Burns Coal Co., Inc.

590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD BRUNS COAL COMPANY, INC. and PHILLIP SCANLAN, HOWARD A. MILSTEAD, WILLIAM B. WINLAND, WILLIAM E. WILLIAMS, ROBERT E. RICHARDSON, REGA C. LOCK- HART, RAY FRYE, HOMER V. ANDERSON, JOSHUA F. RICHARDSON, WAYNE E. RAY, FREDERICK W. DUNN. Case No. 9-CA-569. August 6, 1953 DECISION AND ORDER On March 31, 1953, Trial Examiner John C. Fischer 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. He also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended dismissal of those allegations . Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.' The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Respondent's exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications.2 The Trial Examiner found, and we agree, that the Respondent, which operates acoalmining stripinBeverly, Ohio, commenced operations at the mine in April 1952. When complainant Richardson was hired in May 1952, Lloyd Bruns, the Respond- ent's superintendent, informed him in the presence of other job applicants that, "Now you guys understand this is a non- union mine and it is run that way and we will not recognize the Union." In April 1952, when complainant Winland was em- ployed, Lloyd Bruns cautioned him against trying "to bring the Union or organize one in our Company, because we will not tolerate it and if you do you may consider yourself done." Alfred Wesbar, one of the Respondent's supervisors, also informed other employees at the time of their hire that the i The Respondent 's request for oral argument is hereby denied because the record, including the Respondent's exceptions and brief, in our opinion , adequately presents the issues and the positions of the parties. 2 The Trial Examiner concluded that the General Counsel failed to prove by a preponder- ance of the evidence the allegation in the complaint that the Respondent violated Section 8 (a) (1) of the Act by engaging in surveillance of its discharged employees during the union meet- ing. As no exception has been taken to this conclusion, we adopt it without, however, sub- scribing to the rationale upon which it is based. The following inadvertencies in the Intermediate Report, which do not affect the Trial Examiner 's conclusions or our concurrence therein, are hereby corrected as follows : (1) Page 597, paragraph 2, change October to June; (2) page 601, paragraph 1, change Reynolds to Richardson. 106 NLRB No. 103. BRUNS COAL COMPANY, INC. 591 mine was nonunion and that "to keep operating we would have .to operate nonunion." On May 29, 1952, complainant Williams requested certain organizers of the United Mine Workers of America , herein called the UMW , to visit the Respondent ' s mine and organize its employees . At 6 a. m. on June 2, UMW organizers arrived at the road entrance to the mine and, with placards in hand, commenced picketing . Other UMW organizers stationed them- selves at the entrance to the "coal dump" area of one of the Respondent's customers in order to intercept the Respondent's drivers who were delivering coal to the dump. When Lloyd Bruns arrived at the mine pit at about 6 a. m. on June 2, he was informed by some laborers that he might have "a little labor trouble" that morning. He then drove to the mine tipple and observed the UMW organizers picketing on the road . Ernest Bruns, the Respondent's president , also noticed the organizers on his way to work that morning , and recognized an individual named Waters who Ernest knew was the chief organizer for the UMW in the area . Ernest testified that he assumed these individuals were pickets and that, because of Waters' presence, he attributed the picketing to the UMW. All the complainants testified that while hauling coal on the high- way on the morning of June 2, they were stopped by the UMW organizers , informed that the UMW was organizing the Re- spondent ' s employees , given membership cards to fill out, and invited to a meeting scheduled for 9 that morning at a local park. Upon learning that the organizational campaign was under way, and having observed the UMW pickets, the complainants parked their trucks at the mine tipple , agreed to attend the forthcoming meeting, and proceeded to discuss various grievances concerning their employment. While the men were thus engaged , Lloyd Bruns approached and asked them why they had ceased driving. When the men informed him of the UMW meeting , Lloyd told them that the UMW would not be recognized and the mine would not be operated under union conditions . He urged them to stay on the job so that the Re- spondent could obtain an injunction against the UMW, and in- formed them that if they left their trucks he would hire other drivers to do the work . Shortly thereafter , Ernest Bruns appeared and repeated to the men the statements which Lloyd Bruns had previously made. Lloyd Bruns then asked the men individually whether they were going to drive or go out. They replied that they would go out rather than cross the picket line maintained at the mine entrance , that they desired the job protection which the UMW could afford them, and that if their fellow employees left work and went to the meeting they would do likewise . After these conversations with Ernest and Lloyd Bruns, the complainants left the mine tipple and proceeded to the meeting . When the meeting , which lasted from 9 a. m. to 12 noon, concluded, the complainants returned to the mine 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD entrance, joined the UMW pickets, and exhorted the Respondent's other drivers to join the strike. The complainants testified, and we find, that when they parked their trucks and left for the meeting, they were engaging in a strike. They picketed the Respondent's operation for about a month, after which they became convinced that, as the Respondent was operating with replacements, they had failed to achieve the object of their concerted activities, namely, collective representation by the UMW. In view