Wilson & Co., Inc.

WILSON & CO., INC. 823 [The Board set aside the election held on August 21, 1952.1 [Text of Direction of Second Election omitted from publica- tion. ] WILSON & CO., INC. and LOCAL NO. 37, UNITED PACKING- HOUSE WORKERS OF AMERICA, CIO WILSON & CO., INC. and LOCAL NO. 3, UNITED PACKING- HOUSE WORKERS OF AMERICA, CIO WILSON & CO., INC. and LOCAL NO. 6, UNITED PACKING- HOUSE WORKERS OF AMERICA, CIO. Cases Nos. 18-CA- 55, 18-CA-56, and 18-CA-60. June 30, 1953 DECISION AND ORDER On March 18, 1953, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceed- ing, 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. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. 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 Houston, Murdock, and Peterson]. The Board 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 Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications: 1. We have examined the entire record in this proceeding and find no merit to the contention that the Trial Examiner was biased or prejudiced or that any party was denied a fair hearing. 2. In its answer the Respondent stated that "claims and charges" of "certain individuals" named in the complaint in 1 The Employer's request for oral argument is hereby denied, as the record and the Employer's brief adequately present the issues and positions of the parties. 105 NLRB No. 128. 291555 0 - 54 - 53 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this case were "settled and released " by the terms of an agreement between the parties dated October 5, 1950, in settlement of a previous case ( Case No. 13-CA- 108). The Respondent failed to adduce any evidence at the hearing to support its claim. However, in its brief the Respondent expli- cates its position . It contends that the settlement agreement disposed of the charges of all individuals covered by the complaint . As support for its view , the Respondent refers to certain sections of that agreement and particularly to a portion of section 3 which reads: 3. Any pending 8 (a) (3) cases involving questions other than discharges will be settled on the basis of the pro- visions of Section 7 of this Supplemental Agreement or the provisions of the Master Agreement dated October 5, 1950, whichever is appropriate. The Respondent apparently contends that the parties intended by section 3 to settle all cases involving 8 (a) (3) allegations, except for those where it was specifically alleged in the charge that the particular individual was discharged. It asserts therefore that, as the Trial Examiner finds, all individuals involved herein, with two exceptions, 2 were refused reinstate- ment rather than discharged, the complaint should be dismissed as to each and every one of them. We are not persuaded that a tenable distinction can be drawn in these circumstances between a refusal to reinstate strikers when obligated to do so and a discharge. However, assuming that the Respondent's position is a technically valid one, we believe that the language of section 7 of the settlement agreement 3 and the master agreement which must be read with section 3 makes it clear that the settlement agreement did not affect the rights or claims of any of the individuals involved herein. Thus, section? merely preserves until either eliminated by the Respondent or until August 1, 1951, special seniority rights given by the Respondent to certain employees who worked during the strike. As pointed out by Trial Examiner Earl S. Bellman in his ruling permitting withdrawal of charges 2 The two exceptions were Virgil E. Fuller and Harry L. Wright. Although the Respondent admits that the cases of Fuller and Wright concerned their discharges, it apparently contends that as they did not involve discharges arising out of the strike, they were disposed of by the settlement agreement This contention is clearly without merit, as there is no question that the settlement agreement did not cover allegations of discharges. 3 "Notwithstanding the provisions of the Seniority Clauses of said Agreement dated October 5, 1950, certain special seniority rights which have been given by the Company to certain employees who worked during the period between March 16, 1948, and June 9, 1948, shall continue in effect until eliminated by action of the Company, provided that all such special seniority rights shall be terminated by or before August 1, 1951. When such special seniority rights are terminated by the Company at any plant all the provisions of the Master Agreement shall thereafter be in full force and effect in all respects. It is mutually agreed that all claims for back pay by employees adversely affected as a result of the above practice from June 7, 1948, until terminated on or before August 1, 1951, are hereby satisfied, settled, re- leased and discharged." WILSON & CO., INC. 825 and order dismissing complaint in Case No. 13-CA-108, the bargain between the parties was for the abandonment by the Unions of litigation of any superseniority matters as 8 (a) (3) cases. But we are unable to see how these provisions in any manner disposed of the charges of strikers who were refused reinstatement by the Respondent. 3. In its amended answer filed at the hearingthe Respondent alleged that as the Unions had conducted an unlawful strike in an effort to obtain a general wage increase "under a reopening of a labor agreement ," all individuals named in the complaint lost their status as employees by reason of the proviso contained in Section 8 (d) of the Act. In his Intermediate Report the Trial Examiner states that the Respondent there- after, although repeatedly pressed on the point by the General Counsel, failed to adduce any substantial evidence to support its claim and the Trial Examiner therefore finds no merit in this defense of the Respondent. In its brief,- the Respondent contends that the record herein contains all the evidence necessary to support its defense that, as the Unions violated Section 8 (d) (4), the strikers lost their employee status. We agree with the Respondent that there is sufficient evidence in the record for a determination as to the validity of its defense, but disagree with the Respondent that there is any merit to that defense. The essential facts may be briefly summarized. On December 20, 1946, the Respondent and the International Union--United Packinghouse Workers of America, CIO--executed a contract covering the plants involved herein, which was to remain in effect until August 11, 1948, and from year to year thereafter. This contract contained a provision permitting reopening by either party on the issue of general wages "once during the period from the date ,hereof, to August 11, 1947, and once during the period from August 11, 1947 to August 11, 1948, by written notice . . . thirty (30) days prior to the date on which it is desired to commence negotiations." The contract did not contain a no-strike clause. On or about December 19, 1947, the International Union served written notice upon the Respondent of its desire to open the agreement on the subject of a general wage increase, stating that the notice was given pursuant to the contract as well as Section 8 (d) of the Act. Thereafter, the wage issue not having been resolved after negotiations between the Respondent, the International, and the respective Locals, em- ployees of the Respondent in each of the respective plants went out on strike on or about March 16, 1948. The strike continued until on or about June 7, 1948. We have held that Section 8 (d) (4) prohibits a strike to secure modification or termination of a collective -bargaining agreement for a period which is limited to 60 days after a proper notice of the proposed modification or termination has 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been given .4 As the strike in the instant case occurred more than 60 days after the notice of the proposed modification was given, we find that it satisfied the requirements of Section 8 (d) (4) and therefore the individuals who engaged in the strike did not lose their status as employees of the Respondent. 5 4. The Trial Examiner found that 30 of the 32 employees listed in Appendix A of his Intermediate Report were refused reinstatement by the Respondent because they engaged in the strike and other concerted activities and that 2 employees-- Virgil E. Fuller and Harry L. Wright--were discriminatorily discharged because they engaged in concerted activities. We agree with the Trial Examiner ' s findings as to the 30 who were refused reinstatement and as to Virgil E. Fuller. How- ever, we disagree with his finding regarding Harry L. Wright. The record discloses that on February 19, 1949, Wright went to the cafeteria a few minutes before his regular break period which was 9: 30 in the morning . He was accompanied by another employee by the name of Ward. While they stood in line, Wright's foreman , Paul Marsh, came up and ordered them into the conference room. Marsh went for Division Superintendent Agar, who appeared shortly thereafter. Ward was sent back to work and after some discussion Wright was discharged. The Trial Examiner refers to the following as bases for his finding that Wright was discriminatorily discharged: (1) A discrepancy in the testimony of Agar and Marsh as to why Ward was not discharged also; ( 2) his conclusion that Marsh's testimony that he had warned all in his department , in a group, sometime before Wright was discharged that they were not to go on relief early , makes itplainthatthis was not an uncommon occurrence ; ( 3) Marsh's admission that in his 26k years in this department he had never known of any other employee , except Wright, being discharged for going on relief a little early; and (4) Wright's specific testimony , citing names , as to others from his department who were already in the cafeteria when he arrived that morning and who apparently were not even reprimanded. With respect to (1), the record does not disclose a discrep- ancy in the testimony of the supervisors from which any inference can be drawn regarding why Ward was not discharged also. Agar said it was because Ward's regular relief time had been 9: 15, while delivering to the wholesale market. Con- trary to the Trial Examiner ' s finding , Marsh did not give any reason as to why Ward was not discharged . Indeed, he was 4 United Packinghouse Workers of America, CIO , and Locals 49, 86, 93, 97 , 102 and 104 (Wilson & Co , Inc.), 89 NLRB310 . Member Murdock's position therein was that the proviso to Section 8 ( d) (4) applies only when parties to a contract seek to terminate or modify it upon the expiration of a contract or when they seek to terminate or modify a contract of indefinite duration 5See The Ohio Company, 91 NLRB 759 WILSON & CO., INC. 827 not asked that question. During the course of his testimony, Marsh merely commented that this was Ward's first offense and Wright' s second. Regarding (2), while we do not accept the Trial Examiner's ultimate conclusion that Marsh's testimony indicates that it was not an uncommon occurrence for employees to go on relief early, the record supports a finding that about 3 or 4 weeks before Wright's discharge all employees in Wright's department had been informed by Marsh that if they left their work before their regular relief time they would subject themselves to disciplinary action. With respect to (3), we are unable to give Marsh' s admission the same weight as does the Trial Examiner. Marsh did say that, despite his long service in the department, he did not know of anyone except Wright who had been discharged for going on relief early. The Trial Examiner apparently views this as strong evidence showing that the reason assigned for Wright's discharge was a pretext. We do not agree because in our opinion the admission loses most of its persuasive effect when it is considered in the light of the fact that Marsh had notified employees in the department only about 3 or 4 weeks before Wright's discharge of the possible consequences of going on relief early. Regarding (4), the fact that other employees from Wright's department who were already in the cafeteria when Wright arrived were not reprimanded was explained by Wright's own testimony. He stated that these people whom he named were in a different section and their relief period was from 9:20 to 9:30. Therefore, they were properly on their relief at that time. Upon the record as a whole, we are convinced that Wright was discharged for cause and not for his union activities. As previously indicated, he and the other people inhis department had been informed by their supervisor that they were not to leave their work before their regular relief period. There was a conflict in testimony as to whether Wright had been warned before his discharge. The Trial Examiner did not resolve this question. In our opinion, the preponderance of evidence supports the conclusion that Wright left his job before his relief time on or about February 16, 1949, and was warned that if he did it again he would be discharged. When he chose to disregard this warning on February 19, 1949, he was discharged. Accord- ingly, we shall dismiss the complaint as to Wright. