Marshall Car Wheel and Foundry Co. of Marshall, Texas, Inc.

MARSHALL CAR WHEEL AND FOUNDRY CO. 57 The scope of Respondent's illegal conduct, as found above , discloses a purpose to defeat self-organization among the rank -and-file employees and prospective employees of Weyer- haeuser Timber Company. In order, therefore, to make effective the interdependent guarantee of Section 7, to prevent a recurrence of unfair labor practices and thereby minimize indus- trial strife which burdens and obstructs commerce and thus effectuate the policies of the Act, the undersigned will recommend that Respondent cease and desist from in any manner in- fringing upon the rights guaranteed in Section 7 of the Act. 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. Plywood Workers Local Union No. 2498, a chartered local of United Brotherhood of Carpenters and Joiners of America which , in turn, is affiliated with American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 2. Weyerhaeuser Timber Company , Longview, Washington, is in employer within the meaning of Section 2 (2) of the Act. 3. By restraining and coercing employees of,Weyerhaeuser Timber Company in the exer- cise 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 (b) (1) (A) of the amended Act. 4. By attempting to cause Weyerhaeuser Timber Company , an employer , to discriminate against one or more of its employees , in violation of Section 8 (a) (3) of the amended Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the amended Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the amended Act. [Recommendations omitted from publication.] MARSHALL CAR WHEEL AND FOUNDRY CO. OF I3AR- SHALL, TEXAS, INC. and UNITED STEEL WORKERS OF AMERICA, CIO. Case Noa. 16-CA-443. May 28, 1953 DECISION AND ORDER On March 13 , 19531 Trial Examiner Horace A. Ruckel issued his Intermediate Repbit in the above-entitled pro- ceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (3) and `( 1) of the Act, and recommending that the Respondent cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto: The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended that the complaint be dis- missed with 'respect thereto .' Thereafter , the Respondent and the Union filed exceptions to the Intermediate Report and briefs. The Board ' has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was com- i In the absence of exceptions to the Trial Examiner 's failure to find that the Respondent independently violated Section 8 (a) (1) of the Act , we shall dismiss the complaint with respect thereto. ' 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 [Members Murdock , Styles, and Peterson]. 105 NLRB No 32. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mitted. The rulings are hereby affirmed. The Board has con- sidered the Intermediate Report, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings,3 conclusions, and recommendations of the Trial Examiner, with the following addition: THE REMEDY We agree with the Trial Examiner that the Respondent dis- criminated against the employees listed in Appendix A of the Intermediate Report in violation of Section 8 (a) (3) and (1) of the Act. Whether the discriminatory conduct is viewed as'a violation of Section 8 (a) (1) or 8 (a) (3) of the Act, we find that effectuation of the policies of the Act requires that these com- plainants be offered reinstatement with back pay from 3:30 p. m., October 16, 1951,4 when they unconditionally requested reinstatement, until the Respondent offers them full reinstate- ment without prejudice to their vacation and Christmas bonus privileges. S ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Marshall Car Wheel and Foundry Co. of Marshall, Texas, Inc., its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in United Steel Workers of America, CIO, or a.iy other labor organization of its employees, by discriminating in regard to the hire and tenure of their em- ployment or any term or condition of employment. (b) Interfering with, restraining, or coercing its employees in the exercise of their right to join, remain members of, or assist United Steel Workers of America, CIO, or any other 3We note and correct the following inadvertent errors in the Intermediate Report, none of which affects the validity of the Trial Examiner's ultimate findings and conclusions, nor our concurrence therein: (1) The date of the discharge and strike was alleged in the complaint as October 16, 1951, and not as August 16, 1951; (2) 4 percent of the raw material purchased by the Respondent during 1951 was shipped to its Marshall, Texas, plant from points outside Texas; (3) the meeting stated to have been held on December 2 was held on December 3, and that stated to have been held on March 15 was held on March 13; (4) the method of reinstating the strikers was the subject of discussion at the meeting on November 6 (not November 8), and the record does not show that this subject was discussed at any subsequent meetings; and (5) in paragraph numbered 7 of the Trial Examiner's Conclusions of Law, the name "Davis Smith" should be "David L. Smith." 4As Sam Hall joined the strike several days after October 16, 1951, back pay, in his case, will run from the date of his unconditional request for reinstatement. SKaIlaher and Mee, Inc., 87 NLRB 410. MARSHALL CAR WHEEL AND FOUNDRY CO. 59 labor organization , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to those employees named in Appendix A of the Intermediate Report immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their vacation , Christmas bonus, and other rights and priv- ileges. (b) Make whole the said employees , in the manner set forth in the section of the Intermediate Report entitled "The Remedy," as modified herein, for any loss of pay each may have suffered by reason of 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 , timecards , personnel records and reports, and all other records necessary to analyze the amounts of back pay due and the right of reinstatement under the terms of this Order. (d) Post in its plant in Marshall , Texas, copies of the notice attached to the Intermediate Report marked " Appendix A.'16 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 Respondent immediately upon receipt thereof and maintained by it for a period of sixty ( 60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent 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 writing , within ten ( 10) days from the date of this Order what steps Respondent has taken to comply therewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges violations of the Act other than those found herein to have been committed by the Respondent, be, and it hereby is, dismissed. 