of the Respondent's threats that it would not operate its mine under union conditions, that any attempt to organize a union at the mine would be met with discharge, and on the day of the strike, that if the men left their trucks they would be discharged, and on the basis of the entire record in this proceeding, we find that the drivers left their work on the morning of June 2 because they desired to achieve job security through collective action and because they would not cross a picket line. We further find that the strikers thereby engaged in a concerted work stoppage which was protected by the Act, and that the Respondent's action in discharging them for this activity constituted a violation of Section 8 (a)(3) and (1) of the Act. The Remedy Winland, one of the strikers, went to the mine tipple on July 17, 1952, to get his paycheck for the last pay period he worked before the strike. Winland met Lloyd Bruns at the tipple and, according to Winland's credited testimony, "I asked him about my job and the other boys here, if we were going to get to come back to work." Winland testified further that, in reply, Bruns said, "no, definitely not -- As far as he was concerned, and his brother Ernest was concerned, that we was discharged as of the 2nd and the morning of the 3rd . . . That he would not tolerate a union, and that he knowed, as soon as we reported to work down there from Zanesville, the boys from up there, that he knowed there was going to be trouble, sooner or later." On cross-examination by the Respondent, Winland testified that when he asked Lloyd Bruns for his job back on that day, "The only intentions I had of going back was if they would reinstate the rest of the fellows under labor organized union organization, the only intentions I had of going back." The General Counsel, in pursuing this line of inquiry on redirect examination, asked Winland, "What qualifications had to be met before you return to work?" Winland replied, "The qualifications was that there would be insurance of a job, and that the other boys be rein- stated back as a union, as a whole." The Trial Examiner found, without any reference to this testimony by Winland, that on or about July 17, 1952, Winland unconditionally requested that the Respondent reinstate him and the other complainants, that the Respondent denied this BRUNS COAL COMPANY, INC. 593 request , and, accordingly , that the complainants were entitled to reinstatement and back pay from July 17 , on which date for the first time they indicated their availability for work. We agree with the Trial Examiner that Winland "unconditionally" requested reinstatement on behalf of himself and the other dischargees , inasmuch as the conditions he had in mind were not expressed to the Respondent . In view , however, of the conditions which Winland intended to impose if the Respondent had acceded to his reinstatement request, it seems manifest that the complainants had not made themselves available for work on July 17. Accordingly , in fashioning a remedy in this case , we do not deem it appropriate under these circumstances to direct that the Respondent award back pay to the complainants from that date .3 We shall, however , order that the Respondent, upon request , offer reinstatement to Phillip Scanlan , Howard A. Milstead , William B. Winland , William E. Williams, Robert E. Richardson, Rega C. Lockhart, Homer V. Anderson, Joshua F. Richardson , Wayne E. Ray, and Frederick W. Dunn, to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges , and we shall also order the Respondent to dismiss , if necessary, any persons hired on or after June 2, 1952, the date of the strike. Further, we shall order that the Respondent make whole those employees who went on strike on June 2, 1952 , for any loss of pay they may suffer by reason of the Respondent's refusal, if any, to reinstate them, upon request, by payment to each of them a sum of money equal to that which he normally would have earned as wages during the period from 5 days after the date on which he applies for reinstatement to the date of the Respondent ' s offer of reinstatement , such loss to be computed in the manner set forth in F. W . Woolworth Co., 90 NLRB 289. On June 25, 1952, complainant Ray T. Frye met Lloyd Bruns at the home of one of Frye's neighbors and asked for his job back . Bruns refused to reinstate him. The Trial Examiner, possibly because he construed Winland's request for reinstate- ment as covering Frye, did not advert to Frye's individual request. We find that Frye unconditionally requested that the Respondent reinstate him on June 25, 1952, and that the Re- spondent refused to do so. However , as the Trial Examiner made no findings in this regard , we shall toll the period from June 25, 1952 , to July 17 , 1952 , the date on which the Trial Examiner found that Winland requested reinstatement for all the complainants .' We shall accordingly order that the Re- spondent offer Frye immediate and full reinstatement to his former or substantially equivalent position , without prejudice to his seniority rights and privileges , dismissing , if necessary, any persons hired on or after June 2, 1952 , the date of the 3 Kallaher and Mee, Inc., 87 NLRB 410. 4 Compare Salant & Salant, Incorporated , 92 NLRB 343. 