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Re- spondent, Wilson & Co., Inc., its officers, agents, successors, and assigns, shall: 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from: (a) Discouraging membership in Locals Nos. 37, 3, and 6, United Packinghouse Workers of America, CIO, or in any other labor organization of its employees , by discriminatorily discharging or refusing to reinstate any of them because they have become members of or have been active on behalf of any labor organization , or by discriminating in any other manner in regard to hire and tenure of employment or any term or condition of employment. (b) In any other manner' interfering with, restraining, or coercing its employees in the exercise of the right to self- organization , to form labor organizations , to join or assist Locals Nos. 37, 3, and 6, United Packinghouse Workers of America, CIO, or any other labor organizations , to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining , or other mutual aid or protection , or to refrain from any or all such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to the employees listed in Appendix A attached hereto (except as otherwise noted in the section of the Inter- mediate Report entitled "The Remedy") immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) 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. (c) Post at its plants in Cedar Rapids, Iowa, and Albert Lea, and Faribault, Minnesota , copies of the notice attached hereto and marked "Appendix B."6 Copies of such notice, to be furnished by the Regional Director for the Eighteenth Region, shall, after being duly signed by the Respondent' s representa- tive, be posted by the Respondent immediately upon receipt thereof and be maintained by it for sixty ( 60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. 61n the event this order is enforced by a decree of a United States Court of Appeal, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of a United States Court of Appeals, Enforcing an Order." WILSON & CO., INC. 8Z9 (d) Notify the Regional Director for the Eighteenth Region, in writing , within ten ( 10) days from the date of this Order, as to what steps the Respondent has taken to comply herewith. - IT IS FURTHER ORDERED that the complaint herein, inso- far as it alleges that the Respondent discriminatorily dis- charged Harry L. Wright be , and it hereby is, dismissed. APPENDIX A At Cedar Rapids Marion F. Dye Eleanor Ramos Katherine Pearson Frank W. Roman Mayme (Stumph) Holecek Gregory Gould Donald E . Spiker Horace S. Gates, Jr. Lumir J. Serovy Leo Unash George J. Trachta George Scurlock Esther Scurlock Michael Gallo Virgil E. Fuller Raymond Norton At Albert Lea William T. Doch- erty Howard D. Feuer- helm Norris E. Peterson Stanley J. Hall Clem Ulmen Eddie Lahs Robert W. Black Seymour Flanagan Alice P. Spilde Ole Kleveland At Faribault Alcid F. Piper Jesse Rinsem Clayton D . Durtsche Dwaine J. Swygman Frank Matthies APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in, or activities on behalf of, Locals Nos. 3, 37, and 6, United Packinghouse Workers of America, CIO, or in any other labor organiza- tion, by discriminating in any manner against our em- ployees in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT interfere with, restrain , or coerce our employees in the exercise of their right to self-organi- zation, to form labor organizations , to join or assist the above-named unions or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or 6 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. WE WILL offer to the following named employees immediate and full reinstatement to their former or sub- stantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed. At Cedar Rapids Marion F. Dye Eleanor Ramos Katherine Pearson Frank W. Roman Mayme ( Stumph) Holecek Gregory Gould Donald E. Spiker Horace S. Gates, Jr. Lumir J . Serovy Leo Unash George J . Trachta George Scurlock Esther Scurlock Michael Gallo Virgil E. Fuller At Albert Lea William T. Doch- e rty Howard D. Feuer- helm Norris E. Peter- son Stanley J. Hall Clem Ulmen Eddie Lahs Robert W. Black Seymour Flanagan At Faribault Alcid F. Piper Jesse Rinsem Clayton D. Durtsche WE WILL make whole the above-named employees and the following named employees for any loss of pay suffered as a result of the discrimination against them: At Cedar Rapids At Albert Lea At Faribault Estate of Raymond Alice P. Spilde Dwaine J. Swygman Norton Ole Kleveland Frank Matthies All our employees are free to become or remain, or to re- frain from becoming or remaining, members in good standing of the above-named unions or any other labor organization except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the National Labor Relations Act. WILSON & CO., 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. ° WILSON & CO., INC. Intermediate Report STATEMENT OF THE CASE 831 Charges having been duly filed and served in each of the above-cited cases , an order consolidating the cases , a complaint, and notice of hearing having been duly issued and served by the General Counsel of the National Labor Relations Board , and an answer having been filed by the Respondent Company , a hearing involving allegations of unfair labor practices in violation of Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, was held in Cedar Rapids , Iowa , on July 23 , 24, 25 , 28, 29, 30, and 31, in Albert Lea, Minnesota , on August 4, 21, and 22 ; and in Faribault, Minnesota, on November 18, 1952 , before the undersigned Trial Examiner. In substance the complaint alleges and the answer denies that between June 7, 1948, and February 19, 1949 , the Respondent discriminatorily discharged and refused to reinstate 32 named employees because they had engaged in a strike and in order to discourage concerted activities and membership in the Locals , and that by such discrimination the Respondent has interfered with, restrained , and coerced employees in the exercise of rights guaranteed by the Act. At the hearing all parties were represented , were afforded full opportunity to be heard, to examine and cross-examine witnesses , to introduce evidence pertinent to the issues, to argue orally upon the record , and to file briefs and proposed findings of fact and conclusions of law. Counsel waived argument. A brief has been received from counsel for Local No. 3. At various times during the hearing , counsel for the Respondent moved for dismissal of the complaint upon the ground that the CIO was not in compliance with Section 9(h) of the Act at the time the charges in each of the cases were filed . All such motions during the course of the hearing were denied. Ruling was reserved upon renewal of this motion at the close of the hearing. Said motion is hereby denied. i On July 23 , 1952 , at the opening of the hearing , the Respondent was permitted to file an amendment to its answer . Said amendment, in substance , alleged that the Union had conducted an unlawful strike "under a reopening of a labor agreement," and that all individuals named in the complaint as having been discriminatorily discharged or refused reinstatement after the end of the strike had "lost their status as employees by reason of the proviso contained in Section 8 (d) of the Act." The Respondent , thereafter , although repeatedly pressed on the point by General Counsel, failed to adduce any substantial evidence to support the claim. When requested to produce such evidence on August 22, the next to the last day of the hearing, counsel for the Respondent replied : "I still say that that is the right of the Respondent to, or not to put in the record. We don 't (have to) put it in the record , so I am not going to answer the question." The Trial Examiner finds no merit in this defense of the Respondent. Likewise in its answer the Respondent avers that "claims and charges " of "certain indi- viduals" named in the complaint had been "settled and released ," by terms of an agreement between the parties in settlement of a previous case (Case No. 13-CA-108). At the opening of the hearing counsel for the Respondent declined to specify which individuals , if any, he intended to be included in his claim. When pressed by General Counsel, he finally cited the names of Harry Wright and Virgil Fuller. No evidence was forthcoming , however, to support the claim. The Trial Examiner finds it to be without merit. Upon the entire record in the case , and from his observation of the witnesses , the Trial Examiner makes the following: FINDINGS OF FACT L THE BUSINESS OF THE RESPONDENT Wilson & Co., Inc., is a Delaware corporation, having its principal office and place of business at Chicago , Illinois , and operating and maintaining plants in various States of the United States , including plants at Cedar Rapids , Iowa , and at Albert Lea and Faribault, Minnesota . At the hearing the Respondent stated that the Faribault plant is operated in con- junction with the plant at Albert Lea. At the Cedar Rapids plant about 2,000,000 pounds of i This ruling is controlled by the U S . Supreme Court decision, issued February 2, 1953, in Dant & Russell. On November 18, 1952, the final day of the hearing, the Trial Examiner informed the parties that no Intermediate Report in this case would be written until after the Supreme Court had decided this point 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD livestock is purchased and slaughtered annually, of which about 25 percent is purchased from sources outside the State of Iowa , and of which about 80 percent is shipped to points outside the State of Iowa. At the Albert Lea plant, (including Faribault) about 1,500,000 pounds of livestock is purchased and slaughtered annually, of which about 50 percent is purchased from sources outside the State of Minnesota , and of which about 80 percent is shipped to points outside the State of Minnesota. It is found that the Respondent, and at each of the three plants here involved, is engaged in commerce within the meaning of the Act. IL THE LABOR ORGANIZATIONS INVOLVED Locals Nos. 37, 3, and 6, United Packinghouse Workers of America, CIO, are labor organi- zations admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Background and major issues As well as at other plants of the Respondent, its employees at Cedar Rapids, Albert Lea, and Faribault were on an economic strike from mid-March to June 6, 1948. On the latter date members of the 3 locals concerned voted to abandon the strike and the next morning, June 7, returning employees reported for work at each of the 3 plants involved. Not all, who thus reported , were permitted to resume their jobs . No claim is made that jobs were not avail- able because of replacements during the strike. This case is concerned only 2 with the Respondent's refusal to reinstate certain individuals at each of the 3 plants, and also, as to Cedar Rapids, with the Respondent's discharge of 2 employees sometime after their reinstatement at the cessation of the strike. It is General Counsel's position that: (1) The Respondent illegally failed and refused to reinstate 30 employees because they had engaged in concerted and protected activities; and (2) illegally and discriminatorily discharged 2 employees at Cedar Rapids not only because they had engaged in the 1948 strike but also because of other union activities. On the other hand, the Respondent denies the illegality of its action and, in its answer as amended, claims that the failure to reinstate was because the individuals had engaged in "illegal and/or unlaw- ful acts and/or misconduct during and after the strike." Evidence and merits as to the opposing claims will be discussed below. 