Dayton Coal and Iron Corp.

672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DAYTON COAL AND IRON CORP. AND LuxE LEA, JR. and INTERNATIONAL UNION OF OPERATING ENGINEERS, STATIONARY LOCAL UNION No. 910. Case No. 10-CA-963. December 2, 1950 Decision and Order On March 27,1952, Trial Examiner William F. Scharniknow issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respond- ents filed exceptions to the Intermediate Report and supporting briefs.' The General Counsel and the Union filed no exceptions. The Board 2 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the Respondents' exceptions and briefs, and the `entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modification : 1. The Trial Examiner in his recommendations included Billy Joe Roberts in the list of employees to be reinstated with back pay. As it appears from the record that this employee died before the hearing, there can be no order of reinstatement as to him. However, in order to effectuate the policies of the Act, we will require the Respondents to make whole Roberts' estate for any loss of earnings suffered by him as the result of the discrimination against him during the period from the date of his wrongful discharge to the date of his death. As Roberts' employment ceased because of the Respond- ents' unfair labor practices, he remained an employee within the meaning of the Act until his death, and as such was entitled to any and all bonuses, emoluments, insurance coverage, and other benefits accorded by the Respondents to their employees, and which he would have enjoyed but for his discharge. We shall therefore further order the Respondents to make whole Roberts' personal representative and any other person or persons who, if Roberts had not been wrongfully discharged, would have been entitled upon his death, to such bonuses, emoluments, and insurance or other death benefits, for any deprivation 3 The Respondents' requests for oral argument are denied because in our opinion the record, exceptions and briefs adequately present the issues and the positions of the parties. 2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Murdock and Peterson]. 101 NLRB No. 138. DAYTON COAL AND IRON CORP. 673 or loss in respect of such benefits as they may have suffered by reason of his discharge.3 Order Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Dayton Coal and Iron Corp., its officers, agents, successors, and assigns, and the Re- spondent, Luke Lea, Jr., his agents, personal representatives and assigns shall : 1. Cease and desist from : (a) Discouraging membership in International Union of Operating Engineers, Stationary Local Union No. 910, by discriminatorily dis- charging any of their employees because of their union membership or activities, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. (b) Refusing to bargain collectively concerning wages, hours, and other conditions of employment with International Union of Operat- ing Engineers, Stationary Local Union No. 910, as the exclusive repre- sentative of all their employees at the quarry in Dayton, Tennessee, excluding all clerical and office employees, salesmen, guards, profes- sional employees, and supervisors as defined in the Act. (c) Interrogating their employees concerning their union member- ship and leaders; offering them any benefits to induce them to with- draw from membership in any union; conditioning continuance of their employment upon their abandonment of union membership or activities, threatening to shut down the quarry and cease operations because of their union membership or activities; or in any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist International Union of Operating Engineers, Stationary Local Union No. 910, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : I Coca-Cola Bottling Company, 97 NLRB 151. 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Upon request, bargain collectively concerning wages, hours, and other conditions of employment with International Union of Oper- ating Engineers, Stationary Local Union No. 910 as the exclusive representative of all employees in the aforesaid appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement if requested by International Union of Operating Engi- neers, Stationary Local Union No. 910. (b) Offer Archie Clark, Elmer Proffitt, Stanley Thurman, Joe Roberts, Tom Wilson, and Wilford R. Womack immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges. (c) Make whole the persons named in paragraph 2 (b) immedi- ately above, and also Ralph Barger, Ed Bishop, Willard Brooks, Dan Denton, and Jasper Dillard, in the manner set forth in the section of the Intermediate Report entitled "The Remedy" for any loss of pay suffered by reason of the discrimination against them. (d) Make whole the personal representative of Billy Joe Roberts, and any other person or persons whose interest may appear, for any deprivation or loss that they may have suffered by reason of Respond- ents' discrimination against Roberts by (1) payment to said personal representative of a sum of money equivalent to the amount Roberts would normally have earned as wages from the date of his discharge to the date of his decease, less his net earnings during such period, and (2) payment to said personal representative and to such other person or persons, if any, as their interest may appear, of a sum or sums of money equivalent to the amount of bonuses, emoluments, and insurance or other death benefits, to which they would have been entitled but for Roberts' discharge, deducting therefrom the amount of any bonuses, emoluments, or insurance or other death benefits heretofore paid or now payable to them as a result of Robert's employment elsewhere subsequent to his discharge. (e) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security pay- ment records, time cards, personnel records and reports, and all other records, necessary to analyze the amounts of back pay and the right of reinstatement under the terms recommended in this Order. (f) Post at the quarry office in Dayton, Tennessee, copies of the notice attached hereto and marked "Appendix A." 4 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by each of the Respondents or their respective representatives, be posted by Respondents immediately 4 In the event 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." DAYTON COAL AND IRON CORP. 675 upon receipt thereof and maintained by them for sixty (60) consecu- tive days thereafter in conspicious places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by respondents to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for the Tenth Region, in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: _"WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist INTERNATIONAL UNION OF OPERATING ENGINEERS, STATIONARY LOCAL UNION No. 910, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, and 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 condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL baragin collectively, upon request, with INTERNA- TIONAL UNION OF OPERATING ENGINEERS, STATIONARY LOCAL UNION No. 910 as the exclusive representative of all our employees at the quarry at Dayton, Tennessee, excluding all clerical and office employees, salesmen, guards, professional employees, and supervisors as defined in the Act. WE WILL offer the following employees immediate and full re- instatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed: Archie Clark Joe Roberts Elmer Proffitt Tom Wilson Stanley Thurman Wilford R. Womack WE wILL make whole the foregoing six employees and also Ralph Barger, Ed Bishop, Willard Brooks, Dan Denton, and Jasper Dillard, for any loss of pay suffered by them as a result 242305-53---44 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of discrimination, to the extent and in the manner recommended by the Trial Examiner in his Intermediate Report. WE wmL make whole the estate of Billy Joe Roberts and any other person or persons, as their interest may apear, for any loss of wages, bonuses, emoluments, and insurance or other death bene- fits suffered as a result of our discrimination against him. All our employees are free to become or remain members of the above-named Union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of member- ship in, or activity on behalf of, any such labor organization. LuiE LEA, JR., Employer. DAYTON COAL AND IRON CORP., Employer. Dated -------------------- By ----------------------------- (Representative ) (Title) NoTE.