Ateco Products

234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 10. By restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Council has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 11. By restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, Local 1483 has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 12. The aforesaid unfair labor practices are unfair labor practices affecting com- merce, within the meaning of Section 2 (6) and (7) of the Act. 13. The Respondents have not engaged in unfair labor practices within the mean- ing of the Act with respect to Alfred William Mayer. 14. Grove Shepherd Wilson & Kruge, Inc., has not engaged in unfair labor prac- tices within the meaning of Section 8 (a) (1) or (3) of the Act. 15. The Joint Venture of Grove Shepherd Wilson & Kruge , Inc., and Hendrickson Bros., Inc., has not engaged in unfair labor practices within the meaning of Section 8 (a) (1) or (3) of the Act. [Recommendations omitted from publication.] ARTHUR H. SUMNER, D/B/A ATECO PRODUCTS and INTERNATIONAL AS- SOCIATION OF MACHINIS'rs, AFL. Case No. 2-CA-2944. July 20, 1954 Decision and Order On January 21, 1954, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent has not engaged in and is not engaging in certain unfair labor practices alleged and recommending that the complaint be dis- missed, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the General Counsel and the Charging Union, International Association of Machinists, AFL, filed exceptions to the Intermediate Report, and briefs were filed by the General Counsel, Union, and Respondent. The Board has reviewed the rulings made by the Trial Examiner and finds that no prejudicial error was cominitted. 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 modifications indicated below.' We agree with the conclusion of the Trial Examiner that the Re- spondent did not violate Section 8 (a) (3) by refusing to reinstate the seven employees who struck on December 4,1952.2 'The Trial Examiner found that the Respondent's attorney privately interrogated some of the employees after the filing of the charge, but that the questioning was not a violation because it was privileged The record contains no evidence of such an interrogation Therefore, we correct the Trial Examiner's finding of fact In view of the absence of any evidence as to unlawful interrogation, we find no violation in this respect. We agree with the Trial Examiner's conclusion that Sumner's reported conversations with Davey and Elwertowski, even if improper, were isolated incidents which do not require a remedial order Accordingly, it is unnecessary to pass upon, and we do not adopt, his prior conclusion that Sumner did not exceed the bounds of propriety in such circumstances i Elwertowski, Lake, Lazore, Prinzi, A Sanchez, L Sanchez, and M Sanchez 109 NLRB No. 37. ARTHUR H. SUMNER 235 The record shows that as early as September 1952, the Respondent anticipated a drop in business and planned to reduce his labor costs.' He decided to lay off some of his relatively unskilled employees, in- cluding machine operators, during the coming December. The Union began to organize the Respondent's employees in No- vember. The strikers were among those who joined at that time. However, there is no evidence that the Respondent had any knowledge of these activities until the morning of December 4. On December 3 the Respondent announced that the employees' working hours would be cut down. Also in accordance with the Re- spondent's retrenchment program, the general foreman was instructed to lay off three machine operators. (The General Counsel does not contend that these discharges were illegal.) When, the next morning, these operators were informed of their discharge, seven fellow opera- tors vigorously protested. One of them during this discussion told the general foreman that the union representative would contact the Respondent's president that noon, on behalf of the employees. Those protesting the discharge, as well as those laid off, then left the plant. Thereupon, the Respondent's president and general foreman, sur- veying the employment needs for the Respondent's production sched- ule, decided to accommodate the retrenchment program to the strike situation by eliminating the jobs of those on strike at that time, rather than later in the month. For, since the strikers were among those with the least seniority, they would have been included in the Decem- ber layoffs in any event. Upon the advice of the union representative, the strikers returned to the plant that afternoon. They were informed that there was no work for them. Several days later the union representative sought unsuccessfully to have the Respondent reinstate them. The Union set up a picket line for the next several weeks. Contrary to the contention of the General Counsel, the evidence does not disclose that the positions held by the strikers, having been elimi- nated, were ever revived. On the contrary, the number of employees doing the same work continued to decrease through at least Septem- ber 1953, as did the overall number of employees 4 We find, in agreement with the Trial Examiner, that these 7 operators who walked out to protest the Respondent's layoff of 3 3 This drop in business did, in fact , occur. The Respondent 's outgoing shipments declined in value substantially from August 1952 to May 1953 4 The striking machine operators were all men The number of male operators who remained in the Respondent 's employ after December 4 was six By the second quarter there were only 4 left , although the number went up to 7 briefly during the first quarter because 1 of the stiikeis , Elwertowski , was relined Duiing March and Apinl 1953, six women operators were hired , most of them for beef periods Significantly, the 'total number of female employees iemained about the same ove, this period The General Counsel contends that the women were hired in place of the strikers , but the second shows that , although they use the same machines and their tasks to some extent overlap, the women ane not lured to do the ^voik usually (lone by the men :236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -others are economic strikers whose jobs were abolished by the Re- spondent for economic reasons. Upon these facts, we find that the Respondent did not violate the Act by failing to reinstate them. In view of this finding, it is unnecessary to consider the Trial Exami- ner's alternative reasoning to the effect that these striking employees -are not protected by the Act. [The Board dismissed the complaint.] Intermediate Report STATEMENT OF THE CASE This proceeding was initiated by the issuance of a complaint on July 21, 1953, -by the General Counsel of the National Labor Relations Board, by the acting Regional Director for the Second Region, (herein sometimes called the General Counsel, the Board, and the Regional Director, respectively) against Arthur H. Sumner, doing business as Ateco Products, the Respondent named in the complaint, which alleges that the Respondent, through certain described activities, has engaged -in and is engaging in certain unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended (61 Stat. 136), hereinafter called the Act. On February 5, 1953, before the issuance of the complaint, the International Association of Machinists, AFL (hereinafter sometimes called the Union), filed a charge with the Regional Director -in which it was charged that the Respondent by his officers, agents and employees on or about December 4, 1952, terminated the employment of Henry Elwertowski, George Lake, John L. Lazore, Peter McConville, Louis Prinzi, John Rivera, Amador Sanchez, Eduardo Sanchez, Lazare Sanchez, Manuel Sanchez and Edward Sutton because of their membership in and activities on behalf of the International Association of Machinists, a labor organization, and at all times since the above date, this employer has refused and does now refuse to employ the above-named employees. The answer to the complaint, verified August 18, 1953, effectively denies the unfair labor practices and sets up three affirmative defenses. In his answer, the Respondent admits the jurisdiction of the Board and does not question the status of the Union as a labor organization within the meaning of the Act, and by his affirmative defenses raises issues which in substance are drawn by his denial. Pursuant to notice, this matter came on for hearing before the undersigned Trial Examiner at New York, New York, on November 2, 1953. At the hearing the Respondent and the General Counsel were represented by counsel and the Union appeared through an International representative. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues, to argue orally upon the record, and to file briefs, proposed findings of fact, and proposed conclusions of law were afforded the parties. Counsel for the Respond- ent filed a brief, which has been carefully considered. Upon the entire record in the case and from his observation of the witness, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, Arthur H. Sumner, at all times material hereto, has been and is doing business under the name and style of Ateco Products, maintaining his principal office, plant, and place of business on Orinoco Drive, in the town of Brightwaters, county of Suffolk, State of New York, where he is now and has been continuously engaged in the manufacture, sale, and distribution of drafting instru- ments, machine parts, and related products. During the year 1952, the Respondent in the course and conduct of his business relations caused to be purchased, transferred, and delivered to his Brightwaters plant certain material including steel, aluminum, brass, and copper valued at in ARTHUR H. SUMNER 237 excess of $100,000, of which approximately 15 percent was transported to the Brightwaters plant in interstate commerce from States of the United States other than the State of New York; and the Respondent during the year 1952 there caused to be manufactured products valued at in excess of $250,000, of which approxi- mately 33 percent was transported from the said plant in interstate commerce to States of the United States other than the State of New York. The Respondent is and at all of the times material hereto has been engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED International Association of Machinists, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The Respondent since the year 1934 has been engaged in the manufacture of drafting and artists' materials and also engages in the production and manufacture of various parts for such companies as Philco Radio and Republic Aviation. He maintains and runs a machine shop equipped with automatic screw machines, power presses, milling machines, lathes, drill presses, turret lathes, and grinders. He also has a smaller shop, called the boat shop, equipped with a circular saw, band saw, joiner, shaper, and belt sanders. Some 30 to 35 employees, male and female, were regularly employed about the beginning of December 1952 in the machine shop, and a boat builder, with the assistance of a helper, usually had been employed in the boat shop after it was started early in the year 1952. As of December 3, 1952, there is no competent evidence in the record of this case to show that Sumner or his chief assistants, one in the office and one in the machine shop, had knowledge of union activity in the plant, or of the interest of any employee in a union. Harry Bass, the general foreman, who is also a tool- and die-maker, was authorized by Sumner on the afternoon of that day to discharge three men then employed as machine operators. It appears that Bass had advised Sumner previously that because there were not enough long-run jobs, he was unable to extend the full amount of supervision required over each unskilled employee (machine operator) necessary to keep each employee busy. The three men selected by Sumner for discharge were to have been informed of the fact by Sumner at the close of work on December 3; they, however, had left their work in advance of their usual quitting time. Sumner, therefore, in a telephone conversation with Bass that evening, instructed him to discharge the men when they reported for work the next morning. On the morning of