3 B. Issues at Cedar Rapids 1. In general At Cedar Rapids 17 individuals are involved. Admittedly denied employment following the strike were: Marion F. Dye, Eleanor Ramos, Katherine Pearson, Frank W. Roman, Lumir J. Serovy, Mayme Holecek, Esther and George Scurlock, Michael A. Gallo, Don Spiker, George J. Trachta, Horace S. Gates, Jr., Raymond Norton, Gregory K. Gould, and Leo Unash. Ten of these fifteen employees, before and during the strike, held office in the Union Local. Two other union stewards, Virgil E. Fuller and Harry L. Wright, were permitted to return at the end of the strike, but their services were terminated thereafter on November 5, 1948, and February 19, 1949, respectively. Although in some cases the reasons advanced during the hearing by the Respondent for failure to reemploy specific individuals are somewhatless than clearly defined and consistent, an effort will be made to discuss the evidence and issues as to each person involved, individ- ually or by group, according to what appears to be the probable position finally taken by the Respondent. 2 From the same charges, among others, that gave rise to the complaint in this proceeding, there also stemmed a case (13-CA-108) involving other issues at these and other Wilson plants, which came to hearing before Trial Examiner Bellman in 1949 and 1950. Late in 1950 a settlement agreement in that case was entered into by the parties. 3Both in the conduct of the hearing and in making findings here, the Trial Examiner had and has in mind certain procedural principles set out in Rubin Bros . Footwear, Inc., 99 NLRB 610. The findings and conclusions are based upon the entire record and the preponderance of credible evidence. WILSON & CO., INC. 833 2. Marion F. Dye Dye, an employee for 11 years, at the time of the strike in 1948 was vice president of Local No. 3 and on the bargaining committee. During the strike Dye had charge of the strike cards, and his duties were "to see which people were standing their regular picket duty." Local No. 3 voted on June 6, 1948, to call off the strike, and management was so informed that day by wire. The following morning, Monday, June 7, employees returned, forming a line at the plant entrance, and individually were interviewed by some representative of manage- ment or of the personnel office. Dye reported and was interviewed by Clare Croker, 4 manager of the casualty and safety departments. Croker told him he was "under investigation" and would be informed later if and when he would return. When Dye asked as to the nature of the investigation, Croker shrugged and gave no other reply. Dye has not been recalled. At no time during the hearing did counsel for the Respondent make any precise claim as to what incident or incidents of "misconduct" or unlawful acts," if any, it relies upon as a reason for depriving Dye of reinstatement. When solicited for the claimed reason during cross-examination of Dye, counsel replied, "That is a matter of argument." When asked specifically if the employee was denied "reinstatement because of his conduct on the picket line," counsel replied, "Among other things, yes." Thereafter, however, counsel himself placed in evidence a document purporting to list the dates when certain named individuals involved here were observed by management representatives, especially assigned to such duty, to be on the picket line from April 30 to June 5. Dye's name is conspicuously absent from this list. Nor did the Respondent file a brief, after the hearing, urging any reason as to Dye. Under these circumstances, the Trial Examiner feels it hardly incumbent upon him to sift through the confused and vague statements made by counsel during the hearing to determine what act or acts of misconduct the Respondent may have relied upon, at the time , for its failure to reinstate Dye on June 7. There follows, however, a summary of certain events relating to Dye, testimony as to which was elicited by the Respondent. On cross-examination, Dye readily admitted that late one day, during the strike, he looked over the side of a dump truck which had left the plant and had halted at a stop sign at a street intersection, and said merely "ain't you ashamed of yourself" to a man he saw lying on the bottom of the truck. No other evidence was offered by the Respondent as to this incident. Not only was it trivial, insignificant,, and far outside any reasonable definition of "misconduct," but no representative of management either claimed to have had knowledge of it before the hearing, in 1952, or to have based upon it any failure to reinstate Dye in 1948. In response to leading questions on direct examination George Zachar, in 1948 a general foreman, testified that Dye "stopped" his car "probably two or three times" during the strike and "just indulged in name calling." This "name calling" Zachar further defined by stating that Dye "just said scab hauler." Zachar's testimony, generally , was untrustworthy and replete with contradictions and evasions. Specifically, the Trial Examiner cannot place reliance upon his testimony as to Dye. His statement that he saw the employee on the picket line is unsupported by the document, above referred to, placed in evidence by the Respondent. And on cross-examination the foreman said, "I don't recall Marion Dye approaching directly my car during the strike, as far as that is concerned, any other time." The Trial Examiner is unable to find, on the basis of Zachar's testimony, that Dye engaged in any "misconduct." Recalled later in the hearing by the Respondent, Dye readily admitted having protected himself on an occasion when struck by someone behind a pool hall, some distance from the plant. His testimony is uncontroverted, however, that the altercation occurred on June 8, which was the day after he had been refused reinstatement. The Respondent called no other witnesses to or participants in this incident. Employment Manager Olson, as a witness, said that Dye came to him on June 9, asked about being returned to work, and was informed that he "was under investigation for mis- conduct." The Trial Examiner cannot acceptOlson's unsupported testimony that he interviewed 4 That Dye was interviewed by Croker rests upon the employee's more credible tesnnony Croker was in the hearing room during Dye's examination, and the employee identified him Croker denied having conversation with Dye on June 7, but admitted that he and two other management representatives interviewed employees that day, all having previously been instructed by the industrial relations manager as to what the "status would be" as to "most all" of the individuals involved in these proceedings. 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dye on June 9. He claimed that notes were taken of such interviews as made, but none were produced . He admitted he did not tell Dye, however , what he was being investigated for. Even if untrustworthy evidence were to be accepted as credible , it could only be found possible that Dye did not report for work until June 9, and was denied reinstatement that day because on June 8 he had defended himself during an altercation away from the plant. No such claim, however , was made to Dye by any management official. The Trial Examiner specifically concludes and finds that Dye engaged in no misconduct or illegal acts transmuting his concerted activities from protected to unprotected. Further, the Trial Examiner concludes and finds that he was discriminatorily refused employment on June 7, 1948 , because he had participated in the strike and because he was a union leader. 3. Eleanor Ramos and Katherine Pearson The cases of these two employees will be discussed together , since it appears that the Respondent claims that they were refused reinstatement for the same reason. Both employees went on strike. According to evidence submitted by the Respondent itself, its management observers recorded their presence on the picket lines . Both reported for work on June 7. Both were then told by Olson that they would not be taken back because they were "under investigation." When they returned later they were told again by Olson and then by Croker that they were still under investigation . On the final occasion , some weeks after June 7, they were told by Croker , in effect, that they were discharged for misconduct during the strike . Pearson asked him if saying "hello " to a person was considered by him to be "threatening." Croker told her "it is best not to speak while a strike is on." It appears that the sole incident , upon which the Respondent may rely as " misconduct" 5 for its defense, was a conversation in a drug store , away from the plant, about May 14, between them and an employee , Mrs. Turner , who until then apparently had not worked during the strike. In substance , the undisputed testimony of Pearson and Ramos is to the effect that they said "hello" to Mrs. Turner , and that the latter volunteered the information that she planned to go to work at the plant the next day , whereupon Ramos said, "that was her business and if she wanted to go through that line down there and have them calling her all the names , that was all right with me." Neither Turner , her daughter , nor the druggist said to be present at the time were called as witnesses. It appears that shortly after this minor incident , the Respondent itself filed charges against Pearson and Ramos before a local justice of the peace , who dismissed the case on June 3, before the end of the strike. The incident itself, as revealed by the undisputed testimony of the two employees, falls short of constituting misconduct , unlawful act, or unprotected concerted activities . It served, however , as a convenient pretext. The Trial Examiner concludes and finds that both Ramos and Pearson were actually refused reinstatement on June 7 because they had engaged in the strike. 4. Frank W. Roman Roman, a union steward at that time , went on strike with other employees on March 16. According to the document above described , the Respondent recorded his presence on the picket line during May . When he reported for work on June 7 he was told at the employment office, "A mark against you , Frank. ... You must have done something illegal." When Roman protested he had done nothing against the law he was told "You must have done something," and was instructed to come back a week later. He returned then and was told the same thing. Reasonably persuaded , apparently , that further application would be futile, Roman did not come back again . He has never been recalled. It is found that he was refused reinstatement on June 7, 1948. No management official testified and no evidence was elicited from any witnesses of the Respondent as to why Roman was denied reinstatement . The only witness to metion Roman in relation to any incident was Foreman Zachar , whose testimony in general has been found to be unreliable. On direct examination , and in response to the leading question : "Did Roman stop your car of himself '? ", Zachar answered in the affirmative. Zachar immediately 5During cross - examination of Ramos, counsel for the Respondent claimed that she was denied reinstatement for an additional incident of misconduct , occurring on the picket line May 25 . No evidence involving Ramos many such incident of that date was thereafter adduced. WILSON & CO., INC. 835 thereafter admitted , however, that he had "no knowledge of any remarks he made," and that he did not "think he was able to reach the car ." On cross-examination Zachar admitted that he "might have difficulty " in identifying Roman , and that he would know him only if in plant uniform, which he admitted was not worn on the picket line. The record has no credible evidence that Roman engaged in any misconduct , or stopped any car, during the strike . It is specifically found that he engaged in no misconduct , illegal act, or unprotected concerted activities. The Trial Examiner concludes and finds that Frank Roman was denied reinstatement on June 7, 1948 , because he participated with others in the strike and because he was a union leader. 