Standard Lime & Stone Co.

In the Matter Of STANDARD LIME & STONE COMPANY and BRANCH No. 175, QUARRY WORKERS INTERNATIONAL UNION OF NORTH AMERICA Case No. C-200.-Decided February 4, 1938 Limestone Quarrying and Cement Manufacturing livid itstry-In terference, Re- straint, or Coercion: refusal to bargain collectively-Unit Appropriate for Col- lective Bargaining: all employees, except officials and top foremen ; history of collective bargaining relations with employer; eligibility for membership in both rival organizations-Representatives: proof of choice : membership in union ; par- ticipation in strike called by union, as-Strike: prolonged by employer's unfair labor practices-Employee Status: strikers-Company-Dominated Union: charges dismissed-Collective Bargaining: refusal to negotiate with union-Rein- statement Ordered: strikers upon application, except eight pleading guilty to serious crimes in connection with strike-Back Pay: ordered to employees whose applications for reinstatement are refused by respondent. Mr. Jacob Blum, for the Board. Mr. Lacy I. Rice, of Martinsburg, W. Va., for the respondent. Mr. Warren L. Sharfman, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On May 19, 1937, James B. Foreman, representing Branch No. 175, Quarry Workers International Union of North America, herein called Branch No. 175, filed a charge with the Regional Director for the Fifth Region (Baltimore, Maryland) alleging that Standard Lime & Stone Company, Martinsburg, West Virginia, herein called the respondent, had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On July 27, 1937, the National Labor Relations Board, herein called the Board, by the Regional Director for the Fifth Region, issued its complaint against the re- spondent, alleging that the respondent had engaged in and was en- gaging in unfair labor practices affecting commerce, within the mean- ing of Section 8 (1), (2), and (5) and Section 2 (6) and (7) of the Act. In respect to the unfair labor practices, the complaint alleged in substance (1) that the respondent, in or about July 1935, had initiated, 106 DECISIONS AND ORDERS 107 .sponsored, and formed a labor organization known as the Independent Employees Organization of the Martinsburg Plant, Standard Lime & Stone Company, herein called the Independent, and subsequently par- ticipated in, dominated, and controlled its administration; (2) that on July 15, 1935, the respondent refused to bargain collectively with Branch No. 175, which had been designated by a majority of the em- ployees who were employed by the respondent in the various depart- ments of its Martinsburg plant; (3) that the respondent, by the fore- going acts, and by certain other acts, had interfered with, restrained, and coerced, and is restraining and coercing its employees in the exer- cise of their right of self-organization, to form, join or assist labor organizations, and to engage in concerted activities for the purpose of mutual aid and protection. The complaint and accompanying notice of hearing were duly served upon the respondent and Branch No. 175. On August 2, 1937, the respondent filed a motion to dismiss the complaint on the grounds (1) that the Board had denied the petition of Branch No. 175 to reopen a case, previously closed by an order dismissing the complaint, which was based upon the same facts,' and thus indicated that there was no good cause shown for the issuance of a new complaint; (2) that the orders of the Board had made the issues in this case res judicata; (3) that Branch No. 175 was guilty of lathes since the charge upon which the complaint was based was filed two years after the events which it described; and (4) that there were constitutional and jurisdictional objections to any action by the Board. On August 5, 1937, the Board, after hearing argument by counsel for the respondent and the Board, denied the respondent's motion. On August 9, 1937, the respondent filed an answer to the complaint, which denied, in substance, engaging in the alleged unfair labor practices, but admitted certain allegations as to the nature of its business. Pursuant to the notice, a hearing was held in Martinsburg, West Virginia, on August 12, 1937, before Frank Bloom, the Trial Ex- aminer duly designated by the Board. At the hearing the Board and the respondent entered into a stipulation which provided that the •entire record in Matter of Standard Lime and Stone Company and Branch No. 175, Quarry Workers International Union of North 131atter of Standard Lime & Stone Company and Branch No. 175, Quarry Workers International Union of North America, Case No. C-82 (V-C-11). The Board ' s order dismissing the complaint "without prejudice" was issued on June 16 , 1936, after the -decision of the Supreme Court on May 18, 1936 in Carter v Carter Coal Co , 298 U. S. 238. On June 23, 1937, subsequent to the decision of the Supreme Court on April 12, 1937, in National Labor Relations Board v Jones & Laaphlin Steel Corporation, 301 IT. S 1, Branch No. 175 petitioned the Board to reinstate the complaint . On July 23, 1937, the Board issued an order denying the petition without prejudice to the petitioner's Tight to file a new charge. 