct on the picket line; and that it would not displace replacements to make room for returning strikers. The Respondent expressed its willingness, however, to accept the return of all striking employees who had not been replaced and who did not fall within the excluded categories indicated above At a later meeting held on March 11, the Union proposed to return to work all employees who cared to report with the exception of Robinson, and to have his case adjudicated by the Board as a test case, the outcome of which would determine whether the remaining discharged foundry employees should be entitled to retain their Although the strike was called to support the 12 men who were discharged, the picket signs that were carried made no reference to the discharges or to the events leading to it. he legs. ds'on'the pieketasigns refeied,.to the absence of it contract and to allegedauh- standard wages paid by the Respondent. 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jobs. The Respondent rejected this proposal as well, reiterating its previous position with regard to the 12, and adding that its gates were still open for all -who wanted to come back, except those who had been replaced or had been -guilty of misconduct.8 The Respondent failed, however, to comply with the Union's request that it supply the names of those claimed to be guilty of misconduct. At a union meeting held on the morning of March 15, attended by about 460 to 75 employees, the membership voted to accept the recommendation of its negotiating committee and of the CIO staff representatives that the strike be called off and that the striking members apply unconditionally for their old jobs. Immediately after the union meeting, Staff Representative Metker of the CIO telephoned General Manager Messer of the Respondent and informed him of the action taken at the local union meeting. Messer expressed his -pleasure, but advised Metker that although the Respondent would take back .all it could use then, it would not displace replacements ; that it would take some time before some employees would be restored to their jobs, and that .some of them could not expect ever to be restored.' In a letter to the Respondent written later that day, Metker confirmed his telephonic advice to Messer. Upon the conclusion of the strike, or shortly thereafter, a substantial num- ber-although by no means all-of the employees who had failed to report for work during the strike called at the plant and individually applied for their former jobs. In general-but with deviations that will be indicated -below-the Respondent pursued the following policies with regard to returning ,strikers : (1) None of the 12 foundry employees whose walkout on February 28 had -precipitated the strike were permitted to return to their jobs, even though they had not been replaced. As to them the Respondent's position was and still is that they had been discharged for insubordination and were no longer entitled -it) the status of employees. (2) Striking employees who the Respondent claimed had engaged in improper -conduct on the picket line were denied reinstatement on that account. There -were several in this category. Of these, only one-E. A. Schulbach-is alleged in the complaint to have been illegally discriminated against, the General 'Counsel having apparently satisfied himself in the course of his investigation that the Respondent's action was proper with respect to the others. (3) Striking employees whose positions had not been filled during the strike and for whom work was available were-with certain exceptions noted below- restored to their former positions without loss of rights. As to them, there -is, of course, save for the exceptions, no claim of discrimination in this case. (4) Striking employees applying for their jobs before March 29, 1950, who had been replaced during the strike or for whom jobs were not otherwise .available, were denied immediate reinstatement to their former jobs, the -Respondent declining to lay off any replacements to make room for returning strikers. In some but not all cases returning strikers in this category were offered positions in lower classifications. Those reporting back before March 29, 1W')0, and not immediately reinstated to their foriner positions-again with 8 Although Metker testified that on March 11 the Union also suggested that the Respond- ent reinstate all strikers except the 12, leaving their case to be adjudicated by the Board, h s testimony on cross-examination reveals that this was not made as a definite offer, but was merely mentioned as a suggestion to which the Union might give consideration. e Although Messer denied telling Metker that ceitain employees could never expect rein- statement, I credit Metker's testimony to that effect, since it is consistent with the -position the Respondent had maintained up to that time AMERICAN MANUFACTURING COMPANY OF TEXAS 239 cei tarn exceptions to be noted below-were placed upon a preferential list for recall to jobs in their former classifications when vacancies subsequently arose. (5) Employees who did not personally report for work on or before March 29, 1950, were terminated on the records of the Respondent that day, regardless of whether or not they had been replaced, the Respondent making no effort to communicate with them to determine whether they were available for work. The few in this group who subsequently applied for work were, with one exception, considered and treated as applicants for new employment. B. The issues The broad issues to be resolved are these: (1) Was it an unfair labor practice for the Respondent to discharge and thereafter refuse to reinstate the 12 foundry employees who left their jobs in protest of the rattler operation (.n February 28, 1950? (2) Was the strike which followed one that was caused or prolonged by the Respondent's unfair labor practices? (3) Did the Respondent illegally discriminate against the individual employees named in the complaint to whom reinstatement was denied or delayed after the abandonment of the strike? There is also in issue the question of whether the Respondent unlawfully (trenched upon employees' statutorily guaranteed rights by soliciting individual employees to return to work during the course of the strike, and by the utterance ^cof certain alleged coercive statements. Because this issue lies outside the main stream of the central issues of the case, the facts relating to it have not yet been reported, and its consideration will be deferred until the other issues have been disposed of. ' C. The discharge of the 12 foundry employees as an unfair labor practice Were the 12 foundry employees illegally discharged, as the General Counsel (contends, because they had exercised their statutory right to engage in concerted activities for their mutual aid and protection? Or were they validly discharged for insubordination, as the Respondent contends, because they left their stations ,of work and refused during working hours to heed the instructions of the plant superintendent to return? As has been seen, the 12 employees in question, acting in concert, ceased work in support of their grievance against the Respondent with regard to the day-shift ,operation of the rattlers. It is immaterial whether their purpose was simply to secure a meeting to discuss the grievance which previously had been presented or to 'exert collective pressure upon the Respondent to eliminate the cause of .their grievance. Under either view, their action constituted a form of con- ,certed activity for mutual aid and protection. As the day-shift operation of the rattlers was a matter directly relating to their conditions of employment, and particularly as it represented a change in their preexisting conditions, the employees "enjoyed, under the Act, the protected right to discuss this subject ,collectively with the Respondent, to present grievances and demands with respect to it, and if they saw fit, to reinforce their demands by striking." Pacific Powder •Compuny, 84 NLRB 280, 283-4. The Respondent's claim, on which it places great stress, that there was no merit to the grievance, is entirely beside the point.10 Even if the factual ground of the Respondent's claim be assumed, there 10 The Respondent relies upon opinion testimony of its witnesses to the effect that the (lust and noise from the rattlers, while "obnoxious," was not such as actually to endanger the health and safety of employees in the coremaking area. Whether the Respondent was right and the striking coremakers wrong on the merits of the grievance, is an issue of fact that need not be decided here. for it is not controlling on the inquiry 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would yet be no legal basis for its argument that the concerted action of the employees was unprotected . The right, safeguarded by the Act, to engage in concerted action for mutual aid and protection is not conditioned on the merits of the controversy. The Act does not contemplate that employees engaging in con- certed activity must assume the risk of forfeiting their statutory protection should it later be found as a fact that substantively their grievance was an unjustified one. Although certain types of concerted activity have been con- demned by the Board and the courts as unprotected, it has always been because of the illegality or indefensible character of the method employed on the unlaw- fulness of the objective, never because of the merits of the dispute." It is not for the Board to say whether the employees acted reasonably in undertaking collective action. It is enough that the activity was undertaken in support of what the employees believed, whether mistakenly or not, was a justified grievance against their employer. Firth Carpet Co. v. N. L. R. B, 129 F. 2d 633, 636 (G. A 2) On the record of this case I am fully satisfied that the employees in question believed in good faith that the day-shift operation of the rattlers created hazardous working conditions, and I find that there existed with the Respondent at the time a bona fide labor dispute with regard to such conditions Under circumstances analogous to those present here, the Board, with court approval, has consistently held that work stoppages occurring during w-orkmg hours to present or to force the correction of alleged grievances relating to conditions of employment, constitute not insubordinate conduct, but protected concerted activity for which those who engage in it may not legally be discharged. And this has been so even where it has appeared that the concerted activity was participated in by only a minority of the employees and was followed by a refusal to obey an order to return to work. See, e g., Aldora Mills, 79 NLRB 1, enfd. N. L R. B v Aldora Mills, 180 F. 2d 580 (C. A. 5) ; Kennametal, Inc., 80 NLRB 1481, enfd. N. L. R B. v. Kennainetal, Inc., 182 F. 2d 817 (U. A. 3) ; Greensboro Coca Cola Bottling Company , 82 NLRB 543, enfd. N. L. R. B. Y. Greensboro Coca Cola Bottling Company, 180 F. 2d 840; Gullett Gin Company, Inc., 83 NLRB 1, enfd. as modified, Gillett Gin, Company, Inc. v N. L. R B., 179 F. 2d 499 (C. A. 5) ; Olin Industries, Inc., 86 NLRB 203. But, while not questioning the validity of this rule as applied to unorganized employees, the Respondent contends the situation is different where a certi- fied bargaining agent is on the scene . As the employees in question were represented by such an agent, the Respondent argues that they may not claim the protection of the Act for the reasons that their concerted action was undertaken (1) without the Unions authorization; (2) in contravention of the Union's constitution, and (3 ) "in derogation of the rights"-of the Union with which, alone, "under mandate of law" the Respondent could deal and reach agree- 11 To illustrate, concerted activity has been held unprotected where it was for an unlawful purpose ( Thompson Products, Inc., 72 NLRB 886), or in violation of a contract ( Scullin Steel Company, 65 NLRB 1294 ), or employed methods that were illegal or so indefensible as to overcome Congress ' presumed intent to sanction it, such as a plant seizure (N L. R B. v Fansteel Corp, 306 U. S 240), or a slowdown (Elk Lumber Co, 91 NLRB 333), of a refusal by employees while remaining at work to perform part of their delegated duties (N. L R B v Montgomery Ward, 157 F 2d 486) None of the elements just referred to is present here. There was no breach of contract express or implied, because there was no contract and no established grievance procedure in existence ; there was no plant seizure and no refusal by the employees to leave the Respondent's premises in defiance of Its orders, there was merely a peaceable and orderly withholding by the employees of their services pending settlement of a stated grievance, and it took the traditional form of a complete cessation of work by the participating employees. AMERICAN MANUFACTURING COMPANY OF TEXAS 241 iuent.'