December 4, just before 8 a. m. and the start of work, Bass, in accordance with Sumner's instructions, notified Peter McCon- ville, Edward Sutton, and Eduardo Sanchez, that they were discharged. There is no claim by the General Counsel that the discharges of these three men were not for cause. At the instance of the General Counsel, evidence was intro- duced to show why these three men were selected for discharge. Sumner testified that Sutton was selected because he was perhaps one of the least flexible men when it came to learning a job, that he had decided to discharge McConville because he had misrepresented his ability and skill at the time of hiring, and that Eduardo Sanchez who had been hired as a result of pressure from his brother, Manuel, was one of the last of the men to have been hired and that he was hired with the understanding that perhaps there would not be sufficient work to keep him on Sumner carne into the shop a few minutes past 8 a. m. and found a group of employees standing at the door talking to Bass. The men were protesting to Bass against the layoff of Sutton, McConville, and Eduardo Sanchez, and Sumner there- upon undertook to explain to them the reasons for their discharge. The group con- tinued to argue further with Sumner. At that time he told them he would try Sutton again even though he had` proven himself to have poor ability but that so far as McConville and Eduardo Sanchez were concerned, he could not keep them. After considerable discussion, Elwertowski, Lake, Lazore, Prinzi, Manuel Sanchez, Amador Sanchez, and Lazare Sanchez left the shop, got in their cars, and drove away. This was about 9 a. m. They sought out Arthur G. Carey, a union repre- sentative with whom they previously had met, and informed him what had hap- pened.' At the time the 7 men left the plant premises, other employees in the shop, who had been listening to the discussion, returned to their work in the shop; that is, 7 out of approximately 35 shop employees left their work at that time. 'Sumner had also determined with Bass on December 3 to pay off a night-shift man and that man, Joe Rivera, was laid off and so advised on December 4 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At about 2.30 p. m. on that day, Manuel Sanchez returned to Sumner's office and informed Sumner that he wanted his job back; Sumner told him that he no longer had any work for him and at that, Manuel asked permission to go into the factory and get his clothes. While in the office, Manuel was given his pay and also the pay due his father, Amador Sanchez, and his brother, Lazare. About an hour later on that same afternoon Elwertowski, Lazore, and Prinzi returned to the plant and called at the office and asked for their pay. Sumner does not recall that any of them asked for their jobs back. According to Manuel Sanchez. when he returned to the plant, he hung his coat on a nail next to Bass' bench with the intention of going to work, but before he was able to ask Bass what work he should do, Sumner informed him that he had no work for him. Elwertowski testified when he and the other men with him returned to the plant, after Carey had instructed them to return and apply for their jobs, they met Manuel Sanchez, who told them that Sumner did not need them any more, and that he and the other men then went back and received their checks from Mr. Sumner in the lobby of the plant. He said that this group comprised himself, Lazore, McConville, Sutton, and Lake. Elwertowski said that after receiving their checks the group left the plant. It is clear enough, therefore, that on the afternoon of this day Sumner refused to reemploy Manuel at Manuel's either expressed or implied request to work, and that the other men who had walked out that morning did not directly ask Sumner for work or for permission to return to their jobs. The version of Manuel Sanchez as to what occurred a few minutes before 8 o'clock on the morning of December 4 and in the next hour or so is this- That he, together with his brothers Lazare and Eduardo, punched in on the time clock at 8 o'clock, changed clothes, and started to work; that a few minutes after 8 o'clock he saw Sumner talking in the lobby of the plant to Eduardo, Sutton, and McConville and that he then went into the lobby and asked what had happened because his brother was in street clothes. After talking to Sumner and the others he went into the shop and told "everyone" that his brother, McConville, and Sutton were fired and that the men working decided to stop work and to talk to Mr. Sumner and ask him why he had decided to fire the three men; that Sumner told him that he had fired McConville and Sutton because they were "inflexible" and because his brother was incompetent; that they "kept arguing about why he fired these people and trying to get them back" and that he, Manuel, then told Sumner that if he did not "hire these people we was going out in sympathy;" that while he was walking back and forth in the lobby inside the plant, Bass asked him if the men were going back to work and he told Bass that they were still arguing with Mr Sumner but that it was foolish because by 12 o'clock the union representative was going to meet Sumner; that Bass asked him what union and Manuel told him the "TAM"; that Sumner called Bass into the office where they held a private discussion for about 15 minutes and that Sumner then called out and said "I don't care what you people decide, because I am not going to rehire the people I fired this morning." Thereupon 9 men including the 3 who had been discharged that morning walked out, Lake having previously left. The testimony of the witnesses concerning the occurrences of the morning and afternoon of December 4 are not in essential conflict. Sumner and Bass testified that after Manuel had received his pay and the checks for his father and brothers, he went into the shop and started to talk to the employees concerning the Union and the sympathy walkout, while Manuel claims that Sumner took him into the room where he kept his clothes and followed him around the shop until he left. The Respondent implies that Manuel induced