5. Lumir J. Serovy , Leo Unash , George J. Trachta , and Raymond Norton The issues as to these four employees are considered together , since it appears that the Respondent would have it found that all weredenied reinstatement for participating in a single incident. Unash and Norton, at the time of the strike , were union stewards . Unash was also on the welfare committee , while Norton was also on the bargaining committee. That the Respondent kept them under constant observation while at or near the picket line is made plain by the document above referred to. Neither Serovy nor Trachta held union office , so far as the record shows. On May 14 the four , as a group, called at the home of a fellow employee , James Hornya, who, with his wife , had that day apparently returned to work. That these four visited Hornya and tried to persuade him to rejoin his fellow employees on strike is undisputed. Unash, a member of the welfare committee , testified credibly that they offered to help Hornya with groceries. The only testimony tending to show that the visit was other than peaceful was elicited from Hornya himself, and is far from persuasive . With a single exception , all threatening remarks which he claimed on direct examination were made , he attributed to Norton , who had died in 1950, and obviously was unavailable to refute his claim. The exception was his claim that Norton, Trachta , and "this colored guy," unidentified in the record , all said that if Hornya's wife "goes to work, knives may be slipping around there and site get a beating every day." Hornya also said that Norton told him, "I never get to work the next day , that they was going to get me, that I won't be able to walk on the streets nowhere ." Although while still on direct examination he admitted that "they said they come to help me with groceries," on cross -examination he declared , "They never said nobody would help me." Nowhere in I lornya's testimony , if accepted at face value , is there any evidence that either Unash or Serovy uttered any threats. Although Hornya said his wife was present at the time of the visit, she was not called as a witness. Serovy and Unash denied making any threatening remarks to Hornya and his wife, and Unash denied that Norton voiced any threats . There is no evidence that any management representative ever questioned any one of the four employees about the incident. I I he Trial Examiner specifically finds, from his observation of the witnesses, and the preponderance of credible evidence , that none of the individuals concerned engaged in misconduct or illegal acts when calling upon Hornya. Nor does the record reveal credible evidencethatany of the four engaged in any misconduct during the strike. Foreman Zachar ,' whose testimony has heretofore been found to be un- reliable , said that he saw Unash "in front of" his car 3 or 4 times during the strike, but on cross-examination admitted that he did not know Unash personally and said , " I don't believe I could give you a perfect physical description of him." Unash flatly denied stopping any- one's car . In response to the leading question on direct examination : "Did George Trachta block your car during the same period ," Zachar replied: "George was also in front of the car blocking my passage." On cross-examination , however, when asked if he knew a man "by the name of Trachta ," he replied , " I recall the name , there were several, I be- lieve we had several Trachta's that worked in the plant ," but added , "I don't think I can recall any first names ." When pressed , he said, "I think I remember an Amos Trachta, is the only one I can recall." His vague and uncertain recollection on cross-examination is in significant contrast to his glib reference to "George " on direct, cod further weakens reliability already found wanting. The Trial Examiner finds that neither Unash nor Trachta engaged in stopping cars during the strike , or in any other misconduct , illegal acts , or unprotected concerted activities. 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner further finds that Unash, Nor ton, Serovy, and Trachta, and each of them, were denied reinstatement on June 7, 1948, because they had participated in the strike and (as to Unash and Norton) because they were union leaders 6 Mayme (Stumph) Holecek Holecek, before and during the strike, was a union steward During the strike she was also chairman of the strikers ' "soup kitchen." She reported for work on June 7 and was told by Olson that her department was not yet in operation and she would be called. On June 10 her foreman, Zachar, telephoned to her and told her to come in on Monday, June 14. When she appeared at the plant on the latter day she was refused reinstatement by Olson, who accused her of beating "the hell out of" a loyal employee on a dancehall floor the preceding Friday night. Olson, as a witness, admitted that he told her she was "under investigation," and admitted further that he did not ask Holecek as to "her version" of the incident. Nor did the Respondent offer any evidence or testimony as to what investigation, if any, was made by management. Nor did the Respondent call any witnesses of the incident, even the "loyal employee " she was accused of mistreating. The only testimony in the record about any fracas was that frankly given by llolecek herself, on cross-examination . It appears from her unchallenged account that on Friday night, June 10, she met one Ann Klink in Danceland , a public hall a mile from the plant, monitored by two policemen and a matron . While dancing , the two and their partners ac- cidentally bumped in mid-floor. Klink sneered. Holecek remarked, "You scab, you dirty rat," and walked away. In the absence of any other evidence , the Trial Examiner is unable to find that the dance- hall occurrence was other than described by Holecek herself. There is no evidence that she was either arrested or reprimanded by the police present. The spectacle of this nationwide concern, employing some 1,200 persons at Cedar Rapids alone, attempting to police, by absentee methods or rumor, the actions of its employees on a public dance floor, when no strike is in progress , borders on the ridiculous , except that here it has served as a pretext, apparently, for its 4-year refusal to reinstate a union steward who actively participated in the strike of 1948 It is found that Holecek engaged in no misconduct or illegal act on June 10, 1948 The Trial Examiner further concludes and finds that she was refused reinstatement on June 14 because she had participated in the strike and because she was a union steward 7 George and Esther Scurlock If entries on the document introduced by the Respondent are to be believed without reser- vation, then management was well aware of the active strike participation of George Scurlock and his wife Esther . Management representatives recorded their presence on the picket line no less than 39 times Their leadership in union affairs over a long period was likewise well known to the Respondent George Scurlock was chief steward of the entire plant, was on the national strike committee, and on both the local and national bargaining committees Esther Scurlock had been a steward since 1932, and was head of the local's auxiliary Both reported for work on June 7 George Scurlock was told by Olson that lie was fired but was given no reason When lie asked for his termination notice lie was told it would be mailed to hint. It has never been received His wife was told by Croker that she would be recalled when needed She has never been recalled As in other cases at Cedar Rapids, no member of management testified as to why, precisely, the Scurlocks were denied reinstatement on June 7, or as to what incidents of alleged mis- conduct, if any, motivated the refusal The state of the record is such that it may only be speculated as to what incident, or incidents, if occurring, may now be deemed by management to have been of sufficient seri- ousness in 1948 to have been considered then , separately or together , as misconduct warranting refusal to reinstate The Trial Examiner believes it unnecessary here to review the confused and inconsistent testimony of Foreman Zachar as to his claims of having been stopped and called names by both Scurlocks As heretofore found, Zachar cheerfully implicated many individuals on direct examination , in response to leading questions , whom lie could not identify on cross-exam- ination The Scurlocks flatly denied engaging in the conduct attributed to them by Zachar Their denials are credited The Trial Examiner finds that they engaged in no misconduct or illegal acts as to Zachar WILSON & CO., INC. 837 Two other management representatives, Leroy Steffenhagen and William Smith, testified as to the Scurlocks On direct examination Steffenhagen said, in substance , that between March 16 and June 5 his car was stopped by pickets in front of the plant Although at first saying "I don ' t remember how many times ,- when pressed for an estimate he replied, "I would say at least three or four times " When asked who stopped him, he said, "There were a group of people around there ," and when the question was repeated , replied, "I can indentify one as Mr Scurlock " Scurlock, he said, "went to the driver's side and tried to open up the car doors and we had the doors locked and windows up " Nothing else happened, he said On cross-examination , he said Scurlock "asked to open the doors ," and when Smith, the driver, made no reply , they drove on into the plant lie could not recall when any such incident occurred, and admitted that he was not consulted by anyone as to permitting Scurlock to return to work Smith, the driver of the car in which Steffenhagen rode, was more expansive in his testimony He declared his car was blocked by "swarms" of people, on "twenty-five or thirty oc- casions," nearly every morning Of the "several hundred people around there," lie identified only the Scurlocks and one other individual not here involved Pressed for more specific details by his own counsel, Smith finally reduced the times George Scurlock "blocked" his car to two occasions He admitted, however, that Scurlock said nothing ',that I could hear " On another occasion, he said, when riding with Zachar, Mrs Scurlock leaned across the fenders and "called us scab haulers and rat haulers " He again claimed "there were several hundred people around blocking the car " The testimony of Smith and Steffenhagen fails to coincide on many points For example, Smith said the window in his car was "down," while Steffenliagen said it was "up " Smith said Scurlock asked him nothing, but Steffenliagen said Scurlock asked to open the doors. The Trial Examiner can place no reliance upon the versions of either Smith or Steffenhagen Smith' s account is clearly exaggerated His claim of "hundreds " of people blocking his car confronts documentary evidence above referred to, introduced also by the Respondent. The largest number of persons recorded by management representatives , assigned for that purpose, as being on the picket lines on any day during the strike was 130. Furthermore, it is significant that neither of the assigned observers was called to testify as to any incident involving the Scurlocks The Trial Examiner concludes and finds that neither George nor Esther Scurlock stopped cars of Steffenhagen and Smith , preventing their passage into or out of the plant The record also contains testimony as to two other apparently alleged incidents, one concerning George Scurlock and the other his wife The substance of testimony of two witnesses, called by the Respondent, is to the effect that one day Scurlock's car stalled in public traffic near the plant and that in an effort to get it started, a bus carrying nonstrikers away from the plant and proceeding behind it, pushed it, and the bumpers became locked Some individual by the name of Clift, otherwise unidentified, thereafter filed information accusing Scurlock of "the crime of obstructing traffic in the street " Documents placed in evidence by the Respondent itself establish that the case ended with dismissal of the cause by the district court. On the basis of evidence adduced by the Respondent it clearly cannot be found that Scurlock intentionally blocked traffic on this occasion And even if he had, the bus was proceeding away from the plant No workers were prevented from entering the premises or from going to work It is found that Scurlock engaged in no misconduct or illegal act on this occasion. Two other witnesses said that one day they saw Esther Scurlock throw a stone against the side of a freight car in which they were working Employee Norman Pollock and his foreman, Axel Adolphseu, it appears from the substance of their testimony, were working for Wilson Carlines, a subsidiary of the Respondent, cleaning out freight cars on sidetracks beyond the Respondent's plant fence, sometime in early June, when several people came near and they saw Esther Scurlock throw a stone which hit the side of the car and heard her call them names Both agreed that the stone hit no one, and so far as the record shows they went right on working The Trial Examiner has grave doubt that Adolphsen heard any name-calling by anyone. He had difficulty, as the record shows, in hearing counsel and he admitted that he was deaf in 1948 Mrs. Scurlock denied throwing any stone. Neither of the management observers, assigned for such purpose, testified as to any such incident Although the Trial Examiner is inclined to believe that somebody threw a stone at the freight car, in the light of other wholly incredible testimony attempting to fasten guilt upon the Scurlocks, the is unable to find that Mrs Scurlock actually threw a stone In any event, no one was injured, no damage was done, no one was barred from work or entry into the 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant. It was a trivial incident at most, and fell short of misconduct , an illegal act, or unprotected concerted activities. The Trial Examiner concludes and finds that George and Esther Scurlock were actually denied reinstatement on June 7 because they had participated in the strike and were leaders of the Union. 