6This notice shall be amended by substituting for the words "the Recommendations of a Trial Examiner," the words "a Decision and Order." In the event that this Order is en- forced 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." Intermediate Report and Recommended Order STATEMENT OF THE CASE Pursuant to an amended charge dated January 9, 1952, filed by United Steel Workers of America, CIO, herein called the Union, the General Counsel for the National Labor Relations Board, herein respectively called the General Counseland the Board, by the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued his complaint dated July 11, 1952, against Marshall Car Wheel and Foundry Co. of Marshall, Texas, Inc., herein called Respondent, alleging that Respondent had engaged in and was engaging in certain unfair labor practices 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, as amended, 61 Stat. 136, herein called the Act. Copies of the charge, the complaint, and .a notice of hearing were served upon Respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that Respond- ent (1) beginning in August 1951, laid off and/or discharged several named employees because of their union membership or activities, (2) from on or about August 29, 1951, failed and refused to bargain collectively with the Union as the representative of the employees within an appropriate unit , (3) on or about August 16, 1951, laid off and/or discharged and failed or refused to reinstate approximately 100 employees because they had engaged in a strike on that day, and (4) from August 4, 1951, interrogated and threatened its employees concerning their union membership, solicited employees to return to work during the strike, and kept under surveillance the union meetings and activities of the employees. On July 16, Respondent filed its answer admitting certain allegations of the complaint with respect to the nature of its business but denying the commission of any unfair labor practice. Pursuant to notice a hearing was held before me, the undersigned Trial Examiner, at Mar- shall, Texas, on December 2, 3, and 4, 1952. The General Counsel, Respondent, and the Union were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross -examine witnesses , and to introduce evidence bearing upon the issues, was afforded all parties. During the presentation of the General Counsel's case he moved to dismiss the complaint as to James Lester, J. C. Busch, Lorenzo Miles, Willie Mahan, and Clabe Johnson. The motion was granted. At the conclusion of the hearing I reserved ruling upon a motion by Respondent to dismiss the complaint in its entirety. This motion is dis- posed of by the recommendations hereinafter made. Igranted a motion by the General Counsel to conform the pleadings to the proof in formal matters. The parties waived oral argument, but were granted until December 24, 1952, to file briefs. Subsequently this time was extended by the Chief Trial Examiner to January 7, 1953. Timely briefs were filed by Respondent and the Union. Upon the entire record in the case and from my observation of the witnesses. I make the following. FINDINGS OF FACT L THE BUSINESS OF RESPONDENT Respondent is a Texas corporation having its principal office and place of business at Marshall, Texas, where it is engaged in the manufacture, sale, and distribution of car wheels, soil pipe, and related products. During the calendar year 1951. Respondent purchased raw material consisting principally of pig and scrap iron, and coke valued in excess of $500,000, of which more than 4 percent was shipped in interstate commerce from the Marshall plant to points outside the State of Texas. Within the same period Respondent sold products consisting of car wheels, brake shoes, soil pipes, and related products valued of $500,000 of which more than 14 percent was shipped in interstate commerce from the Marshall plant to points outside the State of Texas. Respondent has somewhat over 200 employees. II. THE LABOR ORGANIZATION INVOLVED United Steel Workers of America is a labor organization admitting to membership em- ployees of Respondent. It is affiliated with the Congress of Industrial Organizations. IIL THE UNFAIR LABOR PRACTICES A. The alleged refusal to bargain 1. The appropriate unit and the Union 's majority therein The complaint alleges, Respondent's answer admits, andifind that all production and main- tenance employees of Respondent employed at its Marshall, Texas, plant, exclusive of office and clerical employees , guards and watchmen , and professional and supervisory employees 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. Organization of Respondent's employees in the Union began in the summer of 1951. On August 15, 1951, the Board conducted an election among the employees in the appropriate unit which the Union won. Accordingly, on August 23 the Board certified the Union as the exclusive representative of the employees in the appropriate unit. Respondent admits the union majority. MARSHALL CAR WHEEL AND FOUNDRY CO. 61 2. The alleged failure to bargain On September 5, 1951, theUnion ,byJ.A. Lee its representative , wrote Respondent request- ing a meeting for thepurposeofdiscussmga contract. On September 10, Respondent, by Emory Fry its vice president and general manager , replied stating that J. A. Gooch, its counsel herein, would act as its bargaining representative . On September 11 Lee requested a bargaining con- ference and on September 19 the first such conference was held where Lee presented Gooch with a proposed form of contract, absent, however, a specific proposal on wages. Another meeting was held on September 28, at which the proposed contract was discussed clause by clause and a number of provisions agreed