The Cambria Clay Products Co.

THE CAMBRIA CLAY PRODUCTS COMPANY 267 THE CAMBRIA CLAY PRODUCTS COMPANY and LOCAL UNION 879, UNITED BRICK AND CLAY WORKERS OF AMERICA, AFL. Case No. 9-CA-474. July 22, 1953 DECISION AND ORDER On March 30, 1953, Trial Examiner John H. Eadie issued his Intermediate Report in the above-entitled proceeding, find- ing 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 General Counsel filed a brief in support of the Intermediate Report. The Board 1 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 briefs, and the entire record in the case,' and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications, additions, and exceptions. 1. The Trial Examiner found, and we agree, that the Re- spondent violated Section $ (a) (1) of the Act by Superintendent DeHart's solicitation of employee Donley's withdrawal from the Union and his threat of reprisal if Donley did not withdraw; 4 by DeHart's and Foreman Grubbs' threat to laid-off employee Henderson Keels that Keels could not be returned to work if he did not procure withdrawal slips from other employees;5 by DeHart's interrogation of employee Robert Toner as to his union membership before agreeing to permit him to move into a company house, and DeHart's promise to redecorate the house if Toner would try to get employees to go through the picket line; and by DeHart's offer to reinstate employee Richard Jackson if the latter would withdraw charges filed with the Board.6 iPursuant 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 [Members Houston, Styles, and Peterson]. 2 The Respondent excepts to the Trial Examiner's denial of its motions either to dismiss the complaint or to conduct separate hearings on each charge The motion to dismiss is based on Joanna Cotton Mills Co v. N. L R. B , 176 F. 2d 749 (C. A. 4), which is on its facts clearly distinguishable and inapposite here. With respect to the motion for separate hearings, the Trial Examiner followed normal procedure and, as the General Counsel in any event has the burden of establishing each allegation of the complaint, the Respondent has not been in any way prejudiced. We therefore affirm the rulings of the Trial Examiner. s The Respondent's request for oral argument is hereby denied because the record, excep- tions, and briefs adequately present the issues and the positions of the parties. 4The Trial Examiner inadvertently stated that this occurred in March 1951; the correct date is March 1952. 5 In this connection, we do not adopt the Trial Examiner's findings that Ed Davis, the school- bus driver, was acting as the Respondent's agent when he made similar remarks to Keels. 6 The Trial Examiner inadvertently found that the latter two incidents constituted inter- ference only. We find that they restrained and coerced employees as well See Syracuse Color Press, Inc., 103 NLRB 377 106 NLRB No 52. 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner stated that a number of employees testi- fied credibly' and without contradiction about other acts viola- tive of Section 8 (a) (1), but as he considered this testimony cumulative he did not set it forth or make specific findings with respect thereto . We rely, in addition to the incidents referred to above, upon the following conduct, all of which occurred in March 1952: (a) Foreman Flowers interrogated employee Leslie Rister as to whether he would withdraw from the Union and told him that DeHart wanted him to withdraw. (b) Foreman Dodds asked employee Forest Harris to with- draw from the Union, promising him a company house if he did so. (c) Foreman Grubbs indicated to employee ElmonCraddolph that he would do better if he did not belong to the Union; inter- rogated employees Delbert Harris , Clarence Harris, and Kenneth Craddolph as to whether they intended to withdraw from the Union; threatened employee Lloyd Horner with the loss of a lucrative piece-rate job if he did not withdraw from the Union; and told employee Richard Scott that his vacation and seniority rights would be guaranteed if he withdrew from the Union. (d) Superintendent DeHart offered to reinstate employees Richard Jackson and Adrian Watson, Jr., if they withdrew from the Union ; interrogated employees Curtis McFann and Tom Hammond as to whether they would withdraw from the Union; interrogated employee Ernest Bailey as to whether he would withdraw from the Union, and stated that the Respondent thought the Union ' s proposed contract too hard to work under and would like some of the employees to withdraw from the Union so it would not have to sign the contract. We find that by all the foregoing conduct the Respondent interfered with, restrained , and coerced its employees, in violation of Section 8 (a) (1) of the Act. 2. The Respondent excepts to the Trial Examiner's findings that on and after January 28, 1952, it refused to bargain with the Union in good faith , in violation of Section 8 (a) (5) of the Act. In reaching this conclusion , the Trial Examiner relied upon the Respondent ' s delays in meeting with the Union, which had been the contractual bargaining representative of its em- ployees for approximately 9 years, its campaign to induce em- ployee s to withdraw their union member ship during the pendency of the Union ' s request for bargaining , its refusal to process grievances in accordance with the terms of the contract while the contract was still in effect, and its failure to reply8to the several union requests for meetings after July 28, 1952. Upon this basis, the Trial Examiner stated that he found it unneces- say to set forth in detail what happened at the negotiating 7 None of the supervisors involved in the conduct here found violative of Section 8 (a) (1) of the Act was called to testify by theRespondent. See N. L. R B. v. The Ohio Calcium Company. 133 F. 2d 721 (C. A. 6) 8 The Trial Examiner also stated that in view of the Respondent' s campaign against the Union, its questioning of the Union's majority in Attorney Fitch's letter of March 20 showed its bad faith in bargaining. We find only that, under the circumstances, the questioning itself was not in good faith THE CAMBRIA CLAY PRODUCTS COMPANY 269 sessions , although he also stated that the Respondent, at those meetings, was only "going through the motions of collective bargaining. " Without effectively controverting any of the facts relied upon by the Trial Examiner,9 the Respondent urges that the nego- tiations foundered upon the Union's demand for a union-shop clause, culminating in the Union's withdrawal on July 1, 1952, of all the tentative agreements that had been reached. Contrary to the Respondent' s contention , however, during the negotia- tions the Union offered to accept a modified union-shop clause in lieu of a union shop, or to abide by the results of the current industry wide bargaining negotiations . Neither proposal was acceptable to the Respondent. Of course it was under no obli- gation to accept them but these offers, which the Union reit- erated throughout the meetings, demonstate that the Union was not, as the Respondent claims, adamantly insisting upon a union shop. Nor do we agree with the Respondent's claim that at the July 1 meeting Messer, the Union's principal negotiator, with- drew the Union' s consent to all matters on which agreement had been reached. The record establishes that at this meeting Messer again offered a settlement proposal he had made at the previous meeting, one term of which was the signing of a contract embodying those provisions on which agreement had been reached. At this point, Davis and Collis, 2 of the Re- spondent's 3 negotiators, replied that nothing had been agreed to up to then. It was then that Messer made his remarks about withdrawal. We do not agree with the Respondent's interpreta- tion of Messer's remark but believe, and find that Messer was withdrawing only the settlement proposal, not his prior agree- ment to certain contract provisions. In any event, any doubt about the matter should have been resolved for the Respondent by the Union's letter of July 18, seeking a meeting to settle those contract issues which remained unresolved. In sum, the entire record establishes that the Respondent delayed meeting with the Union to negotiate a new contract, engaged in a determined attempt to undermine the Union's representative status by a campaign of interrogation, solici- tation, threats of reprisal, promises of benefit, discriminatory discharges, refusal to process grievances, and after a short series of meetings that, taking the view most favorable to the Respondent, were inconclusive, refused to meet further with the Union or even to respond to its repeated requests for such meetings over a period of 2 months. We therefore agree with the Trial Examiner's findings that the Respondent was not, on or after January 28, 1952, bargaining in good faith.' 3. The Respondent contends that the strike, which began on April 7, 1952, was an economic strike caused by the failure 9 The Respondent contends that on January 28, when the Union first requested a meeting with the Respondent, the Union did not really want to bargain but desired only to fulfill the 60-day notice requirement of Section 8 (d). It is clear that while such compliance was a factor in the Union's action, it did also desire to begin contract negotiations. ioSee N. L. R. B. v. Reed & Prince Mfg. Co., 205 F 2d 131 (C. A. 1), enforcing 96 NLRB 850. 27 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Union to obtain a contract. The Trial Examiner found that the strike was caused and prolonged by all the Respondent's unfair labor practices. We are in substantial agreement with the Trial Examiner. The Respondent bases its contention upon the facts that at a union meeting on March 29 a committee was authorized to call a strike if a contract could not be obtained; that union representatives appeared at the plant on April 7 and stated that the strike had been called because the Union did not have a contract; and that the pickets carried signs saying ''No contract-No work." As we have found above, however, the Respondent had refused to bargain in good faith, on and after January 28, 1952. Therefore, under these circumstances, the absence of a contract was itself due to the Respondent's unfair labor practices. But, in addition, we are not convinced that the strike was in fact caused only by the Union's failure to obtain a contract. We have found that before the strike the Respondent unlawfully interrogated employees and urged them to withdraw from the Union, promising benefits if they did and threatening reprisals if they did not. We also find, in agreement with the Trial Ex- aminer, that the Respondent had shortly before the strike dis- charged employees Friend, Miller, Hall, Galliamore, and Owen Craddolph in violation of Section 8 (a) (3) of the Act. That the employees were aware of these unfair labor practices is clear from the text of the Union's April 6 resolution, which describes the discharge of Galliamore and Craddolph, whichhad accurred that day, as another link in the Respondent's efforts to break the Union. Under these circumstances, we find that the strike was caused and prolonged by the Respondent's unfair labor practices." The Remedy Having found the strike to be one caused and prolonged by the Respondent's unfair labor practices, the Trial Examiner recommended that the Respondent be required to reinstate all those strikers who had unconditionally applied for reinstate- ment on August 5 and had not yet been reinstated. The Re- spondent excepts to this requirement as to certain individuals on the ground that they have committed acts of violence. In considering the incidents upon which the Respondent relies, the Trial Examiner appears to have held the Respondent to the standard of proving by reliable and substantial evidence that the strikers in question were guilty of violence or other misconduct. This is not the rule of proof we established in the Rubin Bros. case,'2 where we held that an employer's honest belief as to employee misconduct is an adequate defense to a charge of discrimination in refusing