Longview Furniture Co.

LONGVIEW FURNII RE COMPANY 301 their efforts and work are centered. It is there that the various em- ployers-station, agencies, and sponsors-cooperate to produce the programs which are the sole objective of their various contributions. ,Of all these "employers," the only one who is permanent, indispensable, and.ultimately responsible for the end-product, is the station operator. We-would, therefore, join- the free lance performers with the other employees of station WEWS and direct an election in the Petitioner's requested unit. In reaching this conclusion, we are particularly mindful that the stated policy of the Act is to encourage "the prac- tice and procedure of collective bargaining," and to protect "the exercise by workers of full freedom of association, self-organization, and designation of representatives ... , for the purpose of negotiat- ing the terms and conditions of their employment.14 . . . " A sterile adherence to form and precedent here frustrates these objectives. 14 Section 1 of the Labor Management Relations Act, 1947. LONGVIEW FuRNITuRE COMPANY and UNITED FURNITURE WORKERS oF. 1 11 AMERICA, CIO. Case No. 34-CA-$1F6. July 22,1952 Decision and Order On March 8, 1951, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The General Counsel also filed a 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 Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following additions and modifications : 1. We unanimously find, in agreement with the Trial Examiner, that the Respondent has violated Section 8 (a) (1) of the Act. In so find- ing, we rely on the following conduct of the Respondent found to be unlawful by the Trial Examiner : (a) The interrogations by Superintendent Council and Foremen Frye, Teague, Robinson, and Martin of employees concerning their union views, membership, and activities, and concerning the demands they would make when organized. 100 NLRB No. 43. 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b). The threats and warnings by Foremen Frye, Teague, and Martin that the consequences of engaging in the distribution of union literature and other union activities would entail "trouble," dis- charge, and the closing or burning of the plant. (c) Foreman Teague's threat to have Auton fired and his refusal to rehire Johnson and the three Powells because they were all black- listed. (d) President Shuford's statement to Brown that the upholsterers had quit and his refusal to confer with the upholsterers concerning the work stoppage or their return to work. (e) The various statements by Foremen Frye, Teague, and Martin that the Respondent would not take back the upholsterers, but would replace them with a new crew. 2. The Trial Examiner found that the Respondent refused to bar- gain with the Union in violation of Section 8 (a) (5) of the Act. A majority of the Board disagrees with this finding. The pertinent facts, as more fully set forth in the Intermediate Report, are as follows : On October 18, 1950, the Union wrote the Respondent a letter, which the Respondent received on October 19, stating that it represented a ,majority of the Respondent's employees and requesting that the Re- spondent recognize it as the exclusive bargaining agency for all pro- duction and maintenance employees, and set a date for a meeting to negotiate a contract. The Trial Examiner found, and the record supports his finding, that at the time of the Union's request to bar- gain it represented a majority of the employees in an appropriate production and maintenance unit-59 of the 115 employees.' On October 20, 1950, the Union filed a representation petition and on that date the Regional Director informed the Respondent that the matter had been assigned to a field examiner. On October 23, 1950, the field examiner wrote to the Respondent and Union, setting an informal conference for November 1. Shuford, Respondent's president, replied on October 25 requesting postponement of the conference to Novem- ber S. On the same day the Respondent also wrote a separate letter to the field examiner which, in substance, assured him of its coopera- tion, stated that it had not been advised before the Union's letter of October 18 that the Union sought to represent its employees, and added "we have had no experience in the field of union organization or representation and we shall rely on you and your Board to guide 3 At the hearing and in its brief the Respondent contended that it was unreasonable for the Trial Examiner to hold that the Respondent was bound to recognize the Union which never attained more than a bare majority of three employees. The Board has had occasion recently to reject this sort of contention . See Eaton Brothers Corporation, 98 NLRB 464, where the Board said that any numerical majority , regardless of its size, is sufficient for the purposes of this section ( 8 (a) (5)) of the Act. LONGVIEW FURNITURE COMPANY 303 us in the proper handling of this matter." On the same day the Re- spondent wrote to the Union noting that the representation case had been assigned to a field examiner who was arranging for a conference relative thereto; it added that the Respondent "trusted" that the fore- going sufficiently met the Union's needs for the time being, but that the Respondent would be pleased to hear from the Union further in the matter if it so desired. There were no further negotiations between the Union and the Respondent relative to recognition and/or bargaining. Unlike the Trial Examiner, we are not persuaded that the Respond- ent's conduct here constituted such an evasion or rejection of the Union's request to bargain as to warrant a finding of a refusal to bar- gain. As discussed above, the Respondent, in replying to the Union's request for recognition and its action in filing a petition, specifically asserted that it trusted that its response sufficiently met the Union's needs for the time being, but that the Respondent would be pleased to hear from the Union further in the matter if it 'so desired. Thus the Respondent invited the Union to take additional affirmative action which could have been directed to recognition and/or bargaining, if the Union was dissatisfied with the Respondent's reply. However, the Union chose to remain silent. In our opinion the Respondent reason- ably could have believed that the Union was willing to await Board disposition of the matter. In these circumstances, we do not believe that the Union sufficiently pressed its claim for recognition so as to charge the Respondent with an unlawful refusal to bargain. We think inapplicable here that line of cases, cited by the Trial Examiner, holding that where an employer engages in an extensive antiunion campaign, the inception of which coincides with a union's request for a bargaining conference, the failure to accede to the request is motivated by a rejection of the principle of collective bargaining and violates Section 8 (a) (5) of the Act. In our opinion, those cases are clearly distinguishable from this one. Each of them involved either an outright refusal of the request by the particular employer, based upon an alleged doubt as to the union's majority status,2 or a re- ferral of the union to the employer's attorney for further informa- tion,9 or no response at all from the employer' In none of them was the union offered, as here, an opportunity to negotiate further with the employer in regard to its status, even after the filing of a petition by the union. In view of the foregoing, we find, contrary to the Trial 2H. H. Davidson Company, 94 NLRB 142 ; Pacific Plastic & Mfg. Co., 68 NLRB 52; N. L. R. B. v. Everett H. Van Kleeck & Co., Inc., 189 F. 2d 516 (C. A. 2) ; N. L. R. B. v. Inter-City Advertising Company of Charlotte, 190 F. 2d 420 (C. A. 4) ; N. L. R. B. V. Joy Bilk Mills, Inc, 185 F. 2d 732 (C. A. D. C.). Ken Rose Motors, 94 NLRB 868. Somerset Classics, 90 NLRB 1680; N. L. R. B. Y. Crown Can Co., 138 F. 2d 263 (C. A. 8) ; N. L R B. v. Lettse Lee, Inc., 140 F. 2d 246 (C. A. 9). 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Examiner, that the Respondent did not refuse to bargain with the Union in violation of Section 8 (a) (5) of the Act. 2. We all find, as did the Trial Examiner, that the Respondent vio- lated Section 8 (a) (3) of the Act by discriminatorily discharging employees Ball and Elmer Frye, as well as the 14 other upholsterers who went on strike because of the Respondent's refusal to confer about the discharges of Ball and Elmer Frye. Accordingly, as found by the Trial Examiner, the strike, which was induced and prolonged by the Respondent's unlawful acts, constituted tin-unfair labor practice strike; and the strikers therefore remained the Respondent's employees until reinstated or offered reinstatement by the Respondent, unless the subsequent conduct of the strikers was such as to not entitle them to reinstatement .5 3. For various reasons the Trial Examiner found without merit the Respondent's defense asserted at the hearing that it refused to reinstate specifically named strikers after the end of the strike because of their alleged misconduct. As to certain of the strikers whom the Respondent stated it refused to reinstate because it knew they had engaged in name ;calling on the picket line, the Trial Examiner found, and we all agree, that the conduct of these strikers did not exceed the limits of per- missible concerted activity, and was not of such a character as to render the employees who engaged therein unsuitable for reemploy- ment. In our opinion, the language of these employees, while neither polite nor moderate, must be regarded as an integral and inseparable part of their picket and strike activity, for which the Act affords them protection 6 Although the Board does not condone the use of abusive and intemperate language, it is common knowledge that in a strike where vital economic issues are at stake, striking employees resent those who cross the picket line and will express their sentiments in language not altogether suited to the pleasantries of the drawing room or even to courtesies of parliamentary disputation. Thus, we believe that to suggest that employees in the heat of picket-line animosity must trim their expression of disapproval to some point short of -the utterances here in question, would be to ignore' the in- dustrial realities of speech in a workaday world and to impose a serious stricture upon employees in the exercise of their rights under the Act. Accordingly, we unanimously agree with the Trial Examiner that the Respondent violated Section 8 (a) (3) of the Act by its refusal to reinstate these strikers. 