upon. At this meeting Lee asked Gooch to furnish him with the existing wage scale of all Respondent's employees and their classifications. This information Gooch furnished . At this meeting Lee also brought up for discussion the names of Frank Broadnax and R. B. Lester, two employees whose previous discharges are hereinafter considered. Little discussion of these two men took place at this meeting, but another con- ference was arranged for the early part of October. The date was left indefinite because, as Gooch informed Lee, he was required to be present at the trial of certain cases in a court at Abeline, Texas, and was under the necessity of preparing for trial. Gooch informed Lee that he would let him know as soon as he could what the precise situation was. Accordingly, on October 2, Gooch telegraphed Lee that he would be unable to meet withhim that week because the court cases had been definitely set for trial, which I find to be in accord with the fact, and that he would advise him as soon as he could make a definite appointment. The trial of these cases lasted for something over 2 weeks. By telegram of October 13, received by Gooch of the morning of the 14th, Lee requested a meeting for October 15, for the purpose of discussing the layoff and discharge of nine additional employees. Gooch, in the active trial of a case at Fort W orth, wired Lee on the morning of October 15 that he was unable to meet him on that date and proposed a meeting in Fort Worth any night that week, suggesting that in the meantime that Lee reduce to writing his contentions with respect to the nine new discharges. In the alternative, Gooch suggested meeting with Lee on Saturday or Sunday of that week, and requested confirmation. At about 8 o'clock on the morning of October 16, Gooch received at Fort Worth another telegram from Lee requesting an immediate meeting at 10 a. m. that day in Respondent's office at Marshall, about 200 miles from Fort Worth. Lee sent Fry a copy of this wire. Be- tween the time of his receipt of the wire and the suggested time of the meeting that morning, Gooch endeavored to reach Lee on the telephone but was unsuccessful. Pursuant to a telephone call from Fry at about 9 a. m„ Gooch advised Fry to get in touch with R. C. Lisman, an em- ployee and president of Local Union No. 4645 which included Respondent's employees, and inform him that he, Fry, would meet with the Union 's representatives at the suggested place and hour in the absence of Gooch. Fry got in touch with Lisman, who, according to Lisman's own testimony, had no knowledge of the meeting. Fry, however, presented himself at the pro- posed place of meeting and at, the proposed hour, but, admittedly , no representative of the Union put in his appearance . Instead, pursuant to resolution taken at a meeting the previous day, the union adherents, consisting of approximately 45 percent of Respondent's employees, went on strike at 11 o'clock that morning. Conclusions There is no conflict in the recordas to the above -related facts . I fail to discern in them any failure on the part of Respondent to bargain with the Union up to the time of the strike. It follows that the strike was not caused by Respondent's failure to bargain. There was no request for a further meeting of the representatives of the two parties during the strike which terminated on November 8. On that day , another bargaining conference was held, and " the proposed contract was further discussed as were the discharges of Morgan and Williams, previously averted to . No final agreement was reached. The next meeting that took place was on November 26, followed by further meetings on December 2 and January 10, 1952. At the January meeting, an agreement was reached on all matters except the wage scale and seniority. Another meeting was held on January 23, and thereafter no request for a further meeting seems to have been made until March 15, when a meeting was held and agreement reached on all matters except wages . The last meeting between representatives of Respondent and the Union took place on July 14, when the matter of wages remained still undecided. The Union contends , with respect to these latter meetings , that Respondent refused to treat with the Union with respect to the reinstatement of the strikers . I do not agree. The method of reinstating the strikers was the subject of discussion at the meeting on November 8 and subsequent meetings . It is only true that Respondent, though discussing the reinstatement of the employees , did not accede to the Union 's demand that they be reinstated with all their pre- 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vious rights as employees , but instead took the position that they returned to work as "new" employees . This position is hereinafter discussed under appropriate heading. I conclude and find that Respondent atno time refused to bargain collectively with the Union. B. The individual discharges R. B, Lester : Lester came to work for Respondent on April 2 , 1951, as a common laborer unloading scrap iron , under the foremanship of Clarence Gray . He joined the Union about August 1, but did not, so far as the record reveals, become active in its behalf. He admitted while testifying that about 2 weeks before the election on August 15 Gray reprimanded him for not doing his work properly . The record does not show whether this conversation took place shortly before or shortly after he joined the Union , and there is no showing that when Gray spoke to him he had any knowledge of Lester 's union membership, if in fact he was a member at that time. About a week later Lester found his timecard removed from the rack and he went to see Gray about it. Gray told him again that his work was not satisfactory and that he should, along with the others , be able to unload one car of scrap metal a day. Lester pro- tested that the weather was hot and he was not able to do so , and Gray told him that he would be given another chance. Several days later, on August 29, when Lester again found his card missing from the rack . Gray told him, according to Lester 's testimony on direct, that he could not use him further adding that he spent "too much of (his) time talking