the employees who walked out to do so after Manuel had tried to pressure Sumner into keeping Eduardo Sanchez. However this may be, it is clearly established by the evidence in this case that Sumner had fully made up his mind to discharge Sutton, McConville, and Eduardo Sanchez on December 3, and that Bass executed his orders by informing the men of their discharge at or about the time they reported for work on the morning of December 4; that Sumner made clear to these and the other employees gathered around the reason for the layoff and that the walkout occurred as the result of the discharge of these three men. Whether, from the facts as related above, it is determined that Sumner received through Manuel Sanchez a request from all of the six other men who had walked out with Manuel for permission to return to work, or whether it is determined that Manuel was the only one who requested his job back, is immaterial in the deter- mination of whether the men engaged in a protected concerted activity when they left their jobs in protest against the discharge of Eduardo Sanchez, McConville, and Sutton. A. Union activities Manuel Sanchez testified that he joined the Union in November 1952 and that his father and brothers, Prinzi, Elwertowski, Sutton, and McConville also attended ARTHUR H. SUMNER 239 two meetings of the Union attended by the Sanchez family during November. These men and perhaps others (the record is not completely clear) met with Arthur G. Carey, a union representative, at these times in November 1952, and he instructed them in connection with the securing of signatures to union authorization cards or membership cards in the Union. At this time it was customary for overtime to be worked each day in the plant, and it appears that the men were concerned about losing overtime pay through a shortening of hours by Sumner. It appears that on December 3, Sumner had announced that he was reducing the workday from 10 hours to 9 hours, and that these men or some of them, including the 3 who were discharged the next day, had left the plant early that afternoon to talk to Carey, which was the reason why Sumner or Bass could not inform them that afternoon that they were to be discharged or laid off. On the morning of December 4, after the 3 men had been discharged and the other 7 men had walked off the jol7 in sympathy, they sought out Carey and con- ferred with him concerning the situation which had arisen; and it was upon Carey's advice, apparently, that Manuel returned and asked Sumner or indicated to Sumner and Bass that he was ready to return to work. Within the following day or two, Carey called upon Sumner at the latter's office and requested on behalf of the men that they be given their jcbs back. Upon Sumner's refusal to rehire the men, a picket line was established in front of the plant and was maintained for about 2 or possibly 3 weeks. In the meantime operations continued at the plant-the employees who had not walked out remaining on their jobs, except for a skilled setup man. Carey testified that during the course of his several conversations with Sumner while the picketing was in progress, he offered to do his best to persuade Republic, who had given Sumner work to do on certain forgings, to supply Sumner with a sufficient number of the unfinished forgings for Sumner to replace the men at their original work in the machine shop. The first intimation that Sumner had that the men were interested in the Union was Manuel Sanchez's assertion to Bass, on the morning of December 4, that a union representative was coming in at or before 12 o'clock that morning to see Sumner. Elwertowski testified that while he, Prinzi, and Manuel Sanchez were on the picket line, perhaps a week or so after December 4, Sumner called them into the lobby of the plant and told them they were just wasting their time walking up and down; and John C. Davey, employed by Sumner on December 3, 1952, for work in the boat shop, testified that when the walkout took place he asked Sumner if, because he carried a card with the Union and also with Republic, he would be required to walk out and that Sumner told him that he did not have to because he was in a different department. On the preponderance of the testimony, the Trial Examiner finds that neither Sumner nor Bass nor any other representative of management had any knowledge of the union activities or interests of any employee of the Respondent prior to December 4, 1952 2 B. The Respondent's reasons for not reemploying the discharged men In the machine shop, the Respondent employed both male and female employees as machine operators together with a skilled setup man and a tool- and die-maker. The work of the machine operators, it is contended by the General Counsel, at all times was interchangeable as between the male and female operators . This conten- tion is not borne out by the testimony in the case. It appears, rather, that the female employees customarily were given work to do on the same types of machines as those used by the male employees but the work assigned to them involved the processing of materials or pieces lighter in weight or requiring less handling and lifting than those worked on by the male employees; that, at times, because of production require- ments, male employees were assigned to do the lighter work performed by the female employees because the heavier work was not in the shop; and also that during a lesser number of times some female employees might work on the heavier material. It seems clear that the policy of the shop was to give the female operators the lighter work at which it was found they were more adept. There were so-called long-run jobs-that is orders in larger volume for a larger number of pieces. There were also the so-called short-run jobs, which were orders to be filled for a lesser volume of finished work. Customarily, when a new job was started , Bass, as the foreman in the shop, instructed the so-called unskilled ma- 2 It appears that the International Association of Machinists filed a petition for certification as representative with the Board on December 16, 1952, and that the petition