to reinstate such em- ployee unless it is affirmatively established that the employee 11 James Thompson & Co., Inc., 100 NLRB 456. itRubin Bros. Footwear , Inc., 99NLRB610 , set aside April 13, 1953 , 203 F. 2d 486 (C A. 5). With due respect for the contrary views of the court of appeals , we nevertheless adhere to our opinion in that case until such time as the Supreme Court may determine the issue THE CAMBRIA CLAY PRODUCTS COMPANY 271 did not in fact engage in such misconduct. It is thus incumbent upon the General Counsel, once such an honest belief is estab- lished, to go forward with evidence to prove that the alleged misconduct did not in fact occur, evidence which the employer may then rebut. The General Counsel at all times has the burden of proving discrimination . In the instant case, in any event, the misconduct issue was thoroughly litigated. The Trial Examiner found it unnecessary to consider some of the incidents relied upon by the Respondent on the grounds that they occurred away from the plant or they involved dis- criminatory dischargees rather than strikers . We do not agree that these are significant distinctions in this case . We have therefore considered the evidence pertaining to all the violence incidents. (a) A car in which Virgil Keels and Curt Watson, Earl Watson, and Emerson Watson were riding home from work during the strike" was followed by a car containing strikers Carl Taylor, Harry Yoak, Reuben Wood, and two unidentified persons. Keels testified that his car was stopped by the other car pulling in front and flagging it down, that the men in the Taylor car came out and said they wanted to fight because Keels and the Watsons were scabbing , that no one in the Keels car got out, and that Harry Yoak came up to the Keels car and broke a window. Taylor's account of the incident is that as he was driving home, the Keels car, driven by Earl Watson, ran his car off the road, that he turned around to follow the other car, that when Watson stopped at a traffic light Taylor and the other occupants of his car got out, that Taylor asked Watson why he had run him off the road, and that when Watson said it was because he could not hold his car Taylor's group got back in their car and left. As the Trial Examiner did not discuss this incident, there are no credibility findings with respect to it. However, we believe that Taylor's account of the incident appears to be improbable. We doubt that these 5 strikers turned their car to follow 4 individuals they considered scabs only to get an answer to an innocuou's question . In these circumstances, we find that the Respondent had a basis for a good-faith belief that the misconduct it alleges had occurred, and that the General Counsel has not proved that it did not in fact occur. Accord- ingly, we find that the named individuals have forfeited their right to reinstatement. (b) Shortly after the events described above, the Keels group was stopped at a roadblock - -consisting of the cars of Fred Davis and Matthew Wood. There were about 35-40 men there. Keels was asked to get out of the car and did so. He testified that he sat down on a bank and Larry Robinson, one of the strikers present, came over and hit him , stating no reason, and then also hit Earl Watson. The General Counsel did not produce Wood, Robinson, or Davis as a witness. The Trial Examiner did not discuss this incident, but as Keels' testi- mony in this regard was virtually uncontradicted, we find 13 These individuals were engaged in cleanup work at one of the Respondent's buildings. 27 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sufficient basis in the record for the Respondent's good-faith belief that Robinson , Davis, and Wood had misconducted them- selves. As the General Counsel did not prove the contrary, we shall not order the reinstatement of these individuals.14 (c) The Respondent alleges that 12 named strikers were in the woods near its plant on July 25 , 1952, at a time when some 200 to 300 shots were fired at the plant from the woods. The Respondent claimed that it was informed of the identities of these 12 strikers by 3 employees whom ithad sent to the woods that morning . Of the 12 identified , 9 testified that they had not been in the woods at all that day. The Trial Examiner credited their denials and discredited entirely the testimony of the Respondent ' s witnesses in this regard . We accept these credibility resolutions . Accordingly , we find that the 12 in- dividuals alleged to have engaged in this violence did not in fact do so and, therefore , that they are entitled to reinstate- ment. (d) On July 25, 1952, a car driven by employee Nelson Howell was fired upon near a picket tent . The car was slightly damaged, and Howell was shot in the arm. Although there is much testi- mony in the record concerning this incident , there is nothing to establish who was responsible for the shooting . It is ap- parently the Respondent's contention that the shots must have been fired by the 12 individuals considered in paragraph (c) above. However , we have found that those individuals were not in the woods at the time alleged and we therefore reject the contention as to them in this connection. The Respondent contends that because Severt and Diandre, the two pickets on duty, did not show surprise when the Howell shooting occurred , they must have been implicated inthe shoot- ing. We do not believe that the failure to show surprise would necessarily indicate that the pickets were implicated ina shoot- ing plot. In any event , the testimony of the Respondent's own witnesses does not establish such failure , as they are in sub- stantial conflict as to whether or not the pickets were visible when the shots were fired . Moreover , as we have found above that the 12 strikers were not in the woods , the entire basis for the alleged plot fails . We therefore find no basis for a good- faith belief by the Respondent that the pickets were involved in this episode and, consequently , that there is no basis to deny them reinstatement. (e) On August 1, 1952, 6 individuals were found in contempt of an injunction issued by the Court of Common Pleas of Lawrence County against violent picketing and picketing by more than 2 pickets at each entrance . The record does not establish that these 6 individuals were guilty of anything more than picketing with more than 2 pickets at each entrance . We have held that a State court conviction or afinding that a State court injunction has been violated is not dispositive of an employee's rights under the Act, and that it is for the Board to determine whether or not the conduct in question bars reinstatement. As 14 The fact that the Respondent did reinstate Davis does not establish condonation . Cf Long- view Furniture Company, 100 NLRB 301. THE CAMBRIA CLAY PRODUCTS COMPANY 273 it appears that the 6 individuals had done no more than engage in picketing, we find that such conduct did not warrant the Respondent's refusal to reinstate them.' (f) The Respondent further alleges that certain other inci- dents occurred which should be attributed to the Union, although there is no identification of the individuals responsible therefor. These incidents include an explosion in the Respondent's gas- line, shooting around the house of striker Willie Watson, and the circulation of a scurrilous letter. There is no substantial evidence in the record to connect the Union with any of the violent conduct,16 and the assertedly scurrilous matter is Jack London's definition of a scab, the circulation of which under similar circumstances we have found permissible." Accordingly, we find, in agreement with the Trial Examiner, that the employees in question, with the exceptions noted above, should be reinstated, and we shall so order." ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, The Cambria Clay Products Company, Blackfork, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Local Union 879, United Brick and Clay Workers of America, AFL, or any other labor organization of its employees, by discriminating in . egard to their hire or tenure of employment or any term or condition of employment. (b) Refusing to bargain collectively with said Union as the exclusive representative of all its employees inthe appropriate unit with respect to rates of pay, wages, hours of employment, or other conditions of employment. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist the Union named above, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all, such activities except to the extent that such right may be af- fected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Make whole James Miller, Clarence Friend, Woodrow Hall, Owen Craddolph, and Edison Galliamore, and each of 15 Nashville Corporation, 94 NLRB 1567 16See N L R. B. v. Deena Artware, Inc., 198 F. 2d 645 (C. A. 6), cert. den. 345 U S 906 17 H. N. Thayer Co., 99 NLRB 422. 18 We find the Respondent 's contention that economic curtailment accounts for the refusal to reinstate some of the strikers without merit. 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees listed in Appendices A and B, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Upon request , make available to the National Labor Relations Board or its agents, for examination and copying, all payroll records, social - security payment records, time- cards, personnel records, and all other records necessary to analyze the amounts of back pay due under the terms of this Order. (c) Upon request bargain collectively with Local Union 879, United Brick and Clay Workers of America, AFL, as the ex- clusive representative of all the employees in the appropriate unit, and embody any understanding reached in a signed agree- ment. (d) Post at its plant, Blackfork, Ohio, the notice attached hereto marked "Appendix C."19 Copies of such notice, to be furnished by the Regional Director for the Ninth Region , shall, after being duly signed by the Respondent ' s authorized repre- sentative , be posted by the Respondent immediately upon receipt thereof, 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. (e) Notify the Regional Director for the Ninth Region, in writing, within ten ( 10) days from the date of this Order what steps the Respondent has taken to comply herewith. 19 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and order " the words "Pur- suant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX A John Hutchinson James Bailey Donald Hammond James Bishop James Gillespie David H. Lewis William Miller Elmon Craddolph Adrian Watson, Jr. John Morgan Hammond Richard Jackson Henderson Keels reinstated April 1, 1952 March 21, 1952 March 10, 1952 March 21, 1952 March 21, 1952 APPENDIX B Arthur, Ben Bailey, Ernest Blevins, Estil Bloomfield, Raymond Bloomfield, Ward Carrington , Hubert Cofer, Paul Coker, Walter Cox, Charles Craddolph , Harold THE CAMBRIA CLAY PRODUCTS COMPANY Craddolph, Kenneth Craddolph, Lem Craddolph, Oscar Crump, James Damron, E. J. Davis, Willie Diandre, Antonio Donley, Charles Donley, Clifford Donley, Everett Eubanks, Eldon Evans, William Fairchilds, Frank Fife, Estil Fox, Theodore Fox, Everett Fultz, Homer Gurthrine, Harry Hammond, Morgan Hammond, Thomas Harper, Aaron Harris, Clarence Harris, Forest Harris, William Horner, Lloyd Howard, Chas. Howell, William Jackson, Richard Johnson, Eugene Johnson, Hayden Keels, Dewey Keels, Earl Keels, Henderson Keels, Roger Long, Bobbie Long, Herman Manning, Wm. C. Miller, Amos Miller, Charles Miller, Charles, Jr. Murnahan, Charles McFann, Curtis McNeal, Lewis Neal, Harvey Patton, Harvey Parsons, Carl E. Payne, Adam Payne, Marion Perkins, Herbert Phillips, Harold Poetker, Wm. Quick, Clyde Rawlins, Charles Rister, Leslie Rollins, Clarence Rutt, Arnold Sargent, Ted Scott, Glen Scott, Richard Severt, Paul Shelton, George Smith, Charles Synder, Robert Straight, Oscar Straight, Garnet Taylor, Derwood Taylor, George Terry, Robert Toner, Robert Walker, Gerald Watson, Adrain, Jr. Whitt, Basil Woodruff, Clee Yates, George APPENDIX C NOTICE TO ALL EMPLOYEES 275 Pursuant to a Decision and Order of the National Labor Re- lations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in Local Union 879, United Brick and Clay Workers of America, AFL, or any other labor organization of our employees, by dis- criminating in regard to their hire or tenure of employ- ment or any term or condition of employment. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right 322615 0 -54 - 19 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to self-organization , to form labor organizations , to join or assist Local Union 879, United Brick and Clay Workers of America, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to 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 bargain collectively upon request with said union, as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment, or other conditions of employment , and if an understanding is reached, em- body such understanding in a signed agreement . The bar- gaining unit is: All production and maintenance employees at the Re- spondent's Blackfork, Ohio, operation, excluding office and clerical employees, guards, professional employees, and supervisors as defined in the Act. WE WILL make whole the employees named below for any loss of pay suffered as a result of the discrimination against them. Arthur, Ben Bailey, Ernest Bailey, James Bishop, James Blevins, Estil Bloomfield, Raymond Bloomfield, Ward Carrington, Hubert Cofer, Paul Coker, Walter Cox, Charles Craddolph, Elmon Diandre, Antonio Donley, Charles Donley, Clifford Donley, Everett Eubanks, Eldon Evans, William Fairchilds, Frank Fife, Estil Fox, Theodore Fox, Everett Friend, Clarence Fultz, Homer Craddolph, Harold Craddolph, Kenneth Craddolph, Lem Craddolph, Oscar Craddolph, Owen Crump, James Damron, E. J. Davis, Willie Harper, Aaron Harris, Clarence Harris, Forest Harris, William Horner, Lloyd Howard, Chas. Howell, William Hutchinson, John Jackson, Richard Johnson, Eugene Johnson, Hayden Keels, Dewey Keels, Earl Keels, Henderson Keels, Roger Lewis, David H. Long, Bobbie Long, Herman Manning, Wm. C. Miller, Amos THE CAMBRIA CLAY PRODUCTS COMPANY Miller, Charles Miller, Charles, Jr. Miller, James Miller, William Murnahan, Charles McFann, Curtis McNeal, Lewis Neal, Harvey Patton, Harvey Parsons, Carl E. Payne, Adam Payne, Marion Galliamore, Edison Gillespie, James Gurthrine, Harry Hall, Woodrow Hammond, Donald Hammond, John Morgan Hammond, Morgan Hammond, Thomas Perkins, Herbert Phillips, Harold Poetker, Wm. Quick, Clyde Rawlins, Charles Rister, Leslie Rollins, Clarence Rutt, Arnold Sargent, Ted Scott, Glen Scott, Richard Severt, Paul Shelton, George Smith, Charles Synder, Robert Straight, Oscar Straight, Garnet Taylor, Derwood Taylor, George Terry, Robert Toner, Robert Walker, Gerald Watson, Adrian, Jr. Whitt, Basil Woodruff, Clee Yates, George 277 All out employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard tohire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. THE CAMBRIA CLAY PRODUCTS COMPANY, 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. Intermediate Report STATEMENT OF THE CASE Upon an amended charge duly filed by Local Union 879, United Brick and Clay Workers of America, AFL, herein called the Union, the General Counsel of the National Labor Relations Board, respectively called herein the General Counsel and the Board, by the Regional Director for the Ninth Region (Cincinnati, Ohio), issued a complaint dated July 15, 1952, and amended complaints dated July 28, 1952, and September 8, 1952, against The Cambria Clay Products Company, herein called the Respondent, allegmg that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, herein called the Act. 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the unfair labor practices, the complaint, as amended, alleges that on or about January 28, 1952, and at all times thereafter, the Respondent refused to bargain collec- tively with the Union as the exclusive representative of its employees in an appropriate unit; that from on or about May 16, 1952, the Respondent engaged in certain acts which constituted interference, restraint, and coercion; that on November 7, 1951, the Respondent discharged the employees listed in Appendix A, and thereafter failed and refused to reinstate them, except those who have a reinstatement date listed opposite their names in said Appendix A, because of their membership in and activities on behalf of the Union, and for the purpose of discouraging adherence to the Union; that the Respondent discharged James Miller on March 23, 1952, Clarence Friend and Woodrow Hall on March 21, 1952, and Owen Craddolph and Edison Galliamore on April 6, 1952, and thereafter failed and refused to reinstate them for the same reasons; that on or about April 7, 1952, the Respondent's employees ceased work concertedly and went on strike; that said strike was caused and prolonged by the Respondent's unfair labor practices; that the employees listed in Appendix B, attached hereto, ceased to strike on or about August 4, 1952, and on or about August 5, 1952, and continuously thereafter requested and demanded reinstatement; and that on or about August 5, 1952, and at all times thereafter, the Respondent failed and refused to reinstate the said employees because of their membership in and activities on behalf of the Union. The Respondent's answer admits the jurisdictional allegations of the complaint but denies the commission of any unfair labor practices. Pursuant to notice, a hearingwas held at Ports mouth, Ohio, starting on October 6 and ending on October 28, 1952, before the undersigned Trial Examiner. All motions upon which ruling was reserved at the hearing are hereby denied. The General Counsel, the Respondent, and the Union have filed briefs with the Trial Examiner, which have received due consideration. FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is an Ohio corporation which is engaged in the operation of clay pits and mines, a gravel pit, and brick and silica plants in and around Blackfork, Ohio. During all times material herein , the Respondent, in the course and conduct of its business operations, purchased and caused to be shipped from points outside the State of Ohio to its Blackfork plants goods and materials of substantial value. The Respondent sells annually out- side the State of Ohio, goods having a value in excess of $200,000. The Respondent admits that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Local Union 879, United Brick and Clay Workers of America , AFL, is a labor organization which admits to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Background; sequence of events The Respondent has 2 plants at Blackfork, Ohio, which are located about 11 miles apart. The plants are referred to in the record as the "silica plant" and the "clay plant." During normal operation, the silica plant employs approximately 210 persons and the clay plant ap- proximately 36. The record indicates that Blackfork is a company town. The Respondent owns all the land around Blackfork, an area consisting of about 6,000 acres. Many of the Respondent's em- ployees live in Blackfork, in houses owned by the Respondent. The Respondent also owns and operates a general store in the town. The Union has represented the Respondent's employees for the past 9 or 10 years. During this time, the Respondent and the Union had contractural relations with each other. The last contract expired on March 31, 1952. For a number of years, it had been the Union's practice to hold regular monthly meetings in the Blackfork schoolhouse at 4 p. m. on the first Tuesday of each month. Employees on the 3 to 11 p. m. shift at the silica plant often left work in order to attend these meetings, which usually lasted about an hour. The Respondent was aware of the custom and docked employees for the time that they were absent from work. THE CAMBRIA CLAY PRODUCTS COMPANY 279 About August 1951, Hubert S. DeHart, iwho for some years had been one of Respondent's foremen, replaced Earl Mickey as superintendent of the silica plant. A union meeting was held on November 7, 1951. Twelve employees who were on the night shift at the silica plant attended the meeting. Whey they returned to the plant, they were dis- charged for being absent from work, allegedly without permission. On January 28, 1952, the Union notified the Respondent that it desired to commence nego- tiations on a new contract to replace the one due to expire on March 31. The Respondent did not reply. After several attempts on the Union's part to begin contract negotiations, the Re- spondent's counsel, Chester Fitch, sent the Union a letter, dated March 26, 1952, in which he stated that numerous employees had withdrawn from the Union and that the Respondent had "reason to question whether or not the Union now represents a majority of the employees." During March 1952, as will hereinafter be related and found, the Respondent solicited em- ployees to withdraw from membership in the Union. Supervisors Ralph Flowers and Alfred Grubbs and Superintendent De Hart were particularly active in this respect. The Respondent discharged employees Woodrow Hall and Clarence Friend on or about March 21, 1952, allegedly for leaving work shortly before their shift was due to end. Employee James Miller was discharged for the same reason on or about March 23. On March 23, Owen Craddolph and Edison Galliamore, employees at the clay plant and local officers of the Union, went to the silica plant in order to investigate the discharge of Clarence Friend. They also went to the silica plant on April 4 for the purpose of investigating the dis- charge of another employee. They were discharged on April 6, 1952, allegedly for "tres- passing" and "causing & inciting trouble" among employees at the silica plant. That same night a meeting of the Union was held at Craddolph's home. Those present voted to strike the plants the fallowing morning. The strike started on April 7, 1952, and both plants were picketed. On June 18, 1952, a consent temporary restraining order was entered under the jurisdiction of the Court of Common Pleas, Lawrence County, Ohio, wherein pickets were limited to 2 at each plant. Shortly after this order was entered, the Respondent reopened its plants. On August 1, 1952, and following several incidents of violence which will be related hereinafter in more detail, all picketing was enjoined by the State court. On August 4, 1952, the Union made an uncondi- tioned offer on behalf of all the strikers to return to work. the following morning the strikers reported for work. Approximately 55 strikers were reinstated by the Respondent on August 5 and 6. Numerous strikers had not been recalled to work as of the date of the hearing herein. Between April 24 and July 7, 1952, about eight bargaining conferences were held. The parties were unable to agree upon a contract. Thereafter, between July 18 and September 17, 1952, the Union sent the Respondent five letters requesting bargaining conferences. The Respondent did not reply to any of the letters. B. The discharges on November 7, 1951 As related above, regular meetings of the Union were held on the first Tuesday of each month. The meetings were held in the Blackfork schoolhouse. They started at 4 p. m. and usually lasted for about an hour. For a number of years it had been the established practice for employees on the 3 to 11 p. m. shift to attend the meetings. This was permitted by the Respondent before November 7, 1951; and employees were docked for the time that they were absent from work.2 Since November 6, 1951, was election day, the regular meeting of the Union was held on Wednesday, November 7. Two set gangs on the 3 to 11 p. m. shift at the silica plant attended the meeting. The employees involved were John Hutchinson, James Bailey, Donald Hammond, James Bishop. James Gillespie, David H. Lewis, William Miller, Elmon Craddolph, Adrian Watson, Jr., John Morgan Hammond, Richard Jackson, and Henderson Keels. The set gangs worked outside of the silica plant under the direction of Kenneth Cofer, a "checker." On November 7, Keels announced in Cofer's presence that the employees intended to go to the union meeting. Cofer did not make any comment. The employees named above were absent from work for about an hour, leaving the plant at about 4 p. m. When they re- turned to the plant, they were told by Cofer that there was no more work for them that night. The employees then returned to the union meeting and reported the matter to International i De Hart was present throughout the hearing but did not appear as a witness 2Some of the employees involved were pieceworkers, and the loss in time did not affect them except in computing overtime for hours worked in excess of 40 per week. A "set gang" consists of 4 pieceworkers and 2 hourly workers, who are laborers and are referred to in the record as "gin hands." 