108 NATIONAL LABOR RELATIONS BOARD America, Case No. C-82,2 should be considered as though it had been made as the record in this case. This record, including the pleadings, a transcript of the testimony taken at the previous hear- ing, and the Trial Examiner's Intermediate Report, was introduced in evidence and made an exhibit in the present proceeding. The Board and the respondent were represented by counsel and participated in both hearings. Full opportunity to be heard, to ex- amine and cross-examine witnesses, and to introduce evidence bear- ing upon the issues was afforded the parties at both hearings. Dur- ing the course of the proceedings the Trial Examiners made several rulings, on motions and on objections to the introduction of evidence. The Board has reviewed the rulings of the Trial Examiners and finds that no prejudicial errors were committed. The rulings are hereby affirmed. In his Intermediate Report on the hearing in Case No. C-82, filed April 14, 1936, John D. Moore, the Trial Examiner, found that the respondent had engaged in unfair labor practices affecting com- merce, within the meaning of Section 8 (1), (2), and (5) and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist from these violations, that the respondent discharge all production employees who were not employed by it on June 17, 1935, and that it reinstate to the vacancies so created or place on a seniority list, all striking employees except those who had pleaded guilty to illegal acts in connection with the strike which began on April 24,1935. No Intermediate Report was filed on the second hear- ing. Exceptions to the Intermediate Report were filed by the re- spondent on April 23, 1936, and August 27, 1937, and by Branch No. 175 on April 25, 1936. The respondent also filed a brief upon its exceptions to the Intermediate Report. On September 1, 1937, the respondent presented oral arguments before the Board in support of its exceptions. The Board has considered the exceptions to the Inter- mediate Report filed by Branch No. 175 and finds them to be without merit. We have also considered the respondent's exceptions to the findings, conclusions, and recommendations of the Trial Examiner, but, save for these exceptions which are consistent with the findings, conclusions, and order set forth below, we find them to be without merit. As set forth below, we find that the evidence supports the findings and conclusions made by the Trial Examiner in his Intermediate Re- port that the respondent has engaged in unfair labor practices affect- ing commerce, within the meaning of Section 8 (1) and (5) and Sec- tion 2 (6) and (7) of the Act. However, we find that the evidence 2 Originally Case No V-C-11. See note 1, supra The complaint and answer, in substance, were the same in the 'former case as they are in the present case , and the same events are involved in both cases. DECISIONS AND ORDERS 109 does not sustain the allegations of the complaint that the respondent initiated, sponsored, and formed the Independent, and subsequently dominated and controlled its administration, pursuant to an unfair labor practice within the meaning of Section 8 (2) of the Act, and the complaint in so far as it involves these allegations will be dismissed. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Standard Lime & Stone Company is a Maryland corporation with its main office in Baltimore, Maryland. Among the properties which it operates is the Martinsburg plant located near Martinsburg, West Virginia. The Martinsburg plant covers a tract of 265 acres of land where the respondent is engaged in the quarrying, crushing, and screening of limestone, and in the manufacture of cement, "staflux", and other products of limestone. The respondent also manufactured lime at this plant until.October 1935. The principal materials used by the respondent in its manufactur- ing processes are limestone, gypsum, mill,scale, and shale. The lime- stone and shale are quarried at the plant, but the gypsum and mill scale are brought to Martinsburg by rail from New York, Pennsyl- vania, and New Jersey. In 1935, the respondent purchased 2,620 net tons of gypsum and 3,005 gross tons of mill scale, amounting to one per cent of the materials that it used, outside of West Virginia. In addition it purchased 45,000 tons of coal, which, though originating in West Virginia, crossed State lines before being delivered at the Martinsburg plant. The machinery and equipment purchased by the respondent for use in quarrying and manufacturing at the Martins- burg plant has its origin outside of West Virginia. During the year-1935 the respondent produced 301,061 gross tons of stone, 395,169 barrels of cement, 21,160 net tons of "staflux", and 22,017 net tons of lime at its Martinsburg plant. During the same period 83 per