-This notice must remain posted for 60 days from the date hereof and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge duly filed on February 6, 1950, by International Union of Oper- ating Engineers , Stationary Local Union No. 910 , herein called the Union, the General Counsel for the National Labor Relations Board,' by the Regional Direc- tor for the Tenth Region (Atlanta, Georgia), issued a complaint dated October 15, 1951, alleging that Dayton Coal and Iron Corp . and Luke Lea, Jr., herein collectively called the Respondents and sometimes also referred to separately as the Company and Lea, respectively, had engaged in and are engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, (61 Stat. 136), herein referred to as the Act. Copies of the complaint, the charge, and a notice of hearing were duly served upon the Respondents and the Union. With respect to the unfair labor practices , the complaint alleges in substance: (1) That, on or about January 27, 1950, and at all times thereafter , the Union was and has been designated as collective bargaining representative by a major- ity of the Respondents ' employees in a unit appropriate for the purposes of col- lective bargaining, consisting of all employees of the Respondents at a quarry in Dayton, Tennessee, excluding all clerical and office employees, salesmen, guards, professional employees and supervisors as defined in the Act. (2) That, on or about February 3, 1950, and at all times thereafter, the Respondents, in violation of Section 8 (a) (1) and ( 5) of the Act, have refused to bargain collectively with the Union as the exclusive bargaining representative of the employees in the appropriate bargaining unit. %The General Counsel and the staff attorney appearing for him at the hearing are herein referred to as the General Counsel ; the National Labor Relations Board is referred to as the Board. DAYTON COAL AND IRON CORP . 677 (3) That, on or about February 2, 1950, the Respondents, in violation of Section 8 (a) (1) and (3) of the Act, discharged employees Ralph Barger, Ed Bishop, Willard Brooks, Archie Clark, Dan Denton, Jasper Dillard, Elmer Prof- fitt, Stanley Thurman, Billy Joe Roberts, Joe Roberts, Tom Wilson, and Wilford R. Womack,' and have since failed and refused to reinstate them, all because of their membership in, and activities on behalf of the Union, and because they engaged in concerted activities with other employees for the purposes of collec- tive bargaining and other mutual aid and protection. (4) That, in February 1950 the Respondents, in violation of Section 8 (a) (1) of the Act, interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act, by interrogating them about their union membership, activities, desires, and leaders ; by promising them financial benefits including bonuses and wage increases if they would with- draw from membership and refrain from engaging in union activities ; by con- ditioning reinstatement of employees upon their abandonment of union member- ship and activities ; by threatening to shut down the quarry and cease operations because of the union membership and activities of the employees ; and by soliciting employees individually to repudiate their duly designated bargaining agent and return to work. The Respondent Company and the Respondent Lea, in separate answers, deny the commission of any unfair labor practices as charged in the complaint, and in substance assert also that (1) on and since February 1, 1950, and thus before the occurrence of any of the alleged unfair labor practices, the Respondent Lea took over the operation of the quarry as an independent contractor under a contract with the Respondent Company and not as an agent of the Company ; (2) the employees, whom the complaint alleges to have been discriminatorily discharged, were in fact released by the Respondent Company to permit the Respondent Lea to hire his own employees; and (3) that some of these employ- ees have since been employed by the Respondent Lea. Pursuant to notice, a hearing was held in Dayton, Tennessee, on October 29 and 30, 1951, before the undersigned Trial Examiner duly designated by the Chief Trial Examiner . The General Counsel and the Respondents appeared by counsel and the Union by its representative, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. When counsel had rested their cases, counsel for the Respondents, moved to dismiss the complaint. This motion is denied in accord- ance with the considerations set forth in this Report. Before the hearing closed, counsel waived oral argument and were requested by the undersigned to submit briefs. Since the hearing, the undersigned has received a brief from counsel for the Respondents. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I. THE GENERAL HISTORY AND BUSINESS OF THE RESPONDENTS The present case concerns the alleged violation by the Respondent Company and the Respondent Lea of the organizational and bargaining rights of em- ployees in a quarry at Dayton, Tennessee. The Respondent Company, upon its incorporation under the laws of the state of Tennessee in 1947, acquired title to a tract of land including the quarry which 2 Minor inaccuracies of the complaint in setting forth and spelling the names of Dillard, Billy Joe Roberts, and Womack, which became apparent from the testimony given at the hearing, have been corrected. 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had originally been used to produce limestone for a pig-iron plant also located on the tract. At first, the Company produced concrete blocks, using the coke and slag left from the old iron plant operations . Then it reopened the quarry under its own foreman , but, finding it too expensive, leased the quarry for operation by Lambert Brothers, established quarry operators' By September 1949, while this contract was still in force, judgments for approximately $10,000 had been entered against Lambert Brothers as damages for injuries to nearby properties resulting from blasting at the Dayton quarry. Under this pressure, the Lamberts discontinued operations at the quarry in September 1949, and the Company itself thereafter operated the quarry until February 1, 1950, with its own employees under W. H. Smith, as superintendent and vice president of the Company. On or about November 1, 1949, a bill of complaint was filed in the Tennessee courts, alleging that the Company's blasting and the dust therefrom constituted a nuisance and praying that it be enjoined. However, J. Wesley Gardner, the Company's general manager, assured the complainants that the nuisance would be abated by changing the manner of blasting and as a result, the complainants did not press for a hearing upon the bill, although it was still pending on the court's docket at the time of the hearing in the present case in October 1951. Sometime between December 12 and December 20, 1949, General Manager Gardner of the Company asked Respondent Lea whether Lea would undertake the operation of the quarry under a contract with the Company. Lea, who was recommended to Gardner by one of the Company's employees and was otherwise unknown to Gardner, had been engaged for approximately 13 years in itinerant quarrying and rock crushing operations with his own staff and a portable rock crusher. Although Gardner suggested possible terms for a contract, no agreement was then reached and Gardner left for a trip to Florida. However, at Lea's request so that he might acquaint himself with the quarry, its operation, and feasible contract terms, Lea began assisting and advising Superintendent Smith in managing the quarry on or about December 26, 1949, continued to do so until February 1, 1950, and received "a drawing account or