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Representative Johnson of the Union. As the result of a telephone conversation between John- son and Superintendent De Hart, the employees again returned to the plant. Cofer then told them that they were "fired for going to that union meeting." That same night some of the employees met with De Hart, E. E. Davis, vice president of the Respondent, and Supervisors Grubbs and Dodds. Employee Oscar Straight, a member of the Union's grievance committee for the silica plant, also was present. Straight told De Hart that the employees always had attended the union meetings and that it was not right to dis- charge them for attending that night. De Hart told Keels that he had notified him that em- ployees were not permitted to leave work in order to attend union meetings. When Keels denied this, De Hart replied, "No, I guess I didn't notify you." De Hart then stated that he had notified Lewis, which Lewis denied. Straight also denied that he had been noti- fied. 3 All of the employees named above were discharged on November 7, 1951. John Morgan Hammond was reinstated on March 10, 1952. Watson, Jackson, and Keels were reinstated on March 21, and Elmon Craddolph on April 1, 1952. The Respondent contends, in substance, that the 12 employees involved were discharged on November 7, 1951, because they were absent from work without permission. In this con- nection, Vice-President Davis testified that about 31 employees on the 3 to 11 p. m. shift at the silica plant attended the union meeting held in September 1951; that as a result the plant was closed down; and that at sometime before November 7, 1951, he instructed De Hart "to contact the committeemen and ask them in the future to stay on the job during working hours. If anyone wanted to leave, for them tobe sure and get permission from their superintendent or their foreman." In support of its contention, the Respondent called as witnesses employees Straight, Sherman Sparks, 4 James Rawlins and his brother, Virgil Rawlins. Both Straight and Sparks testified that they had conversation with De Hart on the subject.5 With respect to this con- versation, Sparks testified, "He [De Hart] said he couldn't have them leaving their jobs and going to the meetings that way; for us to bring it up in the meeting and have a talk about it, which was done." He further testified that the matter was discussed at a union meeting at which Leo De Long, 6 an international representative of the Union, was present; and that "He [De Long] seemed to think that the guys had been attending meetings all the time, and they shouldn't pay any attention to it, or didn't have to pay any attention to it, or something like that." Straight testified to the effect that he did not remember if the subject was brought up or discussed at a union meeting. On cross-examination Sparks was questioned and testified as follows: Q. Now this conversation that you and Mr. Straight had with Mr. DeHart, you say took place at the silica plant and it was about a month or two months before those November discharges, is that right A. Yes, sir. Q. Now you went up to talk to Mr. De Hart because Mr. Straight wanted you to, is that right? A. That is right. Q. And at that time Mr. De Hart, after a discussion with you and Mr. Straight, said it was all right for the men to go to that meeting, is that right? A. That night, yes. Q. And didn't he tellyou to go to the meeting, do your business, and hurry back to work? A. Yes, sir. Q. And you didn't understand that anybody was going to be fired if they ever went to any meeting in the future, did you? A. Well, yes. He said that night he could fire them if he wanted to. 3 Henderson Keels testified credibly that Straight made the above remarks at the meeting. Straight, a witness called by the Respondent, was not questioned in this connection Davis testified, "Mr. Straight came in and he said, 'Mr. Davis, if the Union has told these boys wrong, I think you should put them back to work.'" 4Sparks became a foreman during March 1952 He was a member of the Union's grievance committee for the silica plant during the fall of 1951. 5Straight testified that the conversation took place about 3 weeks or a month before Novem- ber 7 Sparks testified that "it was a month, maybe two months before then." 6 De Long died before the hearing herein THE CAMBRIA CLAY PRODUCTS COMPANY 281 Q. Did he say he would fire them? A. Well, I don't know that he said he would. Q. Did he say he would fire them without warning? A: He said he could fire them for attending meetings. a a a a Q. But he didn't say he would fire them, is that right? A. Well, I didn't understand it that way. a a a Q. (By Mr. Marcus ) Mr. Sparks , at the time you spoke to Mr. De Hart and Mr. Straight was there -- to correct that, you and Mr. Straight spoke to Mr. De Hart , did Mr. De Hart say anything about you not going to future meetings? A. Yes. Q. He did say something about that? A. He told us to bring it up in the meeting. a Q. (By Mr. Marcus) Mr. Sparks, did Mr. DeHart say anything about not going to future meetings ? A. The way I understand it, that was what we was talking about. Q. Now did you testify at an Unemployment Compensation hearing that was held in Jackson, Ohio on March 18, 19529 A. Yes, sir. Q. And you were under oath at that time? A. Yes, sir. Q. Now at that time do you remember if you were asked the following questions and did you give the following answers with respect to this conversation with Mr. DeHart: "QUESTION: Did he say anything about future meetings? "ANSWER: No. "QUESTION: What finally did Mr. DeHart say9 "ANSWER: He told the boys if they went to the meeting to hurry back." a TRIAL EXAMINER EADIE: What counsel is asking you, Mr. Sparks, he is asking you if, at that hearing, do you remember being asked those questions and do you remember giving those answers? That is the question. A. Yes, I remember being asked those questions. Q. (By Mr. Marcus) Sir? A. I remember being asked those questions. Q. And do you remember giving those answers? A. Yes. James Rawlins and Virgil Rawlins testified that the question of attendance of employees on the 3 to 11 p. in. shift was brought up at the union meeting held in September 1951. In this connection James Rawlins was questioned and testified as follows: Q. Do you attend any Union meetings, Mr. Rawlins? A. I attended Union meetings up until September. I was off sick from September to December. Q. (By Mr. Fitch) What meeting are you talking about, the meeting of September? A. The Union meeting in September. Q. Who presided at that meeting? A. Mr. DeLong. Q. And was he the international representative? A. Yes, sir. 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Now did you hear some conversation take place between Mr . DeLong and Mr. Straight in reference to the workmen on the afternoon shift attending Union meetings'? Now just tell us what you heard , what Mr. Straight said and what Mr. DeLong replied. A. Mr Straight asked him if the men had the right to, you know, all leave work and attend the meetings . You know, they had been just shutting the plant down . And he told them-- TRIAL EXAMINER EADIE: Who told him? A. (Continuing) Mr. DeLong told Oscar Straight that they did not have the right to shut the job down and all attend that way, they would just have to send committeemen. Virgil Rawlins testified: Q. Now you say that you did attend Union meetings back in 1951, that would be Septem- ber, October and November? A. Yes, sir. Q. And it was Sherman Sparks and Oscar Straight who brought up the subject? A. Yes, if I am not mistaken that is who it was . I am sure it was Oscar Straight and if I am not mistaken, it was Sherman Sparks. s Q. (By Mr. Marcus) Is it your testimony here that Sherman Sparks stood up and said something at that meeting about attending Union meetings on Company time? A. Yes, he did. Q. And Oscar Straight also? A. Oscar Straight. Q. Now which meeting was this, September or October? A. It was September. Q. It was the September meeting? A. That is right. Keels, Bishop, Watson, John Morgan Hammond, and Hutchinson, and employees Herbert Scott and Owen Craddolph, witnesses for the General Counsel, testified to the effect that neither Straight nor De Long reported or discussed at any meeting of the Union the question of employees attending meetings during working hours, and that they never had been informed or heard of such a rule. In this connection, Cofer, a witness called by the Respondent, was questioned and testified as follows: Q. Mr. Cofer, what was the practice with respect to the set gangs on the evening shift about going to those regular Union meetings? Did they go and take off from work and go to the Union meetings in past times before November 7th? A. In the past they had been going whenever they wanted to go. Q. Now before November 7th, did Mr. DeHart or Mr. Davis, or anybody above you at the Company, tell you to tell the men that they couldn't go to those meetings? A. No, sir, they never notified me. Q. Did you ever receive any notification from the Company about that? A. No, sir. The Trial Examiner does not credit the testimony of Respondent's witnesses to the effect that the alleged rule was brought up or discussed at the September meeting, or at any sub- sequent meeting, of the Union. The discrepancies and contradictions in their testimony are apparent. James and Virgil Rawlins, who did not impress the undersigned as credible wit- nesses, testified that the subject was discussed at the September meeting. James testified that he did not attend the meetings after September due to illness. However. Davis testified to the effect that he did not instruct De Hart to speak to the committeemen until after the September meeting. Straight in his testimony was unable to recall if the matter had been brought up at a union meeting, although both Sparks and James Rawlins testified that Straight discussed it with De Long. Even here there is a contradiction. Sparks testified to the effect that De Long told the employees to disregard the rule; and James Rawlins testified that De Long told Straight that the employees "did not have the right to shut the job down and all attend that way, they would just have to send committeemen." It is undisputed that the Respondent did not post any notice of the alleged rule on its bulle- tin boards. Nor did it otherwise give direct notice to the employees involved. As related THE CAMBRIA CLAY PRODUCTS COMPANY 283 above, Cofer did not know of the rule. The Respondent had the burden of proving its defense, the promulgation of the rule with notice to the employees, by reliable and substantial evidence. As to notice, the Respondent apparently relies on the alleged conversation between De Hart, Sparks, and Straight about a month before November 7, 1951. The Trial Examiner does not believe that the Respondent has met the burden of proof in this connection. Neither Sparks nor Straight impressed me as reliable witnesses. As related above, De Hart was not called as a witness. Further, the testimony does not show that De Hart claimed that he had spoken to Sparks and Straight concerning the rulewhenhe and other representatives of the Respondent met with the employees on the night of November 7. However, assuming that a conversation between De Hart, Sparks , and Straight did take place, nevertheless in my opinion, the evidence is insufficient to