was withdrawn by it on January 19, 1953 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD chine operators how to perform a particular task and, once having been so in- structed, the machine operator was able to continue the job and the work without fur- ther instruction. The same thing of course held true on the short-run jobs, so that it was the fact that there were no long-run jobs in the shop or a lesser number of long- run jobs in the shop on December 3 that caused Bass to complain to Sumner that he, Bass, did not have the time to keep continually instructing all the machine operators on short-run jobs, and that it would be more economical to discharge some of the machine operators which would increase the length of the short-run jobs for other remaining machine operators. As noted above, Sumner finally agreed, and it was for this reason among others that he instructed Bass to discharge Sutton, McConville, Eduardo Sanchez, and Rivera of the night shift on December 4. Prior to that time, too, there had been a falling off of orders in the shop and Sumner testified that he had had under consideration for some time the possibility of reducing his force of machine operators because of lack of available work. As of December 4, Sumner said that he had definitely made up his mind to discharge Rivera on the night shift and on the recommendation of Bass to discharge Sutton, McConville, and Eduardo Sanchez, and also had fairly well made up his mind to discharge other machine operators during the month of December. To use his words he said that at that time he had considered reducing the staff considerably because it was impossible with the type of work "which we now had to do, which we were doing at that time, for the few set-up men to supervise and set up so many unskilled people I only planned to lay off unskilled. I was at all times, and to this date, am still looking for a tool and die maker and machinist." In response to a question as to whether he had decided on any particular date as to when he would lay off the additional people he replied that he had decided only in a rather vague way that he would lay off a few employees at a time, "but I did not wish to cause too much confusion and dissatisfaction in the shop by a large layoff shortly before Christmas. So, therefore, I minimized-I kept the number of people laid off to the minimum, and figured I would lay the others off in smaller handfuls by about Christmas or a little before or after." Further, in answer to a question as to whether the seven men who walked off the job on December 4 would have been separated in any event, he replied that those men probably would have been laid off based on the short time of their service with him-that they worked from periods ranging from 2 days to 5 months and 10 days, with most of them the average being about 3 months. Aftei the walkout on the morning of December 4, Sumner with Bass reviewed the work schedules, orders on hand, and the combination of work requirements in those respects and almost immediately, that is within the next 2 or 3 hours, arranged production schedules and found that 8 machine operators could be eliminated, and that he could get along very well without the services of the 7 who had walked off the job that morning. Sumner testified positively that at the time that afternoon when Manuel Sanchez attempted or expressed his desire to return to work he, Sumner, had firmly made up his mind that he would not reemploy any of the men who had walked off the job that morning. The record in the case is destitute of any evidence in contradiction to the statement of Sumner that he made the survey during these hours and that the results of his survey justified his refusal to return these men. On the contrary, the records produced at the hearing adequately demonstrate the truth of Sumner's report concerning business conditions just prior to and after December 4. The dollar volume of sales for the periods shown in the margin below indicate that Sumner had reached a proper decision prior to that date when he decided upon a reduction in his work force in the machine shop' Further in support of his contention that the Respondent discriminated against the seven men who left work on December 4, the General Counsel introduced evi- dence intended to show that the Employer had hired other people subsequent to the layoff to work in the machine shop. The Respondent countered by showing that 8 The dollar value of shipments for the month of September 17, 1953, amounted to $17,565 80. The record also shows the following dollar value shipments for the months shown 1952, 1953 : August --------------- $ 39,623.58 January------------- $38,955.52 September ------------ 43, 945. 50 February ------------- 19, 233. 93 October-------------- 38, 131. 27 March --------------- 25, 502. 90 November------------ 43,328 66 April---------------- 28,484.55 December ------------ 30, 013. 83 May----------------- 30, 003. 83 Roughly these recoids show a drop in business for the 5-month period before and the 5-month period after December 1, 1952, of approximately $60,000. ARTHUR H. SUMNER 241 greater emphasis was placed after March 1953 on the boat building operation con- ducted by him and that during July 1953 it advertised machinery for sale which was in the machine shop and did dispose of a number of machines and, at the time of the hearing, was attempting to dispose of the remainder of those advertised for sale in July. The Respondent points out, too, that on the day following the walkout its one experienced setup man quit his job and that thereafter, because he had not been able to replace that man, he would in any event have been unable to utilize the_ services of any of the seven men even had he not discharged them or recalled them to work. The Respondent to this Trial Examiner, on the preponderance of the evidence, has effectively refuted the claim of the General Counsel that other employees were hired subsequent to December 4, to take the place of the seven men who left their jobs on that day. The Respondent contends, and the record bears him out, that the following categories of