8. Gregory K. Gould Gould was a striking employee who served on the picket Imes . He reported for work on June 7 and was told he was "under investigation " but not what for. He has never been recalled nor told why. 6 The Respondent adduced no testimony of management officials or others as to any incident of misconduct during the strike which may have served even as a pretext for refusing to reinstate him. The only testimony regarding any incident was elicited from Gould, on cross- examination , and this was to the effect that sometime in May, at some tavern in Cedar Rapids , somebody hit Gould and he did not hit back. Getting hit in a tavern may hardly be construed as misconduct or unprotected concerted activities . The Trial Examiner finds that Gould was guilty of no misconduct during the strike. The Trial Examiner further finds that Gould was denied employment on June 7 because he had participated in the strike. 9. Michael A. Gallo Gallo also was a union steward , and took part in the strike . When he reported for work on June 7 he was told at the employment office , after giving his name and clock number, that he was discharged . When he asked why, the employment representative merely shrugged and said , "Next," to the employee behind Gallo . He has not been reinstated. Here again the Respondent advanced only the broad claim of "misconduct" as a reason for the refusal to reinstate . No specific incident was cited by any management representative as determining its action. And again Foreman Zachar , whose other testimony has been found unreliable, in reply to leading questions said he saw Gallo "in this group " that stopped his car "six or seven times." He also said that Gallo "addressed us as scab hauler and he told the people in the car they might get hurt if they go in." Gallo flatly denied stopping any car . Neither of the two management representatives , assigned to watch the pickets, testified as to any such incidents as Zachar described . The Trial Examiner finds that Gallo did not engage in the misconduct of stopping Zachar's car or of threatening employees Zachar was bringing in to work. Olson testified that he and Zachar , one afternoon , parked their car near a street inter- section for the purpose of "observing " the pickets . They stayed about 45 minutes. While there, Gallo came by and called him a "dirty bastard," he said. Even if Olson 's testimony on this matter were to be accepted at face value , and it is not , since he has already been found unreliable on other points , it is clear that Gallo engaged in no misconduct warranting refusal to rehire because of unprotected concerted activities . Zachar and Olson , as manage- ment representatives , according to Olson's own testimony , were attempting neither to enter nor leave the plant , but engaging in surveillance of the strikers. The Trial Examiner concludes and finds that the Respondent actually refused to reemploy Gallo because of his participation in the strike and because he was a union steward. 10. Donald E. Spiker Spiker had been a union steward for the 3 years immediately preceding that of the strike. That the Respondent knew of his picketing activity was shown by the document previously referred to. 6 The Trial Examiner does not accept as credible Olson's testimony that he told Gould, on June 9, that he was "discharged for misconduct during the strike" and then explained to film that the misconduct was fighting. Olson admitted he gave Gould no discharge slip No records of the interview were offered to support his testimony , although it was claimed that such records were made. WILSON & CO., INC. 8 39 When Spiker returned to work on June 7 he was told by Casualty Manager Croker that he would not be reinstated because he had been implicated in upsetting a jeep on May 14, some miles from Cedar Rapids. The only testimony in the record, stricken upon its completion, as to the overturning of a jeep was elicited from Donald Eckhart. He mentioned no individual involved in this case as even being present, except Spiker, and then only in response to a leading question. Eckhart even then said he did not know if Spiker was driving any of the three cars which had followed him. When specifically asked by the Trial Examiner if he could name any individual who overturned his jeep,he frankly replied, "No, I couldn't." Spiker flatly and credibly denied taking any part in the occurrence. No member of management ever inquired of Spiker whether or not he had been involved in it. The Trial Examiner finds that Spiker was not involved in upsetting Eckhart's jeep and engaged in no misconduct, illegal act, or unprotected concerted activities. It is further concluded and found that the Respondent refused to reinstate him on June 7 because he had participated in the strike. 11. Horace S. Gates, Jr. For many years, since 1930, Gates had been an employee of the Respondent when, in 1944, he obtained leave of absence, pursuant to the then existing contract, and accepted a paid position with the International Union as a representative. In January 1947, he requested and, by written notice, was granted an extension of leave, under a contract due to expire on August 11, 1948. On June 7, together with other employees, he reported at the plant, to an individual in the employment office whom he could not identify. After consulting with someone else this individual told Gates that his case would be handled by the Chicago office. On August 11 he communicated with Industrial Relations Manager Wells, and formally requested return to work by wire and by letter. Wells made no direct reply to his request for reinstatement, but merely referred him to a letter sent to the Union by Attorney Winkler on June 9. That letter informed the Union, in substance, that as of some unspecified prior date it had elected to cancel the contract. Gates has not been reinstated. No management official testified as to why he has not been reemployed. Apparently the Respondent's counsel would have it inferred that having uni- laterally claimed on June 9 to have terminated a contract, the Respondent was under no obligation to reemploy Gates on August 11. The undisputed facts are, however, that Gates reported for work on June 7, immediately after the strike was called off, and before Winkler announced that he considered the contract to have been ended sometime before then. Whatever the status of the contract, Gates' leave of absence, duly granted by the Company, continued him as an employee within the meaning of the Act. r He applied for work on June 7, at the conclusion of the strike, and has not been reinstated. No claim is made that there was in 1948, or has been since then, no work available for him. The Trial Examiner concludes and finds that Gates was refused reinstatement on June 7 because of his leadership in the Union conducting the strike, and to discourage union member- ship and concerted activities. 12. Summary conclusions as to Cedar Rapids The Trial Examiner concludes and finds that the preponderence of credible evidence sustains the allegations of the complaint as to the following named individuals, and that each of them was refused reinstatement on June 7, 1948, (except Mayme (Stumph) Holecek on June 14) because he or she engaged in a strike and other protected activities, to dis- courage membership in Local No. 3 and participation in concerted activities, and that by such conduct the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by the Act. 7Armour and Company, 83 NLRB 333 291555 0 - 54 - 54 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Marion F. Dye Eleanor Ramos Katherine Pearson Frank W. Roman Mayme (Stumph) Holecek Gregory Gould Donald E. Spiker Lumir J. Serovy Leo Unash George J. Trachta Raymond Norton George Scurlock Esther Scurlock Michael Gallo Horace S. Gates, Jr. 13. Virgil E. Fuller Fuller, a union steward and a member of the Local's bargaining committee, went on strike with others but was apparently permitted to return to work. Not long before November 5, 1948, when his services were terminated (at first the Respondent claimed that he resigned, and later took the position that he either quit or was discharged) the Respondent was served with a union charge, filed with the Board, alleging that Fuller, among others, had been discriminated against as to the nature of work he was permitted to perform immediately after the strike ended.8 There is no question but that Fuller left the Respondent's employment on November 5. There is sharp dispute in testimony relating to his leaving. In substance, Fuller's version is as follows. While working at his regular job of opening hogs that morning, his foreman, H. R. Dicus, came to him and asked why "so many hogs were getting throwed off the line." Fuller replied by asking why there were not 3 men on the job instead of 2, and Dicus said there would continue to be but 2. Finally Fuller asked him to get Steffenhagen, Dicus superior. Dicus could not locate him. Fuller then asked him to take his place on the line so he could, as steward, find Steffenhagen and register a grievance to the effect that "the chain" was being run too fast for only 2 openers. Dicus took his place and Fuller sought Steffenhagen. He went to the cafeteria. He saw Industrial Relations Manager Wells there, told him he had a grievance, explained it, and said he was looking for Steffenhagen. Steffenhagen came in about that time and he approached him. After telling Steffenhagen of the need for another man, he was informed, "you left the job," and "we consider you terminated your work with Wilson and Company." In substance, the version of Dicus, Steffenhagen, and Wells is as follows. According to Dicus, on the day before his termination, Fuller brought up with him the grievance about having a third man on the operation, and asked to talk to Steffenhagen. Dicus admitted that he did nothing about the grievance nor made any reply as to seeing Steffenhagen. On the morning of November 5, also according to Dicus, after repeatedly being warned about stopping the chain, Fuller walked off the job declaring that if he could do any better to get up there and try it, and further saying that "It's just too much, I can't take it." According to this foreman, Fuller simply left his work without saying where he was going. According to Steffenhagen, while he was talking with General Foreman Havhck, the latter received a telephone call from "the hog kill" informing him that Fuller had walked off the job. The two went to that department, where Dicus told them that Fuller had walked off, saying, "I have had enough. If you think you can do any better, here is my tools." Steffenhagen there- upon left to report to Wells and was told he was in the cafeteria. There he found Wells, told him about Fuller, and in turn was informed, "there he is over there ... you know he has been warned about walking off the job before." Steffehagen had coffee and then approached Fuller at a table some distance away and