salary of $85.00 a week." According to the testimony of Gardner and Lea, which the undersigned credits, they resumed discussion of contract terms on or about January 20, 1950, when Gardner returned from his trip, and by January 31, 1950, had reached agreement. The Company and Lea entered into a written agreement dated February 1, 1950, although it was not actually signed until a few days later. In general substance, the contract provided that the period of 1 year, renewable for 2 successive annual periods at the option of Lea, the Company would lease the quarry to Lea and advance the cost of certain machinery replacements and all operating costs, including labor and related items and a weekly advance of $85 to Lea, in return for which Lea would operate the quarry at his own expense, reimburse the Company for the machinery replacements over the period of the contract, produce certain minimum quantities of crushed stone, and sell the entire output to the Company at rates fixed in the contract. The contract further provided that the Company should have the right "to suspend tempo- rarily all quarrying and stone crushing operations in the event it is unable to secure sufficient orders of sale . . .," and also the right to cancel the contract upon 10 days written notice upon any default by Lea under the contract or upon an "overall operational loss" for any one month after March 1, 1950, unless, within the 10-day notice period, Lea remedied the default or paid the Company 8 Neither the date upon which the Company reopened the quarry, nor the date of its lease to Lambert Brothers is shown by the record. DAYTON COAL AND IRON CORP. 679 the amount of the operational loss. Under this contract and an amendment agreed upon in January 1951, Lea operated the quarry from February 1, 1950, until the time of the hearing in the present case. Under its contract with Lea, as well as during the previous periods of its own and Lambert Brothers' operation, the Company sold the quarry's entire product. For the annual period beginning April 1, 1949, which the parties stipulated to be "substantially representative of the Company's business," pur- chases of materials, supplies, and services amounted to $46,696.23, of which only $900 by value represented materials obtained from points outside the State of Tennessee. During the same year, all of the crushed rock sold from the quarry was used by the purchasers in the State of Tennessee. However, by value, at least $3,269.23 of the rock was sold to, and used in the course of their businesses by, Tennessee customers each of whom annually produced goods or performed services of a value in excess of $50,000 and sold goods or performed services of a value exceeding $25,000 outside the State in which its principal office was located` In addition, $49,973.46 by value of the crushed rock sold during this annual period was used by customers in the construction and repair of State and Federal roads in Tennessee,' and $35,836.15 by value, in the construction of rural roads.' Thus, of the crushed rock produced in, and sold from, the quarry in the year beginning April 1, 1949, more than $50,000 by value was used either by customers in businesses, in which each customer produced and sold more than $25,000 of its products in interstate commerce, or by customers who used the rock in the construction or maintenance of State and Federal roads which are integral parts of the modern-day channels of interstate commerce. Therefore, contrary to the Respondents' contention, the undersigned concludes that the operation of the quarry, whether by the Company or by Lea, substantially affects, and has affected, interstate commerce within the meaning of the Act and warrants the Board's assertion of jurisdiction in the present case.' 4 The purchases of customers in this category were the following : W. S. Dickey, Clay Mfg. Co__...--------------------------------- $525. 05 Southern Wood Preserving Co------------------------------------ 2,552.55 Somerville Iron Works-------------- --------------____________ 191.63 Total---------------------------------------------------- 3,269.23 Other customers whose interstate businesses would place them in this category, were Sam Finley, Inc., and Hardaway Contracting Co., whose purchases were also used, however, in the construction and maintenance of State and Federal roads . See the next footnote. " The purchases of customers in this use-category were the following : Sam Finley, Inc---------------------------------------------- $16,235.89 John M . Brinkley---------------------------- -.--------------- 18,458.82 A. B. Long Construction Co------------------------------------ 9,885.83 Hardaway Contracting Co------------------------------------- 1,088.00 State of Tennessee-------------------------------------------- 4,304.92 Total-------------------------------------------------- 49,973.46 ° The purchases of customers in this use-category were the following : Rhea County Highway Department ------------------------------ $16,907.13 State of Tennessee-------------------------------------------- 18, 929.02 $5,886.15 ' Hollow Tree Lumber Company, 91 NLRB (M6; Camp Coact & 0 Block CompaNy,,94 NLRB 296; Hart Concrete Products Company, 94 NLRB 1565. The undersigned believes it unnecessary to decide in the present case whether the use of rock from th4 quarry for the construction and maintenance of rural roads as distinguished from State and Federal roads, might also be regarded as a substantial factor affecting com- merce within the meaning of the Act. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED International Union of Operating Engineers, Stationary Local Union No. 910, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The organization of the quarry employees It is undisputed that the Respondent Company itself operated the quarry from September 26, 1949, until at least February 1, 1950, the date of the con- tract under which it leased the quarry to Lea. For both the week ending January 28, 1950, and the half week to and including February 1, 1950, the Company had 15 employees on its quarry payroll and 1 additional employee, Carroll Hale, a laborer who had been injured on the job in December 1949, and bad not yet returned to work. Among these quarry employees were a clerk (Paralee Mitchell) ; 2 watchmen (Jasper Dillard and Roy Whitfield) ; and 1 employee (George Owensby) whose work classification is not shown in the record. The 11 other employees at the quarry were production and maintenance employees, classified either as drillers, shovel operators, truckers, or laborers, viz, Ralph Barger, Ed Bishop, Willard Brooks, Archie Clark, Dan Denton, Elmer Proffitt, Billy Joe Roberts, Joe Roberts, Stanley Thurman, Tom Wilson, and Wilford R. Womack. On January 17, 1950, Jim Roberts, the father of employee Joe Roberts, told International Representative John M. Greene of the Union that a group of the quarry employees wanted the Union to represent them. At Jim Roberts' re- quest, Greene agreed to meet these employees. The meeting was held at Roberts' home On Friday evening, January 27, 1950. Carroll Hale and 10 of the other 11 production and maintenance employees (i. e., all of them except Tom Wilson) attended the meeting, signed cards designating the Union as their collective bargaining representative' and ap- pointed Ralph Barger, a shovel operator, to act as their steward. B. The discharges and the refusals to bargain While the employees were thus organizing, General Manager Gardner of the Company was negotiating a contract to lease the quarry to Lea. As has been noted in section I, agreement was reached on the terms of the lease by January 30 or 31, 1950, although the contract, dated and effective on February 1, was not executed for several days thereafter. On Monday or Tuesday, January 30 or 31, the Company gave each of the quarry employees the following letter on the Company's letterhead, signed by Gardner as general manager and by W. H. Smith, as vice president : We take pleasure in notifying you that Mr. Luke Lea, Jr., has entered into a'contract with us for the