employees only were hired after December: 1. Skilled men. 2. Veterans (GI apprentices). Sumner had used the "GI trainee" program since about November 10, 1950, for reasons expressed by him in the following words: Well, in the first place, it was virtually impossible to hire good ' tool and die makers at a reasonable price. Secondly, it was virtually impossible to hire good tool and die makers at any price. If we would just take a man who is not a GI and train him, after he was with us a few months and just received a smattering of the business, he could go out and command a high pay. Therefore on the basis on which we could afford the apprentice if he received an apprentice pay from us, and additional subsistence pay from the government , which only a GI would receive-therefore we did not consider anyone else except a GI. 3. Female machine operators whose duties, the Respondent contends, were sub- stantially different from those of male machine operators. 4. One male machine operator, Elwertowski , who was rehired after he walked out on December 4 for work as a helper in the boat shop and who, at a time when there was no work there for him, was transferred back to the machine shop , and who after that transfer voluntarily quit and who has not since been replaced. 5. Experienced carpenters and skilled boat builders who were hired for work- in the boat shop C. Alleged interrogation and coercion John C. Davey, a witness called by the General Counsel, was hired shortly before December 3 and remained in the employ of the Respondent for about 2 weeks there- after. He testified that he was hired to work in the boat shop; that at the time he was hired, Sumner "asked me how I felt against unions," that he told Sumner that he was a member of the Union and that the Union did "sort of stand behind me" while he was employed at Republic Aviation and that Sumner said "okay," and hired him. He was hired sometime in October or November 1952. After the walkout on December 4, and after working in the boat shop, he was taken out of the boat shop and put on a lathe in the machine shop . On the day of the layoff he asked Sumner whether or not he could continue work because he was a member of the Union and Sumner in effect told him that he was working in another department and was under no obligation to walk out with the rest. He continued at work until he left voluntarily. Elwertowski , who was rehired by Sumner in January 1953 to work in the boat shop, testified that after he had begun work there that he had told his supervisor that he intended to ask for more money or "I am going to quit"; that a few minutes later Sumner came in, asked him if he had talked to a field investigator of the Board and whether he or Eduardo Sanchez had signed a union card and when he said "yes" that Sumner remarked "you won't work here", and that a few days thereafter he quit his job; Sumner testified that during the course of this conversation he asked- 4 At the time of the hearing 18 people were employed by the Respondent, including 2 in the office Of 16 persons employed otherwise, 1 was in the boat department. The payroll records made available at the hearing disclosed the following number of male and female employees, respectively, for the payroll dates shown : 1952: November 29, 25 male-6 female December 6, 26 male-6 female December 13, 15 male-6 female December 20, 15 male-6 female 1953: January 17, 14 male-6 female January 24 , 14 male-6 female February 4, 13 male--6 female February 28, 12 male-6 female June 27, 12 male-7 female September 26, 11 male-6 female. 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Elwertowski whether the men had joined the Union before or after the walkout, and told him that an unfair labor charge had been brought against him (Sumner) and that it was his duty to tell the truth and have no false sense of responsibility to other people and that he appealed to his sense of fair play to be truthful in his answers to the questions of the field investigator. He also told Elwertowski that from all he knew the men did not join the Union until after the walkout and that Elwertowski told him that they had joined about a month before the walkout. In support of the allegations of the complaint concerning interrogation by the Respondent, the General Counsel brought out at the hearing that an attorney for the Respondent, who appeared as counsel for the Respondent at the hearing herein, had privately interrogated certain employees of the Respondent after the filing of the charge by the Union on February 5, 1953, and before the issuance of the complaint herein. He also offered in evidence an original letter signed by counsel for the Respondent addressed to a field investigator in the Regional Office of the Board dated March 27, 1953, in which counsel for the Respondent advised the field repre- sentative that he had made an investigation of the charge and was convinced that it was unfounded and among other things said "After speaking to the group and finding no shred of any evidence of any union activity, I spoke to a number of individual employees privately and with no one else present, and these individuals repeated the same story indicating no union or organizing activity." The offer of the document was rejected by the Trial Examiner at the time the document was offered. The General Counsel pointed out that the Board has held that an attorney for a company officially may, in preparing his case for trial, interrogate to get the facts and can ask employees certain questions which normally might be prohibited by the Act. In response to a question from the Trial Examiner, whether it was his contention that before an attorney representing an employer may interrogate, a complaint must have issued, the General Counsel replied that that was his position. The Trial Examiner disagreed with him and rejected the offer. No testimony or offer of proof had been made to the effect that counsel for the Respondent, at the time he questioned these employees, had engaged in any improper activity forbidden to him as a representative of the Respondent. The Trial Examiner is unaware of any rule of