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strike. We shall further order that the Respondent make Frye whole for any loss of pay he may have suffered by reason of the Respondent's discrimination against him, by payment to him of a sum equal to that which he normally would have earned as wages during the period from July 17, 1952, to the date of reinstatement or a proper offer thereof, such loss of pay to be computed in the manner provided above. ORDER Upon the entire record in this case , and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Re- spondent, Bruns Coal Company, Inc., of Beverly, Ohio, its officers , agents, successors , and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in any labor organization of its employees, by discharging its employees or by discriminating in any other manner in regard to their hire or tenure of em- ployment, or any term or condition of employment. (b) Threatening its employees with economic reprisal of any kind or character for activity on behalf of any labor or- ganization , warning or advising its employees that its opera- tion will be shut down before any labor organization will be recognized , warning or advising its employees that it will not operate under a union, and threatening to discharge its em- ployees w2}o are engaged in union or concerted activities. (c) In any other manner, interfering with, restraining, or coercing its employees in the exercise of the right to self- organization , to join or assist any labor organization , to bar- gain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collec - tive bargaining or other mutual aid or protection , and to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Offer to Ray Frye immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole for any loss of pay he may have suffered by reason of the Respondent ' s discrimination against him , in the manner set forth in the section of this Decision and Order entitled "The Remedy." (b) Upon application, offer to Phillip Scanlan, Howard A. Milstead, William B. Winland, William E. Williams, Robert E. Richardson, Rega C. Lockhart, Homer V. Anderson, Joshua F. Richardson, Wayne E. Ray, and Frederick W. Dunn, who went on strike on June 2, 1952 , immediate and full reinstatement to their former or substantially equivalent positions , dismissing BRUNS COAL COMPANY, INC. 595 if necessary any persons hired by the Respondent on or after June .2, 1952, and make them whole for any loss of pay they may suffer by reason of the Respondent's refusal, if any, to reinstate them in the manner provided in this paragraph, by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period from 5 days after the date on which he applies for reinstatement to the date of the Respondent's offer of rein- statement, such loss of pay to be computed in the manner set forth in the section of this Decision and Order entitled "The Remedy." (c) Upon request, make available to the Board or its agents for examination and copying, all payroll records, social- security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due and the right of reinstatement under the terms of this Order. (d) Post at its plant in Beverly, Ohio, copies of the notice attached hereto and marked "Appendix A." 5 Copies of said notice to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of at least sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (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 therewith. Chairman Farmer and Member Styles took no part in the consideration of the above Decision and Order. 5 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Rela- tions Board, and in order to effectuate the policies of the Na- tional Labor Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in any labor organization of our employees , by discharging any of our employees or in any other manner discriminating in regard to their hire or tenure of employment , or any term or condition of their employment. 322615 0 - 54 - 39 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT make threats of economic reprisal of any kind or character against our employees for activities on behalf of any labor organization , warn or advise our employees that our operation will shut down before any labor organization will be recognized , warn or advise our employees that we will not operate under a union, and threaten to discharge arlyof our employees who are engaged in union or concerted activities. WE WILL NOT in any manner interfere with , restrain, or coerce our employees in the exercise of their rights to self-organization , to form labor organizations , to join or assist any labor organization , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from any or all of such conduct , except to the extent that such right may be affected by an agreement re - quiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the said Act. WE WILL offer to Ray T. Frye immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole for any loss of pay suffered as a result of our discrimination against him. WE WILL, upon respective application , offer to Phillip Scanlan, Howard A. Milstead , William B. Winland , William E. Williams , Robert E. Richardson , Rega C. Lockhart, Homer V. Anderson , Joshua F. Richardson , Wayne E. Ray, and Frederick W. Dunn, who went on strike on June 2, 1952 , immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, dis- missing, if necessary, all persons hired on or after June 2, 1952, and we will make each employee whole for any loss of pay suffered by him as a result of our failure to reinstate him upon his application. All our employees are free to join, form, or assist any labor organization and to engage in any self -organization or other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from such activities except to the extent that such right is affected by an agreement made in conformity with Section 8 (a) (3) of the Act. BRUNS COAL COMPANY, INC., Employer. Dated ................ By.................................................... (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced , or covered by any other material. BRUNS COAL COMPANY, INC. Intermediate Report and Recommended Order STATEMENT OF THE CASE 597 This proceeding, brought under Section 10 (b) i of the National Labor Relations Act as amended (61 Stat. 136), was heard in Zanesville, Ohio, on December 16-18, 1952, inclusive, pursuant to due notice to all parties . 