5 N. L. R. B. v. Remington Rand, Inc., 130 F. 2d 919 (C. A. 2) ; N. L. R. B. Y. Mackay Radio ,& Telegraph Co., 304 U. S. 333. 6 For an analogous situation see The Betteher Manufacturing Corporation, 76 NLRB 526 ; N. P. Nelson Iron Works, 80 NLRB 788, where we held that the conduct of'employees who were discharged for offensive remarks at the bargaining table was protected as an integral part of the bargaining process. LONGVIEW FURNITURE COMPANY 305 The Respondent asserted that it did not reinstate other named strikers, for the reason that certain nonstriking employees refused to work with them because they had called the nonstrikers names or because they had engaged in the strike. The Trial Examiner found that the Respondent violated Section 8 (a) (3) of the Act upon the ground that an employer is under a duty to insure that its right to hire, discharge, or transfer is not delegated to any antiunion or pro- union group of employees, and the Respondent knowingly permitted the exclusion of the strikers from its plant by antiunion nonstrikers. We agree with the Trial Examiner's finding of a violation by the Respondent, but for a different reason. The type of picket-line activity in which these strikers engaged constituted protected con- certed activity; the Respondent therefore violated the Act by refusing to reinstate them irrespective of whether this reason for the refusal was its own or that of its nonstriking employees. Similarly, the Respond- ent violated Section 8 (a) (3) by its discharge at the insistence of Mon- strikers of Harold Clalnpitt, one of the strikers, who had engaged in name, calling, but had been rehired by the Respondent after the strike was over. The Trial Examiner found, and we agree, that 13 named strikers participated in one or more incidents of serious misconduct,8 involv- ing blocking of entrances, violence, and threats of violence designed to bar entry of nonstriking employees into the plant, for which the Respondent could have refused to reinstate these strikers. However, he further found that the Respondent condoned their misconduct and thereby waived its right to refuse reinstatement. We all disagree with his finding of condonation or waiver by the Respondent for the fol- lowing reasons : ° C. D. Anton, Wayne Ball , Jr., Walter Brown , Loyd Bowman , Earl Correll, Clyde Ennis, Perry E. Frye, Lester Ramsey, Fred Seagle, G. N . Shepherd , John E. Young, Jack Collins, and Kat Houser. 8 The Trial Examiner found, and we agree, that the following allegations of serious misconduct are not meritorious : ( 1) The Respondent refused reinstatement to strikers Harrelson , Craig, Miller, and Leatherman because it contended that they participated in an assault upon employee Canupp and an attempt to prevent employees Canupp, Jones, and Smith from entering the plant during the strike. However, as found by the Trial Examiner, these particular strikers did not engage in any misconduct. Therefore, Re- spondent's additional defense, the refusal of nonstrikers to work with them because of their alleged participation in these incidents, likewise falls. Rubin Brothers Footwear, Inc., 99 NLRB 610. (2) The Respondent refused reinstatement to striker Howard Cook because of his participation in an incident testified to by employee Smith . The latter stated that the first morning the pickets were at the plant, three men stopped him at the platform, of whom Cook was the only one he knew ; that Cook said "Smith , you can't go in there . . . we are going to close this damn thing down until we get what we want , and ain't nobody going in there." Smith inquired whether he could go in to get his tools , and Cook replied "No, you will have to go to the office and have them bring them ." We find, as did the Trial Examiner, that the actions of Cook were not sufficiently flagrant in character,to 'ednstitute unprotected activity , as Smith's testimony did not establish that Cook made threats or any attempt to bar Smith 's entry into the plant . Thayer Company and H.'N. Thayer Co., 99 NLRB 1122. 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) It is true, as pointed out by the Trial Examiner, that the Respondent did not disclose a determination not to reinstate the strikers who had engaged in misconduct when the Union applied on their behalf, but relied on its representation that it had no job vacancies. However, this fact is insufficient to establish an intent by the Respondent to condone the misconduct in question. We find distinguishable the two cases cited by the Trial Examiner finding condonation by an employer because of his silence in apparently similar situations. Thus, in the Stilley case,° the employer did not advert to the particular employee's alleged misconduct when applica- tion for reinstatement was made, but expressed its willingness to reinstate. him as soon as possible. Then the employer later refused reinstatement because of the misconduct. And in the E. A. Labora- tories case,10 the employer agreed to take back all strikers except three extortionists. Later, the employer refused to take back the strike leaders. The court,'1 agreeing with the Board, said that the employer had condoned the misconduct of the strike leaders because at the time it agreed to take back the strikers it did not suggest that it would not take back the strike leaders. At most, these two cases indicate that under certain circumstances there is a duty on an employer to speak and assert the real basis for his failure to reinstate an employee when the opportunity to do so is presented to him. However, we believe that they differ from the instant case, in that the employers there involved affirmatively indicated at the time of application that they would reinstate the employees and failed to assert any reason which they had for not taking them back; here, on the other hand, the Respondent affirmatively indicated at the time of application that it would not reinstate the employees because of lack of work ' 12 but failed to mention the further reason now asserted-misconduct on the picket line. (b) In our opinion the reinstatement of Harold Clampitt by the Respondent does not indicate condonation, as suggested by the Trial Examiner. For, assuming that the Respondent may have believed that Clampitt had engaged in conduct like that attributed to the 13 here involved, it is settled that where serious acts of misconduct are involved, an employer does not waive or condone the misconduct of all participants when it rehires some of them 13 For the same reason The Btilley Plywood Company, Inc., 94 NLRB 932. 10 E. A. Laboratories, Inc., 86 NLRB 711. 11 N. L. R. B. v. E. A. Laboratories, Inc., 188 F. 2d 885 (C. A. 2). v Apart from the right of the unfair labor practice strikers to displace replacement employees, there was in fact no available work for the strikers. Because of this fact it cannot be said that, had there been available jobs, the Respondent would have reinstated the strikers notwithstanding their misconduct. L See, for example, N. L. R. B. v. Fansteei Metallurgical Corp., 806 U. S. 240; Precision Castings Company, Inc., 48 NLRB 870. LONGVIEW FURNITURE COMPANY 307 no inference . of condonation may be drawn from, the fact that the, Respondent retained in its employ certain nonstrikers who may have been guilty of serious misconduct during the strike. (c) We agree with the Trial Examiner that some significance may be attached to the fact that the Respondent did not offer the miscon- duct of the strikers as a defense until the end of the first day of the hearing. However, we are not persuaded that sufficient weight can be afforded this fact, standing alone as it does, to warrant a finding of condonation by the Respondent.'4 Certainly, the Respondent's action was not nearly as extreme as that of the employer in the Wallick case ,ls cited by the Trial Examiner, where the employer raised the issue almost 2 years after the event, in its brief to the Board in support of exceptions to the Trial Examiner's Intermediate Report. • In view of the foregoing, we all find that the Respondent did not condone the misconduct of the 13 strikers and was therefore privileged to deny them reinstatement. Order Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Longview Furni- ture Company, Hickory, North Carolina, it officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in United Furniture Workers of America, CIO, or in any other labor organization of its employees, by discriminatorily discharging or refusing to reinstate its employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. (b) Interrogating its employees regarding their union membership and activities, threatening its employees with discharge, with terminat- ing their employment, with refusal to reinstate them, and with other reprisals for engaging in union activities and/or other concerted activities. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist United Furniture Workers of America, CIO, or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an "See footnote 12, supra. "Waitsck and Schwalm Corp ., 95 NLRB 1262, wherein the Board found a waiver. 