= With this position I am unable to agree. The first two points are briefly disposed of. The right guaranteed to employees to engage in concerted activities exists independently, of union sanction and approval It has been held that concerted activity, otherwise lawful, is not removed from the shelter of the Act either by lack of majority authorization, or want of official union approval, or contravention of the internal regulations of the union whose members engaged in the collective action. Republic Steel Corporation, 62 NLRB 1008, 1029-30; Cape Arago Lumber Company, 69 NLRB 572; The Perfect Circle Company, 70 NLRB 526. Cf International Union UAW-CIO v. O'Bi len, 339 U. S. 459. The Respondent's third point, that the employees' conduct was in "deroga- tion of the Union's rights," requires more extended discussion. Although the Respondent cites no case in its brief, it is evident that it is relying on N. L. R. B. v. Diaper Corporation, 145 F 2d 199 (C. A. 4). That case stands for the proposi- tion that where an exclusive bargaining agent has undertaken contract negotia- tions affecting all employees, minority groups within the unit may not, without forfeiting their protection under the Act, interfere with the progress of such negotiations by seeking through strike action to reclaim part of the duties delegated to the exclusive representative to manage and conduct bargaining negotiations for all in the bargaining unit The holding in that case proceeds from the premise that the majority representative, alone, is charged with the duty and possesses the authority under Section 9 (a) of the Act to bargain for all in the unit on matters the statute commits to its exclusive representation, and as to such matters the law imposes upon the employer both an affirmative duty to treat only with the majority representative and a negative duty to treat with no other. Therefore, reasons the Court, "just as a minority has no right to enter into separate bargaining arrangements with the employer, so it has no right to take independent action to interfere with the course of bargaining which is being carried on with the duly authorized bargaining agent chosen by the majority." And where, the Court says, such independent action takes the form of a strike over a matter consigned to the exclusive bargaining authority of the majority union, the strike must be viewed as one in defiance of the Act's provision, and hence outside the contemplated protection of the Act. Draper, however, is not reasonably to be construed as holding that the designation of a bargaining agent automatically strips minority groups of the privilege of engaging in lawfully conducted concerted activities in furtherance of interests falling outside the exclusive domain of a statutory bargaining agent. See Illinois Bell Telephone Company, 88' NLRB 1170, 1175; Hamilton v. N. L R. B., 160 F. 2d 465, 468-9 (C. A. 6)." 12 For factual support of its position, the Respondent points to the fact that the Union's International rather than the local union was the certified bargaining agent, and emphasizes the following provisions of the International's constitution • (1) A requirement that the International be a party and signatory to all collective bargaining agreements (2) A provision reading as follows . The International Union and the Local Union to which the member belongs shall act exclusively as his agent to represent him in the presentation, maintenance, ad- lustnient and settlement of all grievances and other matters relating to terms and conditions of employment or arising out of the employer-eniployee relationship. (3) A provision stating in effect that local unions, their representatives and members, shall have no power to bind the International except where express written authority has been previously conferred (4) A prohibition against strikes called without the approval of the International president. 13 Indeed, the-opinion in Draper itself recognizes that niniority' rights ought to be found preserved in certain situations, for it explicitly states, "We do not mean to ' say, of course, that a strike can be called only by a bargaining union , or that less than a majority of employees will not be paotected «hen they go on strike in protection of their rights." 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bearing in mind the proviso to Section 9 (a) of the Act, as amended after the Draper decision," I think it perfectly clear that the Draper doctrine is inapposite to the facts of the instant case . Here, unlike in Draper, the concerted activity bore no relationship to the pending contract negotiations affecting the entire bargaining unit. On the contrary , all that was involved was a particular grievance regarding a particular working condition peculiar to the place of work of the particular minority group of employees engaging in the concerted action. In short, it concerned a matter that the affected employees , acting as individuals or as a collective minority group dehors the union , were expressly privileged by the proviso to Section 9 (a) of the Act themselves to present and to adjust with the Respondent . The Respondent , to be sure, was under no legal com- pulsion to meet and treat with the employees as a minority group ; but it was not legally prohibited from doing so, and it was privileged , if it desired, to effect an adjustment with the group independently of the Union , provided only it gave the necessary notice to the Union . See Agar Packing d Provision Cor- poration, 81 NLRB 1262, 1264-5. Contrary to the Respondent's assertion, it would not have been violative of "the mandate of the law" for the Respondent to have dealt with the striking employees on the grievance . Nor would it have been "in derogation of the rights of the Union"; since the privilege the proviso grants individuals and groups to adjust grievances is one that exists inde- pendently of the exclusive bargaining rights of the certified representative. See Douds v. Retail Store Union, 173 F. 2d 764 ( C. A. 2). The concerted activity undertaken by the 12 employees in question , aimed as it was at bringing pres- sure upon the Respondent for the adjustment of their grievance , cannot thus be said to have been illegal in purpose or in defiance of the Act's provisions. And, consequently, it cannot be concluded on the basis of the reasons the Respondent would assign that the employees' concerted activity was removed- from the protection of the Act. In finding as I do that the employees were engaged in a protected concerted activity, I do not mean to suggest that the Respondent was helpless to cope with- the situation. By concertedly ceasing work , the 12 employees assumed in. effect the status of economic strikers . The Respondent was not obliged to comply with their demand ; it could require them to leave its premises while they chose to remain on strike ; and it was entitled to replace them without incurring any obligation to reinstate them if their positions were filled before- they abandoned their strike activity and unconditionally applied for rein- statement . But it could not, by summary discharge, as it did here , penalize- them for having chosen to exercise their statutorily protected right to engage in concerted activities for mutual aid and protection . The fact that the Re- spondent may have regarded the employees ' conduct as insubordinate does not absolve it of liability . As it is per se a violation of Section 8 (a). (1) of- the Act for an employer to discharge employees for engaging in concerted activity protected by Section 7, it is immaterial that the Respondent's action- was not motivated by union animus or ill intentions . See, e. g., N. L. R. B. V. Le Tourneau Company, 324 U. S. 793, 797 ; Republic Aviation Corp. v. N. L. R. B , 324 U. S. 793 ; N. L. R. B. Y. Gluck Brewing Co., 144 F. 2d 847 (C. A. 8 ) ; Home- Beneficial Life Insurance Co v. N. L. R B., 172 F. 2d 62 (C. A. 4). 14 The proviso to Section 9 (a) now reads : Provided , That any individual employee or a group of employees shall have the right- at any time to present grievances to their employers and to have such grievances- adjusted , without the intervention of a bargaining representative , as long as the adjustment is not inconsistent with the terms of a collective -bargaining contract or- agieement then in effect : Provided further, That the bargaining representative has, been given opportunity to be present at-such adjustment. AMERICAN MANUFACTURING COMPANY OF TEXAS 243. Upon all the evidence it is found that by discharging A. J. Hudson, Floyd Lenhart, O. C Brown, W. O. Robertson, J. J. Robinson, Fred Huffman, Oliver Jackson, W. J. Bunch, Clarence, Campbell, M. C. Mask, Wiley Franklin, and C. J. Smith, and by thereafter refusing to reinstate them, for the reason that they engaged in concerted activities for mutual aid and protection, the Re- spondent interfered with, restrained, and coerced their employees in the exercise of rights guaranteed by Section 7 of the Act. And since, as the Board has frequently held, the discharge of employees for engaging in protected con- certed activities has the necessary effect of discouraging union membership, it is further found that by such conduct the Respondent also violated Section S (a) (3) of the Act." Whether the discharges be regarded as in violation of either 8 (a) (1) or 8 (a) (3), or both, it is found necessary in order to ef- fectuate the policies of the Act to order reinstatement and back pay for the discharged employees as provided in the section entitled "The Remedy," below- D. The strike of March 1 to 15, 1950, as one caused and prolonged by the Respondent's unfair labor practices It is clear from the record, and it is found, that the strike beginning on March 1 was immediately precipitated and caused by the Respondent's illegal discharge of the 12 foundry employees. It was on that express issue that the local membership voted to strike The legends on the picket signs, referring to the absence of a contract and substandard wages, indicate, to be sure, that once begun, the strike also had economic objectives. But the law is settled that a strike directed against an employer's unfair labor practices does not lose its character as an unfair labor practice strike simply because it may also have economic objectives. See N. L R B. v. Remington Rand, Inc., 94 F. 2d 862, 872 (C. A. 2) ; N. L R. B. v. Stackpole Carbon Co., 105 F. 2d 167, 175-6 (C. A. 3) ; Happ Bros., 90 NLRB 1513 And on the record of this case I am convinced that no strike would have occurred, at least at that particular time, were it not for the Respondent's unfair labor practices in discharging the 12. It is the General Counsel's theory that the strike was prolonged as well as caused by the Respondent's unfair labor practices. He contends that the Respondent violated Section 8 (a) (1) and (3) of the Act in rejecting, on March 6 and again on March 11, 1950, what he characterizes as the Union's unconditional applications for the reinstatement of the striking employees. I am unable to agree that the Union's applications on the dates mentioned were unconditional. The applications contemplated the Respondent's acceptance of the return of all striking employees. This would have included those who the Respondent claimed were guilty of misconduct on the picket line and the 12 employees whose discharge on February 28 had been the cause of the strike. In view of the Respondent's refusal to supply the names of those who it claimed were guilty of misconduct, I have some doubt whether the Union's application may be considered conditional in this respect. But that is a point on which I need not pass. For I am convinced that the applications in any event were rendered conditional by the requirement implicit in the Union's proposals that the 12 discharged employees be reinstated to their former positions. In reaching this conclusion, I am aware that the 12 as illegally discharged employees, were then entitled as a matter of law to reinstatement to their former jobs. This, however, does not alter the fact that their dis- charges preceded the strike and were its precipitating cause. In insisting 16 See Worthington Cr eameiy and Produce Co., 52 NLRB 121, 122-3; Globe TVareless, Ltd., 88 NLRB 1262; Kennametal, Inc, 80 NLRB 1418, enfd N L. R B. v. Kennametal, Inc, 182 F . 2d 817 (C. A. 3) ; Cyril de Cordova & Bros , 91 NLRB 1121. 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon the reinstatement of the 12 along with the other strikers, the Union was thus seeking more than a restoration of the status quo as of the time the strike began. It was declaring in effect that the strike would be continued unless the Respondent remedied the very unfair labor practices against which the strike was directed. In these circumstances the Union's proposal of March fi and 11 may not be viewed as unconditional requests for reinstatement. See Foote & Davis, 66 NLRB 416. But while the Respondent's rejection of the conditional applications on March 6 and 11 was not violative of the law as to the strikers generally, its flat refusal on the dates mentioned to reinstate the 12 foundry employees did constitute an additional unfair labor practice. Although the Respondent had already discriminated against these employees, its refusals to reinstate them for the reason that they had previously engaged in protected concerted ac- tivity, constituted with respect to them separate, distinct, and independent violations of Section 8 (a) (1) and Section 8 (a) (3). J. A. Bentley Lumber Company, 83 NLRB 803; Brezner Tanning Co., Inc., 50 NLRB 894, enfd. 141 F. 2d 612 (C. A. 3) ; Moltrup Steel Products Company, 19 NLRB 471, enfd. 121 F. 2d 612 (C A. 3). This additional violation, it is found, was of a nature which tended to, and actually did, prolong the duration of the strike. E. Discrimination in reinstatement of strikes s We turn now to consider the allegations of the complaint relating to discrimi- nation in the reinstatement of individual strikers-other than the 12 whose cases have already been considered. - At the hearing the Respondent classified the employees named in the complaint into the following groups : (1) Employees who reported for work but whose jobs at the time of reporting had been filled by replacements ; (2) employees who reported for work but who were not returned because no work was then available in their job classification; (3) employees who reported for work but refused to accept proffered work in their former job classification because it was on •a different shift; (4) employees who never reported for work after March 1, 1950; (5) employees who did not report for work prior to March 29, 1950, but who later reported for work; and (6) employees who reported for work but were not reinstated for other reasons." Since the categories as framed by the Respondent lend themselves to orderly treatment, the cases of the individual employees named in the complaint will be considered along the lines and in the order indicated. 