constitute a defense. Sparks was the only witness who testified as to the substance of the alleged conversation. It does not appear from his testimony that De Hart announced any set rule prohibiting attendance at union meetings of employees on the afternoon shift. The General Counsel and the Union contend that Cofer is a supervisory employee within the meaning of the Act. The Respondent contends otherwise. There was considerable testi- mony on this question. I do not believe that it is necessary to resolve this issue in view of the fact that it is undisputed that Cofer had authority to grant time off to employees in the set gangs.t This was sufficient to bind the Respondent insofar as its alleged rule was con- cerned. As related above, on November 7 Keels announced in Cofer's presence that the em- ployees were going to the union meeting. Cofer remained silent. Under the circumstances his silence amounted to consent. There is evidence in the case which discloses the Respondent's discriminatory motive in the discharges. Michael Frabie testified credibly that he was employed by the Respondent as "night superintendent" of the silica plant from about January 7, 1952, until about September 20, 1952; that at sometime after he was employed and before April 7, 1952, he had several conversations with De Hart concerning the employees who had been discharged on November 7; and that "He[De Hart] thought that those fellows were mostly troublemakers and that was his chance to get rid of them. He said he told them not to go to those meetings, and they went anyhow ... that as long as they were union men they didn't want them ... they fired those fellows on account of the union activities. ..."9 In its answer and in its brief the Respondent claims, in substance, that the Union failed to exhaust its remedies under the 1951 contract9 and alleges that such failure constitutes a de- fense to the discharges. This defense is rejected.io Accordingly, from the record as a whole, it is found that the Respondent on November 7, 1951, discharged the 12 employees named above in violation of Section 8 (a) (3) of the Act. I believe and find that the General Counsel made out a prima facie case and that the Respondent did not sustain its defense by reliable and substantial evidence. C. Interference, restraint, and coercion before the strike On about March 1, 1951, employee Everett Donley had a conversation with De Hart. In this connection Donley was questioned and testified credibly as follows: ti Q. Now, where were you and where was Mr. De Hart at that time'? A. I was in the kiln, and so he come to the kiln door and motioned for me to come out and I went out, and he said tome, said . "Donley, are you going to stay in the union or are you going to drop out of it? " I said, "I guess I will stay in." 7 The evidence shows that before November 7, 1951, Cofer docked employees for the time they were off from work while attending union meetings ; and that he granted time off to employees without consulting De Hart. 8On cross-examination, Frabie admitted that he had been convicted of a felony for which he had "served time" in the State of Pennsylvania but testified that he had been "pardoned." Despite this admission, Frabie impressed me as an honest and sincere witness. Further, the above testimony stands uncontradicted in the record. 9 There is a dispute in the case as to whether or not the Union filed grievances on behalf of the 12 discharged employees in accordance with its contract with the Respondent. ioKansas Milling Company, 86 NLRB 925; Dorsey Trailers, Inc., 80 NLRB 478. ii The General Counsel submitted in evidence about 80 notifications of withdrawal from the Union which were signed by employees. The forms were prepared by the Respondent. All bear dates during March 1952 and show that the majority were witnessed either by De Hart or by Supervisors Alfred Grubbs, Preston Dodds, andRaiph Flowers. Dodds was a supervisor at the clay plant. Grubbs, Dodds, and Flowers did not appear as witnesses at the hearing 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He said, "why don't you drop out and do me a favor, why don't you'? " I told him I didn't believe I would. He said, "I will make it so hot for you, you will wish you had." It is found that De Hart's solicitation of Donley's withdrawal from the Union and his threat of reprisal if Donley did not withdraw constitute interference, restraint, and coercion. As related and found above, Henderson Keels was discriminatorily discharged on November 7, 1951. On about March 20 and 21, 1952, Keels had conversations with Ed Davis, 12 a school- bus driver, Supervisor Grubbs, and Superintendent De Hart. Concerning these conversations, Keels was questioned and testified credibly and without contradiction as follows: Q. Is that Ed Davis, the school bus driver? A. That is right. He approached me at Wendell Lewis' store. And he asked me how strong a union man I was. And I just told him, I say, "I belong to the union." So he asked me if I would withdraw if he could get my job back. s Q. And what did you tell Ed Davis? A. I told him I didn't know about that. Q. Now, that evening did you have any further conversation with Ed Davis? A. Yes, sir. Q. Was anyone else with him at that time? A. Yes, sir. Q. Who was that? A. Alfred Grubbs. Q. (By Mr. Marcus) Now, where did this conversation take place? A. At my house where I live. Q. About what time of night was that? A. Well, it was around, I would say between 7 and 8 o'clock. Q. And could you tell us what Ed Davis and Alfred Grubbs said to you and what you said to them at that night? A. Well, before, at the store, before I left Davis, he told me to get my brother-in-law, Richard Scott, he said he had been talking to him and Donald Howell, to withdraw with me, in order for me to go to work. Well, they came out to my house to see whether or not that I got these two fellows to sign withdraw slips. Q. And what did they tell you? A. Well, they said they had to have them in by that time. Q. You had to have the withdrawal slips in by that day? A. By the next day. Q. Did they tell you what would happen to you if you did get the slips in? A. Well, I wouldn't get to go to work if I didn't have the slips. e Q. What did they say would happen if anything if you did have the slips? A. Well, I could go to work. Q. You mean they told you if you got the slips in you could go back to work? A. Yes, sir. a * s Q. (By Mr . Marcus ) Now, did anything further happen with regard to your going back to work on the next day? A. Yes, sir, I went to work the next evening. 12 It does not appear that Ed Davis is related to E E. Davis, Respondent's vice president. THE CAMBRIA CLAY PRODUCTS COMPANY 285 a Q. Preliminary question. Did you go see De Hart that evening? A. Yes, sir. Q. And about what time in the evening did you see him? A. Well, it was after 3, 1 would say, when I got up here. Q. And where did you see him? A. At the office. Q. At the silica plant? A. Yes, sir. Q. What did you say to Mr. De Hart and what did he say to you at that time? A. Well, I just walked in and I asked him if he wanted to see me. Q. Yes. A. And he asked if me and Ed Davis didn't have a deal on the bus, or something like that. Q, (By Mr. Marcus) Now, Henderson, what else did Mr. De Hart say to you at that time? A. He asked me if I talked to Richard Scott. Q. And what did you say? A. I told him I hadn't. Q. You had not? A. Yes, sir. Q. And what else did Mr. De Hart say? A. Well, he asked me if there was anybody I could get to withdraw with me in order for me to go to work. a THE WITNESS: Well, he asked me if there was anybody I could get to withdraw from the union along with me in order for me to go to work. Q. (By Mr. Marcus) And what did you say to that? A. I told him I couldn't think of anyone. Q. Then did Mr. De Hart suggest anyone? A. Yes, sir, he asked me what about Don Howell. t Q. Did he ask you about anyone else? A. Well, he sent me across over in the plant to find Don and I went over there and I didn't see him, and I come back and I told him that I didn't see Don over there anywhere. Q. You say he sent you across the plant to look for Don? A. Yes, sir, that is right. Q. Then what did Mr. De Hart say? A. He asked me what about my brother, Dewey Keels. Q. Was your brother Dewey working at the plant at that time? A. Yes, sir. Q. And what did you do at that time? A. Well, he told me to go over and talk to Dewey. Q. And did you? A. Yes, sir. Q. Then what happened after that? A. Well, Dewey agreed to withdraw with me out of the union. We both come back over to the office and signed a withdraw slip. Q. Did you sign those withdrawal slips in Mr. De Hart's presence? A. Yes, sir. It is found that Ed Davis was an agent of the Respondent in the solicitation of resignations from the Union; and that the above conduct and statement of Davis, Grubbs, and De Hart constitute interference , restraint, and coercion. Keels' conversation with De Hart took place on March 21, 1952. He was reinstated to his job that same afternoon. 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees Tom Hammond, Elmon Craddoiph, Richard Jackson, Adrian Watson, Jr., John Morgan Hammond, Delbert Harris, Clarence Harris, Lloyd Horner, Forest Harris, Curtis McFann, Kenneth Craddoiph, Richard Scott, Ernest Bailey, and Leslie Rister testified credibly and without contradiction to various acts of interference, restraint, and coercion, occurring during March 1952, and involving De Hart, Grubbs, Dodds, Flowers, and checker John Howell. The testimony of Tom Hammond and his son, John Morgan Hammond, definitely establishes that Howell was acting as the Respondent's agent in soliciting resignations from the Union. The testimony in this connection reveals that the employees were interrogated concerning their union activities, solicited to withdraw from the Union, threatened with reprisals if they did not withdraw from the Union and promised benefits if they did. The testimony is not set forth herein in detail since it is cumulative. D. The discharges of James Miller, Clarence Friend, and Woodrow Hall Friend started to work for the Respondent on or about May 22, 1951. Hall was employed starting in February 1952. Both were gin hands in the same set gang at the silica plant. They worked on the second shift under Cofer and Supervisor Frabie. About 9 p. m. on March 21, 1952, De Hart went to the kiln in which Hall and Friend were working and called Hall outside. De Hart asked Hall if he would resign from the Union by signing a withdrawal slip. Hall refused. De Hart then called Friend out of the kiln and spoke to him in Hall's presence. Concerning this conversation, Friend was questioned and testified credibly as follows:13 Q. When you got out of the kiln, were you and Woodrow and De Hart standing there? A. Yes. Q. Did Mr. DeHart say anything to you? A. Asked me to withdraw from the union. Q. What did you say? A. Told him no, I didn't reckon I would. Q. Anything further? A. He asked why and I told him I didn't see where it would do me any good. Q. Mr. DeHart say anything else? A. He asked if I wanted to be for the company and withdraw from the union or stay in the union and against the company. I said be against the company. Q. Did he say anything about the 18 or 19 men? A. He said did I realize there had been 19 men fired lately. Did the union help them. Q. What did you say? A. I told him I didn't know about that. Shortly after his conversations with Hall and Friend, De Hart told Frabie to discharge them at the first opportunity. That night Hall and Friend and the other employees in their set gang left the plant at about 10:50 p. m. after they had completed their allotted work.14 Nothing was said to them at the time by Cofer. In accordance with Cofer's orders, Friend reported for work on the 7 to 3 p. m. shift on Sunday, March 23. Frabie told him to report to De Hart on Monday and sent him home. When Friend and Hall reported for work on March 24, De Hart discharged them by telling them that they had "quit." Miller was employed by the Respondent on about November 26, 1947. He was a "tosser" (pieceworker) in a set gang on the 11 to 7 a. m. shift at the silica plant. He was a member of the Union. On Sunday, March 23, 1952, Miller worked on extra shift as a gin hand on the 7 to 3 p. m, shift. 