2 The summary of the pleadings hereinafter made in- cludes various amendments made during the course of the hearing. All parties were repre- sented by counsel and were afforded fullopportunity to be heard, to examine and cross-examine witnesses , to introduce relevant evidence , to argue orally, and to file briefs and proposed findings and conclusions. Briefs have been filed both by the General Counsel and by the Respondent. The original complaint, issued on November 14, 1952 , and an amended complaint issued on November 26, 1952, by the General Counsel, based on charges filed by the charging parties and served on the Respondent , alleged in substance that the Respondent had engaged in unfair labor practices proscribed by Section 8 (a) (1) and (3) of the Act by: (a) Engaging in specified acts of interference , restraint, and coercion since October 2, 1952; (b) discharging discrimi- natorily the above-recited Dischargees on June 2, 1952; and (c) discriminatorily failing to reinstate to date the above-recited Dischargees in the jobs which they had held at the time of their discharge. Respondent 's answer filed November 24, 1952, admitted that it was a corporation engaged in interstate commerce and is subject to the National Labor Relations Act, and that the in- dividuals named in the complaint were employees of the Respondent. The answer denied the allegations of the complaint relating to unfair labor practices, and affirmatively averred that the employees were discharged on Monday, June 2, 1952, for the reason that they voluntarily left their posts of duty during working hours, by parking their trucks, stopping work, and leaving their jobs. Upon the entire record in the case and from his observation of the witnesses, the under- signed Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent , an Ohio corporation , is engaged in the business of mining, sale, and distri- bution of coal. During the year ending July 1, 1952, the Respondent, in the course and conduct of its said business , sold and delivered coal of a value in excess of $500 ,000 to other per- sons, firms , and corporations engaged in interstate commerce . Further, during this same period the Respondent has sold and delivered coal in excess of $100,000 to the Ohio Power Company, a public utility 9 engaged in the production and sale of electricity in the State of Ohio, as evidenced by testimony admitted showing an annual contract for delivery of 250,000 tons . It is therefore concluded and found that the Respondent is engaged in commerce within the meaning of the Act. U. THE UNFAIR LABOR PRACTICES A. Background and issues ; the mass discharge Respondent's affected business , a coal mining "strip" operation at Beverley, Ohio, was established April 1952 and has employed , at times material to the issues in this case , a work- ing force of about 60 employees . The record indicates that the Respondent has a deadline contract to deliver 250,000 tons of coal to a public utility, the Ohio Power Company. It appears ISection 10 (b) makes provision for a hearing before the Board or an agency thereof when- ever it is charged that any person has engaged in or is engaging in any unfair labor practices 2 The General Counsel and his representative at the hearing are referred to herein as the General Counsel and the National Labor Relations Board as the Board. The above-named Respondent is referred to as Respondent , the charging parties as Dischargees , and the United Mine Workers of America as the Union. 3Cf. The Ohio Power Company, 86 NLRB 1181. Hollow Tree Lumber Co., 91 NLRB 635. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the testimony that the margin of profit of this small mining business is not too far above the "break -even" point of a sound, economical operation. Mus fact is evidenced by the undisputed statements of Respondent 's President Ernest Bruns in his conversation with the charging parties in an assembled group on the morning of June 2 when he insisted that the drivers continue to truck coal (notwithstandingthathis mining operation was being picketed by union organizers ) because "he could not afford to pay union wages," and he stated he "would discontinue operations before operating a union mine." Superintendent Lloyd Bruns confirms this position of the Respondent in a conversation on June 2 with Dischargees William E . Williams and Ray T. Frye when he told them : "Ernest[Bruns] wouldn't operate under union , he couldn 't afford to pay the 30 cents royalty-- - let alone the union wage." The union organizational drive, out of which the present charges arose, began about the first of June 1952. Dischargee Williams testified that on May 29 he asked a union miner to get an organizer to come down and organize Respondent 's Beverley operation. This request was agreed to, and on Monday, June 2, a group of United Mine Workers organizers at about 6 a. m. set up a picket line at the road entrance of Respondent 's operation and importuned the Respondent's employees to organize. They gave the employees blank application cards and asked them to attend a union meeting to be held at 9 o'clock that morning at Highway Park near Beverley. They also placed three other pickets at the entrance of the "coal dump" area of the Ohio Power Company to intercept the truckers . Some of the Dischargees were previously advised of the intended union plan , although the organizing pickets were strangers to them. The Respondent apparently first became aware of the contemplated unionizing campaign around 6 a. m. on the morning of June 2, when Lloyd Bruns, the mine superintendent, passed the organizers en route to the mine . Upon the superintendent's arrival at the mine tipple, he walked over to the mine dump and observed that one of his truckers , William E . Williams, the prime local figure in organizing , had parked and left his truck in the tipple parking area. Shortly , thereafter , 8 or 9 other drivers , all charging parties in this case , left their trucks at the tipple and there assembled . The evidence shows that all together some 12 out of 22 drivers pulled their trucks off and stopped hauling coal To Respondent ' s officials, the record shows , the Dischargees gave as their reason for leaving their trucks that they were unwilling to "drive through a picket