entire production operation of the quarry to produce the stone at a definite cost per ton to us. Mr. Lea will have complete charge of all operations at the Plant with the exception of the scale house and the office employees. All operating expenses including labor, gas, electricity, repairs and re- placements Are to be borne by Mr . Lea. Sales and the office will be under the supervision of Mr. Smith. We hope you wiu co-operate witli Mr. Lea, in every way possible to make his operation successful. • The names of two of the men (Carroll Hale and Billy Joe Roberts), who could not write. were subscribed to the cards at their requests and in their presence. DAYTON COAL AND IRON CORP. 681 No notice was given to the employees, however, that there would be any change in personnel under Lea, until Thursday morning, February 2. And the employees not only continued at their work on Monday, Tuesday, and Wednesday, January 30 and 31 and February 1, but when they quit early because of rain on February 1 a number of them were told by Lea to be sure to come back the next morning because there was work to be done.' However, when they reported to work on February 2, Lea handed the follow- ing notice, typed on company stationery but signed simply by "Luke Lea, Jr.," to Watchman Jasper Dillard and production and maintenance employees Ralph Barger, Ed Bishop, Willard Brooks, Archie Clark, Dan Denton, Elmer Proffitt, Billy Joe Roberts, Joe Roberts, Stanley Thurman, Tom Wilson, and Wilford R. Womack : Circumstances are such that I find it advisable to dispense with your services effective immediately. Your pay will be ready for you at the main office of the Dayton Coal and Iron Corporation at four o'clock this afternoon. Please call there for your money. This termination notice was thus given to Jasper Dillard, one of the quarry's two watchmen, neither of whom had signed a union membership application or bargaining authorization, and also to all 11 of the currently working production and maintenance employees, 10 of whom had signed union applications and bargaining authorizations on January 27. No notice of termination was given to Hale, who had signed the bargaining authorization but had not yet returned to work. It should be noted that, according to the testimony of Lea as well as that of the employees, Lea handed them their notices without oral qualification or explanation. However, according to Gardner's and Lea's testimony, Lea had decided, and had told Gardner that he intended, to retain 6 of the 11 production and main- tenance employees whom he regarded as the better workers, viz, Ralph Barger, Ed Bishop, Willard Brooks, Dan Denton, Joe Roberts, and Tom Wilson ; but that, upon conferring with Gardner during the evening of February 1 and in view of the rain which had flooded the quarry that day and made production tem- porarily impossible, it was then decided to discharge all the men and later to rehire the 6 whom Lea wanted, with Gardner assisting in the rehiring by speak- ing to these men on Lea's behalf. According to Gardner it was his suggestion that prompted the adoption of this course, "so that there will be no hard feelings with anyone." Lea testified that, although he discussed the matter with Gard- ner, the decision was his, since "it was my opinion it was easier to discharge all of the employees and rehire the ones that I wanted, than it was to go to each of the ones that I didn't want, and try to explain to him why I didn't want him." On the evening of February 2, Steward Barger Informed International Rep- resentative Greene by telephone that he and the other men had been discharged. On the following morning, Friday; February 3, Greene mailed a letter to Gardner' as the general manager of the Company, and copies to W. H. Smith as "vice president," and to Lea as "production manager," advising them that "a sub- Atantial majority of your employees presently engaged in stone quarry and rock crushing operations" had designated the Union as their collective bar- gaining representative, and requesting "a conference with officers of your com- ^;ii y to begin negotiations for an, agreement rela^Lvf to *ages and working, conditions covering said employees," Empioyees Barger, Denton, Womack, Proffitt, and blshfip 'so testified. Lea tgstifled that it was "possible" that he told the men to come back to work. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Having mailed these letters on February 3, Greene telephoned General Man- ager Gardner at least once and perhaps twice on the same day,'' and also had Stanton Smith, Lea's brother-in-law and president of the State Federation of Labor, telephone Lea during the afternoon. In his telephone conversation or conversations with Gardner, Greene asked Gardner to reinstate the men who had been discharged and "whom the Union had signed up," and also to confer with Greene concerning their continued em- ployment at the quarry and a contract with the Union as their representative. Gardner replied in substance that the Company had transferred the quarry operations to Lea, and that it therefore no longer had any employees. When Stanton Smith telephoned Lea at Greene's request the same afternoon, Lea agreed to meet with Greene that night but later in the afternoon telephoned Smith, cancelling the appointment and saying that he would not meet with Greene. 0. Evidence bearing upon the Respondents' motives and interference Gardner and Lea testified in substance, and the Respondents contend, that they knew nothing of the organizational activities of the employees until they received Green's bargaining request on February 3; that Watchman Dillard and the production and maintenance employees were discharged on February 2, not because they had joined and were seeking representation by the Union, but in order to permit Lea a free hand in selecting his own staff for the operation of the quarry ; and that on and since February 3, both Gardner, on behalf of the Company, and Lea as the new operator of the quarry, justifiably refused to bargain with the Union because, as they told Greene, the men who had desig- nated the Union were not then employed either by the Company or by Lea. On the other hand, the General Counsel contends not only that the Respond- ents knew of the organization of the quarry employees at least by February 1, but also that the discharges on February 2 were planned and effected by both the Company and Lea in order to discourage organization by the employees and to avoid bargaining with the Union as their representative. In support of these contentions, the General Counsel apparently relies upon evidence of (1) a state- ment made by Superintendent Smith to Steward Ralph Barger on February 1; (2) the substance of Gardner's remarks to Greene over the telephone on Feb- ruary 3 concerning Gardner's general attitude toward bargaining with unions; (3) Lea's and Gardner's testimony bearing upon the reasons for Lea's cancelling his appointment to meet with Greene on February 3; (4) Gardner's and Lea's remarks to a number of the employees after their discharge and in the course of attempting to "rehire" them to work in the quarry under Lea; and (5) re- marks made by Gardner and President Ryland of Daytonians , Inc. (an organ- ization similar to a Chamber of Commerce) on February 19 at a meeting at the quarry office to which discharged employees had been summoned from the picket line by Gardner. We turn now to a consideration of this evidence and the extent to which it was denied or explained by the Respondents. 