1. Employees who reported for work at or about the time of the conclusion of the strike, but whose jobs had been filled by replacements during the strike There are 28 employees who, according to the Respondent's classification, fall within this category. These employees had worked before the strike but had absented themselves during most of the strike, it is found, because of their support of the Union's strike activity. In most cases the employees upon re- porting for work were offered jobs in lower classifications paying in most in- stances lower rates of pay. The jobs thus offered, it is found, did not represent substantially equivalent employment. Six of the employees in this group ac- cepted employment in such lower classifications ; the others did not. Except for 3, all employees in this group, including those who accepted lower classified 10 There were also other classifications, but all employees falling within such other classifications were dropped from the complaint, either upon motion of the General Counsel to amend the complaint , or upon-order of the Trial Examiner ,granting motions of the Respondent to dismiss for insufficiency of proof. The cases of such employees, therefore, will not be reviewed in this Report. AMERICAN MANUFACTURING COMPANY OF TEXAS 245 positions on reporting, were on subsequent dates offered their former or sub- stantially equivalent positions. The 3 employees who, it is found, have never been offered such reinstatement, are G. H. Grimes, who was the financial sec- retary of the Union ; A. A. glaughter , who was on the Union's bargaining com- mittee; and Floyd B. Gillean, with respect to whom the Respondent claims it made an inadvertent mistake. Attached hereto as Appendix A is a tabulation of the pertinent facts that are here found to relate to each of the individuals in this category : their classifi- cations and rates as of the time of the commencement of the strike ; the date when each first reported after he abandoned his strike activity and uncondition- ally aplied for reinstatement ; other jobs, if any, offered to each of them at the time of reporting ; those who accepted such other jobs and the classifications and pay of such other jobs; and the dates, if any , when each was offered re- instatement to his former or substantially equivalent position . The data con- tained on the attached tabulation are for the most part self-explanatory and based upon uncontroverted facts . In some respects , however, this is not so, and as to them the following additional observations are in order : (a) The tabulation shows that a number of employees who were classified before the strike as jack assemblymen, and who during the strike had been re- placed by new employees, were offered laborer's jobs after the strike at rates of pay equivalent to what they had been receiving immediately before the strike. The record reveals that the range for the laborer's classification was 85 to 90 cents ; for the jack assemblyman classification , 85 cents to $1.05. Since automatic increases were provided for within ' eacli classification range, jack assemblymen could eventually expect higher rates of pay than laborers. More- over. the character of work performed by a jack assemblyman , who assembled parts, N% as substantially different from the common labor work performed by those classified as laborers In view of these circumstances , it 'is found that laborer's work offered jack assemblymen upon their return did not constitute an offer of substantially equivalent employment. th) What has just been said with regard to the jack assemblymen applies equally to R. H Corrender \\ho held a maintenance B classification before the strike and who on his return was offered a laborer's job. The wage range of the maintenance B classification at the time was 85 cents to $1.05. (c) G H. Davis , it appears , was never offered reinstatement to the specific classification of belt guard maker which he had held immediately before the strike. However, on April 4, 1950, he was given the job of machine operator B. It is found that this classification was at least substantially equivalent to his former position , and that in fact he obtained reinstatement as of the date mentioned. (d) A. J. Linderman , according to secondary data presented by the Respondent, was notified on May 31, 1950, that his former job was available, although lie did not actually return on that job until June 9, 1950. Linderman testified that he was first notified by a telephone call on June 8, and that he received no message before that day. The Respondent made no effort to overcome Linder- man's oral testimony by direct evidence showing precisely the manner in which it claimed the alleged earlier notice was sent to Linderman. Consequently, the testimony of Linderman is accepted , and it is found that he was not offered reinstatement to his former job until June 8, 1950. (e) A. A. Slaughter, who before the strike was a machinist earning $1.45 an hour, applied for reinstatement on March 15, and several days later was offered a laborer's job at 90 cents an hour. Slaughter accepted the laborer's job but, after working several days, quit it to accept a sheet metal job with another 998660-% of 98-53-17 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employer. Ile was never thereafter offered reinstatement by the Respondent to the job he held before the strike . There is a conflict in the testimony con- cerning the circumstances under which he quit. According to Slaughter, he told Personnel Manager Graham when he quit than he could not make a living at the laborer's job and was quitting on that account, but that he was not quit- ting his job in the machine shop and would expect to he called hack when a machinist's vacancy occurred. According to Graham, on the other hand, Slaughter told him he was quitting because he had finally obtained a job lie had long been after and that it would not have made a difference if he were then working as a machinist. Because of that statement, Graham's testimony inti- mates, Graham assumed that Slaughter was no longer interested in any job as a machinist or otherwise and did not thereafter recall him ki hen machinist's jobs arose. Graham's testimony that Slaughter expressly stated that he would have quit even if he then held a machinist's job impressed me as an embellishment on what actually was said, just as slid Slaughter's testimony that he expressly stated that he was not quitting his job in the machine shop. I do not believe that anything was said on that specific point. Several days before Slaughter quit his job as a laborer, lie had forwarded to the Respondent through the Union a written application for reinstatement which expressly stated on its face that it was to be regarded as a continuing application. On the basis of all the evi- dence before, me, I do not believe that Slaughter's quitting of his laborer's job operated as a waiver of his claim to reinstatement as a machinist, or justified the Respondent in concluding that he had abandoned his claim or right to that position. I so find. I further find that the Respondent continued under a legal obligation to reinstate Slaughter to the position from which he had been dis- placed during the unfair labor practice strike. (f) Rufus Key testified that lie reported for wort; on -March Li and not on -March 18 as found. However, Graham's testimony to the contiar3 appears to be based upon written records contempoianeously prepared, and his version is accepted It is found that upon reporting for work after their abandonment of the strike, the employees named in Appendix A unconditionally applied for reinstarement to their former or substantially egnrr alert positions. Under iti ell-established principles of law, the employees, as unfair labor practice strikers, were entitled to absolute reinstatement to their positions wwhiih had been filled by replacements during the strike, even though this might have required the discharge of the replacements It is found that, by failing and refusing to reinstate G. H. Grimes, A A. Slaughter, and Floyd B Gillean to the positions they held before the strike on the dates they respectively reported for work, and at all times thereafter, and by failing and refusing to reinstate each of the other employees named in Ap- pendix A from the date each reported for work to the subsequent date when lie Nias offered such reinstatement, the Respondent discriminated viith regard to their hire and tenure of employment and terms and conditions of employment, thereby discouraging membership in the Union which had conducted the strike as well as in a labor organization generally. It is further found that the Re- spondent thereby also interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Linployees who reported for work shortly after the conclusion of the strike, lint who were not immediately returned to their jobs, because, according to the Respondent, no work was then available in their classifications There are nine employees listed by the Respondent as falling 'within this category. Five of them upon reporting were offered jobs in different and lower A1\4E,RICA_. MANUFACTURING COMPANY OF TEXAS 247• paid classifications. Only one accepted that offer, and he was later returned to his original classification. The others on various subsequent dates, ranging approximately from 2 to 9 months after their dates of reporting, were either offered their former jobs or were returned to work in classifications which, it is found, were at least substantially equivalent to their former jobs. The relevant data relating to the employment histories since the strike of each of the indi- viduals in this group, as compiled from information submitted by the Respondent, are tabulated in Appendix B, hereto attached.' The Respondent's defense with respect to the employees in this group appears to proceed on the assumption that, upon their return from the strike, they were entitled to no more than the rights normally accorded to economic strikers, that is to say, to preferential reemployment rights in their old or substantially equivalent jobs when and if job vacancies arose. Even if this were a correct assumption, it does not appear that the Respondent fulfilled its obligation to all in this group Thus, in the cases of Bufflngton, Key, and Snitth, classified before the strike as class A lathe operators, it appears that they were also qualified for work as class A machinists, as is evidenced by the fact that each of then was eventually offered a job as a machinist A rather than as a lathe operator A. Yet the record shows that before altering them jobs in the machinist A e'assificection the Respondent actually hired a number of new employees in the same classi- fication" ]n the cases of Ingram and Polk, it appears that the sandcutter jobs they held betore the strike were not essentially different in kind froin jobs performed by employees classified as laborers, and carried substantially the same rates of pay" Indeed, the Respondent itself recoguiz,^d the substantial equiva- lence of the two classifications \\lien it recalled Ingram as it laborer. Y t the Respondent not only hired during the strike many new employees as laborers, NA hom it failed to displace to make room for Ingram and Polk, but after the strike it also hired a number of employees for laborer's work before recalling them. In the case of Powell, the record appears to contradict the Respondent's asser- tion that no work was available for him. According to Personnel Director Graham's testimony, there is no essential difference between a class C core- maker-Powell's classification before the strike-and a shop helper2° That being so, it follows that when Powell was offered a helper's job (at a lower rate) after the strike, there must have been available for him work similar in kind to that which he had performed in the pasta' In case of B'ood, it appears that althodgh still carried on the Respondent's records as a lathe operator C, he had actually been assigned for some months before the strike on work as a machine operator B. The Respondent's records show that between the time lie applied for reinstate- 11 It will be noted that Buffington, Key, and Smith, who before the strike were classified as class A lathe operatois, were offered, on May 31, 1950, positions as class A machinists. The two classifications carried the same rate range and, it is found, were substantially equivalent. It will be noted also, that Powell was never offered his foinier position. However, the position of inspector B' which lie accepted on August 29, 1950, is found to be at least a substantially equivalent position The August 14. 1950, date, listed as the time when Ingram was offered his former or substantially equivalent job, is intended to indicate the date when he was restored to his sandcutter classification. However, on June 5, 1950, lie was offered, and lie accepted, a job as a laborei and this is found in his case to have been substantially equivalent employment. 1" On May 23, 25, 26. and 30, 1950. 11 The classification range for laborers at the time was 80 to 90 cents ; for sandcutters 85 to 90. 20 The classification range for a coremaker C was 85 to 95 cents ; for a shop Helper 85 to 90 cents. y Powell, of course, was entitled not only to reinstatement to his former work but to his former rate, and the offer of an equivalent job at a lower rate cannot be viewed as an offer of substantially equivalent employment. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment and the date he was offered his old job, the Respondent on a number of occasions , beginning about March 31, hired new employees in the machine oper- ator B classification. However, determination of whether the Respondent discriminated against employees in this group is not controlled by the considerations indicated above. The assumption on which the Respondent proceeds is basically an erroneous one. As unfair labor practice strikers, the employees in question were entitled, upon their abandonment of the strike and unconditional request for reinstatement, to lay claim not only to their former positions but to all seniority and other rights and privileges in such positions which they had held before the strike and which by virtue of their continuing status as employees they still retained This does not mean, of course, that if at the end of the strike the Respondent required fewer men in their work classifications than it did before, it was nevertheless required to create additional positions to make room for them. But it does mean the Respondent was required to give due regard to such preferential rights and privileges as the striking employees normally would have enjoyed in such jobs as were then distributable, and that it could not treat such rights and privileges as having been diminished in any way by reason of their strike activity. The applicable rule, as expressed by the Board in 1Vcaho ff Packing Company, 29 NLRB 746, 768, is that where, as here, a strike has been caused by the unfair labor practices of an employer, the striking employees are, in the absence of a valid cause for discharge, entitled to reinstatement to their former positions upon request, and that if necessary to make positions available for the applicants for reinstatement, the employer must discharge any new employees hired during the strike and must displace such nonstrikers or strikers who have pre- viously abandoned the strike as would be normally replaced by the appli- cants for reinstatement under the employer's normal layoff and rehiring policy. ' On the record here, I am satisfied that the Respondent in denying reinstate- ment to the employees listed in Appendix B, considered as a group, ignored these nondiscriminatory rules of reinstatement, just as it did with respect to the employees listed in Appendix A Here we do not have a situation where at the end of the strike the Respondent had no need for any employees in the classifications held by those in the particular group we are now considering. It is somewhat misleading to catalogue this group, as the Respondent has un- vittingly done, as including those strikers for whom, when they reported for work, "no work was then available in their classifications " The record un- nnstakably shows that work was in fact available in each of the classifications occupied by those in this group and that the Respondent had employees actually working in such classifications at the time, even though less work existed and fewer employees were requited. Since, as rioted, the employees named in Apl endix B, upon unconditionally reporting for work at the end of the strike, retained their full status as employees including all prestrike rights and prix-, ileges inherent therein, just as if they had not gone on strike, they were entitled to compete in the normal manner for such jobs as were available, and the Respondent was required to allocate such jobs to eligible emp'oyees, strikers, and nonstrikers alike, on the basis of the same nondiscriminatory considerations that would have governed it in a reduction in force at the time ^ The Respondent cannot contend that the assignment of all available lobs to nonstrikers during the strike operated in effect as a replacement of strikers in such preferential job retention rights as the strikers might then have had were they present to claim them. Unlike economic strikers, employees who strike as a consequence of their employer 's unfair labor practices are entitled upon their return to displace their replacements. AMERICAN MANUFACTURING COMPANY OF TEXAS 249 The Respondent's established policy governing layoffs and restoration of work- ing forces applied the principle of seniority in job classifications within a de- partment, and gave an employee subject to being laid off the right to replace any employee with less classification seniority in any of the classifications in which he had served in the past.2d To avoid preferential treatment of nonstrikers and concomitant discriminatory diminution in the job rights and privileges of those who did not return until after the strike, the Respondent should have taken into account its normal layoff policy in determining whether returning strikers were entitled as against others to such jobs as were then ai ailable for all. But this the Respondent did not do. Although the record does not show the relative seniority standings between the employees listed in Appendix B and those who actually occupied jobs in their respective classifications when they applied for reinstatement, it does show without dispute that, in deciding whether or not the listed employees should be returned to their jobs, the Respondent disregarded entirely-and it is reasonable to infer in fact violated at least with respect to some in this group-their seniority privileges and normal job retention rights. The only policy the Respondent followed-and this it appears was also not with- out its exceptions-was that employees who already occupied jobs, including re- placements for striking employees, had a prior right to their retention ; that re- turning strikers were to be considered on a first come, first served basis only if additional employees were needed in their classifications when they reported; and that those for whom no vacancies existed at the time were entitled merely to be placed on a preferential listing for future employment. However proper this pblicy might have been in the case of economic strikers, it failed to comport with the Respondent's statutory obligations toward the unfair labor practice strikers here involved It is accordingly found that, by adopting and applying with respect to the employees listed in Appendix B a reinstatement policy winch wholly disregarded and failed to take into account the rights and privileges which, but for their absence on strike, they would have enjoyed in the retention of jobs, the Respondent discriminated against them in violation of Section 8 (a) (3) of the Act, and thereby also violated Section 8 (a) (1) of the Act. The question of how and to what extent this discriminatory policy affected in- dividual employees listed in Appendix B, and the measure to which each such employee is entitled to remedial relief, are matters best left for precise deter- mination at the compliance stage of this proceeding. It is necessary here only to indicate the general standards to be applied Having found that the employees listed in Appendix B were discriminated against as a group because of the reinstatement policies the Itespondent adopted as to their, and in order to effec- tuate the policies of the Act, the usual back-pay remedy will be recommended for each of them for the period between the (late lie applied for reinstatement and the date he was offered or given substantially equivalent employment, whichever is the earlier It may be that some employees in this group would not have been entitled to earlier reinstatement even had the Respondent followed a nondiscrimi- natory reinstatement policy. The recommended order allows for that. rt is contemplated that in determining the amount each employee normally would have earned during the back-pay period applicable to him, consideration shall be given to facts, should they appear, showing that during the whole or portions of that period no work would in any event have been available for him even had the Respondent not adopted and applied its discriminatory policy Thus, no back 23 This policy had been incorporated in the Respondent's la,t contract with the I A M. After the expiration of that contract, the Respondent had applied that policy in it reduction in force and recall of employees in its .Tohn Deere department A substantially similar policy was embodied in the Respondent's contiact with the CIO, executed in August 1950. 250 DECISIONS OF NATIONAL LABOR RELATIONS , BOARD pay is to be computed for any employee during periods or portions thereof'when all jobs in classifications to which he was entitled to lay claim would have been closed to him in the absence of discrimination, for the reason that all such jobs were then (a) filled by employees with greater retention rights and/or (b) subject to the prior claims of other employees with greater retention rights who, although not then actually working, are found in this Report to have been discriminated against and entitled to the recovery of back pay for the same period or portions thereof. 3 Employees who reported for work, but who, according to the Respondent, were not immediately returned to work because they refused to accept proffered work on a shift other than the one worked on before the strike. There are five employees listed by the Respondent in this grouping All had worked on the second shift before the strike After the strike, operations on this shift were substantially curtailed and no work was available in certain classifications for some time. The employees in this category, according to the Respondent's claim, were all offered work in their respective classifications on the first shift, declined to accept that shift assignment because they were attending school, were then placed upon a preferential list, and were subsequently recalled when their former work operations on the second shift Ni ere resumed. One employee listed by the Respondent. E E, Campbell, I find does not properly belong in this group. The following appears from Campbell's credited testi- mony : Upon reporting for work at the termination of the strike, lie was told by Personnel Director Graham that the only job open for him was as a laborer on the first shift. Campbell agreed to accept it, and made arrangements to drop out of the school he had been attending during the clay. When be re- turned the following day, he was told by Graham that the proffered job had been filled and no other vacancy was open. Thereafter, he called on the Respondent several times with the same result In early June, Campbell was notified that there was an opening in his jack assemblyman classification on the first shift, he accepted it, and on June 6, 1950, returned to work Ten days later he was offered, and accepted , a transfer to the second shift: 4 The question now is whether Campbell was discriminated against between March 15 and June 6, 1_950 I find that he was. The documentary evidence shows that during the strike the Respondent hired 14 new employees in the jack assemblyman classi- fication. and that all but 1 or 2 of them were retained in the Respondent's employ after the strike As an unfair labor practice striker, Campbell had a prior claim to his job as against replacements As Campbell indicated his willing- ness to accept work on the first shift , the Respondent cannot justify its refusal to reinstate him on the plea that no work was available for him. It is found that the Respondent in violation of Section 8 (a) (3) discriminated against Campbell from March 15, 1950, to June 6, 1950, and thereby also violated Sec- tion S (a) (1) of the Act. 24 Graham's testimony differs from Campbell's principally in the following respect.4 Testifying as an ,adverse witness early in the hearing, Graham stated that Campbell flatly declined a job on the first shift because it conflicted with his school attendance Later in the hearing, however, Graham altered his testimony and stated that Campbell, while at first declaring an unwillingness to work on the first shift, changed his mind several days later and agreed to work on the first shift, but by then no jobs were open Graham's altered testimony, it is found, supports that of Campbell in the respects that are here essentially material Graham also denied that he offered Campbell a laborer's job How- ever, Campbell's testimony in that respect is consistent with nncontradncted evidence showing that other lack assemblymen were offered laborer's jobs, when they applied at the end of the strike, it is accordingly credited AMERICAN MAti\`UFACTURING COMPANY OF TEXAS 251 As for the other four 'employees , the Respondent's factual claim is fully supported by the evidence . Thd pertinent information with respect to each of thorn is summarized on the table below : Date Date \ame classification Date offered returned reported former to work shift 11' L Carlisle-------------------- Tool Grinder B----------------- 3-16-50 5-31-50 6- 5-50 Delbert Hunter- ---------------- Shop Helper-------------------- 3-17-50 4- 3-50 4- 3-50 E H Stmebaugh--------------- Painter ------------------------- 3-16-50 7- 8-50 ____------ 3 B Mason---------------------- 3a_k Assembly------------------ 3-14-50 6-14-50 ---------- With regard to these employees, the General Counsel's position is not entirely clear. As nearly as I can make out, his principal contention appears to be, factually, that the curtailment of second-shift operations was attributable to the; Respondent's inability to replace the coremakers who had been discrimina- torily discharged on February 28, 1950, and, legally, that the Respondent may not plead a condition cleated by its own unfair labor practices to justify its failure to reinstate him. Were I convinced of the 1 alidity of the factual premise, I would have been inclined to go along with the General Counsel on this conten- tion. (See Rockwood Stove Works, 63 NLRB 1297, 1209 ) But I am not. True, Personnel Director Graham did testify at one point that the bottleneck in the production of castings , resulting from the Respondent's inability to replace the discharged coremakers, had held up certain second-shift production work which depended on the flow of castings . However, at other points of his examination Grahain qualified his testimony in that respect by asserting that that was neither the sole nor the controlling reason. Moreover, Plant Superintendent Lott directly contradicted Graham's testimony in the respect first noted, by deny- ing flatly that the dischaige of the coremakers had anything to do with the approximately 3-mouth delay experienced by the Respondent in returning to full prestrike operations. According to Lott, the partial suspension of operations was attributable to confusion resulting from the interruption of production during the strike. This, Lott explained, had caused an uneven distribution in the flow of materials to the 1 arious departments and had made it necessary to' curtail certain operations until the scheduling of work could be brought back to normal. To the extent Giaham's and Lott's versions are inconsistent, I think Lott's the more reliable I think so not only because Lott's position as plant superintendent placed him in a better position to know, but also because Graham's testimony, intimating that there was a substantial delay in finding replacements for the discharged coremakers , does not coincide with the documentary evidence. In the group discharged on February 24, there were seven coremakers. By March 17, according to such evidence, the Respondent had succeeded in hiring or having transferred from other positions six coiemakers to fill their places. A seventh was hired on March 31, and an eighth on April 17. This would indicate a substantial restaffing of the coremakers' complement shortly after the end of the strike, and would seem inconsistent with Graham's first explanation of where the Respondent's