cent of respondent's sales were made in ten States, other than West Virginia, and in the District of Columbia. The remaining 17 percent of the products sold by the respondent were shipped to points in West Virginia, but all of them, with the exception of two. or three per cent, crossed State lines before reaching their destination in West Virginia. The respondent has a trade-mark, registered with the United States Patent Office, for use in commerce among the several States. II. THE ORGANIZATIONS INVOLVED Branch No. 175, Quarry Workers International Union of North America is a labor organization that was established on July 28, 1933, 110 NATIONAL LABOR RELATIONS BOARD among the employees of the respondent 's Martinsburg plant, and the -employees of other quarries in the vicinity. It admits to member- ship all of the employees of the respondent except officials and top -foremen. The Independent Employees Organization of the Martinsburg Plant, Standard Lime and Stone Company, is an unaffiliated labor organization established late in June or early in July 1935, which .admits to membership all persons employed at the Martinsburg -plant except officials and foremen. III. THE UNFAIR LABOR PRACTICES A. The background of the unfair labor practices Early in July 1933 the respondent presented an employee repre- sentation plan to its employees. This first attempt at organization .of the workers in the Martinsburg plant failed to receive the approval 'of the men and was soon abandoned . Shortly thereafter , however, Branch No . 175 was organized among a substantial group of the -respondent's employees. In November 1933 it submitted an agree- ment to the respondent, but although it was discussed it was never put into effect. Nevertheless , Branch No. 175 was recognized by the -respondent as representing many of its employees , and Jerome N. Maisel, the plant superintendent, periodically met with the repre- sentatives of Branch No. 175 to discuss grievances. From Novem- ber 1933 until April 1935 many grievances were settled in this way, to the satisfaction of the men and the management . The most -serious controversy arising during this period involved the activities of a foreman who was objectionable to Branch No. 175. After a -one-day strike, the respondent suspended , and later discharged, the .offending foreman. Branch No. 175 proposed a second agreement to the respondent on April 2, 1935 . This agreement provided for a closed shop, wage in- creases, overtime rates of pay , and certain other features relative to -tlie working conditions of the men. Although the agreement was not presented to the respondent until April 2, 1935, officials of the respond- ent had been meeting with a committee of Branch No. 175 two or three -times a week during the month of March to discuss the provisions of -the proposed agreement. These conferences continued with the same -frequency for a period of three weeks after the submission of the -agreement . The lengthy discussions that took place centered around the closed-shop provision and the question of a signed contract. The latter question proved to be the real stumbling block to an accord be- tween the parties, and on April 23 the committee for Branch No. 175 informed the respondent that they would strike on the following day DECISIONS AND ORDERS 111 unless an agreement was signed. The respondent then attempted to get a conciliator from the United States Department of Labor to inter- vene. However, a conciliator was not available until April 26, and Branch No. 175 refused to postpone its decision to strike. On April 24, 1935, Branch No. 175, which represented approximately 98 per cent of the respondent's 390 employees, called a strike and the respond- ent stopped operations at the Martinsburg plant. Only such employees as were needed to pump water from the quarries and perform other essential maintenance operations remained at work. A total of 74 persons worked during May. On April 26, Mr. Colvin, a conciliator from the United States De- partment of Labor, arrived at Martinsburg, and the respondent and Branch No. 175 conferred once more. Colvin's suggestion that the men return to work under the old conditions during the course of further negotiations, and that those conditions be embodied in a bul- letip, a copy of which would be filed with the Department of Labor, was unacceptable to Branch No. 175 because it was sure that the respondent would not sign the bulletin. Frank Thomas, the general' superintendent for the respondent, testified that he never refused to, sign the bulletin. Actually, the question of signing the bulletin was never specifically raised at the conference. Sometime between this conference and June 3 the respondent's officials had a further meeting with the representatives' of Branch No. 175 and A. C. McIntire, their attorney. Nothing came of this meeting, and the strike continued. On June 3, representatives of the respondent and Branch No. 175• met again, this time with Colvin and John