1. Superintendent Smith's conversation with Barger on February 1 Upon the uncontradicted testimony of Steward Ralph Barger, the undersigned finds that on the afternoon of February 1, the day before the discharges, Super- 1o Although Greene testified that he called and spoke with Gardner twice on February 3, once in the morning and once in the afternoon , Gardner testified that he recalled only one telephone conversation with Greene, and that it was in the morning. The undersigned believes that it is immaterial whether there were two conversations or only one conversation between the two men. DAYTON COAL AND IRON CORP. 683 intendent Smith met Barger downtown ; that Smith said to Barger, "Ralph, I have always had a lot of confidence in you. Have you joined the Union? I heard you joined Monday night" ; that Barger replied, "No. Friday night, up at Mr. J. C. Roberts' house"; and that Smith thereupon said, "Ralph, I don't be- lieve it will work." 2. General Manager Gardner's remarks to Greene on February 3 As has been found, when Greene asked Gardner over the telephone on February 3 to reinstate the discharged employees and to bargain with the Union as their representative, Gardner answered that the Company had transferred operation of the quarry to Lea and was therefore no longer the employer of the quarry workers. Both Gardner and Greene testified in substance, and the undersigned finds, that, despite Gardner's disavowal of the Company's interest in or responsi- bility for bargaining, Greene proceeded to assure Gardner that in bargaining the Union would not press for the higher building and construction industry wage rates but would seek the rates paid in the rock crushing industry; and that Gardner then said that from his experience with unions "they always cost you more money, and they featherbedded, and they did this and that." n Greene also testified, and the undersigned credits his testimony despite implications to the contrary in Gardner's testimony, that Gardner also told Greene "he would not put the men back to work collectively but he would consider them individually"; and that "he could not grant any wage increase; that before he would put any more money into the Company, . . . he would scrap the business."" It should be noted that Gardner testified In substance that his refusal to bargain with the Union was expressly and actually based upon the fact that the Company was no longer operating the quarry and, therefore, that his general remarks about bargaining with unions were not intended, nor could they be taken, as indicating a reason for the Company's refusal to bargain. However, Gardner also admitted in his testimony that even if he had then been operating the quarry for the Company, he would not have dealt with the Union as the representative of the quarry employees. 3. Lea's and Gardner's testimony bearing upon Lea's cancellation of his appointment with Greene As has been found, when Stanton Smith telephoned Lea on February 3, Lea at first agreed to meet with Greene that night, but then called Smith and can- celed the appointment, saying that he would not meet with Greene. In explana- tion of this reversal of position, Lea testified that, after agreeing to meet with Greene, he considered the fact that the quarry employees whom the Union sought to represent had been discharged, and also conferred with Gardner concerning his intended meeting with Greene. Both Lea and Gardner testified, and the undersigned finds, that Gardner told Lea that he would not finance the quarry operations if bargaining with the Union resulted in an increase in operating costs. 11 The quoted language is taken from Gardner's testimony. " Gardner did not explicitly deny making either of these statements to Greene , although such a denial is certainly implied by his testimony that he told Greene that the Company was no longer the employer of the quarry workers . It should be noted, however, as is hereinafter found upon the testimony of both Gardner and Lea , that Gardner, acting for Lea, did interview the quarry employees after their discharge on February 2, offering some of them continued employment , and that when he discussed with Lea the possibility of Lea's negotiating with the Union , he told Lea he would not finance Lea's operations if labor costs were increased. 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Gardner's and Lea's conversations with the employees after their discharge On Friday, February 3, and again on Saturday, February 4, Gardner told Steward Ralph Barger that Lea wanted Barger and five of the other discharged employees to work for him in the quarry. But Barger said that, since they had joined the Union, Gardner would have to deal with International Representative Greene. Gardner then told Barger the men could get their separation slips the following Monday morning. On Monday morning, February 6, the dischargees began picketing the quarry. During the same morning, they called upon Gardner in his office. Gardner spoke with each of them separately and gave him a slip, issued in the name of the Company and stating that "lack of work" was the reason for his termina- tion of employment. As Gardner himself testified, he tried "to help get Mr. Lea's organization together for him" by speaking to the men whom Lea wanted to retain and also by taking a number of new job applicants through the picket line to see Lea at the quarry. Accordingly, in his conversations with the dischargees when he gave them their separation slips, as well as in his previous conversations with Barger, Gardner asked each of the men who were on Lea's list whether they wanted to go back to work, and, in addition, visited Carroll Hale at his home, asked Hale if he wanted to work for Lea, and also mentioned Hale to Lea as a possible employee. Lea, too, saw Ralph Barger, Ed Bishop, Willard Brooks, Dan Denton, Carroll Hale, and Tom Wilson and asked them to return to work for him at the quarry. The men, however, insisted that all dischargees be reinstated and the Union be consulted in the matter as their representative. According to the testimony given by dischargees, both Gardner and Lea, in the course of some of these conversations asked whether the dischargee was a member of the Union or, in one case, whether Barger was the leader of the group; and also said in substance, (1) that the men had been discharged because the Respondents had learned of their joining the Union; (2) that the Union would ask for higher wage rates and the quarry would be closed ; (3) that, as a condition of reemployment at the quarry, the men must abandon or drop their union memberships, since Gardner would not finance the quarry operations and Lea would not employ them under the Union; and (4) that, although they would not receive a raise, there might be a profit-sharing arrange- ment for those who continued working at the quarry throughout the year. In addition, Steward Barger testified that when Gardner asked him on Saturday, February 4, to return to work and to induce the other five men on Lea's list to come back with him, Gardner told him he would receive a 10 cents per hour raise which had been previously promised to him by Superintendent Smith. Gardner testified generally that he spoke to the men only about whether or not they wanted to work and that he did not talk to any of them about the Union. However, he explained, he believed he did tell Barger in one of their conversations that the Union would want higher pay and more jobs, and that the plant could not operate "under those conditions," and it "would be necessary to close if we were going to increase expenses," but, as he put it in his testimony, "I wasn't talking about what I could do then. I made a deal with Mr. Lea, and all the time I was talking about reemployment for Mr. Lea." At another point in his testimony with respect to Barger's testimony that Gardner had said he would not operate under a Union, Gardner stated that, while be couldn't remember the conversation clearly, "I couldn't have made [that state- ment] ... because I wasn't employing anybody at that time," but that he might have told Barger (although he did not recall doing so) that "if I had . . . been operating the plant, that I would not have made a deal with the Union." DAYTON COAL AND IRON CORP . 