difficulty lay in returning to full-scale prestrike opera- tions for a period of several months. And while it seems clear enough that the suspension of second-shift operations would not have occurred but for the strike, and the strike would not have occurred but for the Respondent's unfair labor practices, I do not think this chain of events is alone sufficient to support the conclusion the General Counsel would have me reach. Unlike the situation in Rockwood Stove Works, supra, the 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discontinuance of the positions here in question was not an immediate and necessary consequence of the Respondent 's illegal discharge action. For there was an intervening contributing cause, without which there would have been no general disruption of the Respondent 's operations. This was the independent decision of the striking employees to exercise self-help through strike action to remedy the unfair labor practices, rather than to confine themselves to the pro- cedures provided by the Act. The choice made by the employees was certainly a legal one, and from their view perhaps also a necessary one, but it was none- theless one of their own making, and they are scarcely in a position to complain if as a result of that choice the Respondent's operations were so disrupted as to force it temporarily to alter after the strike the precise operational structure that had existed before. An entirely different situation would have been pre- sented, and a different result reached, had it appeared that the Respondent's- decision to alter that structure, by eliminating certain shift operations, was actuated by a purpose illegally to discriminate against employees with a view toward defeating union organization or otherwise interfering with emplo\ee protected rights. Cf. N. L. R. B. v. Somerset Slioe Co, 111 F. 2d 681, 689 (C A 1). But I do not understand the General Counsel to claim that the post-strike cur- tailment of second shift operations was motivated by such illegal considerations. Nor do I regard the record as sufficient to support a finding to that effect. Accordingly, I find that the allegations of the complaint relating to W. L_ Carlisle, Delbert Hunter, E. H. Stinebaugh, and J. B Mason have not been substantiated, and shall recommend their dismissal. 4. Employees named in the complaint who, according to the Respondent, did, not report for work on or after March 1, 1950 The Respondent has listed in this group 27 employees, all of whom were ter- minated on its records as of March 29, 1950. The evidence adduced shows that the cases of 2 listed employees-Thomas G. Gore and Jack D. Jennings-do not conform to the group pattern. Their cases are therefore being segregated for separate consideration before analysis is made of the cases of the remaining employees as a group unit. Thomas G Gore was hired in mid-January 1950 as a temporary employee specifically to work on a crane that the Respondent was constructing at the time. When hired, he was told by Foreman Henry Clay of the welding shop that the duration of his job would be about 31/ months, that beyond that the Respondent could promise him nothing, but if other work should arise for him he might be kept on. Although classified as a welder A, Gore's job actually was to work as lead man of the construction crew. Gore worked on the cranes, assisted by permanent employees assigned to that job, until the beginning of the strike. During the strike he did not report for work. At the end of the strike Gore telephoned Clay to inquire whether he should return the following morning. Clay said, "No," and when asked why, explained that because of the steel shortage the Respondent was discontinuing its construction project on the crane except for some occasional further work that would be performed by permanent personnel. Gore, while testifying, took issue with Clay's statement that the crane could not be completed because of the steel shortage. Of the 14 columns required for the crane, according to Gore, 12 had already been cut, laid out, and assembled, but were yet to be erected, and the remaining 2 columns, for which there was enough steel, had already been cut and only lacked assembly. Gore testified that in his view there was on hand at that time enough work to last another 2 months at the rate the job had been progressing. He testified that upon calling AMERICAN MANUFACTURING COMPANY OF TEXAS 253 at the plant for his tools the day after he was advised his services would no longer be required, he observed one of the Respondent's permanent welders performing work on the crane. He also expressed the opinion that the ReQ4pond- ent had enough materials fully to complete the crane. Lott, testifying for the Respondent,"conceded that the Respondent had not run out of nmtetials for the crane just at that particulai time, and lie made no attempt to take specific issue with Gore's assertion that abimit 2 months' woik remained to be done, although lie did categorically deny that the Respondent then had on hand all material needed to complete the crane. Lott also admitted that from time to time since the strike, some work has been done on the crane, but such work, he explained, has been performed by "regular old-time" em- ployees as fill-in wink only To this day the construction of the crane has not been completed The Respondent has decided not to push it along, largely be- cause of the expense involved No replacement for Gore has ever been hn ed since the beginning of the strike, nor has any new employee been taken on for work on the crane. The question here is whether the Respondent discriminated against Gore by failing to reinstate him to his prestrike job Since it affirmatively appears that Gore was never replaced and that the particular job he was hired to perform was eliminated, the Respondent's failure to reinstate him upon request, stand- ing alone, cannot be viewed as illegal per se. To support a finding of discrimi- nation in his case, it was for the General Counsel to prove that the Respondent's faihue to recall him was illegally motivated On such proof I think lie has failed Gore does not appear to have been particularly active either in the Union or in its strike activity, and no reason suggests itself why the Respondent should have singled him out for special discriminatory attention, by departing in his case fn om its policy of permitting strikers to return to unfilled positions for which it needed employees The Respondent's failure to give Gore any hint before the strike that it contemplated suspending work on the crane, and the at least partially inaccurate excuse which Clay gave after the strike for not re- calling him, do indeed tend to cast some doubt on the bona fides of the Respond- ent's conduct. But these circumstances, I believe, are more than offset by otheis indicating rather clearly that the Respondent had actually decided for economic reasons to suspend full-scale operations on the crane and to dispense with Gore's services. Most significant of these, are the undisputed facts show- ing that in the year or more that has since elapsed no substitute for Gore has been lured and that only desultory work has been done on the crane, and this by regular production employees Moreovei, while the record reflects a flagrant disi egard by the Respondent of statutorily protected employee rights, there is little evidence of actual animus toward the Union and none of animus toward Gore. Under all the circumstances, I am unable to conclude that the Respond- ent's elimination of Gore's job and consequent failure to reinstate him was discriminatorily motivated, and shall recommend dismissal of the complaint's allegations relating to him. Jack D. Jennings, classified by the Respondent as a maintenance A employee, testified: About 10. 30 a in on March 15, 1950, shortly alter the picket line on which he was active was abandoned, he reported to Sam Gillard, his foreman, and inquired whether his job was still open Gillard informed him that his ,lob had been taken and that he would have to go back through the personnel office as a new man?' Because he needed a job immediately and had in effect been told that no job was then available with the Respondent, Jennings did not 'S The recoil shows that ihiing the strike the Respondent hired six new employees classified as maintenance A 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then go to the personnel office.R6 His only further contact with the Respondent was on June 24, 1950, when he called for his vacation chock. At that time, Graham asked him whether he was working elsewhere-he was-but Graham did not offer him employment. Jennings, who was formally terminated by the Respondent on March 29, 1960, has never been offered reinstatement . Jennings' testimony, although partially contradicted, is credited in all respects: ' It is found that Jennings' conversation with his foreman, Gillard, constituted an unconditional request for reinstatement. It was no less so because Jennings failed to call at the personnel office. Not only had Jennings been told that the purpose was to make application for wtiirk as a new employee, but he was led to believe that an application at that time would prove futile in obtaining for him the immediate reinstatement to which, as a replaced unfair labor practice striker, he was then entitled. It is concluded that by failing to reinstate Jennings upon request on March 15, 1950, and at all times thereafter, the Respondent discriminated against him in violation of Section S (a) (3). and also violated Section 8 (a) (1). We come, then, to the remaining 25 employees whose names follow: Alexander Broughton Robert A Lester Landor N Cosby Jack Loggins Elmer Richard Esters Reginald D Nunley Kyle G. Folmar Jasper D. Patrick Quentin A. Hussey Charles S. Reynolds Mandell Horton R D. Russell Lloyd C. Hadley Charley M. Starks W. D. Hadley Nathaniel Strange William P. Johnson Dennis Voss Jack E Johnson Julius Waggoner Josie Johnson Woodrow W. Williams Orville B. Johnson, Jr. Joe B. Landreth John F. Spiey None of those listed above testified, and little is known of them The General Counsel presented proof that each had last worked on the day preceding the strike, and from this alone be would have it inferred that they were participants in the strike. He also adduced evidence showing that, while some of them would have been immediately reinstated to their former position had they re- 26 It is clear that even had lie called at the personnel office he would not then have been reinstated. The record shows that other einplnyees snnilaily classified who reported shortly after the strike were denied reinstatement on the ground that their jobs had been filled by new employees 27 Gillard denied only that part of Jennings' testimony in which Jennings asserted he was told he would have to go through the personnel office as a new employee. Jennings tly his demeanor and over-all testimony impressed me as a ieliable witne,s. Gillard did not Moreover, the testimony of other R itne,,ses, whom I credit, shows that Gillard harbored hostility against employ ees who did not report during the strike For that reason and because the Respondent, at least in some respects, was then treating retaining strikeis whose jobs had been filled as applicants for employment, I think it likely that Gillard made the statement attributed to him Giaham, at one point, testified that when Jennings called to see him in June he asked him whether he was interested in coming back and that Jennings replied lie was not since he had a job elsewhere. However the records prepared by the Respondent and submitted in evidence do not list Jennings as among those a ho were notified after the strike of available jobs Moreover, Graham later conceded that he never definitely offered Jennings any job. On all the evidence, and from my observation of the witnesses, I am pcisuaded that'Grahiam ,did no more than inquire whethet Jennings was working, and lvhei e, and that lie never offered Jennings i emstatement AMERICAN MANUFACTURING COMPANY OF TEXAS 255- ported for work shortly after the strike, others would not, either because they had been replaced or because vacancies in their classifications did not then exist. Beyond what has been said the record is silent concerning them. No evidence was submitted specifically to explain why they failed to report, and none to show that they were actually available for and desired employment at the conclusion of the strike. For all that appears, many if indeed not all of them may have determined before the end of the strike to sever completely their employee status for reasons wholly unconnected with the Respondent's rein- statement policies. As reflecting on their availability and desire for further employment, the following is significant: After the strike, the Union prepared inimeogiaphed forms of individual applications for reinstatement to be signed by the strikers who had not been immediately restored to the Respondent's employ. These forms were signed and submitted to the Respondent by a sub- stiuitial number of such strikers. Yet, not one of the employees whose cases we are now considering presented to the Respondent an individual application, either on the union's form or on some other. The General Counsel would spell out discrimination against those in this group principally on the following basis: He argues that the Union's notifica- tion to the Respondent on March 15, 1950, announcing its decision to call an unconditional halt to the strike and to send all strikers back to work, constituted an unconditional application for reinstatement on behalf of all who had gone on strike This he says had a two-fold effect. It dispensed with any necessity for individual reinstatement requests. And it imposed an affirmative obligation upon the Respondent to seek out all strikers and offer them reinstatement, even though they slid not apply in person. The Respondent's failure to do so with respect to those here in question, he contends, constituted an illegal rejection of their reinstatement iequests made by the Union on their behalf. I am unable to accept the General Counsel's position To begin with, I have some doubt whether the meager evidence is sufficient to support a finding that on March 15 and thereafter the men