227260-53-vol. 100-i21 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement requiring membership in a labor organization as a condi- tion 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 Eugene Collins, LeRoy Giles, Frank D. Miller, Ben Roberts, Floyd Shook, Harold Clampitt, and to the 37 employees whose names are listed in Appendix A, immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges as provided in the section of the Intermediate Report entitled. "The Remedy," and make whole the said employees for any loss of pay they may have suffered by reason of the Respondent's discrimination against them in the manner provided in said section. (b) Make whole Odes Gurley, Loyd Hoke, John J. Bynum, Elmer Leonhart, W. M. Barnes, Henry Carswell, Pauline Coble, Ruth Cor- rell, Preston Hefner, Maurice Hudson, Evelyn Killian, Blaine Leon- hart, Dale Lowan, Nevert McNeely, Margie Morrison, Lester Stalney, George White, Ervin Willis, Charles Winkler, Richard Winkler, and J. C. Winkler for any loss of pay they may have suffered by reason of the Respondent's discrimination against them, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." 1° (c) Post at its plant in Hickory, North Carolina, copies of the notice attached hereto and marked "Appendix B." 17 Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and main- tained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Upon request, make available to the National Labor Relations Board or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records, and all other records necessary to analyze the amounts of back pay due *under the terms of this Order. (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 therewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent violated (1) Section 8 (a) (3) of the Act by its is we expressly reserve the right to modify the back-pay and reinstatement provisions if made necessary by circumstances not now apparent. 17 In the event 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." LONGVIEW FURNITURE COMPANY 309 refusal to reinstate the 13 strikers who engaged in serious misconduct and (2) Section 8 (a) (5) of the Act, be, and it hereby is, dismissed. MEMBERS HOUSTON and STYLES, dissenting in part only : We disagree only with the reversal by our colleagues of the Trial Examiner's finding that the Respondent refused to bargain with the Union. The Trial Examiner properly held on the basis of established precedents cited in the Intermediate Report that the Respondent's contemporaneous unfair labor practices, as found in the principal opinion, constituted a rejection of the Union's antecedent request to bargain in violation of Section 8 (a) (5) of the Act. Moreover, we are not persuaded that there is any substance to the distinction made by the majority opinion between the instant case and those referred to by the Trial Examiner in support of his view. Accord- ingly, we would affirm the Trial Examiner's finding. Appendix A Charles Ball Hill B. Baxter Christine Beane John Brown Bertha Campbell- James H. Clampitt Howard Cook Ollie V. Craig Pate Craig Ruben Dameron Leonard Davis Bessie Deitz Millard Farmer Ted Ford Gantt Nancy Harrelson Frank Holsclaw H. D. Johnson Herbert H. Houser Inez Hudson Hayden Isenhour Floyd Jarrell Hilliard Leatherman Martha Leatherman James Martin William Martin Katie Miller Sammy Lee Miller Nina Munday Carl Powell Pat Powell Norris Randall Thomas E. Rash Henry D. Starnes Ray Watts M. A. Weaver Veva Yoder Appendix B NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT interrogate our employees regarding their union membership and activities, threaten our employees with discharge, with terminating their employment, with refusal to reinstate them, or with other reprisals for engaging in union activities and/or other concerted activities. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discourage membership in UNITED FURNITURE WORKERS OF AMERICA , CIO, or in any other labor organization of our employees , by discharging or refusing to reinstate our employees, or in any other manner discriminating against them in regard to hire or tenure of employment or any term or con- dition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations, to join or assist UNITED FURNITURE WORKERS OF AMERICA, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requir- ing membership in a labor organization as a condition of em- ployment as authorized in Section 8 (a) (3) of the Act. WE WILL offer to the 41 employees listed below immediate and full reinstatement to their former or to substantially equiv- alent positions, without prejudice to their seniority and other rights and privileges, and make them wjlole for any loss of pay they may have suffered by reason of the discrimination against them : Charles Ball Hayden Isenhour Hill B. Baxter Floyd Jarrell Christine Beane Hilliard Leatherman John Brown Martha Leatherman Bertha Campbell James Martin James H. Clampitt William Martin Harold Clampitt Frank B. Miller Eugene Collins Katie Miller Howard Cook Fannie Lee Miller Ollie V. Craig Nina Munday Pate Craig Carl Powell Ruben Dameron Norris Randall Leonard Davis Ben Roberts Bessie Dietz Thomas E. Rash Millard Farmer Floyd Shook Ted- Ford Gantt Henry D. Starnes Nancy Harrelson Ray Watts Frank Holsclaw M. A. Weaver H. D. Johnson Veva Yoder Herbert H. Houser - Pat Powell Inez Hudson LONGVIEW FURNITURE COMPANY, 311 WE WILL make whole the 21 individuals whose names are listed below for any loss of pay they may have suffered by reason of the discrimination against them : W. M. Barnes Elmer Leonhart John J. Bynum Dale Lowman Henry Carswell Nevert McNeely Pauline Coble Margie Morrison Ruth Correll Lester Stamey Odes Gurley George White) Preston Hefner Ervin Willis Loyd Hoke Charles Winkler Maurice Hudson J. C. Winkler Evelyn Killian Richard Winkler Blaine Leonhart LONGVIEW FURNITURE COMPANY, Employer. Dated --------------- By ------------------------------------- i (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF TIIE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act as amended (01 Stat. 136), was heard in Hickory, North Carolina, on various dates from May 9 to 23, 1951, before the undersigned Trial Examiner, pursuant to clue notice to all parties. The complaint, issued by the General Counsel of the National Labor Relations Board' and based on various charges filed by the Union, alleged that Respondent had committed certain unfair labor practices proscribed by Sections 8a (1), (3), and (5), which may be summarized as follows: (1) That on October 20, 1950, and since, Respondent refused to bargain collec- tively with the Union as the exclusive representative of the employees in an appropriate unit; (2) that on November 3, 1950, Respondent discriminatorily discharged Perry Elmer Frye and Wayne Ball, Jr., and on December 18, it dis- criminatorily discharged Harold Clampitt, and thereafter refused to reinstate said employees, because of their union membership and activities or other con- certed activities; (3) that on or about December 12, 19.50, Respondent discrimi- natorily refused to reinstate 75 named striking employees (as amended) ,2 who had engaged in an unfair labor practice strike commencing November 6, 1950, and who had applied unconditionally for reinstatement; and (4) that by the above and by other specified acts commencing on or about September 15, 1950, 1 The General Counsel and his representatives 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 and the charging union, above named, as the Union. 2 By further amendment , allowed at the hearing , it was alleged that on or about Novem- ber 7 , Respondent discriminatorily discharged 14 named striking upholsterers and refused to reinstate them. 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent interfered with, restrained, and coerced their employees in the exercise of rights guaranteed in Section 7 of the Act. Respondent's answer pleaded a general denial. All parties were represented by counsel or by other representatives, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally, and to file briefs and proposed findings. A brief has been filed by the General Counsel.' As the hearing opened, Respondent moved to dismiss the complaint on the ground that the Union had not complied with Section 9 (h) of the Act. The General Counsel represented that the Board had determined administratively that CIO had come into compliance with said section on December 22, 1949. Respondent's motion was therefore denied 4 Respondent's motion to dismiss paragraphs 6 and 10 of the complaint were also denied. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a North Carolina corporation, operating a plant at Hickory, North Carolina, where it is engaged in the manufacture of furniture . During the year 1950, Respondent purchased at least $50,000 worth of raw materials, all of which were received from points outside the State of North Carolina, and during the same year it shipped finished products valued in excess of $50,000, to points outside the State of North Carolina . It is, therefore , found that Respondent is engaged in interstate commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization admitting to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. The evidence 1. Background ; statement of main events and issues Respondent's president, Harley F. Shuford , entrusted the actual operation and supervision of the Longview plant to his superintendent, W. T. Councill. Shu- a The complete record was not received until July 13, 1951 , and the time for filing briefs was extended to August 8. 4 At the close of the case , Respondent obtained a subpoena duces teoum, returnable instanter and directed to the compliance division or section of the Board , to produce all records showing whether CIO and its officers are in compliance with Section 9 (h) of the Act and was in compliance with Section 9 (f) at the time the complaint was issued. The General Counsel moved to quash under Sections 102.89 and 102.90 of the Board 's Regu- lations. Respondent's counsel conceded that he had made no attempt to comply with Section 102 . 