law or reason, or any part of the canons of ethics governing the behavior of attorneys, which would prohibit counsel , in the circumstances of a case such as this, from inquiring into the facts of the particular case in order properly to advise his client. Other than these reported incidents, the record is barren of any testimony of activities on the part of the Respondent or his responsibile agents which could be construed as intimidation, threatening of employees, or coercion. There is a com- plete lack of proof that the Respondent had any knowledge whatsoever of the interest of any of his employees in the Union before Sanchez spoke to Bass and the employees in the shop on the morning of December 4. In the opinion of the Trial Examiner, the General Counsel has failed to sustain the allegations of the complaint which charge the Respondent with interfering with, restraining, and coercing its employees by interrogating them concerning their union membership and activity or other con- certed activities, and threatening and coercing his employees with loss of jobs and other reprisals if they joined or assisted the Union or engaged in other concerted activities. Summary The essential facts in this case are not in dispute. Sometime during November 1952, some of the employees of the Respondent became interested in joining the Union, and did apparently join the Union or sign authorization cards which they gave to the Union to represent them, and undertook to solicit other employees to join the Union, all without the knowledge of the Respondent, their employer. At and during this time, the Respondent, because of a dropping off in business and because of the internal organization of his machine shop, was seriously considering laying off or discharging a number of the unskilled machine operators employed in the machine shop and on December 3 had finally determined, upon the recom- mendation of his foreman, to discharge 3 employees employed on the day shift and 1 employee employed on the night shift. Also, at this time the Employer determined to reduce the number of hours worked each workday from 10 to 9.5 5 At the hearing, the General Counsel undertook to prove that overtime work continued after the discharge of the 3 men and the walkout of the other 7 men on December 4 ; the Respondent effectively countered this by showing that production schedules and the operation of the shop, once a job was set up, made it more economical to work overtime hours on particular jobs, and that the same situation prevailed after December 4. ARTHUR H. SUMNER 243 The evidence herein clearly shows that on the morning of December 4 the 7 men walked out of the plant and quit their work in sympathy and in support of their request that the 3 discharged men be continued in employment; and it is equally plain that Sumner refused to accede to their request and adhered to his original decision regarding the discharge of these men. The first knowledge the employer had of the interest of any of his employees in the Union occurred after he had discharged the three men on that morning; there is not an iota of proof in the record that the discharges had anything to do with the union membership or activities of these or any other employees. The payroll records and the financial records of the Respondent, made available at the hearing and summarized in the evidence, support the Respondent's statement that he was justified in deciding, after the walkout and on the same day, that he could very well rearrange his production schedules and get along without the services of the seven men who had left their jobs, and further, that he previously had planned to make further layoffs during the month of December because of changing business conditions. On the evidence herein, any suspicion that Sumner took advantage of the walkout in order to get rid of these men because of their union membership or activities on behalf of the Union, must be regarded as unfounded. Although there is some color of proof in the record that the Respondent replaced some of the strikers, as contended by the General Counsel, the existence of the fact is refuted by the showing by the Respondent in carrying the burden of the evidence to the contrary and demonstrating that such hirings as were made were not in derogation of rights if any the strikers may have then had to their jobs. Concluding Findings The 7 men, when they left their jobs in protest against the discharge of 3 fellow employees, became economic strikers. In Kallaher and Mee, Inc., 87 NLRB 410, the Board said, "The Board has generally recognized that a strike to protest a nondiscriminatory discarge is protected concerted activity. When, as here, the strikers believed the discharges were discriminatory, we have further held that it may reasonably be assumed that the strikers acted on their own behalf, anticipating similar reprisals against themselves." In the instant case, the greatest inference that can be drawn from the scant testi- mony in the record is that these employees anticipated that they might be subjected to loss of overtime pay, and therefore decided among themselves to ask the Union to intervene on their behalf. There is no evidence in the record-indeed, all inferences to be drawn are to the contrary-that the 7 men who walked off the job did so because they believed that their 3 fellow employees had been discriminated against, or that they themselves might later be affected. In this case, the obligation of the employer which arose towards them at the time they walked off seems best defined under the rule laid down in N. L R. B. v. Mackay Radio (t Telegraph Co., 304 U. S. 333, wherein the Supreme Court held that an employer whose employees have struck and who has committed no unfair labor practice is not obliged to discontinue his business but may hire others in the place of these strikers. The employer's obligation to reinstate in such case extends only to such of the striking employees as have not been replaced during the strike. See also Globe Wireless, Ltd., 88 NLRB 1262, wherein the Board said, "The Trial Examiner correctly found that as the strike was in protest