685 When questioned specifically as to whether he had asked employee Brooks to tell him who had started the Union , Gardner stated merely that he did not recall having done so, and then later testified that it was "possible" that he asked employee Jasper Dillard if Barger were the leader of the group. Gardner admitted, however, that in speaking to Barger about returning to work in the quarry, he may have mentioned the possibility of profit sharing, because he had suggested it to Lea . However, according to Gardner , when he learned from Barger that "they were all going to hang together-it was take one or all back-deal with the Union-why, I didn't discuss it any further." Gardner was not questioned as to whether , and therefore neither admitted nor denied that, he offered Barger a 10-cent per hour increase if he and the other five men on Lea's list would return to work in the quarry. Lea testified in substance that he "never brought up the matter of the Union with any of the men " ; that he merely asked them to go to work, but that some of them said they had joined the Union and would not go back unless all of the dischargees went back ; and that he refused to put all of them back to work because he did not need them. He further denied having said that the men had been discharged because they had formed or joined a Union ; that he ever asked any of them if they had joined the Union or expected to continue as members ; or that he ever asked them "to do away with their Union con- nections." Despite these denials and explanations thus given by Gardner and Lea, the undersigned finds, upon what he regards to be the credible testimony of the General Counsel's witnesses that : (1) As Steward Ralph Barger testified , Gardner called Barger into his office on the morning of Friday, February 3, asked Barger if he had joined the Union, and, upon Barger 's affirmative answer , then said in substance that unions had never benefited anybody but had always caused trouble ; that he had several million tons of coal "out on the mountain," which he could get out "if it wasn't for John L. Lewis and the Union" ; that the first thing the Union would do would be to ask for higher wages ; that he wouldn 't operate under a union ; but that he was then "drawing up a contract" with Lea under which some, but not all of the men, would go back to work at their current rates of pay and would share in the profits if they continued to work until the end of the year. (2) As Barger also testified, Gardner again called Barger into his office on Saturday morning, February 4, and told Barger that he wanted Barger, Brooks, Bishop, Billy Joe Roberts, Carroll Hale, and Dan Denton to come back to work ; that the men would have to drop the Union , however ; and that if Barger induced them to return, he would get a dime raise which had been previously promised him by Superintendent Smith. (3) As employee Willard Brooks testified , Gardner asked him on Monday, February 6, who had started the Union. (4) According to the testimony of Jasper Dillard ( who, it will be recalled, had not joined the Union ), Gardner asked him what he was doing in the office when he appeared to receive his separation slip on Monday morning , February 6; that Dillard said he had been discharged ; that Gardner then said, "We thought you were with the bunch," i. e., that they thought he was in the Union ; and that Gardner then told Dillard to see Lea about going back to work. (5) As employee Ed Bishop testified , Superintendent Smith , who was in the 'office with Gardner when the men secured their separation slips on Monday, February 6, asked Bishop in Gardner 's presence who had started the Union, and that Gardner then said that he just could not operate under a union so that the men might just as well forget the Union. 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (6) According to the testimony of Carroll Hale (who, it will be recalled, was still on leave as a result of an injury ) Gardner asked him about a week after the discharges to come back to work, and, when Hale said, "I am not able. I joined that union with the boys," Gardner asked why Hale had joined, and said that he could not pay the union scale of wages. (7) As Steward Ralph Barger testified, Lea visited Barger at his home on Monday night, February 6; that Lea told Barger that he wanted Barger to come back to work, but that he would not take Barger back under a union, nor would Gardner finance the operation of the quarry under a union ; and that, when Barger asked Lea why the men were laid off, Lea said that "they had found out about us joining the Union, and so late that that was the only thing they could figure, or knew, the quickest way to get us out before the Union did get a hold to come in." (8) As employees Ed Bishop and Carroll Hale testified Hale took Lea to Bishop's home on the night of February 6; that Lea asked them to come back to work ; that he also asked them why they had joined the Union ; that he told Bishop he could work at the quarry if he dropped the Union ; that he also said that Gardner could not operate under the Union but would "junk" the plant; that when Bishop asked for a higher wage, Lea said there might be a profit- sharing arrangement ; and finally, that, upon Bishop's question, Lea said the men had been discharged because they joined the Union. 5. The meeting at Gardner's office on February 19 or 20 The picketing at the quarry continued until approximately February 19 or 20, 1950. By that time, of the 12 dischargees, only Jasper Dillard, the watchman, had returned to work, and the quarry was being operated with 13 new production and maintenance employees, consisting of 1 mechanic, 2 drillers, 2 shovel opera- tors, 4 truckers, and 4 laborers. On approximately February 17, 1950, the Company received the following type- written letter, which had been prepared by a union representative and signed by dischargees Ralph Barger, Ed Bishop, Willard Brooks, Archie Clark, Dan Denton, Elmer Proffitt, Stanley Thurman, Billy Joe Roberts, Joe Roberts, Tom Wilson, and Wilford R. Womack: We, the undersigned, former employees of your corporation until February 2, 1950, on which date we [were] locked out of the premises of the quarry operated by your corporation and discharged by letter signed by Luke Lea, Jr., dated February 2, 1950, hereby apply for reinstatement to our respective former positions at the quarry without any difference being made in our hours of work, rate of pay, or working conditions, or the equivalent of our former positions. This composite application is a continuing application for reemployment and is meant to remain in effect unless revoked in writing, individually. The undersign (sic) request that you give this matter your prompt atten- tion and advise us individually as to what action the Company contemplates taking in reemploying us. Our addresses and phone numbers are on file in your office. We await your reply. Gardner testified that he regarded this letter as being "a request to negotiate individually." While it is clear to the undersigned from the face of this letter that it was not a withdrawal by the subscribers either of their union membership or of their designations of the Union as their representative (as Gardner's con- struction might imply), it certainly was an application by each of them Indi vidually for reinstatement. DAYTON COAL AND IRON CORP. 687 Accordingly, upon receipt of the letter , Gardner decided to speak to the men about the possibility that some of them might return to work in the quarry under Lea. Therefore, on the morning of either February 19 or 20, he asked the men on the picket line, or had Carroll Tallent, the city manager of Dayton, ask them,' to come to a meeting that afternoon in Gardner's office. At lunch, Gardner and Tallent met Ryland, the president of Daytonians, Inc., (the equivalent of the local Chamber of Commerce) and told Tallent of the pro- posed meeting. Ryland was a real estate broker who was attempting to sell part of the Company's tract and adjoining properties as industrial sites. He and Gardner discussed the possibility of persuading the men to remove the picket line which might discourage prospective purchasers to whom Ryland intended to show the properties. As a result, Ryland, as well as Tallent and the Com- pany's attorney, were present with Gardner when the meeting with the men was held at 3 or 4 o'clock that afternoon. Gardner spoke to the men first and , in