line established by a labor organization, and were going to a union meeting," and "were going to abide by the will of the majority ." When these drivers parked and left their trucks in the tipple parking area , Superintendent Lloyd Bruns made it clear that the trucks must continue in operation , that the mine was nonunion and the management would cease operations before operating under a union, and that if the drivers would continue to drive it would make it possible for the Respondent to obtain an injunction against the picketing. Shortly after Lloyd Bruns' conference with the assembled drivers, he was joined by his brother Ernest Bruns , president of the Respondent , who then engaged in the above-referred -to conversation , insisting that they continue to drive , notwithstanding the picket line , or he would "replace them on their trucks with other drivers ." The drivers were adamant in their determination not to go through a picket line and were determined to attend the meeting at 9 a. m. so , in the language of the Respondent 's answer and opening statement , Respondent "discharged them for the reason that they voluntarily left their post of duty during working hours ." 4 The Ohio Bureau of Unemployment Compensation reports received in evidence by stipulation bear out the fact that the drivers were discharged on June 2. The Dischargees proceeded shortly thereafter to the predetermined union meeting, 4 President Bruns was cross-examined: "Now, at what instant did you consider the men fired after they got off the trucks ; was it when they got off the trucks, or was it when they went out, went off the company's property at the entrance of the tipple, in their cars?" A. When they left their trucks without a reasonable cause. Q. That is when you fired them, at that time, is that correct, when they got off their trucks and left the trucks9 A. And after we had told them that they would be replaced Q But that is when they were fired, when you got down there and found them off the trucks, is that right? A. When they did not get back on their trucks and haul coal, as I requested them to, and without just cause leaving their trucks, we were through with them. BRUNS COAL COMPANY, INC. 599 joined the picket line around noon, picketed the Respondent's operation, and remained on strike until the strike failed in its purpose about a month later. 5 The record allows of no contradiction that these Dischargees, on the morning of June 2, 1952, acted in concert and made common cause with fellow employees in voluntarily parking their coal trucks either for 1 of 2 reasons or for both:6 (a) They would not drive through a picket line, and/or (b) they were going to a union meeting for the purpose of organizing. These employees were then exercising rights guaranteed under Section 7 of the Act. When their trucks were not in operation, they were on strike. It allows of no contradiction that the Respondent discharged them "en masse" when they got off their trucks and refused to drive and it permanently replaced them that day. The evidence further shows that President Bruns telephoned certain of the Dischargees that evening and stated that their checks were ready to be picked up. The General Counsel makes the point that considering the statement of the Respondent's president that the drivers would be replaced, there is created an inference that the Respondent was threatening them with actual discharge if they refused to cross the picket line or concertedly attended the union meeting. In fact the Respondent not only threatened and warned them but actually did discharge them, which fact is substantiated by the testimony of Respondent's president that he fired them "when they left their trucks without a reason- able cause ... after we had told them they would be replaced." It is therefore found that the concerted activity of the employees constituted an organizational strike to which the Re- spondent retaliated with a mass dischargeofthestrikers. Discharging employees for engaging in protected concerted union activities has been proscribed by the Board and held to be a violation of Section 8 (a) (1) and Section 8 (a) (3) of the Act.7 Since this Trial Examiner has found that theseDischargees were in the status of economic- organizational strikers, it follows that the discharge of the assembled employees for their concerted union activities converted this economic strikes into an unfair labor practice strike. 9 Winland's Discharge The only instance of real conflict in the mass discharge concerns Dischargee William B. Wieland who testified that he was a member of the Thick Drivers Local of Springfield, Ohio, and had been a union member for about 17 years. Winland did not park his truck with the others but was reassigned to other employment at the mine tipple that entire day by Super- mtendent Bruns. Winland testified that en route to work he had been accosted and reco4nized by one of the organizers as a union truckdriver. When asked what he thought about the Union he replied: "I thought we should, that if the other boys thought we should have it, why, I was with them." Superintendent Bruns, upon his arrival at the mine tipple, inquired about his intentions to drive and Winland answered: " I am going to do as the other boys do." It was at this time that he was reassigned for the rest of the day to work at the tipple. However, in a conversation with Bruns at quitting time he testified: "He[Bruns] asked me if I would keep right on working, and I told him if the other boys did not keep on working, and if they went out, I would go with them, because I would not cross a line." (Underscoring supplied.) The Respondent, in his carefully prepared brief of his case, contends that the real reason for the termination of Winland's employment was that he asked Superintendent Bruns for the next day off "to go to Marietta to take care of some business that he had down there," and when he did not report back on time he was replaced. In light of Winland's prior union mem- bership, his prior knowledge of the intention to organize here, and his statement to Bruns "that if they went out, I would go with them," it is obvious that his Marietta trip was just a 5 The evidence shows that on or about July 17, 1952, one of the Dischargees, William B Winland, after the strike had failed, unconditionally requested reinstatement for himself and the other Dischargees in their jobs but the request was denied 6D & B Transportation Co., 100 NLRB 920; Longview Furniture Co., 100 NLRB 301 7 Morristown Knitting Mills, 80 NLRB 731; Bentley Lumber Co , 83 NLRB 805; Globe Wireleis, Ltd , 88 NLRB 1262; Alside, Inc., 88 NLRB 460; Dennison Coil Co., Inc., 96 NLRB 1435; Modern Motors, Inc., 96 NLRB 964 U. S Cold Storage Co., 96 NLRB 1108; Buzza- Cardozo, 97 NLRB 1342; Brown and Root, Inc., 99 NLRB 1031. sKennametal Inc., 80 NLRB 1481; Modern Motors, 96 NLRB 964. 