in this particular group occupied the status of striking employees desirous of and available for reinstatement. But even if this doubt be resolved in the General Counsel's favor, the proof in this case, in my opinion, would still fall short of establishing the required elements essential to a finding of a discriminatory refusal to i einstate. Ordinarily there can be no refusal without an effective application. The application, of course, need not necessarily be made by the strikers themselves ; it may be made by an agent on their individual or collective behalf. But if it is to be effective, the applica- tion must be in such a foi ni as reasonably to put the employer on notice that, without more being done, he is called upon to accept or reject it, with rejection or inaction tantamount to a refusal. On the particular facts of this case, I am not satisfied this test was met by the Union's March 15 notice to the Respondent. Before that date, the Union had unsuccessfully sought settlement of the strike on the basis of a mass rein- statement of all strikers, a reinstatement request found above to have been conditional because it included those employees whose discharge had led to the strike. The Respondent had declined to reinstate all employees en masse, and had insisted on individual,-applications. Whether the Respondent was legally right or wrong in doing so is not the question here. What for present purposes is important is that the Union's decision on March 15 to abandon the strike and to have the strikers apply unconditionally for their jobs represented both a surrender of the Union's earlier stand for groiip consideration and a capitulation to the procedures the Respondent had insisted on. Viewed in this context, I have little doubt that the Union intended, and the Respondent under- stood. that the Union's March 15 notice, before becoming effective as a reinstate- 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment application in the case of any given striker, was to be perfected by that striker personally reporting for work or otherwise making known his availability and desire to return Certainly the Union must have so contemplated it, for the record shows that even after its representative was informed that all who applied could not expect restoration to their jobs, it instructed or attempted to instruct all strikers to report personally for work. And for those who were denied employment on.their return , it prepared mimeographed application forms to be signed by them as individuals . Since the 25 above-listed employees failed to perfect their individual applications in the contemplated manner, the Respond- ent had nothing definitive before it to accept or reject . In the circumstances present here , the Respondent was under no duty itself to seek out these employees and to offer them that for which they had not asked. On the contrary it could reasonably assume, as in fact it did, that those 'who failed to apply had -voluntarily determined to relinquish whatever claims to reinstatement they might otherwise have had. Nor can it be successfully urged on the state of this record that the Respond- ent's conduct was such as to waive the necessity of personal application by the employees whose cases are now in question. It is true, as the General Counsel points out , that while welcoming the Union's decision of March 15 to abandon the strike unconditionally and to have the striking employees apply for their old jobs, the Respondent, nevertheless, notified the Union that not all strikers could expect to be restored , some not immediately, and others not at all But there is nothing in the record to indicate that this was so much as communicated to the particular individuals here involved, let alone that they had any reason to believe they would be among the rejected It cannot therefore he concluded that the Respondent's assertion to the Union that not all would be returned served as a constructive refusal to reinstate the 25, rendering personal applica- tion on their part unnecessary. The record now shows, to be sure, that some of the employees in this group, if they had applied, would have been denied immediate reinstatement . But here again evidence is wanting to establish their failure to apply as due to a belief on their part that to have done so would have been futile. And if an inference is to be drawn, it is at least as reasonable to infer that their failure to apply was attributable to a lack of interest in further employment with the Respondent. Moreover , a finding of illegal dis- crimination must be based on what did occur, not on what ought or would have occurred had the occasion arisen. A[erely from a showing that some in this group would have been illegally discriminated against if they had applied, it does not follow that as to them the law was actually violated. For the reasons indicated , I conclude that the General Counsel has failed to prove by substantial evidence a violation of Section 8 (a) (1) and 8 (a) (3) with specific reference to the 25 employees above listed, and shall recommend dis- missal of the complaint 's allegations relating to them. 5 Employees named in the complaint who, according to the Respondent, slid not report for work between March 1, 1050, and March 29, 1950, but who later applied for work In this group, the Respondent has listed eight employees, all of whom, like those considered in the previous subdivision of this Report, were terminated officially on the Respondent's records on March 29 , 1950. The essential facts relating to all of them are alike except for one employee, B. L Parry, whose case will be separately considered first B. L. Parry, classified before the strike as a machinist A. earning $1.4.5 an hour, reported to the Respondent's machine shop the morning after the strike ,'AMERICAN MANUFACTURING COMPANY OF TEXAS 257 ended. He was told by Foreman Gillard that lie had been replaced during the strike, and that it would be necessary for him to go to the personnel office. On the way to the office, Gillard told Parry in substance that he had been a fool not to cross the picket line during the strike if he needed his job. Gillard also advised fairly that as far as he (Gillard) was concerned, lie was through with Parry. Parry slid not go to the personnel office that day, and ieceived it job as a laborer elsennhere. The following .luly, Parry went to see Personnel Director Graham and was offered a Job as a class A machine operator at $1.10 an hour. Although lie agreed to accept it, lie received a better job later that day from another employer, and has not since returned to the Respondent's plant. At no time since the strike has lie been offered reinstatement to his machinist's position or to a substantially equip alert position'' I find that Parry ellectively applied for reinstatement when lie reported to Gillard on March 1G, 1950. and that Gillaid's statements made to him at that time reasonably put him on notice that it would be futile for him further to process his reinstatement application, thereby justifying his failure to call at the personnel offn--e. I conclude that by denying Parry reinstatement on March 16, 1950, and at all times thereafter, the Respondent disci inainated against him in violation of Section S (a) (3), and also violated Section S (a) (1) of the Act. The names and relevant data with respect to the seven remaining employees in this group are set forth in Appendix C hereto attached. As appears there- from, all failed to repot t or otherwise apply for work for a substantial period after the strike, ranging from 31/2 months in the case of Arrington to 10 months in the case of Harwell None of these employees testified, and the record con- tains no evidence to explain why they did not earlier apply The uncontradicted evidence, however, does show affirnmtively that when eventually they did apply for work with the Respondent, they did so as applicants for new employment and did not seek or claim reinstatement to their old jobs or their former fob rights and privileges When relined, each was given a job at least substantially equivalent to the one lie had held before the strike The question presented is whether these employees were illegally discriminated against during the period between the termination of the strike and the dates on which they were respectively rehired. The General Counsel claims that they were, urging substantially the same arguments lie advanced with respect to the group of strikers who were considered in the preceding subdivision of this Re- port. Except for the fact that the employees in this group subsequently applied for work as new employees and were rehired, the operative facts governing them are the same as those relating to the group considered in the previous subdi- vision. The applicable legal considerations aie likewise the same Therefore, without further discussion and for the reasons that have been earlier set out at length, I find that the General Counsel has failed to sustain the allegations of the complaint with respect to the employees listed in Appendix C, and shall accordingly recommend dismissal. n The findings of fuel made above are based pnncip.illt upon Parry's credited testimony- Gillard admitted that I'ariy called to see Hint on or about March 16. and that he told Pairs at that time that the machine shop was filled up, although he denied saying "in so many woids" that while Pam was out on stake lie had found someone to take lies place In that respect, I'arrj's version is consistent troth the documentary evidence shoe mug that during, the strike a number of uiachu,ists had been hired in Parry's classifi- cation Gillard also denied Criticizing Parry for not crossing the picket line during the strike. m telling 1'ai i 3 that lie was through with him as an employee Parry impressed pie as a credible i+itness As pretlously noted, Gillard did not. To the extent that the testimony of Parr% and Gillard aie in conflict, I accept that of Parry as being more reliable 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. Employees not reinstated for other reasons According to the Respondent, three employees were denied reinstatement be- cause they had engaged in picket line misconduct. Only one of them, Carl Schulbach, is named in the complaint. The Respondent asserts, and Schulbach denies, that during the strike Schulbach threw nails under one of the Respond- ent's trucks. To support its assertion the Respondent called as witnesses, Lum I'hifer, its trucking foreman , and Gene W. Edmonds, a truck driver in its einplo}-. It appears from their testimony that the Respondent on the evening of 'larch 9, 1950, had found roofing nails strewn all over the plant driveway connecting with the public highway. These were cleared away so that one of the Respondent's ti ucks might safely leave the plant premises . As the truck left the plant drive- way to enter the adjacent highway, it was followed by Phifer and Edmonds in a passenger car. The two followed the truck in anticipation of the possibility of trouble from picketing strikers gathered alongside the highway near the plant premises. Shortly after the truck entered the highway, Phifer and Ed- monds, according to their testimony, observed Schulbach, who was in the ditch on the side of the highway, throw a double handful of roofing nails under the truck. Schulbach at the hearing denied engaging in -the specific conduct at- tributed to him. Howe\er, he admitted that he was present at the time and place. And he admitted further that although there were no nails on the road- way before the truck arrived, there were some immediately after the truck pulled by. But while conceding that one of the pickets might have thrown the nails, Schulbach professed ignorance as to how the nails actually found their way to the road. Other striking employees were present on the occasion in quC.'s- tion: yet the General Counsel called none to corr0orate Schulbach's denial. Phifer's and Edmonds' identification of Schulbach was clear and definite, their versions were mutually corroborative, and Edmonds especially impressed me as a creditable witness. Schulbach, the record shows, played no outstanding role in the strike or picketing activities, and no reason appears why the Respondent should have selected him as the object of blame for something he did not do. In the light of all the circumstances I credit the testimony of Phifer and Edmonds and reject Schulbach's denial. I find that Schulbach's conduct above described, designed as it was to inflict damage upon the Respondent's property, was of such a character as to result in the forfeiture of any reinstatement rights he might otherwise have enjoyed. Accordingly, I shall recommend dismissal of the allegations of the complaint relating him. P Independent interference, restraint, and coercion The complaint , as amended at the hearing , alleges that independently of its discrimination , the Respondent engaged in conduct violative of Section 8 (a) (1) of the Act, by (a) warning its employees that the CIO would not get a contract for 8 months to 2 years and that those who signed CIO cards would in the meantime lose their vacations , and (b ) soliciting individual strikers to discontinue their concerted activity. To support ( a) above, the General Counsel adduced testimony concerning a single incident . Employee A. A. Slaughter , a union bargaining committee- man, testified that sometime probably in late January 1950, Foreman Sam Gil- lard made a statement to him substantially in the form set out in the allega- tion Gillard , on the other hand, denied this to be true. '%Vhi'e I credit Slaughter on the conflict, I deem it unnecessary to dwell on my reasons for doing so Gillard's is an isolated statement , made by a single foreman to a single employee in a plant of several hundred. It is one, moreover , which in AMERICAN MANUFACTURING COMPANY OF TEXAS 259 character, context, and timing. is entirely unconnected with the other unfair labor practices alleged. The other unfair labor practices , while unmistakably dn'closing the Respondent's disregard for employee protected rights, are not of su(h a nature as to reflect an attitude of basic hostility and opposition to the Union as such. Alone, Gillard's statement is of such little import as not even to find a place ' in the General Counsel 's painstaking brief. In these circum- stances, I do not believe it would effectuate the policies of the Act to find an independent violation on the basis of this isolated incident. To support (b) above, evidence was presented concerning the following inci- dents. all occurring during the course of the March 1 to March 15 strike : (a) On February 28, 1950, as employee W. A. Francis was leaving the plant following the discharge of the 12 foundry employees, he was warned by Fore- man Frank Emmons that whatever decision he made with regard to the im- pending strike would have a bearing on his future with the Respondent. On March 2, Emmons telephoned Francis, told him he had contacted another em- ployee who was coming back, and asked him also to return. (b) On the day the strike started, Foreman Sam Gillard telephoned the home of employee Ernest A. Schulbach, spoke to his wife in his absence, and expressed the hope that her husband would not be among those who were going to walk out. He commented that it would be a losing battle for those who struck. and added that those who had already walked out would find that their cards had been pulled and that the guards would stop them at the gate.'0 Although Mrs. Schulbach was not herself an employee, it is found that Gillard's statements to her were intended and reasonably calculated to reach the ears of het husband who was. ((-) On March 1, the day the picket lines were first set up, Foreman Cecil Clay approached employee B L. Parry and two other employees who were in a car outside the plant and told them their jobs were waiting for then inside if they cared to go in '0 (d) On March 2. 