about the CIO," and that he "had some more CIO to get rid of. " On cross-examination Lester admitted that Gray also told him that he was not doing his work properly . This testimony is, of course, not flatly contradictory of his testimony on direct that Gray told him that he was spending too much time talking about the Union. Gray, sometime previous to the hearing , left Respondent 's employ and was not called as a witness by Respondent although he was called by the General Counsel in rebuttal of another point in the record. He was not questioned by Respondent's counsel concerning Lester's dis- charge or the statements attributed to him by Lester. In this state of the record I have some difficulty in evaluating Lester 's testimony. It is easy to read into it, and counsel for the Union in his brief does so , the inference that Lester was discharged because of his membership in the Union. Lester was not impressive as a witness , and it is with some reluctance that , in the absence of any contradiction by Gray, I accept his version of his conversation with the latter as in accord with the fact. Assuming, however, as I do, that Gray made the statements which Lester attributed to him, it does not follow on the basis of this evidence alone that Lester was discharged because of his legitimate union activity. Admittedly, he had on two occasions be- fore his discharge been reprimanded because of his slow work. I find that it was because of this that he was discharged , and not because of his union activity which was, so far as the record reveals, minimal. Frank Broadnax : Broadnax came to work for Respondent in June 1950. He temporarily left the Respondent 's employ on March 18, 1951 , and returned on May 1, when he did various jobs as a common laborer . His foreman was Charles Seaton. He joined the Union after it was organized but took no active part in its affairs . He testified that shortly after joining Seaton asked him if he had done so and, when Broadnax answered that he had , Seaton said that if Broadnax wanted to get along with him he should forget about the Union. On the day after the election, according to Broadnax, Seaton told him that Fry would close the whole foundry be- fore he would sign a contract with the Union . On September 21, 1951 , while Broadnax was separating hot iron from the slag on the cupola, Broadnax , according to his testimony, was taken with cramps and went to Seaton 's office where he told Seaton that it was too hot for him to work on the cupola, and Seaton told him to clock out . When Broadnax brought his timecard to Seaton for signature the latter , still according to Broadnax , told him that he wasn't "worth a damn" and turned to William Hendry, who had immediate supervision of the cupola, and asked him if he could use Broadnax at other work. When Hendry said that he could not , Seaton told Broadnax to come back the next day and he would get his time . Broadnax asked Seaton to make out his time then , so as save him a trip to the plant, and Seaton did so. Broadnax then went to see Fry about the matter and Fry told him to take a bath and to see hum later. When Broadnax returned, Fry, who seems to have questioned Seaton about it, told him there was nothing he could do about it and, in any event , there was shortly to be a cut in employment. On the way out of the plant, still, according to Broadnax , he stopped to talk to Anderson Sheppard , another employee, and while so engaged Seaton approached and told him to hurry up and leave the foundry , that he did not want him talking with other employees about the MARSHALL CAR WHEEL AND FOUNDRY CO. 63 Union. Seaton's parting shot, according to Broadnax, was to say that if he "hadn't had the CIO union in (him)" he "may not have gotten too hot." Seaton denied mentioning the Union to Broadnax , but Anderson 's testimony corroborates that of Broadnax with respect to the last incident . So far as this conversation is concerned I find that Seaton made in substance the statement attributed to him. Hendry's testimony with respect to Broadnax 's separation is that when the latter quit his work on the cupola and came to Seaton he requested to be assigned to other work and Seaton asked him , Hendry, if he had anything for Broadnax to do and he said that he did not ; whereupon Seaton said that Broadnax would have to leave. Seaton, while testifying , stated that he considered that Broadnax volun- tarily quit his employment. Most of the work in the foundry is common labor and employees frequently change from one form of it to another as the necessity arises . One would not ordinarily expect Seaton, if he in fact discharged Broadnax, to make any attempt whatsoever to place Broadnax in other work. The testimony , however, of Broadnax , Seaton, and Hendry is in agreement that Seaton in- quired of Hendry if he had other work for Broadnax . I believe that if there had been other work at common labor available, Broadnax would have been assigned to it, and that if Broadnax had desired to continue to work on the cupola he could have done so. I find that he was separated from Respondent's employ only because he was unwilling to continue work on the cupola and there was no other work for him at that time. In effect, he quit. I do not find, therefore, that Respondent terminated the employment of Broadnax because of his activity in the Union, which in fact consisted only of membership therein. W. H. Morgan and L. C. Williams: Morgan first came to work for Respondent in 1949 and was laid off in the same year. He returned to work in January 1950 and continued to October 8, 1951, when he was laid off, working as a moulder under Seaton and A. C. Young, another foreman. Morgan joined the Union and was elected recording secretary. As such, he was a member of the Union 's negotiating committee along with Lisman , the president of the local, V. L. Long, and "Preacher " Raglan. As a member of the committee Morgan met on occasion with Fry and Gooch , representing management. About the first of September , 2 or 3 weeks after the election, Seaton, according to Morgan 's testimony, approached him and asked him if he had been attending union meetings "down there at that damn nigger 's KP Hall. " Morgan