15 When The gang's allotted work was completed, the pieceworkers left the plant before isJohn Howell and Supervisor Grubbs also had solicited Friend's resignation from the Union. 14 The evidence shows that it was the custom for the set gangs, including hourly workers, to leave the plant after they had made their "quota" and before the end of the shift. Both Cofer and Frabie testified to this effect. 15As related above, Friend was scheduled to work on this shift but was sent home by Frabie THE CAMBRIA CLAY PRODUCTS COMPANY 287 the end of the shift. Miller left shortly thereafter. 16 That same night Miller reported for work on his regular shift at 11 p. m. He was discharged by being told that he had "quit ... didn't work there no longer." Employee Richard Jackson was assigned to Miller's place in the gang. 17 On Monday, March 24, Miller had several conversations with De Hart. Miller told him that he "liked to work for the company" and that he did not want to leave Blackfork. De Hart asked him if he could "stand to stay off a few days," and Miller replied, "Yes." De Hart told him that the Union was "no good." Miller did not make any comment. The Respondent reinstated Miller on March 31. Concerning the reasons for discharging Friend, Hall, and Miller, and for the latter's rein- statement, Frabie was questioned and testified credibly as follows: Q. Will you tell us about that? A. Jim Miller went home an hour early that day. A. And-- A. He never notified me. Q. So what action did you take? A. The same as Hall and Friend, he was fired. Q. Now, could you give us the reason for taking this action against Miller? A. The same reason as the other two fellows. Q. (By Mr. Marcus) Well, I will ask you again, what were your reasons for firing Miller 9 A. That was my orders. Q. Now, you had gotten orders to fire people for going home early. A. Anybody that was a union man, yes. TRIAL EXAMINER EADIE: What was that? THE WITNESS: Anybody that was a union man, a strong union man must go. Q. (By Mr. Marcus) Who gave you those orders? A. Mr. De Hart and Mr. Davis. Q. Was Mr. Miller a union man? A. As far as I know, he told me to fire him. Q. Now, when did Mr. De Hart and Mr. Davis give you those orders to fire the strong union men? A. Well, when it got close to the closing date on the acceptance of those slips. Q. Did De Hart later have a conversation with you about Miller? A. Yes. Q. Tell us what was said? A. He said Miller agreed to withdraw from the union and he would take him back in about ten days. It is found that the Respondent discharged Friend and Miller on March 23, 1952, and Hall on March 24, 1952, in violation of Section 8 (a) (3) of the Act. E. The discharges of Owen Craddolph and Edison Galliamore Before their discharges, Galliamore and Craddolph were employed by the Respondent for about 33 and 26 years, respectively. Both worked at the clay plant. Galliamore was vice IsMiller testified that the shift ended at 3:30 p. m and that he left at "3 o'clock or later." While there is some confusion in the record concerning the hours of the shifts, possibly due to the custom of employees leaving the plant when their work was completed rather than at a set time, it appears from the evidence as a whole that the hours of the above shift were from 7 to 3 p in. Frabie testified that Miller "went home an hour early that day... He never notified me." it As related above, Jackson was discharged on November 7, 1951, and reinstated on March 21, 1952. Jackson testified without contradiction to the effect that De Hart solicited his resignation from the Union, and that he was rehired by De Hart after he had agreed to sign a withdrawal slip. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD president of the local union; and Craddolph was its financial secretary and treasurer. Both were members of the Union's grievance committee. On March 23, 1952, at about 8:30 a. m., Galliamore and Craddolph went to the silica plant to investigate Friend's discharge. They were at the plant for about 20 minutes and spoke to employees Harvey Patton and Elroy Friend, a brother of Clarence Friend. On Monday evening, March 24, Craddolph and International Representative Johnson of the Union went to the silica plant in order to discuss the discharges of Friend and Hall with De Hart. De Hart said he did not have time to discuss the matter with them as he was about to leave the plant. The next night Craddolph met with De Hart and Dodds at the silica plant office. Craddolph had with him a grievance paper which had been signed by Friend and Hall. Concerning the conversation, Craddolph was questioned and testified credibly as follows: Q. Did you ask Mr. De Hart to sign it? A. I asked Mr. De Hart to sign the grievance for the local union's file. Q. Did you give, offer to Mr. De Hart a copy of the grievance? A. Yes, sir. Q. Now what did Mr. De Hart or Mr. Dodds say? A. I laid a copy down on the table for his signature, and he refused, he didn't, he didn't refuse, but he talked to Mr. Dodds, I don't remember just what he said, and Mr. Dodds shoved it back at me and said, "We are through with all that, we are not going to bother with that sort of thing any more." A. I said, "Well, since you won't sign my grievance I will leave one copy with you," and I just left the company's copy and I walked out. Galliamore and Craddolph visited the silica plant again on about April 4 in order to investi- gate the discharge of another employee. They were at the plant for about 15 minutes and were seen by Frabie. About 10 minutes later, De Hart asked Frabie who had come to the plant. When Frabie told him, De Hart said, "We will have to file trespassing charges against them, they work at the clay plant, they don't work at the silica plant." De Hart, Davis, Frabie, Dodds, and Edward Smith, a supervisor at the clay plant, had a meeting the next day. Concerning this meeting, Frabie was questioned and testified credibly as follows: 18 Q. What took place at that meeting, do you remember? A. It was discussed what we were going to do with Frog (Galliamore) and Owen (Craddolph). Q. Frog and Owen? A. Yes. Q. And what did, what was decided to do with them? A. The final decision was that the best way to do with them was to fire them and get rid of them. Q. Were there any reasons given for the firing of them? A. What the reason was I couldn't tell you outside of the fact that they came up to the silica plant. a t a Q. Now, at this meeting, where you say the decision was taken to discharge Frog and Owen, was there any discussion about the hundred thousand brick dinners that the com- pany was giving? A. Yes. 18 Smith denied that he ever had attended any meetings at which Frabie was present. Davis denied that he at any time called a meeting of foremen or superintendents in which Frabie participated Otherwise he did not deny the remarks attributed to him and to De Hart by Frabie Nor did he deny that he consulted De Hart and Dodds when he ordered Smith to discharge Galliamore and Craddolph Under all the circumstances, I believe and find that Frabie is the more reliable and credible witness in this connection. THE CAMBRIA CLAY PRODUCTS COMPANY 289 Q. Could you tell us what that discussion was? A. The company was under the impression that Frog and Owen was up there to try to get the men to stay away from the dinner, but I didn't know what the discussion was. Q. Did anyone say anything at that meeting about any position that these people held in the union? i A. Yes. Q. Could you tell us who said it and what it was that was said? A. Davis and Mr. De Hart said that that would be two men that they wouldn't have to worry about if they fired them, because Frog was supposed to be a vice president, and the other fellow was a committee man. Craddolph and Galliamore were discharged on April 6. When Craddolph reported for work that day, Supervisor Smith told him that he was discharged "for going to the silica plant on Friday evening (April 4]." A separation nonce given to Craddolph at the time shows the fol- lowing reason for his discharge: Employee was discharged for trespassing on Silica Plant & causing & inciting trouble w/other employees while they were on their jobs. On about April 9 or 10, Supervisor Dodds met Galliamore and Craddolph and told them, "Do you want to know the real reason why you were discharged... Well, you were discharged because you ruined the dinner that the Company gave for the employees." 19 The undisputed evidence shows that for a number of years "no trespassing" signs were posted on the silica plant property. However, the evidence conclusively shows that before April 4, 1952, employees who were off duty or who worked at the clay plant often visited the silica plant for business or social reasons; that such visits took place with the knowledge of Respondent's supervisors and without objection on their part unless employees were dis- orderly; and that no employee had been discharged for trespassing. There is a dispute as to whether or not Craddolph mentioned Respondent's dinner when at the silica plant on April 4. He testified that he did not. Respondent's witnesses testified other- wise. I do not believe the issue is material since it does not appear that Galliamore and Craddolph were creating a disturbance or "causing & inciting trouble." Frabie testified to the effect that they were orderly. Accordingly, it is found that the Respondent discharged Galliamore and Craddolph on April 6, 1952, because of their membership in and activities on behalf of the Union, and thereby violated Section 8 (a) (3) and (1) of the Act. 20 F. The strike, interference, restraint, and coercion On the night of April 6, 1952, a meeting of the Union was held at the home of Owen Crad- dolph. The employees present voted to strike. On April 7, the Union set up picket lines at both plants . The Respondent resumed limited operations at the plants shortly after June 18. The strikers made an unconditional offer to returnto work on August 4 and reported for work on August 5. As of thedateofthe hearing herein, many of the strikers had not been reinstated. It is found that the strike was caused and prolonged by the Respondent's unfair labor practices, heretofore and hereinafter found. Under the circumstances, the Respondent was obligated to reinstate the strikers on August 5. Robert Toner became an employee of the Respondent about May 1951. He joined the Union and lived in a company house. During about March 1952, he moved out of the company house. He resigned from the Union on about March 20. However, when the strike started, he did not cross the picket line. About a week after the start of the strike, he went to De Hart's house and had a conversation with him. Toner's wife, Grubbs, and employee Harold Malone were present at the time. Concerning this conversation, Toner was questioned and testified credibly as follows: 19 The evidence indicates that the dinner was held on Saturday, April 5, and that it was given by the Respondent because the plant had produced 100,000 brick per day for a month. Galliamore testified that before Dodds' statement he did not receive any notice from the Respondent of his discharge. On about August 5 Foreman Smith gave him a separation notice, dated April 7, 1952, which was almost identical to that given Craddolph on April 6. As will be hereinafter related, the strike started on April 7 and ended on August 4. 20 The complaint, as amended, alleges that Galliamore was discharged on April 6, and the Respondent's answer admits this allegation. 