89 for inspection and for copies of pertinent records and that he had not applied for or obtained consent of the Board for the production of the records. The General Counsel reiterated his representation that the Board had administratively deter- mined that the CIO was in compliance with Section 9 (h) and (f) of the Act . Respondent's counsel admitted that his only information which indicated the contrary was based on hearsay statements by other practitioners before the Board. The motion to quash was granted N. L. R B. V. Greensboro Coca-Cola Co ., 180 F . 2d 840 ( C. A. 4) ; N. L. R. B. v. Red Rock Co . 187 F. 2d 76 ( C. A. 5) ; West Texas Utilities Co . v. N. L. R. B., 184 F. 2d 233, cert den 341 Ti. S 939 ; Sunbeam Corporation, 93 NLRB 1205 ; 94 NLRB 915 , and cases cited ; Union Mfg. Co., 95 NLRB 792; Dant d Russell, Ltd., 95 NLRB 252; McComb Mfg. Co., 95 NLRB 596. Respondent' s motion to require the General Counsel to produce the same records called for in the subpoena was also denied. LONGVIEW FURNITURE COMPANY 313 ford owned and operated other businesses to which he devoted his personal attention, but he had had no'prior experience with unions in 17 years.` Coun- cill, who was 30 years of age, had managed the Longview plant 31/2 years, and before that was superintendent for 2 years of a furniture plant in Hickory. He had no training in labor relations and, like Shuford, had had no previous experience with unions. Respondent's foremen, stipulated to qualify as supervisors within the meaning of the Act, were : Floyd Frye ° and Cloyd Smith, upholstery department ; Alonzo Teague, machine room ; Horace Robinson, shipping department ; Clarence Martin, sewing room ; and W. N. Bass, office manager. The employees in the upholstery department were the leaders in all the concerted activity and in the organizational efforts that occurred in Respond- ent's plant. The upholsterers engaged in their first, of three, work stoppages in August 1950, because of dissatisfaction with a pay and bonus plan. Shuford met with the upholsterers and quickly adjusted the grievance. The second stoppage, which resulted in a walkout of several days, occurred in October, because of dissatisfaction with pay rates on a naughahide chair. Shuford again personally handled the adjustment of the grievance after the employees had called in a State conciliator. A union organizing campaign had gotten under way prior to the second walkout, but no direct reference was made to that'fact during the negotiations, though Brown inquired of Shuford whether he would object to the employees having a union. By letter of October 18, received on October 19, the Union formally requested recognition and bargaining, and on October 20 it filed a representation petition with the Board, of which fact Respondent was notified by letter received from the Regional Director on October 23. On October 25, Shuford wrote the Union acknowledging its letter of October 18, and referred to the fact that the repre- sentation matter had been assigned to a field examiner. On Friday, November 3, Ball and Perry Frye were discharged for the asserted reason that they had walked off the job without requesting permission. On November 6, upon Councill's refusal to reinstate Ball and Frye, the upholsterers made their third and final walkout which was converted into a full-fledged strike on November 8, when the Union set up a picket line. On December 12 the Union, through Brown, made formal application to Councillc for reinstatement of 79 named employees. The application was denied for the asserted reason that there were no job openings at the time. Respondent has subsequently reinstated some of the strikers. On December 18 Harold Clampitt, a striking employee who had just been reinstated, was discharged for the asserted reason that other employees had refused to work with him because of alleged picket line misconduct. The General Counsel offered evidence, much of which was controverted, that from a period beginning with the inception of the organizational campaign and extending through the strike and later, Respondent's supervisors engaged Though Shuford also owned the controlling financial interest in the Morgan Furniture Company of Asheville, which had contracted with an AFL union for a number of years, he had not participated personally in the management of that concern. 6 The following persons are variously referred to in the record , as indicated : Floyd kMonk) Frye; Wayne (Junior) Ball; Harold (Howard) Clampitt; Loyd (Lloyd) Bowman; Walter (Bud, Puffy ) Brown ; Earl ( Curley) Correll ( Carrell) ; Ruth Correll ( Carrell) ; Ollie V. (Olive E. Polly) Craig ; Bessie Deitz (Dietz) ; Odis (Odes, Otis) Gurley ; Kathleen (Kat) Houser ; Floyd Jarrell (Derrell , Gerald ) ; Eugene W. (Gene ) Martin ; Nevert (Nebert) McNeely; Aria (Arice) Powell; Ben (Ven) Roberts; Fred Seagle (Seigle) ; G. N. (Garner, Garney, Burner ) Shepherd ; Kathleen ( Kat) Smith ; Ervin (Irvin ) Willis ; John (Junior ) Young; Perry E. (Elmer ) Frye; Cloyd (Floyd , Clyde ) Smith; Henry Carswell ( Coswell). 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in a series of coercive statements, interrogations, and threats. The General Counsel also contends that the discharges of Ball; Frye, and Clampitt were dis- criminatorily motivated, as was the failure to reinstate the strikers ; that the strike was an unfair labor practice strike or, alternatively, that it was imme- diately converted into one by the alleged discharge by Shuford of all uphol- sterers on November 7, and by other unfair labor practices which prolonged the strike. Respondent offered evidence of alleged misconduct and violence on the picket line from November 8 to December 12, asserted by it to be sufficiently flagrant in character to-bar from reinstatement most of the strikers who were not subse- quently reinstated. As further justification for its refusal to reinstate the strikers, Respondent relied upon the stated refusal by certain employees to work with the strikers if they were reinstated. Other issues in the case are whether the Union represented a majority of the employees in the unit at the time of the request to bargain, whether Respond- ent refused that request, and whether its refusal was based on its asserted good- faith doubt of the Union's majority. 2. Events preceding the discharges The first work stoppage by the upholsterers , which occurred in August, was because of their dissatisfaction over a newly inaugurated pay raise and bonus plan. A committee composed of Brown, Ball , and Elmer Frye first conferred with Councill ; and later Shuford met with all the upholsterers in a body and settled the grievance. The merits of neither this nor of the grievance which led to the second walkout are material to the issues. The upholsterers again stopped work and walked out in October 7 because of dissatisfaction with wage rates and working arrangements on a naughahide chair. Floyd Shook was added to the Union 's committee, which called in a State conciliator, and later negotiated with Shuford a settlement of the grievance after the walkout had lasted 4 days. Shuford suggested , and it was agreed, that the upholsterers should deal with him through a committee on establishing new piece rates. Ball and Frye also testified without denial that reference was made to the passing out of union cards and Shuford was asked if he would ob- ject to the employees having a union Shuford replied that he would do what- ever the law required. - The union organizing campaign was in full swing by the middle of October. It was openly conducted and reached Respondent 's attention -through a sound truck and the making of speeches outside the plant and the posting of stickers and the wearing of CIO badges in and around the plant. Within the space of a few days the Union had obtained approximately 60 signed applications for membership and on October 18, 1950, it wrote Respondent the following letter, re- ceived on October 19: This is to inform you that the United Furniture Workers of America, CIO represents the majority of your employees. On behalf of the United Furniture Workers of America, CIO, we request that you recognize that organization as the exclusive bargaining agency for all of your production and maintenance employees. We further request 7 No witness fixed with certainty the date of this walkout, but the preponderance of evidence establishes that it occurred around the middle of October. It was obviously after inception of organizational activity but before the Union's demand for recognition was received on October 19 Councill's testimony that it occurred on October 24 is in conflict with the preponderance of the evidence and is not credited. LONGVIEW FURNITURE COMPANY 315 that you set a date for a meeting at which time we will negotiate a contract. May we hear from you at an early date? On October 20, the Union filed its representation petition with the Board's 1Vinston-Salem office, and on that date the Regional Director wrote Respondent, informing it of that fact and of the assignment of the matter to a field examiner. On October 23, the field examiner wrote Respondent and the Union setting an informal conference on November 1. On October 25, Shuford wrote the field ex- aminer requesting a postponement to November 8. By a separate letter on the same date Respondent also wrote the field examiner assuring him of its cooper- ation, stating, among other things, that it had not been advised prior to the Union's letter of October 18, either by its employees or anyone acting in their behalf, that the Union sought to represent its employees, and adding "We have had no experience in the field of union organizations or representation and we shall rely on you and your Board to guide us in the proper handling of this mat- ter." On the same date Respondent wrote the Union: We have your letter of October 