told him that he had, and Seaton advised him to quit attending them . Seaton further said, according to Morgan , that Fry would shut down the plant before he would sign a contract with the Union. Seaton denied making the statement which Morgan attributed to him. Williams went to work for Respondent in May 1951 , as a moulder 's helper , and was assigned to Ryan, a moulder. On the day of, or possibly the day before, Morgan's layoff , Williams was assigned to Morgan as his helper. Seaton told him when he was transferred from Ryan to Morgan that Respondent was going to have to lay off some of the men and that he was en- deavoring to get the oldest moulder-helper together with the oldest moulder. Ryan , according to Morgan , was one of the older moulders and presumably the moulder's helper who took Williams ' place with Ryan was one of the older moulder's helpers . On Monday , October 8, the day of Morgan's layoff, Seaton sent for Williams and told him he too , was being laid off, but to keep in touch with him since there was a possibility he could be put back in some capacity within a few days. Williams returned to the plant on Friday, October 12, and Seaton asked him why he had not returned previously , that had he done so he would have been put back to work sooner . As it was, Seaton told him to return the following day, Saturday , October 13. Williams did so and was put to work. He continued until Tuesday, October 16, when he and other employees went on strike. Respondent's defense to the layoff of Morgan and Williams on October 8 is that it was due to the cancellation of the balance of an order from the Oil Well Supply Company equaling over 2,200 counterweights similar to those on which Morgan and other moulders and moulder's helpers were working. These weights being produced on 3 floors of the plant. The testimony of Fry was that each moulder produced approximately 20 of these weights a day. According to him, it was necessary to lay off 1 moulder and 4 or 5 helpers , and to close down work on 1 floor. The moulders employed at this time were Ryan, Lisman , Long, Langston, Jones, and Hale. Although there was and is no seniority rule existing in the plant, the testimony of Morgan was that he had worked there longer than Langston , Jones , or Hale, although Langston had worked previously for the company on several occasions. Lisman, Long, and Hale, in addition to Morgan, were members of the Union and Lisman , as has been stated, was president of the local. The credited testimony of Fry was that Morgan was the least efficient of the several moulders. He testified that over the preceding period of 6 months Morgan showed a loss of 12 percent of the castings he made, while Jones lost 4.7 percent , Ryan 2 percent, Hale 3.4 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD percent, and Long 5.2 percent. The uncontradicted testimony of Seaton, Morgan's foreman, is to the effect that 2 weeks before the layoff Morgan was drunk on the job and wrecked his automobile. It is not contested, although it is not admitted, that it was necessary to lay off at least 1 moulder and 4 or more moulder -helpers atthe time Respondent did so. The Union, however, contends in its brief that Morgan had been employed longer than either Langston, Hale, and Jones. This is apparently true, at least so far as the last period of employment is concerned. But there is no seniority rule in effect at Respondent's plant or any established practice of laying off first the employee who was last hired. There is nothing in the record to rebut the testimony of Fry and Seaton with respect to the less efficient work of Morgan when compared with that of other moulders. It is true that Morgan was one of the members of the Union's negotiating committee which met with Respondent's representatives and was therefore promi- nent in the Union. Lisman, however, president of the local, was not laid off. I do not find that the General Counsel has met his burden in showing by a preponderance of the credible evidence, viewing the record as a whole, that Respondent laid off Morgan on October 8 because of his union membership and activity. As has been seen, Williams, Morgan's helper, although laid off, was shortly rehired. As the Union's brief concedes, his layoff was an "incidental" product of what the Union contends was the discrimination against Morgan. If it were to be found that Morgan was discriminatorily discharged and that Williams' layoff was the automatic result of it, Williams' layoff also would have to be found discrimina- tory. I find, however, that Morgan was not discriminatorily discharged, and it follows that Williams was not discriminatorily laid off. David L. Smith: Smith came to work for Respondent in January 1951 as a common laborer. His foreman was Hendry. He joined the Union but was not active in its affairs. He testified that about the first of August, prior to the election, Hendry asked him if he had joined the Union and he told him that he had. According to Smith, Hendry went on to say that if he expected to work there he would have to forget it and that Fry would close the plant before he would sign a contract. On October 4, while he was helping to unload a car of pig iron, Smith left his work to go to the toilet where he remained 10 or 15 minutes. On his return Hendry told him he was spending too much time in the toilet and that he "had too much of the union" in him and discharged him. Smith testified that Hendry had never previously spoken to him about his work. Harris, who was working with Smith unloading the car, testified that Smith left his job to go to the toilet and was gone for 10 or 15 minutes, a period of time which coincides with Smith's estimate. Harris' testimony as to Smith's destination, however, would seem to be mere hearsay since, according to him, he was working on the north side of the car while the toilet was located at the south end of the plant, about a half a block away. I do not find that Harris had any knowledge as to whether Smith went to the toilet, the store, or both. Hendry, called as a witness , denied thathehad ever mentioned the Union to Smith and stated that Smith on the occasion of his separationhad left his work to