9 W. T Rawleigh Co , 90 NLRB 1924; Old Town Shoe Co., 91 NLRB 240. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "stall" given to his boss until he learned the course of action of his associates. The testi- mony of Winland shows that he appeared at the tipple entrance, site of the picketing, on the following morning, June 3, joined the picketing Dischargees, and struck with them that day. Subsequently, on or about June 17, Winland went back to the operation to get his check and, according to Superintendent Bruns, he was told that he had been replaced with a new driver when he did not come back the next day. The evidence indicates that the strike was abandoned around July 1. On July 17, Winland again presented himself to Superintendent Bruns to in- quire about his check. He testified that Bruns said: "Your check was ready the morning of the 4th, or the afternoon of the 3rd." Winland continued: "I asked him about my job and the other boys here, if we were going to get to come back to work." In response to the question by General Counsel: "And what did he tell you? " Winland answered: "He says, no, definitely not --- As far as he was concerned, and his brother Ernest was concerned, that we was discharged as of the 2nd and the morning of the 3rd ... That he would not tolerate a union, and that he knowed, as soon as we reported to work down there from Zanesville, the boys from up there, that he knowed there was going to be trouble, sooner or later." 10 Winland further testified: "And that evening I stopped again; I asked him if he had changed his mind, and he says, 'No,' that it still held the same as it was; that he would not hire me or any of the rest of the boys back, or reinstate our jobs." Immediately after this conversa- tion, Winiand was reinducted into the Armed Forces for a period of a couple of weeks. Credence is lent to Winland's entire testimony because he had to go back a third time to Superintendent Bruns at the Beverley Mine, assigning as his reason: "Because I still had not received my check; that was one thing. Another thing was, I had just returned from govern- ment service; I was called back to government service subject to being called back overseas, and which, fortunately, we did not have to go, and he said then that that was just our tough luck; that he still would not--in fact, I was in uniform then--that it still went and stuck; that he would not put us back to work, so there is when I got after them for my check." On the point of making request for reinstatement for himself and his associates, I hold that this testimony of Winland is conclusive and that any loss of pay occasioned to the Dischargees should be calculated from July 17, 1952. This case is relatively free of credibility conflicts on material evidentiary matters. The principal conflict between the testimony given on the one hand by almost all of the Dis- chargees, and on the other hand by all of the Respondent's witnesses concerns a collateral matter. The drivers testified that they were given the definite impression, if not actual in- structions, that they must keep their trucks rolling from the time they started working in the morning until they quit work in the afternoon, and they were not to take any time out for lunch. Respondent's witnesses were in agreement that the drivers were allowed up to a half hour to eat their lunches and were paid straight through the noon hour. As the Respondent stated in his brief, this particular point is not crucial in determining the issues presented in the case. However, it would be preposterous for any truckownmg employer to order or even to allow drivers to eat with one hand while careening a valuable piece of equipment down the public highway with the other hand. This Trial Examiner does not credit the Dischargees' testimonies in this phase of the case. Nevertheless, it does not follow that simply because one does not believe a particular thing to which a witness testified that everything he says must then be rejected. Judge Learned Hand states the rule thus: 11 It is no reason for refusing to accept everything that a witness says because you do not believe all of it; nothing is more common in all kinds of judicial decisions than to believe some and not all. Furthermore, with the exception of the Winland conflict, above referred to, the facts relied upon by the General Counsel and constituting the gravamen of the charges are virtually un- controverted. 