1950. when C B. Riley. who performed outside work, returned front a held trip to learn for the first time of the strike, he was asked by Chief Engineer Hestand, "Well I want to kinda know where you stand on this. Are 3ou going to be out tomorrow?" (e) On March 12 or 14, employee Slaughter telephoned Sam Gillard to ask if his job was still open. Gillard informed him that it was if he came back by the following Monday, but that he couldn't continue to hold his job open indefinitely, as it was a ease of first come, first served. (f) On March 13, Foreman Henry Clay addressed a note to R. L. Arnold and had it delivered to Arnold's home by another employee. The note read : I would like for you to come back to work in the morning as they are hiring new men every day. I don't know how long I can hold your job. We have four men in your department now. (g) On March 15, before the picket line was taken down , Foreman Oren Bounds, addressing employee L. E. Ford on the picket line, asked him whether he was about ready to go back to work. Bounds also advised Ford that his job had not been filled during the strike, and that , if he wanted to , he could go back to work when the strike was settled. °° Thee findings are based on the credited testimony of Mrs Schulbach Gillard's denial that he had any conversation with her is rejected. 90 Another employee, W G Everman , testified that on the same day he received a similar me.snge on the telephone from Personnel Director Graham. Graham denied making the call or even knowing Everman at the time Everman's Identification of Graham was not convnuing . His testimony is rejected and Graham 's denial is credited in this respect. 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (h) Also on March 15, early that morning before the picket line was removed, Foreman Sam Gillard stood outside the gate near the pickets seeking to encourage them to abandon the picket line and enter the plant.31 Certain of the incidents relied on by the General Counsel , more specifically those described in (d) and (e), and probably also that described in (g) above, I do not think can be properly , classified as solicitation of individual strikers to abandon their concerted activity . Hestand's questioning of Riley was simply designed to ascertain whether Riley was available for work during the strike. Gillard cannot be said to have solicited Slaughter , for it was Slaughter who called him ; the propriety of Gillard's remarks which followed is a matter apart from the question of whether Slaughter was solicited . Bound's inquiry of Ford , read in context, may be construed as no more than an assurance to Ford that he could expect to resume work at the end of strike. That leaves the incidents referred to in ( a), (b), (f), (g ), and (h). That the incidents there described constituted individual solicitation of strikers to abandon their concerted activity and that such solicitation must be attributable to the Respondent, I think is free from doubt The question remains, however, whether the solicitation was such as to violate Section 8 ( a) (1). Individual solicitation is not viewed by the Board as illegal in all circumstances. In its recent decision in The Texas Co in puny case, 93 NLRB 1355 , the Board set out the standards against which the legality of such conduct is to be measured. Illegality exists where one or more of the following factors are present: (1) The solicitation contains a threat or a promise of benefit ; ( 2) the solicitation, although containing no threat or promise of benefit, constitutes "an integral part of a pattern of illegal opposition to the purposes of the Act as evidenced by the Respondent's entire course of conduct" ; ( 3) the solicitation , although containing no threat or promise of benefit , "has been conducted under circumstances, and in a manner , reasonably calculated to undermine the strikers collective bargaining i epresentative and to demonstrate that the Respondent sought individual rather than collective bargaining." The third factor is not present here. The first factor I find present in the incidents referred to under ( a), (b), and (f) With particular reference to (f) it is noted that although it may not be an unfair labor practice to threaten to replace a striker during an economic strike , as that is an employer's legal privi- lege, the situation is quite different in the case of an unfair labor practice strike. I think , too, that the incidents just mentioned along with (g) and ( h), all con- sidered cumulatively against the background of the Respondent 's other conduct, fail of legality under the second factor. I find that the Respondent illegally solicited individual strikers to discontinue their concerted activity , and thereby interfered with, restrained , and coerced its employees in the exercise of their rights guai anteed by Section 7 of the Act IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection iiith its activities 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 It having been found that the Respondent has engaged in and is engaging in certain unfair labor practices , it will be recommended that it cease and desist 31 This finding is based on Jennings ' credited testimony. AMERICAN MANUFACTURING COMPANY OF TEXAS 261 therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminated in regard to the hire and tenure of employment of the 12 employees listed in Schedule 1 of Appendix D hereto attached, by discharging them on February 28, 1950. and thereafter re- fusing -to reinstate them, and halving further-found- that the Respondent dis- criminated in regard to the hire and tenure of employment of the employees listed in Schedule 2 of Appendix 1) by discriminatorily refusing, following their participating in a strike caused and prolonged by the Respondent's unfair labor practices, to reinstate them to their former or substantially equivalent positions, although they unconditionally applied for such reinstatement on the respective dates set out in Schedule 2 alongside their names, it will he recommended that the Respondent be ordered to offer the employees named in Schedules 1 and 2 `lull reinstatement to their former or Substantially equivalent positions, without prejudice to their seniority or other rights and privileges. If there are not sufficient positions available in appropriate job classifications, the Re Qnlient shall make room for the employees ordered reinstated by dismissing to the extent necessary employees occupying such classifications who were hired after Febru- ary 28, 1950. If after such dismissal there are still not sufficient positions avail- able, all existing positions in the appropriate job classification shall be dis- tributed among the employees ordered reinstated and other employees who were hired on or before February 28, 1950, without discrimination against any of them because of his union affiliation or strike or concerted activities, following such system of seniority or other nondiscriminatory practices as would normally have been applied by the Respondent to determine job retention rights upon a reduc- tion of force All employees remaining after such distribution, including those ordered reinstated, for whom no employment is immediately available, shall be placed upon a preferential list and offered reemployment as work becomes avail- able in a suitable classification, and before other persons are hired for such work, in the order required by the Respondent's normal seniority system or other non- discriminatory practices. It has also been found that the Respondent discriminated in regard to the hire and tenure of employment of the employees listed in Schedule 3 of Appendix D, by refusing them reinstatement upon request following their participating in the unfair labor practice strike. However, as all in Schedule 3 were subse- quently either offered or granted reinstatement to their former or substantially equivalent positions on the dates appearing alongside their respective names, no reinstatement order is necessary as to them. Provision for loss of earnings suffered by them as a result of such discrimination is made below. Ordinarily, discriminatorily discharged employees are entitled to back pay from the date of their discharge In the instant case, however, the 12 employees listed in Schedule 1 were engaged in a strike when they were discharged on February 28, 1950. Until they abandoned the strike by indicating their desire to return to work on the terms existent when the dispute arose, it cannot be said that their loss of wages was caused by the discharge. On March 6, 1950, the Union proposed to return all employees then off the job without reservation or qualification. By doing so, it expressed on behalf of the employees listed in Schedule 1 their willingness to return without settlement of their grievance which had caused them to go on strike. It is, therefore, found that the 12 strikers listed on Schedule A are entitled to back pay from March 6, 1950. It will be recommended that the Respondent be ordered to make whole each of the employees listed on Schedules 1, 2. and 3 of Appendix D for any loss of pay lie may have suffered as a result of the discrimination against him In the case of each employee listed on Schedule 1, the back-pay period shall run from 998666-v-o] 98-53-18 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .March 6, 1950, to the date of the Respondent's compliance in his case with the reinstatement provisions hereof. In the case of each employee listed in Schedule 2, the back-pay period shall run from the date of his application for reinstatement as indicated on that schedule to the date of the Respondent's compliance in his case with the reinstatement provisions hereof In the case of each employee listed in Schedule 3, the back-pay period shall run from the elate of his application for reinstatement to the date he was offered or granted reinstatement, as set forth on said schedule. Consistent with the policy of the Board enunciated in F. W. Woolworth Company, 90 NLRB 289, it will he reconimen,'ed that losses of pay be computed on the basis of each separate calendar quarter or portion thereof during the appropriate back-pay period. The 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 these employees normally would have earned for each quarter or portion thereof, their net earnings, if any, in other employment during that quarter'2 Earnings in any one particular quarter shall have no effect upon the back-pay liability for any other quarter. It is also recom- mended that the Respondent be ordered to make available to the Board upon request payroll and other records to facilitate the checking of the amount of back pay due. It is further recommended that the Board reserve the right to modify the back-pay and reinstatement provisions, if made necessary by a change of cir- cumstances since the hearing or in the future, and to make such supplements thereto as may hereafter become necessary in order to define or clarify their application to a specific set of circumstances not now apparent. In accordance with the findings made above, it is recommended that the com- plaint be dismissed so far as it alleges the Respondent discriminated against the employees listed in Schedule 4 of Appendix D Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the=following: CONCLUSIONS oF L--,w 1 United Steelworkers of America, affiliated with the Congress of Industrial Organizations, 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 the employees named in Schedules 1, 2, and 3 of Appendix D, attached hereto, thereby discouraging membership in United Steelworkers of America, CIO, and labor organizations generally, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent did not discriminatorily refuse to reinstate the employees listed in Schedule 4 of Appendix D. [I.ecominendations omitted from publication in this volume.] ^ See Crossett Lumber Company, 8 NLRB 440 ; Republic Steel Corporation v. N. L. R. B., 311 I7 S 7 See also comments regarding computation of back pay in Section III, E, 2 of th s Report. Appendix A Stl ikeis who upon reporting fob work at or about the conclusion of the strike were not reinstated to their former positions because they admittedly had. been replaced 1 2 3 4 5 Returned to work in lower classification 6 Date Name Classification and rate as of February 28, 1950 Date reported Other work then offered classifica - tion and rate Date Classification Rate offered former job B J Campbell----------------- Jack Assembly ------------ $0 90 3-15-50 Laborer-------------------- $0 90 - H D. Ayers _---_--_---_--_ Jack Assembly------------- 85 3-15-50 