go to a store across the street from the plant, that Smith on several previous occasions had left his work from 30 minutes to an hour, and that he had warned him several times to stay on the job. Finally, Hendry denied that he discharged Smith but asserted that he told him only to punch out and go home for the day, and that, instead, Smith brought his card to Hendry and asked for his time, indicating to Hendry that he was quitting his employment. On this stateof the record I am unwilling to credit Smith's uncorroborated testimony either as to his conversation with Hendry concerning the Union or as to his presence in the toilet instead of at the store. The question of credibility is not without its difficulty, but I resolve it in favor of Hendry. Smith's role in the Union was an inconspicuous one. I find that he was discharged not for his union activity but because of repeated absences from his job during working hours. Since I have found that the evidence in support of the allegations of the complaint that Lester, Broadnax, Morgan, Williams, and Smith were discharged because of their membership and activity in the Union is insufficient, and that Respondent did not fail or refuse to bargain with the Union, it follows that the strike , hereinafter discussed , was not caused by Respondent's unfair labor practices, but was economic in character . It was called , I find, because the Union was dissatisfied with the progress of the contract negotiations. C. The strike; discharge of the strikers Dissatisfied with the progress of these negotiations union adherents , numbering approxi- mately 45 percent of the employees , walked out of the plant at 11 a. m. on October 16 and MARSHALL CAR WHEEL AND FOUNDRY CO. 65 gathered at the union hall. The walkout had been agreed upon at a meeting the previous evenings Lee, the Union's representative, arrived in town shortly after the strike began. About noon he spoke with Fry on the telephone and offered to furnish a number of strikers to help pour metal on the cupola. At this time, Fry, assisted by supervisors and employees who had not gone on strike, was himself pouring molten metal and refused Lee's offer. The Union, in its brief, does not urge that Lee in this conversation offered the strikers for reinstatement Fry admitted while testifying, however, and it is not disputed, that he told Lee that he con- sidered that the strikers had quit their jobs, that they would have to apply to their respective foremen for employment, that it was up to the foremen as to whether the employees were taken back, and that if they did come back they would do so as new employees. t About 3:30 p. in. on October 16, Lee again called Fry. This time, it is conceded, Lee un- conditionally applied for reinstatement on behalf of the strikers and was told by Fry, as he had been during the earlier conversation, that the strikers should report to their individual foremen in whose discretion it was to hire them, and in whose possession the employment cards were. Fry repeated what he had told Lee at noon: that all returning strikers hired would be hired as new employees. On October 18, Lee wrote Respondent repeating his offer to return the strikers to work and objecting to the condition which Fry had laid down. Still later, all or most of the strikers signed individual applications for reinstatement which Lee mailed Respondent. So far as the record reveals there was no reply to his letter. As has been previously found, Respondent and the Union discussed the matter of reinstating the strikers during the subsequent meetings without, however, any receding by Respondent from its position that all strikers who were accepted for employment would be taken back only as new employees. Following Fry's refusal in the afternoon of October 16 to put the strikers back to work ex- cept as new employees, a picket line was thrown around Respondent's plant which was main- tamed until November 8, when the strike was terminated. Following the end of the strike many of the strikers reported personally at the plant and applied for work. An unspecified number i Lisman, president of the local, testified that the reason for the striking was " to see if we could get more money and better commissions." (sic) 2Fry's testimony on this point on cross -examination was as follows: Q. (By Mr. Darby) Mr. Fry, when was it that you told Mr. Lee that the employees who walked off would have to come back as new employees? A. It was, I am not sure, it was that morning; I think it was that morning. Q. That was the first time you talked with them? A. Yes. Q. Did you fire them for walking out2 A. No, I did not. Q. You just told them they would have to come back as new employees? A. That is right. Q. You told them at that time that the foremen may or may not take them back, is that correct? A. I told them that it was strictly up to the foremen; if we needed a fellow and he hadn't been replaced-- Q. So far as you were concerned the employees quit when they walked out at 11 o'clock? A. Well, I think so, yes. Q. That was your position, they quit their employment when they walked out at 11 o'clock? A. Yes. Q. Now, when did the employees who didn't report for work on their next shift quit? A. Well, I don't know when they quit, they just didn't come back that's all I can tell. When they didn't show up for work, we had to replace them. Q. In other words, these employees who were supposed to come back to work after 11 o'clock, when did you take them off your payroll. A. When they didn't come back to work the next day. Q. And you considered them quit at that time? A. Yes. 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were hired and others were told that they would be hired when work was available. The record is clear that each striker hired was hired as a new employee. 