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Now, could you tell us what was said, what Mr. De Hart said, what anyone else said, and what you said? A. Well, I wanted a house down there, and I went to his house down there, and asked him if it was for rent, and he asked me if I belonged to the union, and I said no, which I didn't at the time, and he said he didn't see why I couldn't move into, go ahead and move in, but he told me if I ever joined the union I would never work back up on that hill again, I would be fired. s Q. Now, did Mr. De Hart say anything else about the house? A. Yes, sir, he asked me ifIwould take a paper around and try to get some man to sign it to go through the picket line, that he would fix that house up so it was nicer than any house down there in that hollow. It is found that De Hart's remarks constitute interference. Employee Ricard Jackson was employed by Jack Watson, a contract trucker, from January 21, 1952, until his discharge on August 4.21 He was discharged by Watson because the Re- spondent would not permit him to drive Watson's truck on its property. On the night of August 4, he called Vice-President Davis on the telephone and inquired about his discharge by Watson. Davis told him that "it was up to De Hart and Watson." Some few days later, Jackson spoke to De Hart who told him that the Respondent would reinstate him with his seniority if he "would go up and see him [Davis] and withdraw ... charges in Cmcmnatti [unfair labor practice charge filed with the Board]." 22 It is found that the above statement of DeHart constitutes interference. In its answer to the amended complaint, the Respondent alleges "the persons named in para- graph 12-a, acting in concert, together with Local No. 879, United Brick and Clay Workers of America, A.F.L. have threatened, intimidated, and committed actual violence against the employees of the Respondent herein." In its brief, the,Respondent contends, in substance, that the evidence connects certain of the strikers with the acts of violence and that it should not be ordered to reinstate them for this reason. As related above, on about June 18, 1952, the State court issued a temporary restraining order, limiting pickets to two at each plant. Thereafter, the court found employees Lawrence Robinson, Edison Galliamore, Owen Craddolph, and Reuben Wood guilty of contempt of its order. There is no evidence in the instant case that any of these employees were disorderly or committed any acts of violence while they were on the picket line, apparently in violation of the court's order. Further, as related above, Craddolph and Galliamore were discrimina- torily discharged on April 6 before the strike, and therefore were not strikers. Accordingly, the Respondent's contention in this respect is rejected. There is considerable testimony concerning altercations and fights between strikers and nonstrikers or other strikers. There are disputes in the record concerning which person or groups provoked the trouble. I find it unnecessary to resolve these issues, since none of the incidents took place on the picket lines or near the plants. It is undisputed that during the early morning hours of July 24 some unidentified person or persons dynamited the gas pipeline leading to the Respondent's plant. The record indicates that the blast did not occur near the plant proper or on Respondent's property. In support of its contention in this connection, the Resondent called employee Willie Watson as a witness. Watson, one of the strikers, had performed picket duty. He testified to the effect that Crad- dolph, Galliamore, and Otto Holtzapfel, international representative of the Union, at times visited the picket line; that Craddolph and Galliamore "just took care of the picket lines, .. . like food and stuff like that"; and that at sometime-during the strike and before July 24 he 21As related and found above, Jackson was discriminatorily discharged by the Respondent on November 7, 1951, and was reinstated on March 21, 1952. He went on strike with other employees on April 7. 22 Employees John Hutchinson and James Bishop testified to similar conversations with De Hart. THE CAMBRIA CLAY PRODUCTS COMPANY 291 overheard Holtzapfel and the "pickets" discuss the gasline.23 Concerning this conversation, Watson was questioned and testified as follows: Q. 7b11 us what was that conversation, what did each of them says A. I heard that there was only supposed to be so many pounds of gas go into the plant. Q. Go ahead. A. And they said it wasn't enough gas to burn a kiln. Q. Who said that now? A. Mr. Holtzapfel. Q, All right, go ahead. A. And he said if they let any more gas through, you boys know what to do. I can't tell you what to do, but you boys know what to do. Neither Craddolph nor Galliamore were strikers. As found above, they were discharged on April 6, 1952. However, if the evidence showed that they committed or were responsible for this act of violence, I would not recommend their reinstatement. Even if Watson's version of the above conversation is credited, Idonotbelieve that the evidence is sufficient to make such a finding. 25 Therefore, the Respondent's contention in this respect is rejected. On July 24, employee Nelson Howell drove away in his car from the silica plant. He was accompanied by employee Virgil Ray Keels. After they had passed the Union's picket line, some unidentified person shot at the car from or near a house. Howell and Keels returned to the plant. Upon inspection, it was discovered that the car had been struck by shotgun pellets. Keels and Howell again left theplantmthe latter's car. They were followed by Vice-President Davis, Harry Collis, Respondent's bookkeeper and auditor, and Hudson Jeffries, an attorney, who were riding in a pickup truck. When Howell's car was near the Union's picket tent, 26 which was to the car's left, some unidentified person shot a shotgun at the car. Howell, who was driving, was wounded in his left arm. Employees Paul Severt and Tony Diandre were on picket duty at the time. They were seated in front of the tent, between it and the road. Davis, Collis, and Jeffries testified to the effect that the shot was fired from the near vicinity of the picket tent. 27 Severt testified that Howell, while driving his car, shot a pistol in the direction of the woods which were across the railroad tracks. Diandre testified that he heard a shot which had "Come from the bushes" and that about 50 or 60 feet from the tent Howell "shot three times." Leslie Rister testified thathe lived in a house about 50 yards from the picket tent, on the opposite side of the road; and that he saw "Howell come down the hollow shooting into the hill." 23His testimony is not clear but indicates that Craddolph and Galliamore were present during the time in question He at first testified that he did not recall when the conversation took place. Later he testified that it took place after June 18, and before that date He did not identify any employees who were acting as pickets at the time. 24Holzapfel categorically denied making the above statement. He testified: A. The only statement that I have ever made about the gas, I was talking with Mr Galliamore and Mr. Craddolph at the silica plant picket line. They had the information, from someone, it was supposed to have come from a man that had taken care of the gas meters, that there was only 30 pound pressure of gas going into the silica plant. The only statement that I ever made about the gas pressure was, to my knowledge, from experience in the brick business, that 30 pounds will not burn brick As to the actual date I couldn't say, but that was right after the Company started taking employees back to work, and I think that was somewhere in the neighborhood of six weeks prior to the gas explosion. 25 It is undisputed that on or about June 20, 1952, Walter Smith of the firm of Petker & Smith sold employee Joba Wood "ten sticks of dynamite and four or five caps." Wood is named in the Union's second amended charge but is not named in the amended complaint. 26 The tent had been erected by the Union for the convenience of the employees on picket duty. It was located down the hill from the plant and across the railroad tracks. The tent was near the road. 27 Howell was not called as a witness. 322615 0 - 54 - 20 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent apparently contends that Severt and Diandre, although it is not claimed that they had guns or shot at Howell's car, should not be reinstated to their jobs because according to the Respondent's witnesses, they did not show any reaction when the shooting took place. Davis and Jeffries testified to the effect that Severt and Diandre did not move or act startled when the shot was fired at Howell's car. Collis testified, "My view was free to see the Howell car. I couldn't tell about the pickets, I don't know. They were sitting there when we drove around in front of them.28 ... We could see the picket tent and the Howell car. I never saw the pickets until we got around there." Jeffries testified that the pickup truck "couldn't have been over 50 or 60 feet" to the rear of Howell's car when it was close to the tent. From all of the evidence in this connection, I believe and find that the shot did not come from the near vicinity of the picket tent. None of the Respondent's witnesses saw a flash or smoke from a gun, although it appears that their vision was not obstructed by brush or trees at the time. Further, if the gun had been fired as close to the tent as these witnesses esti- mated, it is my opinion that the shot would have caused far more damage to Howell and his car. The fact that Howell fired his pistol in the direction of the brush across the tracks after he passed the tent also supports this finding. Accordingly, the Respondent's contention with respect to Severt and Diandre is rejected. Considerable evidence was adduced concerning 300 to 500 shots that were fired at about 2:30 p. m. on July 25, 1952. It appears that the shooting took place on a hill adjacent to the plant. The shots allegedly were fired in the plant's direction. However, the evidence does not show that any of the Respondent's property or that of its employees was damaged. With respect to this incident, James Rawlins testified, in substance, that as a result of De Hart's request that he go on the hill to see who was shooting at "trailers" he, Virgil Rawlins, and Ernie Lawson went on the hill at about 7 a. m. and stayed there until about 4 p. m.; that they heard shooting at about 2:30 p. m.; that about 30 or 45 minutes before the shooting, from a concealed position he saw employees Harry Yoak, Richard Jackson, Carl 7kylor, Elmer Taylor, Derwood Taylor, Paul Severt, Paul Bloomfield, Charles Murnahan, Henderson Keels, Fitch Keels, Harvey Patton, and Don King; that the 12 employees were armed either with rifles or shotguns; and that he reported the names of the 12 employees to De Hart when he returned to the plant at about 4 p. m. Virgil Rawlins testified that he saw the 12 employees "between two hours and five hours after I went in the woods." James and Virgil Rawlins have been discredited heretofore in connection with the discharges on November 7, 1951. Their testimony with respect to the shooting incident also is not credited. 29 There are discrepancies and contradictions in the testimony of James Rawlins, particularly concerning an alleged conversation with Harvey Patton at the courthouse at Iron- ton. The evidence shows that on July 25 Richard Jackson had a medical examination at Jackson, which is about 18 miles from Blackfork; that he started work for a company at Jackson that day; and that he worked from 2 to 8 p. m. The evidence further shows that Charles Murnahan worked for a company located at Ironton, about 28 miles from Blackfork, and that on July 25 he worked from 6:38 a. m. until 3:02 p. m.90 There is testimony in the case concerning other violence, but there is no evidence to connect it with any of the strikers or the Union. Therefore, it is not set forth herein. Accordingly, it is found that the Respondent failed to prove by reliable and substantial evidence that any of the strikers were guilty of violence or other misconduct; and that the Respondent by failing and refusing on August 5, 1952, to reinstate the employees named in Appendix B violated Section 8 (a) (3) and (1) of the Act. G. The refusal to bargain There is no dispute in the case concerning the appropriate unit. However, the Respondent's answer does not admit that the Union represented a majority of employees in the unit. Without taking into consideration defections from the Union which were caused by the Respondent's unfair labor practices, the undisputed evidence discloses conclusively and I find that the Union at all times material herein represented a majority of the employees in the appropriate unit. As related above, the 1951 contract between theRespondent and the Union was due to expire on March 31, 1952. By letter dated January 28, 1952, the Union requested the Respondent to set a date for a conference in order to negotiate a new collective-bargaining contract. The 88 Leaving the plant, the road crossed the railroad tracks and made a sharp turn to the left so that it more or less paralleled the tracks. 