18, 1950. As you are aware, Mr. Green- stein, National Labor Relations Board Field Examiner, has been assigned this case and has suggested a time and place for a conference relative thereto, We trust that the foregoing sufficiently meets your needs for the time being but we shall be pleased to hear from you further in the matter if you so desire. There were no further negotiations between the parties looking to recogni- tion and/or bargaining. In the meantime, Respondent's supervisors had taken note of the organizational campaign and had entered upon a countercampaign. Thus, shortly before receipt of the Union's request for recognition, Councill called Brown to the office,' and after discussing certain miscalculations in Brown's pay, proceeded to interrogate Brown concerning union sentiment in the plant and also concerning the demands which would be made if the Union were successful in organizing the employees. Because of its importance to the issues, the testimony will be set forth in detail. Brown testified : [Councill] said "Brown, what do you think about the Union or what does the majority of them out there think about the Union," and I said "Bill, according to the cards they have signed they must think it is all right, but that is all I know, so far there have been 60, 70 done signed the cards for the Union ;" and he asked me, "well, WJiat do they ask for," and he said "I don't know anything about the Union, you probably know more about it than I do, what would you ask for if you were to get your Union in ;" and I said "well, straight 25¢ raise across the board ;" and he said "due to the fact the place is just new and Mr. Shuford is trying to build it up, I don't see how we could possibly pay it ;" and he said "well, you upholsterers are making good ;" and I said "yes, we are and I don't think the upholsterers would ask the Company to give them a 25¢ raise across the board," I said, "we realize the Company has to meet their creditors like all the rest, but we would like to see the 750 an hour men raised to $1 an hour." Well we talked on, . . . and he asked me if I would go back out and tell the boys the Company's side of it, the place was new and they were trying Brown mistakenly fixed this conversation as a week before the discharge of Ball and Frye on November 3. Councill fixed it as before receipt of the Union's request for recognition on October 19. The entire sequence of events supports Councill 's testimony as to the time of the conversation. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to make them a good place to work ; and I told him I could not, that they would think I had turned on them, and I said I was with them, and if they want a union we would have it and if they didn't we would not. Councill admitted holding the conversation with Brown, testified that he brought up, and that they discussed, the subject of the upholsterers' dissatis- faction over the naughahide chairs and that : I asked him what all the talk was in the plant, that I had heard those speeches made outside and I had seen the stickers around the plant and nobody had come to me and said anything about the Union, but I was just asking him what all the talk was about it, and he, said well, seemed- like some of the employees were wanting a union and that they had come to him and asked Wm to lead the committee or organize the Union and (that) he was doing the same and that he didn't know what the outcome would be or anything else, but since some of them wanted it that he was going along with them and doing what he could to help the Union. I asked him exactly what was it the workers were dissatisfied about and if they wanted a union, and he said well, he didn't know whether there was any dissatisfaction or not but what they were wanting was a 25¢ an hour increase in pay over the board and that, as far as he knew, was about the only thing they wanted at that particular time. On further questioning, Councill testified that he selected Brown for questioning because Brown seemed to be the leader in the previous walkout. He denied asking what "the majority" thought and denied that Brown informed him how many cards were signed up. Councill also testified that, aside from Brown, he interrogated no employees concerning the Union or union activity, and there is no evidence that he did. That was not true of Respondent's other supervisors, for the evidence establishes that they engaged contemporaneously and subse- quently in many incidents involving interrogation, threats, and coercive state- ments with a number of employees.' The incidents will first be summarized as to which no denial was made. Ball testified that after the start of the Union's organizing campaign Foreman Frye questioned him as to how he stood with the Union. Elmer Frye testified on cross-examination that a week or two before his dis- charge on November 3, he was interrogated by Robinson concerning his union views and about his possession of union cards. G. N. Shepherd testified that about 10 days before the strike Foreman Frye interrogated him as to his union views. Floyd Jelrell testified that about a week before the strike Teague stated that "if the Union got in, why Mr. Shuford would shut down." Pate Craig testified that a week or two before the strike he engaged in a discussion of the Union with Teague ; that he asked Teague what Teague thought 9 Respondent posted on October 19, before receipt of the Union's request to bargain, two notices which referred to the union activity and which stated, in terms protected by Section 8 (c), Respondent's position thereon. A paragraph of one of the notices, which is relevant for consideration on the discharges of Ball and Frye, was as follows : Some misguided individuals are failing or refusing to do their work properly and are neglecting their jobs in the mistaken belief that because of the union rumors ,they will not be discharged for such conduct This cannot be tolerated and is still cause for dismissal. The same standards and schedules of work are in effect as have been and each employee has the same responsibilities on the job. Activities which interfere with the proper performance of a job or which impair the efficiency of the work are still not permitted. There has been no change of policy in this respect. LONGVIEW FURNYTURE COMPANY 317 about the Union and that Teague stated that "it was a good thing if it was carried out right but he feared Mr . Shuford would shut the shop down if the Union came in there." Loyd Bowman testified that on Wednesday before the strike, he heard a heated argument between Foreman Martin and two employees during which Martin said among other things that Shuford could not have a union in the plant, that Shuford did not have the financial means to keep the insurance paid on the building, and that the plant would, be shut down if the Union came in. In the following instances , summarized under the name of Respondent's super- visor to whom the statements were attributed , either a general or a specific denial was made, or an explanation of the incident. Floyd Frye Nina Munday and Christine Bean testified, and Frye denied, that about a month before the strike Frye stated during a recess to a group of -the'girls in the sewing room that "if the Union got in there, it would be over his dead body." James Martin testified that during the organizational campaign Frye com- mented with reference to an employee, Dail, who was wearing two CIO badges at the time, "You know that is silly, some of these times that sort of thing is going to get him in trouble." Frye testified that the incident related to an em- ployee named Holtsclaw who was wearing three badges ; that he laughed at the sight and Holtsclaw inquired if Frye was making fun of them ; and that Frye said that be was not but that "it looks crazy [because] one is big enough to see and you have got three of them on you." Martin also testified that on the afternoon of November 3 Frye inquired how he stood in the Union, that he replied he thought it would be a good thing, and that Frye then responded, "Well, you better be careful, because there are a couple of boys done gone too far, and we are getting rid of them ." Frye did not say who he was referring to, and at that time Martin was unaware that Elmer Frye and Ball had been discharged . Frye specifically denied the quoted part of Martin's testimony above, but made no denial of Martin's testimony that he had interrogated Martin as to his standing in the Union. Elmer Frye and John Young testified to an occasion late in October when Fore- man Frye, having seen Young procure a union card from Elmer, warned them to "watch those cards" because "that stuff is going to get you in trouble." Frye testified that the incident occurred during work time . Foreman Frye admitted the incident but testified that it occurred after 8: 30 a. in ., and that he simply warned them it was strictly against the rules to pass out any literature during working hours10 Alonzo Teague Clyde Ennis testified that he had two conversations with Teague concerning the Union during the period when cards were being signed up before the strike. -In one of them Teague stated that "if we got the Union there that Mr. Shuford would shut the plant down, that (Shuford) would not run if we got a Union there" ; and during the other one Teague stated , with reference to some union literature at the plant, that "if he knew who brought [it] in there he would fire them." Teague denied making the statement that Shuford would shut the plant io Foreman Frye was the only witness who referred to any such rule, and his further testimony does not establish that in fact there was any. Thus , on questioning, Frye admitted that there was no rule against the distribution of literature concerning such things as church picnics, the Red Cross, or the Community Chest. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD down and could recall making no statement to any employee about bringing literature into the plant. Rash testified that about 3 or 4 weeks before the strike and about the time the Union started passing out literature, he heard Teague state that if he "knowed who brought the papers in, the literature, the first time he would fire them" ; and that Teague also stated that "if they tried to organize the Union and it didn't carry, it would happen like they did at the Piedmont Wagon, every man would get laid off that signed a Union card." Teague specifically denied Rash's testi- mony relative to union literature and testified that he could recall making no references to the Piedmont Wagon Company 11 or of making comparisons of the outcome of union activities there with those at Longview. Millard Farmer testified that a week or so before the strike Teague interrogated him concerning his union views and that when he commented favorably toward a union, Teague replied that it would not work, that if the Union should come in Shuford would shut the plant down ; that Shuford was not going to have a union, and that there was not a man on the job who could live 30 days without working. Teague denied generally making any such statements. Hugh Johnson testified that Teague made the statement before the strike that "if the Union come in, they would shut the plant down." Johnson did not know who Teague meant by "they." Teague made a general denial. As is seen, numerous witnesses for the General Counsel attributed to Frye, Teague, Robinson, and Martin, a variety of inquiries concerning union member- ship and activities, statements and warnings as to the shutting down, probable shutting down, or burning down of the plant if the Union were successful in its organization campaign, and warnings and threats that engagement in union activities would result in "trouble" and in discharge. A number of such inci- dents were not denied. In addition, Councill admitted the major substance of Brown's testimony. Fur4thermore, many of the statements and interrogations were of similar character and content, and were similar also to others which followed the discharges and the third walkout. See sections 4 and 7, tinfra. The testimony of the General Counsel's witnesses may therefore be considered as mutually corroborative ; it discloses that Respondent's supervisors, quick to fol- low Councill's example, were engaged in pursuing parallel courses of antiunion conduct. The testimony of the General Counsel's witnesses is, therefore, cred- ited," and it is concluded and found that Respondent's supervisors made the various statements attributed to them substantially as testified to by the General Counsel's witnesses. 3. The discharge of Ball and Frye The preponderance of the evidence establishes that, though not formalized as a rule, it was generally understood by Respondent 's employees that they would not walk off the job without notifying their foremen and obtaining permission. Similarly, the preponderance of the evidence establishes that approximately 2 weeks before the discharge Foreman Frye and Smith had warned all upholsterers that they were not to lay off or leave the job without notifying one of them and obtaining permission . The notice of October 19 (see footnote 9) was also warn- ing that union activity would not constitute justification for neglect of jobs. On Friday morning, November 3, Brown had driven his father to the plant but did not punch in for work because he was not feeling well . Ball and Frye had 11 Another Hickory concern See 79 NLRB 967, enfd. 176 F 2d 695 (C. A. 4). 12 Except that Foreman Frye's testimony is credited as to the incident involving the employee who wore three union badges. LONGVIEW FURNITURE COMPANY 319 punched in and had started work but had decided they were too ill to work 13 and decided to join Brown as he left the plant around 7•: 10 or 7: 15 a. in. They looked around for a foreman to report that they were leaving but found none. However, as they went through the shipping department , Brown saw Smith leaving the office and coming through the department . Brown, Ball, and Frye testified to substantially the same version of the incident , as follows : Brown spoke to Smith saying, "I am going in, I don't feel like working." Ball, who was some feet from Brown, spoke up saying "that goes for me too." Smith then replied, "Well, if you don't feel like it, you just don't feel like it." Frye then spoke up, saying "That goes for me too." 14 Smith admitted the conversation with Brown, but denied seeing either Ball or Frye with him. On cross-examination he recalled having seen Ball that morn- ing in the shipping department around 7: 15 a. in., but testified that Ball was not with Brown but was down at the door to the men's room some 60 feet away. Except for the alleged report to Smith, the absence of the three men was not called to management's attention until Edwards (a young assistant to Councill) reported to Councill around 8 a. in. that he had seen them out on the road. Councill checked with Foreman Frye who stated he did not know they were gone. Frye testified that he then checked with Smith, who said Brown had reported he was ill and didn't feel like working. Frye also asked Smith about Ball and Elmer Frye, and Smith reported "they didn't say anything,." Frye testified lie then looked at the time cards and discovered that Brown's had not been punched in but that Frey's and Ball's had.18 Smith testified that when Frey asked about the other two men he replied only that he didn't know where they were. - Councill, Frye, and Smith then conferred about the matter. Smith was ques- tioned again whether Ball or Frye had said anything to him about being off and lie said again that they had not. Smith testified, however, that all he' knew was that they were not at work; that that was all he reported to Councill and Frye; and that in fact he had not missed them until Foreman Frye asked hint where they were. At a further consultation between Frye and Councill it was agreed that the men should be discharged for walking off the job without per- mission, reference being made to the fact that warnings had been given just 2 weeks before against such action. Councill thereafter had their checks made out in full up to date and Frye delivered them to Frank Miller," who noticed there were two separate checks for 13 Ball testified that he was "dizzy" from a cold, and Frye that his sinus trouble was so bad that it interfered with his work on the job. Eugene Martin testified to having over- heard a conversation among the three area prior to their departure which indicated that their condition was due to causes other than those they assigned . However, for reasons hereinafter stated, Martin 's testimony is not credited except where corroborated. 14 The testimony of the General Counsel's witnesses raised some question as to the proximity of Ball and Frye to Brown and Smith and as to whether he heard or could have heard them. Brown testified that Frye was "a little distance " from him and Ball was a few feet from Frye. Brown admitted that in a talk over the radio shortly after the incident he said Ball was 8 or 10 steps away. Frye testified that he was about a step behind Brown and Ball about 3 steps from them, and that Smith was 8 or 10 feet from them . On cross-examination Frye testified he did not recall having testified in an unemployment hearing that Smith did not say anything to him but stated "I believe I said that he answered and I took it to mean me too." Frye testified that he was 6, 8, or 10 feet away from Smith. 15 Frye testified on cross-examination that he looked at the time cards before checking with Smith However, his version on direct examination was more in keeping with Smith's testimony, since there would have been no reason to check the time cards until Smith reported that he didn 't know where the two men were. 1e Friday was payday , and Ball and Frye and Brown had called in to request that their checks be delivered to Miller. However , Frye delivered Brown's check to his father. 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD each man and inquired the meaning. Frye testified he informed Miller the two men had been discharged for walking off without asking," that Miller inquired "why didn't you give Brown his," and that he replied "Brown asked and they didn't." Miller testified, and Frye denied, that when Miller inquired why Brown had not been discharged also, Frye replied "it looked kinda bad to get rid of all three at one time." After Miller delivered their checks, Ball and Frye went to the plant to ascertain why they had been discharged. They spoke to Foreman Frye who informed them the discharge was because "[they] didn't ask to get off," and that "Smith said you boys walked off and didn't tell him a thing." Ball stated that Smith was a liar, and both he and Elmer Frye charged that the discharge was due to their union activity. Foreman Frye insisted however it was their failure to ask per- mission to be off which led to their, discharge. 