asked him, "What's your trouble?" Fuller replied, "I just can't take it." And when he accused the employee of "walking off the job," Fuller countered that he had not left the premises and wanted to see Wells. According to Steffenhagen he ended the conversation by telling Fuller, "You can see him, but as far as I am concerned, you have walked off the job." He then left the cafeteria. According to Wells, while he was in the cafeteria Fuller approached and asked to speak to him and he said "later." Soon after this, Steffenhagen came directly to him and reported that Fuller had walked off the job and that he had been previously warned about such behavior. He pointed out Fuller to Steffenhagen, sitting at another table. On his way out Wells passed Fuller and said he under- 8 The issues of this proceeding are not concerned with the merits of that part of the charge That it was served upon the Respondent, however, is established by the formal papers in this case, and, as will be noted hereinafter, the Trial Examiner considers that the Respondent's knowledge of the charge on behalf of Fuller is a factor to be noted in resolving the issue of motive in his later discharge. WILSON & CO., INC. 841 stood he had walked off the job again. Fuller replied that he would work if they would put another man on the job but not otherwise. He told the employee, he said, "you have walked off the job again and you know very well that in so doing you would be terminating your own employment." There are serious discrepancies not only in the claims of management as to the nature of Fuller's termination but also in the testimony of its representatives regarding material events. When Fuller took the stand counsel for the Respondent claimed without reservation that the employee had resigned. Two days later, when Dicus was testifying, counsel said, "we have an alternative position that he either resigned or was discharged." According to Wells, he told the employee the company had "no alternative but to consider you as a resigned employee." He also testified that he told Fuller that if he did not leave the plant at once "we'll have one of the plant policemen see that you do." It is undisputed that a guard was called who took him by the arm and led him out, without permitting him to get his belongings from his locker, a procedure inconsonant with the claim that Fuller resigned. Dicus claimed that Fuller had asked to see Steffenhagen on November 4, at first denied that the employee asked to see him on the 5th, and later qualified the denial by saying he did not "recall that." The foreman admitted that there had previously been three men on the job of hog opening. The denial of Steffenhagen and Wells that Fuller, in the cafeteria, men- tioned any grievance is not reasonably believable. The Trial Examiner, having observed the witnesses, and having considered the inherent probabilities, accepts Fuller's version as the more credible. Dicus' testimony that there were only 2 openers on a job where 3 had been employed, corroborates Fuller's claim that a grievance existed. And Wells' testimony is to the effect that Fuller came directly to him in the cafeteria and asked to speak to him--hardly the act of an employee who had merely become disgruntled and had gone off to the cafeteria to sulk. The summary treatment accorded to the employee immediately thereafter by Wells, who admits he had told Fuller to see him "later," convinces the Trial Examiner and it is found that management seized upon the incident of Fuller's seeking to file a grievance as a pretext for ridding itself of a union steward and a member of the bargaining committee, on whose behalf the Union had just filed charges. The conclusion is reached, furthermore, in the light of events a few months before, when upon other pretexts the Respondent denied reinstatement to other stewards and officers of the Union. The Trial Examiner concludes and finds that Fuller was discriminatorily discharged on November 5, 1948, to discqurage union membership and activity, and because he was a union leader who had engaged in concerted activities. 14. Harry L. Wright At the time of his discharge on February 19, 1949, Wright was also a union steward and a member of the Local's bargaining committee. The discharge occurred but a few days after the Board had directed that an election be held at this plant, an election which the Local had petitioned and the Respondent had opposed. (81 NLRB 504.) In February, Wright was known as "the freezer man," hauling trailers to and from the freezer and dock. He had participated in the 1948 strike, but apparently had been reinstated at its conclusion. The facts of his actual discharge are in small dispute. He and another employee, Ward, went to the cafeteria a few minutes before their regular break period at 9:30 in the morning. (There is the minor dispute as to whether they were 3 or 10 minutes early.) While they stood in line Wright's foreman, Paul Marsh, came up and ordered them into the conference room. Marsh went for Division Superintendent Agar. Agar appeared: Ward was sent back to work, and after some discussion Wright was discharged. The testimony of Wright and the supervisors is in agreement that they told him he had been warned before. Wright said that he denied the accusation, they claimed he admitted it. There is discrepancy in the testimony of the supervisors as to why Ward, equally early, was not likewise discharged. Agar said it was because Ward's regular relief time had been at 9:15, while delivering to the wholesale market. Marsh said it was because it was Ward's first offense. Marsh admitted that in his 261 years in this department he had never known of any other employee, except Wright, being discharged for going on relief a little early. That it was not an uncommon occurrence is made plain by his own testimony that he had warned all in his department, in a group, some time before Wright was discharged. Wright's specific testimony, citing names, as to others from his department who were already in the cafeteria when he arrived that morning is undisputed by Marsh. There is no evidence that any of them were even reprimanded. 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is clear from Wright's testimony, however, that he was at the cafeteria shortly before his relief period began. The severe punishment accorded to so trivial a dereliction, how- ever, convinces the Trial Examiner, and it is found, in view of the fact that no other em- ployee under Agar's supervision had ever been discharged for the claimed reason, that the discharge was not for cause , but was discriminatorily designed to discourage union leader- ship and activity, thereby interfering with, restraining, and coercing employees in the exercise of rights guaranteed by the Act. C. Issues at Albert Lea 1. In general At Albert Lea 10 individuals are involved. All were denied employment following the strike. They are: Howard D. Feuerhelm, William T. Docherty, Alice P. Spilde, Ole Kleveland, Norris E. Peterson, Stanley J. Hall, Clem Ulmen, Eddie Lahs, Robert W. Black, and Seymour Flanagan. Most of these 10 held office in Local No. 6. As with similar cases at Cedar Rapids, the' issues here will be discussed singly or by group, depending upon what appear to be the claims of the Respondent regarding its failure to reinstate the strikers. 2. William T. Docherty Docherty was public relations officer for the Local He issued releases to the newspapers during the strike and attended strike negotiating meetings of management and the Local He reported with other employees at the plant gate on the morning of June 7. He was told by Harry Bennett, the timekeeper, in the presence of Superintendent H. L. Burns that there would be no work for him . He was given no reason , 9 and has never been recalled. It is the Respondent's claim, apparently, that the position filled by Docherty before the strike was eliminated during the strike and that therefore there was no work for him. This is the gist of the testimony of Chief Engineer Herman Squires. According to him he and the master mechanic decided, during the strike, to combine the work of the "maintenance engineer in the engine room," which Docherty had performed, "with the mechanical work in the machine shop." On cross-examination he admitted, however, that after the strike and at present he had and has 28 employees in the engineroom and boilerroom , which is precisely the same number, including Docherty, as were employed before the strike began, and he admitted that no new employee was hired during the strike. However certain tasks, if any, were rearranged or reassigned, it is plain from Squires' own testimony, that either a new employee was hired after the strike, or one from another department was transferred to his department. It is likewise plain, from Squires' testimony, that the duties performed by Docherty have not, in fact, been eliminated. The Trial Examiner finds no merit in the Respondent's contentions as to Docherty. The Trial Examiner further concludes and finds that Docherty, because of his leadership in the strike, was discriminatorily denied reinstatement on June 7, 1948. 3. Howard D. Feuerhelm When refused reinstatement on June 7, Feuerhelm had been an employee at this plant for 15 years. As in the cases of certain strikers at Cedar Rapids, the Respondent conceded that it was aware that this employee participated in the concerted activities. Indeed the Respondent adduced additional proof, by placing in the record another document establishing that Time- keeper Bennett, under instructions from Superintendent Burns, assigned employees during the strike to the specific task of observing pickets, and recording the names and dates they thus served. Feuerhelm was among the strikers under observation. When Feuerhelm reported for work on June 7 he was told by Bennett there was no job for him. He was not told why, and he has never been recalled. 9Bennett claimed , as a witness , that he not only told Docherty there was no work for him but also that "his job didn't exist " The Trial Examiner does not credit this claim Docherty, as a high union official, and on the negotiating committee, would reasonably have raised an immediate issue on this point, had he been told his job had been eliminated, in the face of the Company's advertisement, a few days before, urging all strikers to return Docherty held no ordinary production job, but was in charge of engineroom equipment. WILSON & Co., INC. 843 No management official testified as to why he was denied work. When counsel for the Respondent was asked to state his claim , at the beginning of cross -examination of the employee, counsel replied: "That is a matter of proof.... I don't think I am required to set forth what is involved." The only two witnesses to refer to Feuerhelrn in relation to any incident during the strike were Foreman George Kittelson and division man Lyle Hahn. Kitteison said that on May 12, when he was on his way to work, a "group of pickets" tipped his car over. Among the pickets he said he recognized Feuerhelm but admitted that he could not identify anyone who actually tipped him over or "put their hands on my car ." There being no credible evidence to the contrary, the Trial Examiner accepts as true Feuerhelm's denial that he ever stopped anyone in or out of a car. It is found that he did not molest Kittelson or his car on May 12. According to Hahn, sometime in the middle of May when he was bringing employees through the picket Imes, a group of pickets got in front of his car which had been stopped by two other cars halted ahead of him. Of this group in front of his car he said he recognized Feuerhelm and Hall (whose case is discussed hereinafter) and added that they told him "they weren't letting any scabs in the plant." Feuerhelm flatly denied stopping Hahn's car. The Trial Examiner does not accept Hahn's unsupported testimony as credible. As the record shows, not only were a number of policemen assigned to duty at the picket line but representatives of management as well, and none testified as to the incident . The Trial Examiner concludes and finds that Feuerhelm did not bar ingress to the plant, or engage in any other misconduct, illegal act, or unprotected concerted activity. The Trial Examiner concludes and finds that Feuerhelm was discriminatorily denied reinstatement on June 7 because he had participated in the strike. 