B. Easton, the president of the West Virginia State Federation of Labor. At this d'onference^ Branch No. 175 agreed to give up its demand for a closed shop, but the question of a signed contract still proved an insurmountable ob- stacle to an agreement between the parties. Branch No. 175 once more refused the respondent's offer to have the men return to work under the old conditions during the course of further negotiations. In spite of this the parties were still on friendly terms. Thomas testified that on June 9 a few of the men had come to hirer and asked to return to work. He told them that they should go to Branch No. 175 and get a vote on this question. The following day the men told him that Branch' No. 175 refused to allow a vote to be taken on the matter. Thomas was angered by this information, and so decided to reopen the plant in accordance with the instructions he had received from the respondent's main office in Baltimore. Ac- cordingly, a meeting was arranged for June 11. Thomas, after being informed again by the respresentatives of Branch No. 175 that the men would not work without a signed agreement, told them that in view of their failure to prove their position, and their refusal to 112 NATIONAL LABOR RELATIONS BOARD allow the men to vote whether or not they wished to return to work, the respondent was going to give the men who wished to return to work the privilege of doing so. He then read to them a copy of an advertisement addressed to the employees that the respondent was inserting in the Martinsburg paper that evening. Among other things it stated that "if you desire to longer remain in our service you must report for work at our plant on Thursday, the 13th of June next at 7 o'clock A. M. Any employees failing so to report at that time will thereafter consider themselves no longer in our service, and after that date will be obliged to make application for employment the same as if they had not been previously employed." Branch No. 175 conferred with the respondent again on June 13, and reiterated its refusal to have the men return to work without a signed agreement. There was a conflict in the testimony as to whether the respondent had made any concessions in the negotiations over wage increases up to this time. On June 13 the Martinsburg plant reopened and 23 employees re- turned to work. At seven o'clock in the morning Branch No. 175 had some 250 pickets at the entrances to the Martinsburg plant. A group of State police were also present. There was no violence at this time. The picketing continued, though with a diminishing number of pickets, until the middle of September. Thereafter, until March 1936, it was sporadic. The working force at the Martinsburg plant was gradually increased from June 13 until November by the return of some of the strikers and through the employment of men brought to the plant by the respondent. Shortly' after the plant reopened several acts of violence, particu- larly the dynamiting of certain of the power lines leading to the plant on June 19 and June 26, and many threats of violence from unidenti- fied persons instilled a sense of fear into those persons who were work- ing for the respondent. As a result, the respondent quartered a num- ber of the employees at the plant. Additional guards were hired and an auxiliary lighting system was procured in order to protect these employees. Those employees who did not remain at the plant were transported to and from work in busses hired by the respondent and were permitted to enter the plant only upon the presentation of passes issued by the respondent. The first attempt to settle the difficulties arising from the reopening of the plant took place on June 17 when Dr. Steelman, a conciliator from the Department of Labor, with the consent of Branch No: 175, tried to arrange a conference between the representatives of Branch No. 175 and the respondent. This attempt proved abortive. The respondent maintained that the members of Branch No. 175 were no longer employees, inasmuch as they had not returned to work on June 13, and that Branch No. 175 no longer represented its employees. DECISIONS AND ORDERS 113 B. The refusal to bargain collectively 1. The appropriate unit Both Branch No. 175 and the Independent admit to membership all persons employed by the respondent at its Martinsburg plant, except officials and top foremen. The history of collective bargaining in the Martinsburg plant is the history of the respondent's dealings with Branch No. 175. These dealings, while limited as to subject matter, have never been limited to specific groups of employees, except that officials and top foremen, being excluded from membership in Branch No. 175, were never included in the negotiations. We find that all of the respondent's employees at its Martinsburg plant, except officials and top foremen, constitute a unit appropriate for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment, and such a unit insures to said employees the full benefit