4..THE THIRD WALKOUT; THE STRIKE On Monday, November 6, the upholsterers, without starting to work, stood around discussing the discharge. They decided they would stick together and would not work unless Ball and Frye were reinstated. At the request of the upholsterers, Brown called Councill from Respondent's office and inquired whether he was going to reinstate Ball and Frye. Councill stated that he and Shuford had talked it over and were not going to take them back.'s Brown thereupon in- formed him that the upholsterers were not going to work, and thereupon they left the plant around 7: 30 a. in. and went down to the union hall. The next morning Brown called Shuford and stated that he wanted to talk with him about taking back Ball and Frye. - Brown testified that Shuford said "listen I am busy. You boys don't work at my [plant] no longer and you have nothing to talk to me about." Brown denied that they had quit, stating that their tools were there and their personal belongings and that they still worked there. However, Shuford insisted that they had quit, saying "you left, and when you left you quit, and I don't want nothing to do with the Union or you." Shuford admitted that he told Brown that when he walked out he had quit, and that he saw no reason to have a conference with them because as he viewed it the upholsterers had quit. Shuford testified that after the naughahide nego- tiations, he felt he had an understanding with the upholsterers that they would take up with him in advance any future troubles or complaints they might have and that when the upholsterers walked out he felt they had breached that agreement. As a result of Shuford's refusal to confer, there were no negotiations for a 'settlement of the walkout or for a return to work by the upholsterers. On Wednesday the Union established a picket line, and the upholsterers were joined in their strike by all except a few employees. In the meantime Respondent, by word and deed of its supervisors, confirmed Shuford's view that the upholsterers had quit and would not be reinstated. Thus, Clyde Ennis testified that after the walkout he discussed with Teague a work problem which had arisen from the absence of upholsterers and that Teague stated he did not know how to arrange the matter because "they didn't have any 'T The reason stated on the discharge slips was that they had walked off from work and had refused to do assigned work. 1s Frank Miller's testimony is not credited that on the morning of the walkout he was present when Council came out of the office where he had been telephoning and that Coun- ell reported to Brown that Shuford said that as far as he was concerned he was through with all the upholsterers. The testimony of Brown and Councill establishes that Council] was not at the plant at the time of the walkout and that he could have made no telephone call from there about the matter. Furthermore, at one point Miller's testimony indicated that he was repeating hearsay statements made by Brown. LONGVIEW FURNITURE COMPANY 321 upholsterers, and Mr. Councill and Monk was not going to take them back, they were going to learn some new ones." Teague denied making those statements. Bessie Deitz testified that after the upholsterers had walked out on Monday she inquired of Clarence Martin, her foreman, whether they were coming back the next day. Martin replied that they were not coming back at all. Deitz put the same inquiry to Foreman Smith later in the day and Smith replied, "I don't think they,are coining back at all." The next day Deitz heard Foreman Frye make the statement to a group of the women employees regarding the upholsterers that "they were not going to take them back, that they were going to put some women on and learn them to upholster." Ollie,Craig testified that on the day of the walkout Foreman Frye stated that he was not going to take back any of the upholsterers but was going to hire a new crew to learn to upholster, and that Frye offered her a job as an upholsterer. Frank Holtsclaw testified, also, that either Frye or Smith requested him to learn upholstering. Leonard Davis testified that just after the upholsterers walked out he heard Alonzo Teague say that he did not think they were going to take the upholsterers back. Davis testified also that on the same day Foreman Frye inquired of him and one Leatherman if they wanted to be upholsterers, and that later that evening or the next morning Teague came by with a list taking the names of those who wanted to learn upholstering. MayoWeaver testified that on Monday after the walkout, Frye inquired whether he would like to learn to upholster. Weaver inquired in turn what Frye intended to do about the upholsterers who had walked out, and Frye replied that he was going to hire a new crew. Leroy Bowman testified that after the cessation of work by the upholsterers and before the actual walkout, Frye said to him "boy you will be sorry of this, Mr. Shuford will burn the place down before he has a Union," or words to that effect. ' Frye denied making such a statement.19 Thomas Rash testified that on the day after the walkout, he heard some of the employees ask Foreman Frye whether he was going to take back any of the upholsterers and Frye said that he was not, that he was going to put on a new crew. Frye did not recall making any such statement and denied that he ever said that he would never work any of the old upholsterers. He admitted that he asked a number of employees if they wished to train as upholsterers. The resolution of the foregoing factual issues is simple in the light of what had gone before and by Shuford's admitted position that the upholsterers had quit and his refusal to confer with them about returning to work. Indeed, the events subsequent to the third walkout constituted only a continuation of Re- spondent's earlier campaign ; the statements of its supervisors were of an obvious piece with their previous coercive expressions. Furthermore, the several state- ments that the upholsterers would not be reinstated were manifest recognition and expression of management's policy, being obviously intended to implement and carry out Shuford's announced position that they had quit. Thus the testi- mony of the General Counsel's witnesses, mutually corroborative in the number and similarity of instances, is further corroborated by the evidence on the entire record. It is therefore credited. The plant operated at partial capacity during the strike, being run by non- strikers and by new employees. Councill testified that as a result of the strike 19 As affecting Bowman 's credibility, Respondent developed on cross-examination an admission that Bowman had pleaded guilty to assault with a deadly weapon with intent to commit serious bodily injury, and the assault resulting in serious bodily injury upon a Mr, Cauble. 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certain orders were canceled because of Respondent's inability to meet Christ- mas deliveries, and that the plant operated at approximately 30 percent of ca- pacity. The payrolls showed the following number of employees : Week ending November 18, 18; week ending November 25, 18; week' ending December 2, 23; week ending December 9, 26; week ending December 16, 36. Respondent offered evidence that during the strike the dischargees and many of the strikers engaged in threats, acts of violence, and other misconduct at the picket line and elsewhere, which conduct Respondent asserted was sufficiently flagrant in character as to constitute unprotected activity, for which the usual remedy of reinstatement and back pay should be denied. That evidence, which is relevant as an affirmative defense to the alleged discriminatory refusal of reinstatement, is summarized under section B, 3, d, infra. 5. The request for reinstatement; the refusal On December 12, Brown, for the Union, wrote Respondent as follows : The employees of Longview Furniture Company, whose names are attached, are willing and able and ready for work. On behalf of each of them I hereby make application for re-instatement. Attached was a list of 79 employees. - According to witnesses for the General Counsel the list had been prepared at a meeting of striking employees at the union hall on December 11, at which attending strikers had put their names on a sheet of paper, to which was added the names of other employees who were not present but who had taken part in the strike." Before receipt of the letter by Councill, most of the strikers went to the plant on December 12 and sent in Brown and Loyd Bowman as a committee to confer with Councill. When Councill stated he had not received the letter, Brown read a copy to Councill, who stated that due to the fact that orders had been canceled he could not take back any of the strikers, -either those who were outside or any of those whose names were on the list. Brown inquired whether Councill wanted to inform the strikers individually or wanted Brown to give them the message. Council stated his preference that Brown tell them, and Brown later did so at the union hall. - The payroll for the week ending December 16 disclosed that Respondent had hired 10 new employees after the strike began , of whom 8 were hired for the upholstery room, 1 for the sewing room,-and 1 for the machine room. 20 Testifying for Respondent, Nevert McNeely and Pauline Coble denied that they had authorized anyone to put their names on the Union's list for application for reinstatement and did not know there was any such list. It was stipulated that the following persons would testify similarly : Ervin Willis, Preston Hefner , W. M. Barnes, Henry Carswell, Maurice Hudson, Inez Hudson, Everlyn Killian, Margie Morrison , Blaine Leonhart, Dale Lowman, Loyd Hoke, Lester Stamey, Charles Winkler, Richard Winkler, and George White. Odes Burley also denied that he had authorized anyone to put his name on the list. Of the employees above named , the following had signed membership cards which had desig- nated the Union as their bargaining agency in all matters , pertaining to wages, hours, and other conditions of employment : Barnes, Carswell , Coble, Gurley , Hefner, Inez Hudson, Leonhart, Lowman, Charles Winkler and Richard Winkler. The remainder had not done so. These circumstances are immaterial , however , in view of the finding herein, section B, 2, a, infra, that the Union represented a majority of employees in the unit . Section 9 (a) provides that representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes , shall be the exclusive representative of all the employees in such unit for the purposes of collective bargaining. The statute therefore fixes the authority and the duty of a duly designated majority union to represent and to bargain for all the employees in the unit . Electric Auto-Lite Co , 89 NLRB 1192 , 1199-1200 See RKO Radio Pictures, Inc., 61 NLRB 112; Wallace Corpoiatson v. N L. R. B., 321 U. S. 248, 255-6, J. I. Case Co v. N. L. R. B , 321 U. S. 332 , 338; and see also Steele v. Louisville And Nash i alle R. R. Go, 323 U S . 