3 Respondent 's Contentions as to the Strike One of Respondent 's defenses is that there was a long standing rule prohibiting an employee from absenting himself from the plant during working hours without permission, and that it was Respondent's policy to treat an employee who did not report for work at his scheduled time without reason being given , as having quit. Analogous to this contention is a second: that Respondent , when a substantial number of its employees left the plant at 11 o'clock on October 16 and others did not report for work at their shifts on that day, had no means of knowing for what reason they had left or remained away. In other words , it is asserted that Respondent could not know how many , or if any, of its employees were on strike and how many others did not show up to work or left work for other reasons . But even if at the time of the walkout there could have been doubt that the employees were acting collectively , it must have been removed at noon when Lee called Fry and offered to return a number of strikers to help pour metal. So far as Respondent's rule against an employee's absenting himself from work without permission is concerned , although valid as it concerns individual employees , it goes without saying that it is not applicable to employees leaving their work in concert as the result of a labor dispute. Such persons are strikers and, by definition , employees on strike remain em- ployees.4 Another defense urged in Respondent 's brief is that "had the strike been 100 percent successful (Respondent) would have lost more than $75,000 because of the nature of its operations as of the time of the strike." In point of fact, accepting Respondent 's own estimate of the situation, only about 45 percent of the employees went on strike. And it is not con- tended that there was any actual loss of material in process . The contention is that loss of material might have occurred under other circumstances than those which actually obtained. Moreover , this is not asserted in defense of a discharge of the strikers , for Respondent denies that it discharged them . It asserts that they quit, so the question of whether discharge for this reason might have been justified does not arise.5 Conclusion It has been found that Respondent 's employees in question went on an economic strike. Under the cases it was Respondent's duty to reinstate them to their jobs upon application (if not then filled) without loss of any rights and privileges previously enjoyed, including , in this instance, full vacation and Christmas bonus privileges , and to put such strikers whose places it may have filled by newly hired replacements upon a preferential hiring list, to be offered employ- ment when vacancies occurred. Instead . Respondent , it is not contraverted, elected to treat the strikers as new employees . Fry's testimony is clear that the strikers , instead of un- equivocally being given employment, were referred to their foremen who might or might not hire them. It was "strictly up to the foremen." according to Fry. The condition of their being taken back by the foremen was not solely whether their places remained unfilled, but whether they would come back as employees seeking employment for the first time. It was Respondent's position , according to Fry, and consistently maintained up to the time of the hearing where it became one of the defenses to the case , that the strikers had "quit" their 3The result of this in practice was that all previously accumulated vacation time was forfeited , and not merely for the day of the strike alone . So also with respect to the annual Christmas bonus based upon length of employment. Since there was no system of seniority, no seniority rights were affected. 4 Section 2 (3) of the Act reads in part as follows: "The term 'employee ' shall include any employee , and shall not be limited to the employees of a particular employer , . . . and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice , and who has not obtained any other regular and substantially equivalent employment...." 5 Economic loss in one form or another is almost always one of the results of a strike. The only circumstances under which the Board has held that strikers might be discharged, aside from where the strike amounted to a mutiny , or was otherwise illegal or illegally conducted, or in violation of contract , pertains to supervisory employees who, in a strike situation, refuse to remain in the plant to avert imminent loss to the physical plant structure through fire, riot, or explosion. See Carnegie -Illinois Steel Corporation , 84 NLRB 851, affirmed Albrecht v. N. L. R. B., 181 F. 2d 652 (C. A. 7). MARSHALL CAR WHEEL AND FOUNDRY CO. 67 employment. They were treated, collectively, as being in the same category as individual employees who violated the company rules by absenting themselves during working hours without permission. As Fry testified, they were removed from the payroll. Respondent's action was in all respects tantamount to discharging them, except that the word "discharge" was not used. The cases are in accord that while an employer is free to replace economic strikers at any time prior to their unconditional request for reinstatement, it is not free to discharge them before their places are filled.6 Assuming, for the sake of argument, that Respondent did not discharge its employees, it remains true that by imposing an illegal condition upon their return to work it discriminated against them "in regard to hire and tenure of employment" in the language of the Act. Dis- charge is only one form of such discrimination. Finding, as I do, that Respondent discharged the strikers about noon on October 16, and in effect so advised Lee, I do not find it necessary to discuss the General Counsel's and the Union's alternative contention that, if not discharged at that hour, they were discriminatorily refused reinstatement when Lee unconditionally offered them for work at 3:30 o'clock that afternoon, with the result of converting what had previously been an economic strike into an unfair labor practice strike. The record is not at all clear as to how many, if any, replacements were hired on October 16. According to Fry, Respondent from the time of the strike to November 8 hired 77 new employees. Fry, shortly after 11 a. m., called upon the Texas Unemployment Association to send him as many men as possible as soon as possible, but there is no showing as to when they arrived, or in what numbers, on October 16. I find that no replacements were actually hired before noon,7 when Respondent, as I have found, discharged