of their right to self-organization and collective bargaining, and otherwise effectuates the policies of the Act. 2. Representation by Branch No. 175 of the majority in the appropriate unit At the time of the strike on April 24, 1935, Branch No. 175 had approximately 379 members among the respondent's 390 employees. These figures, testified, to by James B. Foreman and Clarence Wood, the president and- secretary, respectively, of Branch No. 175, are highly credible in view of the long course of dealings between the respondent and Branch No. 175, and in view of the effectiveness of the strike on April 24. They were not contradicted by the respondent. The alleged refusal to bargain took place on July 15, however, and it is necessary, therefore, to determine whether or not Branch No. 175 represented a majority of the respondent's employees at that time. Although the record does not show the number of persons employed by the respondent on July 15, it does show that during the entire month of July 1935, the respondent employed 252 persons. The record also shows that by the end of August 1935, only 119 strikers had been reemployed although the employment figure during this month had risen to 299. By subtracting the number of strikers that had returned to work by the end of August, 119, which included all of those who had applied for work, from the total number of members of Branch No. 175 who went out on strike, 379, we find that at least 260 members of Branch No. 175 were still on strike on July 15. This figure is clearly a minimum figure as it is probable that on July 15 something less than 119 strikers had returned to work. In any event, 114 • NATIONAL LABOR RELATIONS BOARD it is clear that these 260 strikers constituted a majority of the re- spondent's employees on July 15, if the strikers are properly included as employees. The respondent contends, that, even if these figures are correct, it has not refused to bargain collectively with the representatives of a majority of its employees because the strikers in question were no longer employees on July 15. It argues that the strike was termi- nated on June 13 when the men first returned to work, and that the strikers, by failing to come back on that day, as required by the re- spondent's advertisement of June 11, lost their status as employees. This contention is untenable. On July 5, 1935, the Act became effective. Section 2 (9) of the Act defines the term "labor dispute" to include "any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in * * * seeking to arrange terms or conditions of employment * * *." It is clear that the controversy between the respondent and Branch No. 175 was a labor dispute. Section 2 (3) of the Act provides that an employee whose work has ceased as a consequence of or in connection with a labor dispute retains his employee status as long as such labor dispute remains current and as long as he has not obtained regular and substantially equivalent employment elsewhere. That the strike which began on April 24, 1935, was a current labor dispute when the respondent refused to bargain with Branch No. 175 on July 15 seems evident. The respondent contends that the strike terminated on June 13 because its advertisement of June 11 resulted in the discharge of all of its employees who did not return to work on June 13. It is clear, however, that whether or not a labor dispute is current depends not upon such statements by the employer but upon the facts surrounding the dispute.3 Although the respondent reopened its plant on June 13, and started into production shortly thereafter, by the end of July it had only 252 persons working as compared with 390 prior to the strike. It employed all persons pre- senting themselves for work down to the end of July. The Martins- burg plant did not return to normal employment and production until the fall. The members of Branch No. 175 regularly picketed the various entrances to the Martinsburg plant until September 15, 1935, and picketed them sporadically for several months longer. Many of the men working for the respondent were quartered at the plant for several months after June 13, and the respondent retained special guards and rented special lighting equipment for their protection. Even the State police retained their stations at the Martinsburg plant 8 See Jeffery-DeWitt Insulator Co. V National Labor Relations Board, 91 F. (2d) 134, cert. den. October 18, 1937; National Labor Relations Board v. Carlisle Lumber Co. (C. C. A. 9th) decided December 13, 1937. - DECISIONS AND ORDERS 115 until July 26. In the light of all of these circumstances it cannot be questioned that the labor dispute between the respondent and Branch No. 175 was current on July 15. It follows that the 260 strikers were employees of the respondent at that time. We therefore find that on July 15, 1935, and thereafter, Branch No. 175 was the duly designated representative of the majority of the employees in an appropriate unit, and, pursuant to Section 