4. Alice P. Spilde and Ole Kleveland These two cases are treated together, since the Respondent apparently advances similar reasons for not rehiring them in 1948 and because at the hearing, on August 21, 1952, it offered them both full reinstatement. Spilde was a union steward at the time of the strike. Kleveland held no office, but picketed openly. Spilde returned to Albert Lea from a few days' trip on or about June 8. She called her foreman that day, Maurice Gorham, explained that she had not been in town to report with the others the day before, and asked him when she should come in. He told her that the night gang had not started, but he would call her when it did. She had not, until the day of the hearing in 1952, been recalled. No witness was called by the Respondent to explain why Gorham did not recall her. A possible explanation may be inferred from the testimony of D. E. Carlsen, of the employment department , who claimed he signed a slip at sometime stating that Spilde had resigned on June 14, 1948. He admitted he knew nothing about her actual termination. Spilde flatly denied, however, that she had resigned, and there is no credible evidence to support the Respondent's apparent claim that she did resign. Kleveland lived several miles outside Albert Lea and at the time the strike was called off was working on a farm. On June 7 he heard over the radio that the strike was ended and the next day he drove to the plant. His card was in the rack, only a few were in his department, and he was informed that his boss, Foreman Gorham, had gone home for the day. A few days later he returned to the plant and Gorham said , " I can't do much for you. You better go down to the employment office." There he was told that he should have called in. He was not reinstated, and no offer was made until the day of the hearing. As in the case of Spilde, Gorham was not a witness. Through Carlsen the Respondent introduced self-serving documents which, at best, merely establish that the Respondent recorded Kleveland as resigned on June 14, 1948. Kleveland credibly denied resigning. The Trial Examiner is convinced, and finds, that the Respondent refused to reinstate Spilde on June 8 and Kleveland on June 14, 10 1949, because they had engaged in concerted activities. 5. Norris E. Peterson Since his employment by the Respondent in 1943, Peterson held various high offices in the Local. Justbefore the strike began hewas chief plant steward and during the strike was chair- to Kleveland could not recall the precise date of his visit to the employment office The Trial Examiner adopts the date claimed by the Respondent to be that on which he resigned. 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD man of the Local's strike committee, and also on the national strategy committee of the Union. When he reported for work on June 7 he was told by Bennett, "there is nothing for you, Pete." He has never been recalled. Division man Kenneth Zoller was the only witness called by the Respondent to name Peterson as involved in any incident during the strike which it would apparently have believed to have been misconduct and a legitimate basis for refusal to rehire him. Zoller claimed that early in May (on May 10, according to his counsel's suggestion) when he attempted to drive his car filled ' with employees through the picket line he was "surrounded with pickets" and was forced to stop or run into them. Among that group, he claimed, were Peterson and Lahs (whose case is discussed below). His testimony on cross-exmamation, however, reveals that his entry into the plant was barred not by persons but by a car "swung across the entrance of the road," and he could not see who was in it. Nor did Zoller claim that Peterson said anything to him. Not only did Peterson flatly deny stopping Zoller's car on May 10, but his testimony is uncontradicted that on May 9 he went to Chicago to attend a meeting of the national strike strategy committee and remained there until May 12. No member of management's crew assigned for the purpose of observing the pickets testified as to any such incident. The preponderance of credible evidence fails to support the Respondent's claim. It is found that Peterson engaged in no misconduct, illegal act, or unprotected concerted ac- tivities. The Trial Examiner concludes and finds that Peterson was refused reemployment on June 7 because of his leadership in the Local and because he participated in the strike 6. Stanley J. Hall Hall was also an active union leader, being chief steward of the killing floor and a member of both the local and national bargaining committees. He met with a number of the Respondent's officials on June 6, the day the strike was called off, and although told that some employees would not be rehired he was not so des ignated. When reporting for work the following morning, however, he was informed that there was no work for him. He has never been recalled. Although a number of supervisors testified to alleged incidents involving Hall, no manage- ment official testified as to which of them, if any, they claimed as supporting the general and unspecific charge of "misconduct." Assistant Foreman Pierce testified and Hall admitted that on one occasion, which counsel for the Respondent suggested as being on May 10, Hall called to him after his car had stopped while approaching the plant and told him "not to go in," whereupon the supervisor turned around and left. Pierce further claimed, but Halldenied. that he had stopped the car. The Trial Examiner accepts the denial as credible. Both police and observers assigned by management were there to note events; none of them testified as to the incident. Pierce made no claim that Hall threatened him in any way on this occasion, and from his own testimony it appears that he voluntarily turned around and left. There was no misconduct discernible in the event. Foreman H. T. Smith testified and Hall denied that on the morning of May 12, when driving across a bridge approaching a plant gate, he saw Hall and heard him say "Get him." Some- time later, when Smith reached the plant gate, some unidentified individuals tipped his car over. Apparently the Respondent would have it believed that Hall was responsible for the up- setting of the car. Credible evidence does not support such a conclusion. It is found that Hall engaged in no misconduct on this occasion. As noted in the case of Feuerhelm, Hahn claimed that Hall also got in front of his car some- time in the middle of May. For the same reasons as there stated, the Trial Examiner accepts the denials of the employees as the more credible. ii Division man Humphrey claimed that on May 10, while his car was halted on a bridge ap- proaching the plant, Hall came by and called him names. There is no evidence of violence, threatened violence, or of preventing entrance to the plant. Even if Hall called him names, as Humphrey said, the employee thereby did not engage in unprotected concerted activities. Division man Zoller, like Zachar at Cedar Rapids, was a witness for the Respondent who yielded willingly to leading questions by his counsel. According to Zoller, but uncorroborated either by police or the management observers, he was stopped upon approaching the plant "oh, thirty or forty times, I would say." Among many he implicated was Hall. When specifically asked how many times Hall stopped him, he said, "I would say several times." He cited iiHahn also claimed that once in a tavern Hall called him a "scab hauler." The incident is too insignificant to warrant comment. WILSON & CO., INC. 845 nether time nor place . In the faceofHall's flat denial that he stopped cars , the Trial Examiner is unable to accept as reliable Zoller 's uncorroborated and vague testimony. It is found that Hall engaged in no misconduct, illegal act, or unprotected concerted activi- ties. The Trial Examiner further concludes and finds that the Respondent refused to reinstate pall because of his leadership in the Local and because he participated in the strike. 7. C12m Ulmen At the time of the strike Ulmen had been employed by the Respondent for 22 years . For the preceding year he had been the Local ' s recording secretary and departmental chief steward. He participated in the strike but did no regular picket duty. When he reported on June 7 he was merely told there was no work for him. No management representative testified as to why Ulmen was not reinstated. Two supervisors, Humphrey and Zoller, testified about alleged incidents from which counsel for the Respondent apparently would have misconduct inferred and the additional inference drawn that he was not reinstated because of one or both. As in the case of Hall, Humphrey claimed that one day when he sat in his car on a bridge near the plant, blocked by other cars ahead , Ulmen came by, called him a name and said "get out of there." Ulmen credibly denied the occurrence. The Trial Examiner finds that Ulmen engaged in no misconduct on that occasion. Zoller claimed that one night in a local sporting goods store Ulmen came up to him, referred to him before the store clerk as a "scab herder," and struck him in the face. Ulmen denied the occurrence. Zoller 's testimony that he was struck lacks any corroboration , although he said the store clerk was present and he named another individual with him at the time. The inherent probabilities of the situation as described by Zoller support Ulmen 's denial. As the record shows , Zoller stands 6 feet and 1 inch , weighs 175 pounds , and at the time of the hearing was 39 years old , while Ulmen was 51 , was 5 feet 6 inches tall , and weighed only 145 pounds . The Trial Examiner is unable to accept Zoller 's uncorroborated testimony as credible. It is found Ulmen engaged in no misconduct on that occasion. It is concluded and found that Ulmen engaged in no misconduct , illegal act, or unprotected concerted activities , on or off the picket line. The Trial Examiner further concludes and finds that Ulmen was refused reinstatement on June 7 because he was a union leader and participated in the strike. 8. Eddie Lahs During the strike Lahs was the chief plant steward and a member of the strike strategy committee. He had been on the bargamingcommittee for a year before the strike and continued on it during the strike. He was denied reinstatement when he reported for work on June 7. No management official testified as to why Labs was not reinstated. As in other cases, the Trial Examiner can only speculate as to reasons the Respondent would have believed as meritorious. In the case of Lahs, the Respondent called the only disinterested witness to testify as to any incident occurring on the picket line--policeman J. J. Weigel. Two other officers, Weigel said on direct examination, were with him on May 14 , when he saw Lahs and Black overturn a car approaching the plant gate. This testimony , however, was nullified when , on cross-examination, he admitted that Black left the scene, upon his advice, before the car was overturned, and when asked to give the names of those who tipped over the car he admitted, "I couldn't give you names of anybody." Neither he nor the other two policemen arrested anyone on this occasion. Lahs credibly denied participating in the occurrence. The Trial Examiner finds that he engaged in no misconduct or Illegal act on this occasion. Zoller, found above to be an unreliable witness, claimed that on May 10, when his car carrying employees into the plant was stopped outside the gate , Lahs came up, tried to open the back door, and said they ought to take the occupants from the car and beat the hell out of them. Zoller's testimony lacks corroboration from any occupant of the car, from any of the attending police, and from any of the management observers. Lahs credibly denied the occurrence. The Trial Examiner finds that Lahs engaged in no misconduct, illegal act, or unprotected concerted activities on this occasion. The Trial Examiner further concludes and finds that Lahs was refused reinstatement on June 7 because of his leadership in the Local and because he engaged in the strike 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 9. Robert W. Black Black was an employee on strike . He reported on June 7 with others , but was told there was no work for him. He has not been recalled. As in other cases , the Trial Examiner must speculate as to which item or items of claimed misconduct the Respondent relies upon as a reason for failing to reemploy Black. This employee, as noted above, was at first involved by officer Weigel, but the momentary involvement was quickly dissipated on cross -examination. It is found that Black overturned no car and engaged in no misconduct on that occasion. Assistant Foreman Kortz , in response to plainly leading questions , testified confusedly about some incident when, as he and another person were taking workers into the plant, Black pounded on his fenders with something . He could not place the date. Black's unequivocal denial is credible , in the absence of corroborating testimony from other occupants of the car, from police, or from management representatives present. The Trial Examiner finds that Black engaged in no misconduct as to Kortz. Zoller, previously found to be an unreliable witness , claimed that Black , together with Hall, stopped his car "several times ." Black denied this vague , unsupported claim , and the denial is credited. It is found that Black engaged in no misconduct , illegal acts , or unprotected con- certed activities. The Trial Examiner is convinced , and finds , that Black was denied reinstatement on June 7 because he had participated in the strike. 