1011 may be borne in mind that the Zanesville drivers were confronted with a 90-mile round trip to and from home each day and consequently were more concerned with continuous daily employment than would be the local residenters Also, living in an urban area, they were probably more union conscious than were the rural employees Furthermore, the effect, if any, of the Union's desire to collect 30 cents royalty per ton on the Bruns' contract cannot be considered in this labor dispute as it was raised only by innuendo and is not germane to the issues involved. u N. L. R. B. v Universal Camera Corporation, 179 F. 2d 749 (C. A 2). BRUNS COAL COMPANY, INC. 601 B. Interference, restraint, and coercion During the hearing and in his brief the General Counsel took the position that certain statements and speeches by the Respondent's officials constituted interference, restraint, and coercion. The speeches to which the General Counsel took exception and upon which he predicates his case in this phase were statements made by Lloyd Bruns, Ernest Bruns, and Alfred Wesbar. Dischargee Joshua Reynolds' credited testimony was that on the day he was employed Lloyd Bruns told him, in the presence of other applicants for employment, "Now you guys understand this is a nonunion mine and it is run that way and we will not recognize the Union." Dischargee William B. Winland's testimony which was heretofore credited and is not contradicted was that Lloyd Bruns stated "do not try to bring the Union or organize one in our Company, because we will not tolerate it and if you do you may consider yourself done." The statements of President Ernest Bruns made in the conversation with the assembled Dischargees on the morning of the strike were that this "was a nonunion mine" and that he "could not afford to pay union wages and would discontinue operations before operating a union mine." With actual knowledge of the assembled drivers purpose for dis- engaging from their work because of a concerted determination (1) not to cross a picket line, and (2) to attend a scheduled union organizing meeting, Ernest Bruns stated that if the drivers did not continue to drive he would replace them with men who would. In light of the evidence of the record, "replacement" meant permanent discharge of the striking employees by President Bruns. Alfred Wesbar, the chief mechanic of the Respondent, and concededly a supervisor within the meaning of the Act, stated to employees whom he hired that the operation was to be non- union, explaining "that our profits in coal, this market especially - - to the Ohio Power Company--we do not get much for it and to keep operating we would have to operate non- union." It is found that these statements by the Respondent's officials interfered with, re- strained, and coerced Respondent's employees in the exercise of their rights guaranteed under Section 7 of the Act. As hereinabove stated, both President Bruns and Superintendent Bruns urged the drivers to continue to drive as it would make it possible for the Respondent to obtain an injunction against the picketing; otherwise the Respondent would cease operations before it would operate under a union. It is found that these statements were threats of economic reprisal or promise of benefit which were calculated to and did interfere with, restrain, and coerce the Respondent's employees in the exercise of their rights guaranteed by Section-7 of the Act, thereby constituting a violation of Section 8 (a) (1) of the Act. Surveillance The uncontroverted evidence shows that President Bruns and Superintendent Bruns left the operation while the Dischargees were assembled at the roadside park and followed them down to their place of meeting. The Respondent's officials explained this action by the Bruns brothers, saying that they were trying to determine whether or not there was any consider- able number of cars from surrounding counties or communities wherein there were a large number of union members. It had been the experience of the Company that when the Union had previously attempted to organize their mine operations, union miners would drive their cars from many different counties into the area. The Respondent explains that it is a matter of common knowledge in the State of Ohio that in most cases one can easily determine the county from which a car comes by the lettered prefix of its license number. The Respondent contends that the acts engaged in by Ernest and Lloyd Bruns were for the purpose of checking the foreign county license plates only and not for the purpose of spying on the union meeting and could not have therefore interfered with, coerced, or restricted the employees in their union activity. It also urged that the surveillance by an employer of the meetings and activi- ties of his employees is not an unfair labor practice unless it interferes with, restrains, or coerces the employees in the exercise of their rights citing N. L. R. B. v. National Motor Bearing Company, 105 F. 2d 652. The General Counsel contends that when an employer, by is agents, places itself in an unusual position to observe its employees at a union meeting or while they are engaged in concerted activities, as was the case here, such conduct interferes with, restrains, and coerces his employees in the exercise of the rights guaranteed them by Section 7 of the Act, thereby constituting a violation of Section 8 (a) (1) of the Act. zz 12 H. & H. Manufacturing Company, Inc , 87 NLRB 1373; E A Laboratories, Inc , 88 NLRB 673. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lloyd and Ernest Bruns testified that they drove by the union meeting area for the sole purpose of determining the size, attitude, and composition of the crowd which was beginning to collect there. The Respondent contends that both prior to this incident and subsequent to it the Respondent has had considerable unfortunate experience with large numbexs of pickets, most of whom were union men, who engaged in threatening its employees and its officials and in damaging company property--particularly trucks attempting to haul while company operations were being picketed. Further in this connection, the Trial Examiner has found that the employer discharged these employees and manifested no intention of reinstating any of them. He knew that his former employees were attending this meeting and there is no reason to believe that his reason for going down to see what outsiders might be there would be any- thing ocher than that of forearming himself with information as to strangers and outsiders who might cause him trouble later, and against whom he might seek an injunction if he knew who they were.13 As far as