9 (a) of the Act, was the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employ- ment. 3. The refusal to bargain The first request after the passage of the Act for a conference with the respondent's officials to deal with the problems growing out of the strike was made on July 12, 1935, when Easton asked the re- spondent to meet with the international representatives of Branch No. 175. This request was refused. Subsequently, in a letter dated July 15, 1935, Branch No. 175 requested the respondent to confer with its representatives for the purposes of obtaining "a settlement of the present labor difficulties". The respondent admitted that it received this letter and that no reply was made. As was the case when it refused to meet with the representatives of Branch No. 175 at the request of Dr. Steelman on June 17, and when it refused to meet with the international repre- sentatives of Branch No. 175 at the request of Easton on July 12, the respondent justified its failure to respond to this letter on the ground that the striking members of Branch No. 175 were no longer its em- ployees, inasmuch as they had not returned to work on June 13, and that Branch No. 175 no longer represented its employees. We have already found this contention to be without merit. We find that on July 15, 1935, the respondent refused to bargain collectively with the duly designated representatives of a majority of its employees in a unit appropriate for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. We also find that the respondent, by its actions set forth above, has interfered with, coerced and restrained its employees in the exercise of the rights guaranteed under Section 7 of the Act. IV. THE ALLEGED DOMINATION OF THE INDEPENDENT BY THE RESPONDENT The complaint alleged that the respondent initiated, sponsored, and formed the Independent, and subsequently participated in, dominated and controlled its administration. 'While there is considerable evi- 116 NATIONAL LABOR RELATIONS BOARD dente which indicates that the respondent may have been implicated in the formation of the Independent, we cannot find, on the record before us, that the evidence sustains the allegations of the complaint in this regard. We will order that the complaint be dismissed in so far as it alleges that the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, oc- curring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY A substantial number of the members of Branch No. 175 who went on strike on April 24, 1935, had not returned to work at the time of the hearing. The possibility of the strikers returning was in effect precluded by the respondent's refusal to bargain collectively with Branch No. 175 on July 15, 1935. As their places have been taken by persons hired since the strike, most of them since the respondent's refusal to bargain on July 15, 1935, simply to order the respondent to bargain collectively with Branch No. 175 would give no effective relief. Therefore, following our action in the Jeff ery-DeWitt case ' 4, we shall order the respondent to offer to those employees who were on strike as of July 15, immediate and full reinstatement to their former positions without prejudice to their seniority and other rights or privileges, dismissing, if necessary, such employees as it has hired since July 15, 1935. Our order will also provide that employees whose applications for reinstatement are refused by the respondent in violation of this order shall be entitled to back pay accruing from the date of the refusal of the application to the date of reinstatement, less any amount earned during that period. At the hearing the respondent introduced into evidence certified copies of indictments returned against 19 of the respondent's em- ployees charging them with illegal acts in connection with the strike at the Martinsburg plant, together with the pleas of guilty that were entered, and the orders of the court showing the sentences that were imposed upon 16 of them. An analysis of this evidence indicates 4Hatter of Jeffery-DeWitt Insulator Company and Local No 455, United Brick d Clay Workers of America, 1 N. L. R. B. 618. DECISIONS AND ORDERS 117 that six employees were indicted for the felony of conspiring to destroy the property of the Northern Virginia Power Company, and after pleading guilty were given indeterminate sentences of one to ten years in the State penitentiary; and that two employees were indicted for the felony of bringing dynamite into West Virginia, which had been stolen in Pennsylvania, and converting it to their own use, and after pleading guilty were given indeterminate sentences of one to ten years in the State penitentiary. It also appears that five individuals were indicted for the misdemeanor of conspiring to destroy the property of the Northern Virginia Power Company, and after pleading guilty were each sentenced to serve six months in jail; and that six individuals were indicted for the misdemeanor of assault and battery, of which three