10. Seymour Flanagan Seymour Flanagan was vice president of the Local at the time of the strike . As was Marion Dye, vice president of Local No . 3 at Cedar Rapids , Flanagan was refused reinstatement on June 7 when he reported at the plant , being told that there was no work for him. Except for the abortive effort of Kittelson , as a witness , to establish that Flanagan and Feuerhelm had tipped over his car , an effort discredited upon cross -examination as noted above , the only witness called by the Respondent to ascribe any act of alleged misconduct to Flanagan was his own brother , a foreman. It is undisputed that Foreman Flanagan's home , apparently some distance outside the city, was a gathering place for nonstrikers , and that from this point they were conveyed to the plant. One morning Seymour visited his brother , told him his antiunion conduct was "raising cane with Dad," to quote the foreman, and then said that if he caught him off his property he would beat him up. That appears to be all there was to the incident. There was no violence . There is no evidence that anyone was prevented from leaving Foreman Flanagan 's place or from going to work. Somebody called the local sheriff, butwhen he arrived the foreman told him , accord- ing to his own testimony , "these fellows had come out and they hadn 't caused any trouble." The Trial Examiner is unable to appraise the incident as having any more serious aspect than did the foreman, who said , "Doesn't seem to me we had too much of an argument." In short, it was a trivial occurrence , between brothers , a long way from the plant. The Trial Examiner concludes and finds that Seymour Flanagan engaged in no misconduct, illegal act, or unprotected concerted activities. The Trial Examiner further finds that Flanagan was refused reinstatement on June 7 because of his union leadership and because he participated in the strike. 11. Summary conclusions as to Albert Lea The Trial Examiner concludes and finds that the preponderance of credible evidence sustains the allegations of thecomplaint as to the following named individuals , and that each of them was refused reinstatement on the date set opposite the name, because he or she engaged in the strike and other concerted activities , to discourage concerted activities and membership in Local No. 6, and that thereby the Respondent has interfered with, restrained , and coerced its employees in the exercise of rights guaranteed by the Act. William T. Docherty June 7 , 1948 Howard D. Feuerhelm June 7,1^)48 Alice P. Spilde June 8, 1948 Ole Klevelaad June 14, 1948 Norris E. Peterson June 7 , 1948 Stanley J. Hall June 7, 1948 Clem Ulmen Eddie Lahs Robert W . Black ' ' ' ' ' ' Seymour Flanagan ' ' ' ' WILSON & CO., INC. D. Issues at Faribault , Minnesota 1. In general 847 In substance , the issues at Faribault are similar to those involved at Cedar Rapids and Albert Lea. The five individuals involved at this much smaller plant are: Alcid F. Piper, Clayton D . Durtsche, Jesse Rinsem , Dwaine J. Swygman, and Frank Matthies . Treatment of their cases will be by group , in accordance with what appears to be the Respondent 's defense. 2. Alcid F . Piper, Clayton D. Durtsche, and Jesse Rinsem All of these employees participated in the strike , reported at the plant on June 7, and each was told by Gordon Hammond of the industrial relations department that there was no work for him. None was given a reason for the refusal. Nor did any management official , as a witness , advance any reason for the Respondent's refusal to rehire them. Two individuals testified concerning a single incident of alleged stone- throwing, and it appears that the Respondent would have it inferred that these three employees were denied reinstatement because they participated in it. Foreman Leo O'Neal and Division Manager Vernon Shafter said , in substance , that on April 20 they were attempting to repair a telephone line outside the plant when several persons ran toward them throwing stones. At first O'Neal testified that he saw 5 men running toward him, each throwing stones, and named Durtsche , Piper , and Rinsem , as well as 2 not here involved. Shafer's testimony corroborated that of O'Neal to some extent , although he admitted he could identify no one , and said that there were 15 in the group instead of 5. On cross -examination O'Neal admitted that at a local court proceeding soon after the event he testified that the stones came from a group of 15 or20 men. Neither supervisor was hit, so far as the evidence shows, and no damage was done. All three employees denied throwing stones . Both Rmsem and Piper were found not guilty in municipal court on June 10 and July 10, 1948 , respectively. Durtsche was found not guilty by district court on January 31, 1949. The paucity and unreliability of the evidence adduced before the Trial Examiner persuades him to come to no other conclusion than that of the courts above referred to. It is found that none of them engaged in the misconduct claimed , in any illegal act, or in unprotected concerted activities. As an alternative defense, in the case of Rinsem, counsel for the Respondent claimed that he did not have 30 days ' service with the Company , and that under the terms of the contract which it claims was then in existence, it had a right to dispense with his services . The con- tention is without merit, for various reasons . Anemployee does not lose his status as such by participating in a legal strike . He plainly had been an employee for more than 30 days on June 7 , when he sought reinstatement. There is no merit in the Respondent 's contention. The Trial Examiner concludes and finds that Piper, Durtsche , andRinsem were refused em- ployment on June 7 because they participated in the strike. 3. Dwaine J. Swygman and Frank Matthies Swygman and Matthies reported for work on June 7 and were refused employment. Both had participated in the strike. No witness was called by the Respondent to testify as to any incident claimed as misconduct. No witness was called to explain upon what conduct was based the refusal of reinstatement. The only witness to testify about them was Cockrill , one of the counsel for the Respondent. He said he overheard counsel Winkler, on September 1, 1948, tell counsel Hall, of the Union. that if the two named employees would report at the plant the next day work would be available. Hall declared that he recalled no such offer being made. Winkler did not testify on this point. Cockrill admitted that this claim ofa prior offer had not, before the hearing , been made known to any Board representative. On the state of the record, the Trial Examiner is unable to find that an appropriate offer of full reinstatement was made to the two employees in September 1948. At the hearing, however, on November 18,1952 , the Respondent, on the record , made an un- conditional offer of full reinstatement to the two employees. The Trial Examiner concludes and finds that Swygman and Matthies were denied reinstate- ment on June 7, 1948 , because they participated in the strike. 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Summary conclusions as to Faribault The Trial Examiner concludes and finds that the preponderance of credible evidence sus- tains the allegations of the complaint as to the following named individuals, and that each of them was refused reinstatement on June 7, 1948, because they engaged in the strike and other concerted activities, to discourage concerted activities and membership in Local No. 37, and that thereby the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by the Act. Alcid F. Piper Clayton D. Durtsche Jesse Rinsem Dwaine J. Swygman Frank Matthies E. Final conclusions As a concluding summary, the Trial Examiner believes pertinent a succinct statement of the Board in Victor Products Corporation , 99 NLRB 516, which is equally applicable here, substituting " refusal to reinstate " for "discharge." The discharge of employees for engaging in protected concerted activity violates Sec- tion 8 (a) (1) of the Act. Because such discharge amounts to a discrimination in hire and tenure of employment, thereby discouraging membership in the Union, it also violates Section 8 (a) (3). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent described in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It has been found that the Respondent has engaged in certain unfair labor practices. It will therefore be recommended that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. It has been found that the Respondent has discriminated in regard to the hire and tenure of employment of 32 employees, for convenience listed, according to the plants involved, in Appendix A, attached hereto. It will be recommended that the Respondent offer to them (ex- cluding Raymond Norton, deceased; Alice Spilde and Ole Kleveland at Albert Lea, who were offered full reinstatement on August 21, 1952; and Dwaine Swygman and Frank Matthies at Faribault, who were offered full reinstatement on November 18, 1952) immediate and full reinstatement to the former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and that they be made whole for any loss of pay they may have suffered by reason of the discrimination against them, by payment to each of them (in the case of Norton to his estate) of a sum of money equal to that which he or she normally would have earned as wages from the date of the discrimination to the date of offer of rein- statement (in the case of Norton, to the date of his death) less his net earnings is during such period. The back pay shall be computed in the manner established by the Board in F. W. Woolworth, 90 NLRB 289, and the Respondent shall make available to the Board appropriate records to facilitate the amount of back pay due. The character and scope of the unfair labor practices engaged in indicate an intent to defeat self-organization of the employees. It will therefore be recommended that the Respondent cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed by the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: 12 Crossett Lumber Company, 8 NLRB 440. E. P. GODDARD & COMPANY, INC. CONCLUSIONS OF LAW 849 1. Locals Nos. 37, 3, and 6, United Packinghouse Workers of America, CIO, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of employees named in Appendix A, attached hereto, thereby discouraging membership in the above-named labor organizations, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] E. R. GODDARD & COMPANY, INC. and AUTOMOTIVE, PE- TROLEUM, AND ALLIED INDUSTRIES EMPLOYEES UNION, LOCAL 618, affiliated with the INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, AFL. Case No. 14-CA-798. June 30, 1953 DECISION AND ORDER On March 27, 1953, Trial Examiner Horace A. Ruckel issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Respondent also requested oral argument. This request is hereby denied because, in our opinion, the record, exceptions, and brief adequately present the issues and the positions of the parties. The Board' has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Exam- 1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel LMem- bers Houston, Styles, and Peterson]. 105 NLRB No. 131.