these Dischargees were concerned, the record shows that he was through with them. There is no evidence that his action in openly and obviously driving past their meeting place and checking the foreign cars, which this Examiner finds to have been the purpose of the Bruns brothers, resulted in interfering with, restraining, or coercing them in the exercise of their rights. As a matter of fact these employees went ahead with their strike and continued it for a month until it was broken in consequence of the local court action. The Dischargees knew that they were on strike and were fired, and the Respondent's agents were aware of the same fact. The Trial Examiner therefore credits the Respondent's contention that the Bruns brothers' activity at the union meeting place was not for the purpose of ascertaining which of their employees attended the meeting or of interfering with the legiti- mate efforts of outside organizers to interest the employees in joining the Union, but only for the purpose of avoiding possible property damage or possible illegal interference with the conduct of their business. Therefore it is not believed by this Trial Examiner that the Bruns' action in any way interfered with them in the course of conduct which they pursued. With reference to the General Counsel's contention that pictures were taken of a peaceful picket line, the evidence does not indicate that the Respondent's president or supervisors had anything to do with or interest in any photographing during the strike. In view of all the facts of record, it is not found that the Respondent is guilty of surveillance as charged. It will therefore be recommended that that allegation of the complaint be dismissed as not being a violation of Section 8 (a) (1) of the Act. ,Ill. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead and have led to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY As it has been found that the Respondent has engaged in unfair labor practices, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent violated the Act by discriminating with respect to the hire and tenure of employment of various employees named in Appendix A herein. It will be recommended that Respondent make them whole for any loss of pay they may have suffered by reason of Respondent's discrimination against them, by payment to each of them of a sum of money equal to the amount each would normally have earned as wages from the date the discrimination occurred against them, as set forth opposite their names in Appendix A, until such time as they were reinstated or are offered reinstatement less their net earnings during that period. 14 Should it be necessary, Respondent shall dismiss any replacement hired after June 2, 1952. is The pay loss involved, if any, shall be computed in the manner estab- lished by the Board in F. W. Woolworth Company, 90 NLRB 289. In addition, I will recom- 13 As a matter of fact at the time of the hearing, it was common knowledge in this com- munity that Bruns did seek an injunction in the local State court, which action resulted in breaking the strike. i4Crossett Lumber Company, 8 NLRB 440. isCrowley's Milk Company, Inc., (Paterson Division), 102 NLRB 996 HALE FIRE PUMP COMPANY 603 mend, in accordance with the Woolworth decision, that Respondent upon request makes available to the Board and its agents all records pertinent to an analysis of amounts due as back pay. Since Respondent has restrained, coerced, and interfered with its employees in the exer- cise of their rights under the Act, and has also committed acts of discrimination with regard to the hire and tenure of employment of its employees--the latter a form of unfair labor practice which has been held to "go to the heart of the Act," I am convinced that there is a danger of a repetition by Respondent of unfair labor practices directed against its em- ployees. In order, therefore, to make effective the interdependent guarantees of Section 7 of the Act, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce, and thus to effectuate the policies of the Act, I will recommend that Respondent cease and desist from in any manner infringing upon the rights guaranteed employees in Section 7 of the Act.1 Since the Dischargees indicated that they would not return to work as long as the picket line was in existence, and since the record indicates that the picket line was maintained until the first week in July, it follows that the earliest date that their services were available to the Respondent was approximately July 1. However, it was not until July 17 that their willingness and readiness to go back to work was officially communicated to Respondent's officials by Dischargee Winland. Accordingly, it is found that back pay should run from July 17, 1952, the date of the Dischargees unconditional request for reinstatement in their jobs. 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. The Respondent, Bruns Coal Company, Inc., is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. By discriminatorily discharging Philip Scanlan, Howard A. Milstead, William E. Williams, Robert E. Richardson, Rega C. Lockhart, Ray Frye, Homer V. Anderson, Joshua F. Richardson, Wayne E. Ray, and Frederick W. Dunn, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of 'the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid labor practices in paragraphs 2 and 3 are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent has not violated Section 8 (a) (1) of the Act by engaging in surveillance as alleged in the complaint. [Recommendations omitted from publication.] iSMay Department Stores v. N. L. R. B., 326 U. S. 376, affirming as modified 145 F. 2d 66 (C. A. 8), enforcing 53 NLRB 1366. HALE FIRE PUMP COMPANY and UNITED STEELWORKERS OF AMERICA, C.I.O. Case No. 4-CA-818. August 6, 1953 DECISION AND ORDER On June 9, 1953, Trial Examiner Lloyd Buchanan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. He also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint 106 NLRB No. 102.