the strikers. Thereby Respondent discriminated with regard to their hire and tenure of employment, and inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. It having been found that Respondent discriminated against the employees named in Ap- pendix A of the complaint, with the exception of J. C. Bush, Clabe Johnson, James Lester, Lorenzo Miles, and Willie Nathan, as to whom the complaint was dismissed, and Frank Broadnax, R. B. Lester, and David Smith, by discharging them because they went on strike, I will recommend that Respondent reinstate those employees who have not heretofore been reinstated, restore to them their vacation and Christmas bonus privileges as though they had never lost their employment, and make them whole for any loss of pay which each of them may have suffered by reason of Respondent's discrimination against them, by payment to each of them of a sum of money equal to the amount each would normally have earned as wages from October 16, 1951, to the date of Respondent's offer of reinstatement, less the net earn- ings of each during said period.8 Respondent shall, upon request, make available to the Board payroll and other records to facilitate the checking of the amount of back pay, which shall be computed in accordance with the Board's customary formula.9 6See, for example, N. L. R. B. v. Globe Wireless, Ltd., 193 F. 2d 748 (C. A. 9) and cases therein cited, enforcing 88 NLRB 1262. 7 Fry's testimony on this plant was as follows: Q. Actually, then, you didn't have any new employees by the time Mr. Lee called you the first time, that is approximately 12 o'clock, I believe you testified, did you? A. No, that I couldn't say, I don't know whether we did or not. You see, we had some men come here from the employment office very shortly after I called. 8 See Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 9F. W. Woolworth Co., 90 NLRB 289. 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon consideration of the record as a whole I believe that Respondent's conduct in dis - criminating against its employees as it did indicates an attitude of opposition to the Act generally. In order, therefore, to make effective the independent guarantee of Section 7 of the Act, thereby minimizing industrial strife, which burdens and obstructs commerce, and thus effectuate the policies of the Act, I will recommend that Respondent cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record I make the fol- lowing: CONCLUSIONS OF LAW 1. Respondent. Marshall Car Wheel and Foundry Co. of Marshall, Texas, Inc., is engaged In commerce within the meaning of Section 2 (6) and (7) of the Act. 2. United Steel Workers of America, CIO , is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discharging the employees named in Appendix A of the complaint, with the above- noted exceptions , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By interfering with, restraining , and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. 6. Respondent has not engaged in any unfair labor practices in violation of Section 8 (a) (5) of the Act. 7. Respondent did not engage in any unfair labor practices by discharging or laying off Frank Broadnax, R. B. Lester, Davis Smith, W. H. Morgan, or L. C. Williams. 8. Respondent did not engage in surveillance of its employees. [Recommendations omitted from publication.] APPENDIX A 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 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 United Steel Workers of America, CIO, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose 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 offer to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. NAME NAME NAME Adams, Doc Broadnax, Joseph Donley, Thermon L. Alexander, Curtis Brooks, Leroy Crumby, Ambrus Allen, Clinton Brown, Curtis Darling, Leroy Allen, Siminal Brown, Neptha Davis, John W. Andrews, Damon Carpenter, Allen Davis, Julius Balous , Lee Carr, Garland Dunn, Robert L. Boyd, Leroy Chesley, Isiah Edwards, Clarence UNITED CAN AND GLASS CO. 69 NAME NAME NAME Edwards, Ruben Lewis, Eugene, Jr. Smith, Charles Fisher, Essie Lisman, R. C. Stoker, Albert Fisher , Marion Long, N. L. Strickland, Fred Graham, Willie McGee, Robert Stroger, Bonny Greer, Howard Madison, Lee Andrew Taylor, Lesley R. Gregory , George Malory, Eddie Lee Taylor, Will Hall, Andrew Manning, Daniel Taylor, Willie T. Hall, Sam Manning , Hugh L. Thomas, Henry Harris , Howard May, Dave Thomas, Leamon Haynes , George Mills, Laval Thompson, John Henderson, Clifford Mitchell, Luke Tippens, James Henderson, James Moody, Warren G. H. Turner, Charlie Henderson , John H. Morris, John, Jr. White, Charley Hicks, James, Sr. Noel, Hursey White, W. C. Hill, Emid Nolan, Gus Williams, Coy Hooper, James Lee Patterson, Henry Williams , Earnest Houston, Ervin Patterson, Joe Williams, Emmit Jackson, Levy Raglon, Lewis R. Williams, Illinois Jenkins, Arie Reeves , Wilbert Williams , Israel Johnson, L. C, Roach, Edward Williams, L., C. Jones, James, Jr. Robertson, Elmer Williams, Leon Jones, Joseph James, Jr. Robison, Cornell Williams , Leonard Jones, Sherman Rose, Daily Williams, Samuel Spencer Jones, Vertine Melvin Rose, Preston Williams, Woodrow Jones, Willie Sanders , Howard Williams , Yourie Jones, Willie James Sheppard , Anderson Wilson, Dennie Jones, Willis Small, Willie Wilson, Julius Lee, Jarrard 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 em- ployment or any term or condition of employment against any employee because of member- ship in or activity on behalf of any such labor organization, MARSHALL CAR WHEEL AND FOUNDRY CO. OF MARSHALL, TEXAS, INC., Employer. Dated................ By ................. .• ..........................................•.... ..................... (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. UNITED CAN AND GLASS CO., AND HUNT FOODS, INC.' and UNITED STEELWORKERS OF AMERICA, CIO, Petitioner. Case No . 20-RC-2144 . May 28, 1953 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Natalie P. Allen, hearing officer . The hearing officer ' s rulings made at the hearing are free from prejudicial error and are hereby affirmed. I The name of the Employer appears as amended at the hearing. 105 NLRB No. 7.