29Ernie Lawson did not appear at the hearing as a witness. So Other employees named by James Rawlins denied any connection with the shooting on July 25 Their testimony is credited in this respect. THE CAMBRIA CLAY PRODUCTS COMPANY 293 Respondent did not reply to this letter. On March 3, Allie Messer, vice president and business agent of District 10 of the Union, held a grievance meeting with representatives of the Re- spondent, including Vice-President Davis. At this meeting, Messer mentioned to Davis that the Union had not received any communication from the Respondent relative to contract negotiations. It was agreed between them that the Union would submit a contract proposal By letter dated March 11 the Union again requested the Respondent to set a date for a bargaining conference The Union' s proposed contract was enclosed with the letter . The Respondent did not answer this letter . The Union sent the Respondent another letter , dated March 18, 1952, in which it referred to its previous letters and again requested the Respondent to set a date for a bargaining conference. On March 26 Chester P. Fitch, Respondent 's attorney, replied to the Union's letter, as follows: Your letter of March 18th, 1952 directed to the management of Cambria Clay Products Company has been turned over to the writer for my attention. When you forwarded a copy of the proposed contract, I understood that a tentative date for a meeting had been arranged for Thursday, March 20th, at 4:00 P. M. The repre- sentatives of management appeared at the usual meeting place. However, no one repre- senting the International organization appeared. There is a serious matter that has arisen in reference to the renewal of this contract. The company has received a great number of notices from their employees stating that they have withdrawn fromLocalNo. 879andcancellmg the assignment to make any further deduction of dues . From reading the notice, we assume that a copy has been mailed to Local No. 879 at Blackfork, Ohio. The Company has received so many of these notices that we have reason to question whether or not the Union now represents a majority of the employees. We would like to have an expression from you, particularly if you have received the same notice, as apparently it has been sent out in duplicate - one to the company and one to the Local. If you continue to represent a majority of the employees at Cambria, we will be glad to meet with you to discuss negotiations. However, the writer will be busy in court the rest of this week. We also wish to call your attention to the fact that an unfair labor practice charge was filed with the National Labor Relations Board and we feel that we should meet and discuss this matter and have it disposed of. If you have a representative that is going to be in this community in the next few days, I would appreciate it if you will have him contact me. After further correspondence a meeting between the parties finally was scheduled and held on April 24, 1952 Between that dateandJuly 7, 1952, about eight bargaining conferences were held. The parties were unable to reach agreement either on a contract or on settlement of the strike. In view of findings hereinafter made, I do not find it necessary to set forth in detail the negotiations or the contentions of the parties concerning these meetings. Between July 18 and September 17, 1952, the Union sent five letters to the Respondent requesting bargaining conferences . The Respondent did not reply to any of these letters. As related and found above, on March 25 , 1952, Owen Craddolph , as a representative of the Union, attempted to process a grievance with De Hart and Dodds . Dodds refused to accept the grievance by stating , "We are through with all that, we are not going to bother with that sort of thing any more." It has also been found that during March 1952, certain of the Re- spondent 's supervisors solicited employees to resign from the Union. I find that on or about January 28 , 1952, and thereafter, the Respondent refused to bargain collectively with the Union within the meaning of Section 8 (a) (5) of the Act. The Respondent ignored the Union's initial request to bargain until Messer brought up the subject again at his meeting with Davis on March 3. Tiereafter , and particularly on March 20, the Respondent engaged in a concentrated campaign to coerce employees to withdraw from the Union. In this connection, it is noteworthy that Fitch in his letter of March 24 referred to a meeting which he understood had been arranged for March 20 at 4 p. m. In view of its campaign against the Union, the Respondent's questioning of the Union's majority, as disclosed by Fitch's letter, shows its bad faith in its bargaining relationship with the Union . The Respondent's refusal to process a grievance presented by Craddolph on March 25, in itself a violation of its contract with the Union and an unfair labor practice, confirms this finding. It is true that between April 24 and July 7, 1952, the Respondent met with the Union. How- ever , while going through the motions of collective bargaining, the Respondent continued to engage in unfair labor practices, as found above. This conduct further puts in question the Respondent's good faith in the matter. 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finally, the Respondent ignored the Union 's requests for bargaining conferences on and after July 28, 1952. The fact that charges had been filed with the Board and that the hearing herein was scheduled to start on October 6 did not relieve the Respondent of its obligation to bargain with the Union. u IV, THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in connection with the operations of the Respondent set forth 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 Having found that the Respondent has engaged in unfair labor practices , the Trial Examiner will recommend that it cease and desisttherefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent by its course of conduct on and after January 28, 1952, refused to bargain collectively with the Union as the exclusive representative of its em- ployees in a unit hereinafter found to be appropriate for the purposes of collective bargaining. Accordingly, it will be recommended that the Respondent bargain collectively, upon request, with the Union as the exclusive representative of its employees in the aforesaid appropriate unit, and that the Respondent embody any understanding reached in the course of such col- lective bargaining , upon request, in a written agreement, signed by the parties affected thereby. It has been found that the Respondent discharged the employees whose names are listed on Appendix A on November 7, 1951, Clarence Friend and James Miller on March 23, 1952, Woodrow Hall on March 24, 1952, and Owen Craddolph and Edison Galliamore on April 6, 1952. It further has been found that on August 5, 1952, the Respondent refused to reinstate the employees whose names are listed in Appendix B. It will be recommended that the Respondent offer them immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges . It further will be recommended that the Respondent make whole said employees for any loss of pay they may have suffered by reason of Respondent's discrimination by payment of a sum of money equal to that which they would have earned as wages from the date of the discrimination to the date of an offer of reinstatement, or to the date of reinstatement in cases where the evidence shows that they have been reinstated or where an enforcement agreement or proceeding determines such fact, less their net earnings during such period. Said loss of pay shall be computed on the basis of each separate calendar quarter, or portion thereof, during the period from Re- spondent's discriminatory action to the date of the offer of reinstatement. The quarterly periods, herein called "quarters," shall begin with the first day of January, April, July, and October. Loss of pay shall be determinedbydeducting from a sum equal to that which the em- ployee would normally have earned for each such quarter or portion thereof, his net earnings, if any, in other employment during that period. Earnings in one particular quarter shallhave no effect upon the back-pay liability for any other quarter. In order to insure compliance with the foregoing back-pay and reinstatement provisions, it is recommended that Respondent be required , upon reasonable request, to make all pertinent records available to the Board and its agents. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local Union 879, United Brick and Clay Workers of America, AFL, is a labor organiza- tion within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees at the Respondent's Blackfork, Ohio, opera- tion, excluding office and clerical employees , guards , professional employees , and super- visors as defined in the Act, consiitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9 (b) of the Act. 3. By refusing to bargain collectively with the Union the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act. 4. By discriminating against the employees named in Appendices A and B, and against James Miller, Clarence Friend, Woodrow Hall, Owen Craddolph, and Edison Galliamore, the 3iJ. B. Wood, et al., 95 NLRB 633. TALLADEGA COTTON FACTORY, INC. 295 Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] TALLADEGA COTTON FACTORY, INC. and TEXTILE WORK- ERS UNION OF AMERICA, CIO. Case No. 10-CA-806. July 22, 1953 DECISION AND ORDER On February 28, 1952, Trial Examiner James A. Shaw issued his Intermediate Report in the above entitled proceed- ing, finding that the Respondent had engaged in and was en- gaging 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. The Trial Examiner also found that the Re- spondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of the complaint with respect to such allegations. Thereafter, the Respondent and the General Counsel filed exceptions to.the Intermediate Report and supporting briefs. 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 briefs, and the entire record in the case and hereby adopts the find- ings, conclusions, and recommendations of the Trial Examiner with the exceptions, modifications, and additions noted below. 1. We agree with the Trial Examiner that the Respondent discharged supervisory employees, Overseers Marion K. Shiflett and Seybourn Pilkington, because of their failure ef- fectively to support the Respondent's antiunion campaign by interfering with, restraining, and coercing its nonsupervisory employees in the exercise of their self-organizational rights, and not because of any prounion activities on the part of these supervisors, as contended by the Respondent. However, we are unable to concur in the Trial Examiner's conclusion that the discharges did not violate Section 8 (a) (1) of the Act because Shiflett and Pilkington had actually followed, though reluctantly, the Respondent's orders. As fully discussed in the Intermediate Report, the Respond- ent learned of the Union's efforts to organize its employees shortly after the commencement of its campaign in early July 1949, and took immediate steps to thwart that campaign. Among other things, it called meetings of its supervisors, which Overseers Shiflett and Pilkington and several non- 106 NLRB No. 61.