Laborer-----------------_- 85 W W. Cou,sey---------------- Tool Rm Helper _------- 1 05 3-14-50 Shop Helper------------_-- 90 3-14 50 Shop Helper---_-_--_--_ $0 90 9-23-40 E 3 Coffman------------------ Compressor Opr B------- 1 05 3-15-50 Laborer------------------ 90 . ---- ----------------------- ---------- 7- S-50 R H. Coi, ender -- ----------- Maintenance B------------- 90 3-16-50 Laborer-------------------- 90 _---------- -------------------- ----- ----- --- 5-31-50 Mauiice Donis----------------- Machinist A -------------- 1 40 3-15-50 Laborer------------------ 90 ---------- ---------------------- --------- 5-15-50 C H. Davis -_---_-----__--_ Belt Guard Maker--------- 95 3-15-50 Laborer------__-----__-_-- 90 4- 4-50 Machine Opr B 1 00 --_--__- H L Ehruigson---------------- Drill Press Opr. A -------- 1 05 3-17-50 Laborer-------------------- 90 - 3-26-50 T, C Goodwin ----------------- Jack Assembly------------- 85 3-16-50 Laborer -------------------- 85 - 1-50 1. H Guiles------------------- Machinist A---------------- 1 45 3-16-50 Punch Press Opr----------- 1 05 3-17-50 Punch Press Opr-_-____ 1 05 3-29-50 1 C King------------------- Maintenance A------------ 1 35 3-15-50 Shop Helper-------------- 90 - H G. King--------------- ---- Jack Assembly------------- 95 3-15-50 Laborer-------------------- 90 --------- ---------------- -------- 6-27-50 Terrel King------------------ Jack Assembly------------- 90 3-16-50 Laborer-------------------- 90 -------- ------------------------- ------- 6- 1-50 A J Lindeman---------------- Maintenance A------------- 135 3-17-50 - - -------- -------- - 9-50 L G Patterson--------------- - Compressor Opr B -------- 1 05 3-15-50 Laborer------------------ ------------ -------------------------- ---------- 6-27-50 B Parrish -------------------- Jack Assembly------------- 90 3-15-50 Laborer------------------- 90 -- O. Reaves------------------ Machinist A------------- -- 145 3-16-50 Shop Helper--------------- 90 ------------ -------------- ---------- ---------- 5-16-50 C R Riley-------------------- Service Man--------------- 1 15 3-15-50 Laborer--•----------------- 90 ---- ------- ------------ ----------- -------- - 6-15-50 T J Surles- ------------------ Jack Assembly------------- 90 3-15-50 Labrei__----------------- 90 6- 6-50 Laborer - -------------- 90 6-20-50 A Sanders------------------- Jack Assembly------------- 85 3-16-50 Laborer-------------------- 85 ------------ ------J------------------ ---------- 7- 8-50 H F Tyk -------------------- Machinist A-------------- 1 45 3-15-50 Laborer----------------- 90 --- ----------------------_- ---------- 5-16-50 C H Witt--------------------- Maintenance A------------ 1 35 3-20-50 -------------------------------- - --------- 6-10-50 C Wilmon ------------------ Drill Press Opr A--------- 1 05 3-15-50 Shop Helper-_----------_-- 90 3-14-50 Shop Helper---__--_-_-_ 90 3-27-50 D S Windle------------------- Jack Assembly------------- 1 05 3-16-50 C H Grimes------------------ Welder A------------------ 1 35 3-20-50 ------ -- A A Slaughter-. ------------- Machinist ------------- •--- 1 45 3-15-50 Laborer-- ----------------- 90 3-20-50 Laborer-----------___--- 90 ------------ Rufus Key -------------------- Laborer-------------------- 90 3-18-50 ----------------------------------- ----------- -------------------------- --•------- 3-22-50 Floyd B. Gillean --------------- I Jack Assembly --------- .-__ 90 3-15-50 Laborer- - ------------------------ ------------' _ C.^ Appendix B Strikers who the Respondent claims 1ve1 a not reinstated because no work was avatIable for thew ame As of February 28, 1950, classifl- cation and rate Date reported Other a ork then offered, classifi- cation and rate Returned to work Date offered former or substan- tially equivalent Date Classification Rate job H 1. Buffington--------------- Lathe Opr. A-------------- $1 30 3-16-50 Laborer -------------------- $0 90 11- 6-50 Machinist A_____________ $1 55 5-31-50 1 L Cross --------------------- Machinist B-------------- 1 00 3-16-50 Molder Helper----------- 90 3-20-50 Molder Helper-------- 90 4- 3-50 L E. Ford_____________________ Machine Opr A------------ 1 10 3-15-50 Laborer -------------------- 90 6- 5-50 Machine Opr B_________ 1 00 1-23-51 Clifton Ingram ----------------- Sandcutter----------------- 85 3-17-50 ------------------------------------ 7- 3-50 Laborer ----------------- 85 8-14-50 J V. Key ---------------------- Lathe Opr. A-------------- 1 45 3-15-50 Laborer -------------------- 90 6- 5-50 Machinist A------------- 1 45 5-31-50 James Polk_____________________ Sandcutter----------------- 90 3-21-5A _ Sandcutter______-_______ 90 7- 3-50 W.I Powell____________________ Coremaker C______________ 95 3-15-50 Core Helper-______________- 90 -29-50 Inspector B_____________ 1 00 N 0. Smith ___________________ Lathe Opr. A__ 1 35 3-17-50 ______________________________-_-___ 6- 3-50 Machinist A-_-__________ 1 40 5-31-50 James A Wood----------------- Lathe Opr C-------------- 1 00 3-17-50 -------------------------------- -------- ------------------------ ---------- 5-17-50 Appendix C Ilutployecs )tamed nl the Complaint who (11(1 not report for work from 3-1-50 to 3-29-50 but who later applied for work and were hired as new employees Name Classification Rate Date reported Job accepted Rate Date started J E Cummings________________________ Sandcutter------------------------------ $0 85 10- 9-50 Chipper and Grinder ------------------- $0 95 10- 9-50 C L. Maxwell -------------------------- Machinist B----------------------- .----- 1 25 8-28-50 Machinist 13 ----------------------------- 1 40 8-28-50 W E Arrington------------------------- Laborer --------------------------------- 90 5-30-50 Laborer --------------------------------- 90 5-30-50 11" T. Morris---------------------------- Welder C-------------------------------- 95 8-14-50 Shop Helper ---------------------------- 1 00 8-15-50 Raymond Wright_______________________ Assemblyman A------------------------ 95 12-30-50 Machine Opr. B------------------------- 1 05 1- 2-51 T A, Hara ell --------------- Laborer --------------------------------- 85 1-13-51 Laborer --------------------------------- 95 1-15-51 R, 0, Reed ____------------------------ Drill Press Opr A---------------------- 1 00 9- 5-50 Machine Opr B------------------ ------- 1 ]0 9- 5-50 AMERICAN MANUFACTURING COMPANY OF TEXAS -265 Appendix D SCHEDULE 1.Foundry employees disehai ged on Febi par y 28, 1950 O. C. Brown A. J. Hudson M. C. Mask W. J. Bunch Fred Huffman W. O. Robertson Clarence Campbell Oliver Jackson J. J. Robinson Wiley Franklin Floyd Lenhart C. J. Smith SCHEDULE 2.-Strtkers who applied for reinstatement but who have never been reinstated to their former or substantially equivalent positions Name Date applied Floyd B. Gillean--------------------------------------------------- 3-15-50 •G. H. Grimes------------------------------------------------------ 3-20-50 A. A. Slaughter---------------------------------------------------- 3-15-50 Jack D. Jennings-------------------------------------------------- 3-15-50 .E. L. Parry-------------------------------------------------------- 3-16-50 ScIIEDULE 3.-Strikers who were discriminated against when they applied, but who have since been granted or offered reinstatement to their former or sub- stantially equivalent positions Name Date applied Date offered or granted reinstatement II D, Ayeis------------------------------------------------------------ 3-15-50 7- 8-50 B J Campbell--------------------------------------------------------- 3-15-50 6-19-.50 E J Coffman----------------------------------------------------------- 3-15-50 7- 8-50 W. W Coursey-------------------------------------------- --------- 3-15-50 9-23-50 R H. Corrender --------------------------------------------------------- 3-16-50 5-31-50 Maurice Dori is---------------------------------------------------------- 3-15-50 5-15-50 G H. Davis ------------------------------------------------------------ 3-15-50 4- 4-50 H L Ehringson--------------------------------------- --------------- 3-17-50 3-26-50 L C Goodwin-------------------------------------------------------- 3 1(i-50 6- 1-50 L H Guiles----------------------------------------------------------- 3-lb-50 3-29-50 Rufus Key-------------------------------------------------------------- 3-18-50 3-22-50 I C King ------------------------------------------------------------ 3-15-50 5-31-50 H G King---------------------------------------------------------- 3-15-50 6-27-50 Terrel King----------------------------------------------------------- 3-16-50 6- 1-50 A. J Lindeman ---------------------------------------------- 3-17-50 6- 8-50 T. G Patterson -------------- --- 3-15-50 6-27-50 -- - B. Parrish----------------------------------------------------------- 3-15-50 6-27-50 J 0 Reaves------------------------------------------------------------- 3-16-50 5-16-.50 C R Riley----------------------------------------------------------- 3-15-50 6-15-50 T J Surles ------------------------------------------------------------- 3-15-50 6--20-50 3 A Sanders------------------------------------------------------------ 3-1(-50 7- 8-SA H F Tyk--------------------------------------------------------- 3-15-50 5-16-50 C H Witt------------------------------------------------------------ 3-20-50 6-10-50 J C Wilmon---------------------------------------------------------- 3-14-50 3-27-50 1) S Wmdle--------------------------------------------------------- 3-16-50 5-27-50 H L Buffington-------------------------------------------------------- 3-16-50 5-31-50 3 L Cross -------------------------------------------------------------- 3-16-50 4- 3-50 L E Ford ------------------------------------------------------------ 3-15-50 1-23-51 Clifton Ingram--------------------------------------------------------- 3-17-50 f 5-50 J V Kev---- --------------------- ----------- -------------------------- 3-15-50 5-31-50 James Polk --------------------------------------- --------------------- 3-21-50 7- 3-50 W I Powell----------------------------------------------------------- 3-15-50 8-29-50 W 0 Smith------------------------------------------------------------ 3-17-50 5-31-S(1 James A. Wood----------------------------------------------------- 3-17-50 5-17-SO E E Campbell--------------------- ----------------------------------- 3-15-50 6- 6-50 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD SCHEDULE 4.Employees with respect to whom dismissal is recommended W. L. Carlisle W. P. Johnson J. A. Waggoner Delbert Hunter J. E. Johnson W. W. Williams E. H. Stinebaugh Jose Johnson J. B. Landreth J. B. Mason O. B. Johnson J. F. Spivey Thomas G. Gore R. A. Lester W. E. Arrington Alexander Broughton Jack Loggins J. E Cummings - L. N. Cosby Reginald D. Nunley T. A. Harwell E. R. Esters J. D. Patrick C. F. Maxwell W. G. Folmar C. S. Reynolds W. F. Morris Quentin A. Hussey R. D. Russell R. G. Reed Mandel-Horton C. M. Starks Raymond Wright L C. Hadley Nathaniel Strange E A. Schulbach W. D. Hadley Dennis Voss SCHEDULE 5.--Employees with regard to whom motions to dismiss were granted at the hearing L. R. Bradshaw L. E. Mitchell C. D. Williams SCHEDULE 6.Enployees originally named in, the complaint whose names were deleted on motions to amend made by the General Counsel at the hearing B. D Moore H S. Corum E. H. Mapps C. H. Franklin L. E. Butler V. O. Seely C. L. Honeycutt Allen S. Britton F. G. Swindle, Jr. Carl E. Burns Orville H. Hudson Don E Wheeler F. C. Lemmie J. C. Hunter Sam H. Wray, Jr. G. W. Hale Sam D. Jarnigan Jacob Carr Eugene C. Luper Appendix E NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in UNITED STEELWORKERS OF AMERICA, CIO, or in any other labor organization of our employees, by discriminating in regard to their hire or tenure of employment, or any terms or conditions of employment. WE WILL NOT discharge or discriminatorily refuse to reinstate any of our employees for engaging in strike or concerted activities protected by the Act. - WE WILL NOT unlawfully solicit individual employees, where such em- ployees are represented by a collective bargaining agent, to discontinue or abandon strike activity. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist UNITED STEELWORKERS OF AMERICA, CIO, Or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refiain from any or all of such activities, except to the extent that such right might be affected by an agreement requiring membership in a labor AMERICAN MANUFACTURING COMPANY OF TEXAS 267 organization as a condition of employment, as authorized In Section 8 (a) (3) of the Act. WE WILL in the manner described in the section of the Trial Examiner's Intermediate Report entitled , "The remedy ," offer to the following persons full reinstatement to their former or substantially equivalent positions without prejudice to any seniority .or other rights and privilege > -previously enjoyed, and make each of them whole for his loss of pay suffered as the result of the discrimination against him : O. C. Brown W. O. Robertson W. J. Bunch J. J. Robinson Clarence Campbell C. J. Smith Wiley Franklin Floyd B. Gillean A. J. Hudson G H. Grimes Fred Huffman A A. Slaughter Oliver Jackson Jack D. Jennings Lloyd Lenhart B. L. Parry M. C. Mask WE WILL III the manner described above in the section of the Trial Ex- aminer's Intermediate Report entitled, "The remedy," make each of the following persons whole for any loss of pay suffered as a result of the discrimination against him. H. D. Ayers C. R. Riley B. J. Campbell T. J. Surles E. J. Coffman J. A Sanders W. W. Coursey H F. Tyk R. H. Corrender G. H. Witt liaurice Dorris J. C. Wilmon G. H. Davis D. S. Windle H L. Ehringson H. L. Buffington L. C. Goodwin J. L. Cross L. H. Guiles L. E Ford Rufus Key Clifton Ingrain I. C. King J. V. Key H. G. King James Polk Terrel King W. I Powell A J. Lindeman W. O. Smith L. G. Patterson James A. Wood B. Parrish E E. Campbell J. O. Reaves All our employees are free to become, remain, or refrain from becoming or remaining , members of the above-named union, or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section S (a) (3) of the Act. AMERICAN MANUFACURING COMPAXY OF TEXAS Employer. By ------------------------------------------------- (Repiesentative ) (Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or coves ed by any other material