the course of his talk, introduced Ryland who thereupon also spoke to the men. The burden of both speeches, prefaced in Gardner's speech with a recital of his personal history beginning with his work as a railroad telegrapher when he said he found that unions slowed down work and featherbedded, was that the picketing at the quarry should be abandoned because, contrary to the interests of the community, it discouraged the location in Dayton of new industrial plants. Otherwise, there were only two points in the speeches as to which the testimony of the witnesses presented any conflict. As to the first, both Gardner and Walter Cheers, the Company's at- torney, testified (and the undersigned credits their testimony despite denials by Proffitt and Bishop), that in his talk Gardner told the men that some of them would probably be rehired by Lea. The second conflict in the testimony concerning the speeches is, in the opinion of the undersigned, more apparent than real. For, while Gardner and Cheers testified that the speakers merely urged the abandonment of the picket line because it discouraged new industry, dischargees Barger, Proffitt, Bishop, and Clark testified that they were also told that the fact of their unionization was discouraging to the influx of new business . Since the undersigned finds that this was in any event the impression reasonably to be gained from the undisputed portions of the speeches, the under- signed believes it unnecessary to decide whether it was expressed and thus spelled out in the speeches or whether it was merely reasonably implied there- from. After these speeches on February 19 or 20, the picket line was disbanded by the dischargees. D. The subsequent hire of some of the disohargees by Lea The record shows that five of the dischargees have since been hired by Lea and returned to work in the quarry : Ralph Barger, shortly after February 20, 1950; Ed Bishop, in June 1950; Willard Brooks, on or about June 20, 1950; Dan Denton, in March 1950; and Jasper Dillard, in February 1950. E. Conclusions In view of the findings made in section III, A of this Report, there can be no serious dispute that on January 27, 1950, the Union was designated as exclusive bargaining representative by a majority of the quarry employees, excluding cleri- cal and office employees , salesmen, guards, professional employees, and super- 33 The undersigned believes it to be immaterial whether Gardner himself visited the picket line, as Barger, and Proffitt, testified, or whether he sent Tallent , as Gardner testified. 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visors as defined in the Act, or that these employees constituted a unit appro- priate for the purposes of collective bargaining. Briefly stated, the contested issues in the case are : (1) Whether the Company 's conclusion of the lease arrangement with Lea was significant either ( as the General Counsel contends ) as an expedient or maneuver of the Company to deprive the employees of their bargaining rights, or (as the Company contends ) as the termination of its relationship to the work- ers as their employer before the occurrence of any of the alleged unfair labor practices, which, under the Act may be committed only by an employer or his agent. (2) Whether the Respondents, acting jointly and in furtherance of their com- mon interests under their lease -operating agreement, discharged all the em- ployees in the bargaining unit on February 2 to avoid bargaining with the Union and then , asserting that the men were no longer their employees , refused to bargain with the Union on February 3, thereby discriminating against them as employees in violation of Section 8 (a) (3) and refusing to bargain with the Union as their statutory representative in violation of Section 8 (a) (5) of the Act. (3) Whether, after discharging the employees and refusing to bargain, the Respondents further interfered with , restrained, and coerced them in the exer- cise of the rights guaranteed in Section 7 of the Act, by Gardner's and Lea's conversations with them in the course of issuing the leave slips, recruiting some of them for Lea's staff, and inducing them to abandon the picket line. Upon the evidence, it appears clear and the undersigned finds, that the Com- pany's purpose in leasing the quarry to Lea was not, as the General Counsel con- tends, to avoid bargaining with the Union , but rather to procure for itself the full product of the quarry at guaranteed , low cost, with the added possibility of avoiding lawsuits and pecuniary liability which might result if it continued to operate the quarry itself. For, not only had the Company begun its negotia- tions with Lea in the middle of December 1949, and thus more than a month before the employees began organizing, but, upon abandoning its initial, un- profitable attempt at direct operation of the quarry , it had previously resorted to the same sort of lease-operating contract with Lambert Brothers , only to have Lambert Brothers withdraw from that contract and turn the quarry back to the Company in September 1949 because of the sizable judgment which had been entered against it. Then, when the Company necessarily resumed direct opera- tion , the injunction suit gave further warning of the possible pecuniary liability flowing therefrom and even threatened the continuance of the operation unless efficient and experienced management were secured . Operation of the quarry by Lea, an experienced quarrier and rock crusher , seemed to be the logical answer to the Company 's problems. The undersigned is, therefore, impelled to the conclusion, which is in accord with Gardner's testimony on the point, that purely economic and business considerations prompted the Company to make its lease to Lea. The undersigned , however , cannot agree with the Company's contention that the lease-operating contract terminated its status as an employer before any of the alleged unfair labor practices occurred . On the contrary, for the reasons which follow, the undersigned believes that in their dealings with the employees and the Union as their representative , the Company and Lea were joint em- ployers within the meaning of the Act. While the lease-contract by its terms gave Lea the status both of an inde- pendent contractor with respect to the operation of the quarry and of an em- DAYTON COAL AND IRON CORP. 689 ployer in relation to the quarry workers, it neither freed him in fact from eco- nomic dependence upon, and influence by, the Company, nor extinguished the Company's interest in the operation of the quarry by Lea under what was appar- ently an advantageous contract for the Company. For, in spite of the legal demarcation of the Company's and Lea's respective rights as against each other under the contract, they were both interested in having the quarry operated in such a manner that Lea might make a profit sufficient to satisfy him and render unlikely a default by him under the contract, and, that being so, that the Com- pany might thereby retain its benefits under the contract. Certainly, to the extent that the Company and Lea chose to cooperate in the furtherance and pro- tection of their coinciding interests under the contract, they were in fact jointly engaged and should both be held responsible for the consequences. It is clear from the record that, in dealing with the quarry employees, the Company and Lea closely cooperated and took the action which they both regarded as protecting and furthering their interests. For the evidence shows that the discharges and the refusals of the Company and Lea to bargain with the Union were the results of conferences between Lea and Gardner, in which, according to Gardner's testimony, Gardner persuaded Lea to discharge all, rather than only half of the staff, and to rely upon Gardner's help in later securing the return of those whom Lea wished to employ, and also persuaded Lea to cancel his appointment to meet with Greene lest negotiations with the Union would increase labor costs. And the evidence also shows that the statements made thereafter to the dischargees by both