against a lawful discharge it was an economic strike, and respondent was free to replace such strikers at any time prior to their unconditional request for reinstatement." Carey, a day or two after the strikers had walked out, made an unconditional request for reinstatement on their behalf to Sumner, and Sumner, in reply to Carey, simply told him that the jobs were not to be refilled because he had made up his mind to do with a smaller number of machine shop operators. As pointed out above, Sumner adhered to his decision and no male machine operator ever was hired, subsequent to the walkout, to replace any of these economic strikers. He did, of course, reemploy Elwertowski for a short period of time until the latter voluntarily left. Consequently, the greatest right enjoyed by any of these economic strikers at the present time would be the right to a job only in the event that Sumner decided to resume operations as they were at the time of the walkout and again rehire male machine operators. Even this color of right is insubstantial, because the testimony herein clearly shows that all of them would have been laid off at least by January 1, 1953. On the facts of this case, it is the opinion of the Trial Examiner that these economic strikers have no present right of reemployment. On the morning of December 4, the 7 men who walked out did so in an effort to persuade Sumner to change his mind and not discharge the 3 men. During the 334811-55-vol. 109-17 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discussion with Sumner, just prior to the walkout on that morning, none of these men raised any question about Sumner's decision to reduce the workday by 1 hour with a consequent loss of an hour's overtime pay, nor did any one of them raise any question about future layoffs or discharges. The testimony of Sumner, Manuel Sanchez, and Elwertowski discloses that the whole purpose of the walkout was in protest against the discharges of Sutton, McConville, and Eduardo Sanchez and for no other reason. A similar situation existed in Fontaine Converting Works, Inc., 77 NLRB 1386. In its decision in that case the Board said: 2. The Trial Examiner found that the Respondent violated Section 8 (3) and (1) of the Act by discharging the finishing room employees because they engaged in an economic strike in protest against the Respondent's appointment of Albert Sasseen as general foreman over their immediate foreman, Luther Hopkins. We do not agree. The record is clear, and we find, that the employ- ees in question walked out, not to advance their own interests, but merely to further the interests of their foreman who they believed was demoted because of the appointment of the new general foreman. Under these circumstances, their concerted activity was not of the character protected by the Act. Accord- ingly, we find, contrary to the Trial Examiner, that the Respondent did not discriminate against the finishing room employees. There the Board distinguished on the facts that case from Container Mfg. Co., 75 NLRB 1082, where the Board found the employees' strike activity in protest of a forelady's discharge to be protected. There, the employees struck because they reasonably believed that the forelady's discharge was due to her organizational activ- ity and, therefore, the employees could reasonably assume and anticipate similar reprisals against them for their union activity. Again in Kallaher and Mee, Inc., supra, the Board in stating the general rule that a strike to protest a nondiscriminatory discharge is protected concerted activity, said (footnote 9, p. 412) "The present facts are clearly distinguishable from those in Fontaine Converting Works . . , where the Board found that the employees in question walked out, `not to advance their own interests, but merely to further the interests of their foreman who . . . was demoted.' " The principle stated by the Board in Fontaine Converting Works, Inc., supra, is precisely applicable here. However, it does not seem necessary to have to go so far as to apply the rule. In the instant case, Sumner, according to his best judg- ment, had a right, after the walkout on December 4, and before any of the men applied for reinstatement, to decide to discharge them permanently, and the Trial Examiner so finds. The evidence introduced to support the allegations of the complaint with respect to intimidation and coercion have been discussed above. The Trial Examiner finds that in the reported conversations with Davey and Elwertowski, during the times when the Union or union membership was discussed, Sumner did not exceed the bounds of propriety and that his statements did not constitute threats of reprisals or discharge and cannot possibly be construed as such. In any event, even assuming that his statements or remarks were improper, each of them was so isolated in point of time and circumstance as not to justify the recommendation of a remedial order in these respects. The Walmac Company, 106 NLRB 1355; New Mexico Trans- portation Company, Inc., 107 NLRB 47. Greenberg, counsel for the respondent who interviewed employees privately after the filing of the charge by the Union, in the absence of any showing of threats or coercion by him, did not, as a representative of the Respondent, in any way con- travene any of the provisions of the Act. CONCLUSIONS OF LAW 1. International Association of Machinists, AFL, is a labor organization within the meaning of Section 2 (5) of the Act 2. The operations of the Respondent, Arthur H. Sumner, doing business as Ateco Products, constitute trade, traffic, and commerce among the several States, within the meaning of Section 2 (6) of the Act. 3. The Respondent has not engaged in and is not engaging in unfair labor prac- tices within the meaning of Section 8 (1) of the Act. 4. By discharging and refusing to reinstate or reemploy Henry Elwertowski, George Lake, John L Lazore, Louis Prinzi, Amador Sanchez, Lazare Sanchez, and Manuel Sanchez, the Respondent has not engaged in and is not engaging in unfair labor pactices within the meaning of Section 8 (3) of the Act. [Recommendations omitted from publication.]