pleaded guilty, and were sentenced to serve six months, three months, and one month in jail, respectively. With the exception of the eight men who pleaded guilty to the commission of a felony and were given an indeterminate sentence of one to ten years in the State penitentiary, we cannot concur in the respondent's contention that these individuals have disqualified them- selves from reemployment. The Board's power to order the rein- statement of employees is equitable in nature, to be exercised in the light of all of the circumstances of the case. Here the respondent itself has violated the law of the land. Under all the circumstances, and without condoning the illegal acts of the strikers, we feel that such acts should not be a bar to the reinstatement of any except the eight mentioned above. The eight to be excluded are S. D. Sante- meyer, Bernard Whittington, Robert Webber, Thomas McGowan, Marion Hollar, James Harden, Corliss Files, and Ray Lee Robinson. On the basis of the above ,findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Branch No. 175, Quarry Workers International Union of North America and the Independent Employees Organization of the Mar- tinsburg Plant, Standard Lime & Stone Company are labor organza= tions, within the meaning of Section 2 (5) of the Act. 2. The strike starting on April 24, 1935, was a labor dispute which was current on July 15, 1935, and the strikers were employees of the respondent on July 15, 1935, within the meaning, of Section 2 (3) and (9) of the Act. - 3. All of the employees, except officials and top foremen, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. . 4. Branch No. 175, Quarry Workers International Union of North America, was on July 15,- 1935, the exclusive representative of • all 118 NATIONAL LABOR RELATIONS BOARD the employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 5. The respondent, by refusing to bargain collectively with the representatives of its employees on July 15, 1935, has engaged in un- fair labor practices within the meaning of Section 8 (5) of the Act. 6. The respondent, by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, has engaged in unfair labor practices, within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusions ,of law, and upon the entire record in the case, and pursuant to Sec- tion 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Standard Lime & Stone Company, Martinsburg, West Virginia, and its officers, agents, successors, and assigns shall : 1. Cease and desist from interfering with, restraining , or coercing its employees in the exercise of the right to self-organization , to form, join, or assist labor organizations , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining and other mutual aid and protection , as guaranteed in Section 7 of the Act. 2. Cease and desist from refusing to bargain collectively with Branch No. 175, Quarry Workers International- Union of North America, as the exclusive representative of all of the employees at its Martinsburg plant, except officials and top foremen. 3. Take the following affirmative action which the Board finds will effectuate the policies of the Act: a. Upon application, offer to those employees who were on strike as of July 15, 1935, except S. D. Santemeyer , Bernard Whittington, Robert Webber, Thomas McGowan, Marion Hollar, James Harden, Corliss Files, and Ray Lee Robinson , immediate and full reinstatement to their former positions, without prejudice to their seniority or other rights or privileges , dismissing, if necessary , such employees as it has hired since July 15, 1935; b. Make whole all employees who were on strike as of July 15, 1935, for any losses they may suffer by reason of any refusal of their applications for reinstatement in accordande with paragraph 3a herein, by payment to each of them, respectively , of a sum equal to that which each of them would normally have earned as wages dur- ing the period from the date of any such refusal of their application DECISIONS AND ORDERS 119 to the date of offer of reinstatement, less any amount earned by each of them, respectively, during such period; c. Upon request, bargain collectively with Branch No. 175, Quarry Workers International Union of North America, as the exclusive representative of all of the employees at its Martinsburg plant, ex- cept officials and top foremen, in respect to rates of pay, wages, hours of employment, and other conditions of employment; d. Post immediately notices in conspicuous places where they will be observed by the respondent's employees, stating that the respond- ent will cease and desist in the manner aforesaid, and maintain said notices for a period of sixty (60) consecutive days from the date of posting; e. Notify the Regional Director for the Fifth Region in writing within ten (10) days from the date of this order what steps the respondent has taken to comply herewith. And it is further ordered that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 80535-38-0