Gardner and Lea, which the General Counsel asserts to be a continuation of the unfair labor practices, were also made in the course of Gardner's and Lea's cooperation in building up a new staff for Lea under circumstances which rendered it unlikely that either the Company or Lea would again be bothered by employee-organization or collective bargaining at the quarry. It is therefore obvious, and the undersigned accord- ingly concludes, that in thus dealing with the employees, the Company and Lea were joint employers within the meaning of the Act. Moreover, the undersigned is of the opinion that, by their conduct, the Re- spondents engaged in the unfair labor practices charged by the complaint. Upon the findings of fact made in section III, C (1) and (4) of this Report concern- ing Superintendent Smith's remarks to Barger on February 1 and Gardner's and Lea's subsequent admissions to several of the dischargees that Lea and the Company (acting through Gardner) planned and effected the discharges on February 2 because they had by then learned of the employees' organization and the imminence of a bargaining demand by the Union, the undersigned con, eludes that the Respondents, by discharging the quarry employees on Febru- ary 2, 1950, discriminated against these employees in regard to their hire and tenure of employment, thereby discouraging membership in the Union and vio- lating Section 8 (a) (1) and (3) of the Act. The undersigned further finds that since these discharges were discriminatory and motivated by a desire on the part of the Company and Lea to avoid bargain- ing, the dischargees remained employees within the meaning of the Act and there was no justification for the refusals of the Respondents to bargain with the Union as their majority-chosen statutory representative the following day, February 3, 1950. The undersigned accordingly concludes that the Respondents, by thus refusing to bargain collectively with the Union, committed an unfair labor practice within the meaning of Section 8 (a) (5) of the Act. Finally, the undersigned concludes, upon the facts found in Section III, A (4) of this Report that the Respondents in further violation of Section 8 (a) (1) 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Act, interfered with, restrained, and coerced the quarry employees in the exercise of the rights guaranteed in Section 7 of the Act in the following conduct: (1) By questioning them about their union membership and leaders. (2) By offering them a profit-sharing arrangement and in one case (that of Barger ) a wage increase, if those whom Lea had selected would return to work and give up their union membership. (3) By conditioning resumption of their employment at the quarry under Lea upon their abandonment of their union membership and activities. (4) By threatening that the Company would shut down the quarry and cease operations because of the union membership and activities of the employees. The undersigned does not find, however, that Gardner's summoning the dis- chargees from the picket line to attend the meeting at the quarry office on February 19 or 20, 1950, nor his nor Ryland's remarks to them at this meeting, constituted an unfair labor practice. The evidence shows that at least one purpose for the meeting was to answer the dischargees' requests for reinstate- ment. And the remarks of Gardner and Ryland at this meeting, while furnishing further evidence of the Company's antipathy for unions and collective bargaining, and thus supporting the findings already made concerning the Company's motive in participating in the discharge of the quarry workers, contained neither promises of benefits if the men should withdraw from the picket line, nor threats of reprisal if they should refuse to do so. The remarks were thus privileged under Section 8 (c) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents, set forth in section III, above, occurring in connection with the operations of the Respondents set forth in section I, 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 thereof. V. THE REMEDY Since it has been found that the Respondents have engaged in unfair labor practices within the meaning of Section 8 (a) (1), (3), and (5) of the Act, the undersigned will recommend that they cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. The undersigned has found that on February 2, 1950, the Respondents dis- criminatorily discharged the 12 quarry employees named in the complaint, and since that time only 5 of them have been rehired. The undersigned will recom- mend that the Respondents offer to each of the 7 discharged employees who have not been rehired, immediate and full reinstatement to his former or sub- stantially equivalent position. The undersigned will also recommend that the Respondents make whole each of the 12 dischargees for any loss of pay which he may have suffered by reason of the Respondents' discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned as wages from February 2, 1950, to the date of the Respondents' offer of reinstatement, less his net earnings during said period" Loss of pay shall be computed on the basis of each separate calendar quarter or portion thereof during the period between February 2, 1950, and the date of a 14 Crossett Lumber Company, 8 NLRB 440. DAYTON COAL AND IRON CORP. 691 proper offer of reinstatement. The quarterly periods, herein called quarters, shall begin with the first day of January, April, July, and October. All loss of pay shall be determined by deducting from a sum equal to that which each employee would normally have earned for each such quarter or portion thereof, his net earnings if any, in any other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. It will also be recommended that the Respondents, upon reasonable request, make available to the Board and its agents all payroll and other records pertinent to an analysis of the amounts due as back pay." It having also been found that the Respondents refused to bargain collectively with the Union, the statutory representative in the appropriate unit, it will be recommended that the Respondents bargain collectively with the Union and embody any understanding reached, in a signed agreement. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. International Union of Operating Engineers, Stationary Local Union No. 910, is a labor organization admitting to membership employees of the Respond- ents. 2. The Respondents, Dayton Coal and Iron Corp. and Luke Lea, Jr., are, and have been, employers within the meaning of Section 2 (2) and 8 (a) of the Act. 3. All employees of the Respondents at the quarry at Dayton, Tennessee, excluding all clerical and office employees, salesmen, guards, professional em- ployees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. International Union of Operating Engineers, Stationary Local Union No. 910, is now, has been at all times since January 27, 1950, the exclusive representa- tive of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 5. By refusing on February 3, 1950, and at all times thereafter, to bargain collectively with International Union of Operating Engineers, Stationary Local Union No. 910, as the exclusive representative of their employees in the aforesaid appropriate unit, the Respondents have engaged in, and are engaging in, unfair labor practices within the meaning of Section 8 (a) (1) and (5) of the Act. 6. By discriminating in regard to the hire and tenure of employment of the 12 employees named in the complaint, thereby discouraging membership in Inter- national Union of Operating Engineers, Stationary Local Union No. 910, the Respondents have engaged in, and are engaging in, unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 7. By the above unfair labor practices and by otherwise interfering with, restraining, and coercing is employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondents have engaged in, and are engaging in, unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 8. 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.] 'a P. W. Woolworth Company, 90 NLRB 289. 242305-53--45