192, 200. LONGVIEW FURNITURE COMPANY, 323 6. The discharge of Harold R. Clampitt Clampitt was hired as an upholsterer in April 1948 and went out on strike with the other upholsterers on November 6, 1950. He was included on the list for whom application for reinstatement was made on December 12. On Sunday, December 17, Foreman Frye went to Clampitt's home and in- quired if he wanted to return to work. Clampitt agreed to, and went back and worked most of the 18th, when Councill called him into the office. Clampitt testified that Councill told him he would "have to pay (Clampitt) off" because some 10 or 12 employees had threatened to quit if Councill permitted Clampitt to work. When Clampitt inquired the reason, Councill stated "you were on the picket line, were you not?" Clampitt agreed that he was, but said "I have said nothing to them or to you." Councill replied "if you can convince them of it, all right, I will have nothing to say to them." Frye testified that he hired Clampitt after mentioning his inter`ion to do so to Councill, who concurred, stating that Frye **was running that part and that was (his) business." Frye testified lie had previously heard statements that some employees would not work with any of the upholsterers who had been out on the picket line and cursed and abused them. Thereafter Canupp informed him she was going to quit if Clampitt went to work. Canupp corroborated that testimony. Councill later told Frye that Gene Martin and Kat Smith had similarly stated their intention of quitting. Councill testified that Clampitt was selected for employment because Councill did not recall that any employee had attributed to Clampitt any misconduct on the picket line, but that after Clampitt went to work three employees (Eugene Martin, Ilia Canupp, and Kat Smith) stated that if Clampitt stayed they were quitting ; that Canupp and Smith had reported no specific acts of misconduct but simply reminded Councill of what they had told him previously during the strike, 1. e., that they would not work with any of the upholsterers who were on the picket line. Martin had reported Clainpitt's alleged participation in the Esso station incident, which is referred to in more detail in a later section of this report .21 Kat Smith corroborated Councill's testimony that she had stated that if Clampitt was to work she would quit because of the names he had called the nonstrikers on the picket line. She also testified that she had previously in- formed Councill and Foreman Martin during the strike that she would not work with any of the upholsterers that were in the "big crowd" that cursed her and called names. Canupp testified to substantially similar effect. Martin testified that on the morning Clampitt was reinstated he went to the office, called Councill on the telephone, and informed him that Clampitt had been a member of parties that had caused him trouble and that he refused to work with "those boys," i. e., the upholsterers on the picket line, as well as the spring- up men and those in the frame room and the spray room ; that if Councill was taking them back he would leave and would not work with them. Martin testi- fied that until the morning Clampitt returned to work he had made no complaints to anyone about reinstatement of the strikers. 7. Post-strike incidents Clyde Ennis testified that the third week of the strike Teague called him off the picket line twice on one day and asked him where Anton was working, and stated that "we will have him fired" because Teague had seen in Respondent's "Martin, in his testimony on the stand , did not mention Clampitt as a participant in the Esso incident 227260-53-vol . 100--22 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office a list of superintendents at other plants who would not hire any one from Longview who was out on strike. On cross-examination he testified that Teague specified how he would procure Auton's discharge, 1. e., "they would call up from the (Longview) office and have him fired." Rash testified that during one of his applications to Teague for reinstatement after Christmas 1950, Teague stated among other things that if the Company should take back all of the employees, he "didn't want them to act crazy like they did before, if they did he was going to get rid of them." Teague made no denial of that testimony. - Hugh Johnson, Pat Powell, and Aris Powell testified that during one of their applications to Teague for reinstatement around the second week in January 1951, that Teague informed them they "were kinda on the blacklist," and that if they got off the blacklist he would try to hire them back. Carl Powell testified that Teague gimilarly told him sometime after Christmas that he was on the blacklist and that Teague refused his request to be put back to work. Teague denied the testimony of the foregoing witnesses . He testified that he had never seen nor heard of any such list as Ennis testified to, that he knew of no list of people the Company would not hire, and he denied that he told anyone anything about a blacklist. As is seen six witnesses for the General Counsel attributed to Teague state- ments of the same general character; in fact four of them testified to the same statement by Teague." Their testimony, which is mutually corroborative, is credited and it is found that Teague made the "statements to which they'testified. B. Concluding findings The evidence summarized under the preceding sections of this report dis- closes that though Respondent was content to deal with employee groups who had engaged in spontaneous concerted activity, it took prompt action to combat and to restrain their unionization. Thus, at the height of the organizational campaign Respondent's counteroffensive was touched off by Councill's detailed interrogation of Brown, known to him to be a leader in previous concerted activity, concerning Brown's views and the majority's views regarding the Union, concerning their "dissatisfaction," and what their demands would be when organized. That interrogation was followed by a statement of Respond- ent's position on the demands suggested by Brown and by solicitation of Brown's support in putting across to the employees "the Company's side of it." Councill's actions were matched by a long series of similar interrogations by four of Respondent's other supervisors, coupled in several instances with warn- ings against engaging in union activities at the risk of discharge and warnings and threats as to what would happen if the Union organized the plant. Cf. N. L. R. B. v. Carolina Mills, 190 F. 2d 675 (C. A. 4), enforcing 92 NLRB 1141. In the meantime the Respondent received and evaded the Union's formal re- quest for recognition, and shortly thereafter effected the discharge of two of the three leaders in the campaign to organize the Union. Respondent's actions dur- ing the strike which followed were plainly a part and a continuation of its earlier campaign to defeat the organizational efforts of their employees. Cued this time by Shuford's insistence that the upholsterers had quit, Respondent's 21 Irvin Willis testified that Aris Powell , who was his brother-In-law, had informed him, after Powell testified at the hearing, that the "Union fellows" had had Powell to swear that Teague had said he was on the blacklist, but that it was not true. Powell in rebuttal denied Willis' testimony and reaffirmed the truth of his earlier testimony, which, as is seen above, was corroborated by Johnson and Pat Powell who were present at the time. Powell's testimony is therefore credited. LONGVIEW FURNITURE COMPANY 325 supervisors stated openly and repeatedly that the upholsterers would not be reinstated. Those statements were followed during the strike and later by Teague's references to the blacklist and to his consequent inability to rehire strikers who had applied to him. Indeed, the series of statements by the super- visors following the third walkout were a manifest expression of management's policy and designed to implement and carry out Shuford's announced position that the upholsterers had quit. It is in this setting of Respondent's intensive and consistent campaign to de- feat its employees in their organizational efforts that particular acts and state- ments must be viewed in determining whether they were violative of the Act. 1. Interference, restraint, and coercion Z' The interrogation by Councill, Frye, Teague, Robinson, and Martin of em- ployees concerning their union views, membership , and activities , and concern- ing the demands which they would make when organized , plainly constituted interference with and restraint of their employees in their efforts freely to select their bargaining representatives . Such interrogation constituted an intrusion by the Employer upon matters which are exclusively and rightfully the sole concern of the employees ; it has been consistently condemned by the Board and the courts. See Joy Silk Mills v. N. L. R. B., 185 F. 2d 732, 743 (C. A. D. C.), cert. denied 341 U. S. 914 , quoting with approval from Standard-Coosa-Thatcher Company, 85 NLRB _1358, at 1362. And see Heinz Company v. N. L. R. B., 311 U. S. 514, 518-19 ; N. L. R. B. v. Norfolk Southern Bus Co., 159 F. 2d 516 (C. A. 4), cert. den. 330 U. S. 844; N. L. R. B. v. Dixie Shirt Company, 176 F. 2d 969, 971, 973 (C. A. 4). Similarly proscribed by Section 8 (a) (1) were the various threats and warn- ings by Frye and Teague that the consequences of engaging in the distribution of union literature and other union activities would entail "trouble," discharge, and the closing or burning of the plant , as were Teague's threat to have Auton fired and his refusal to rehire Johnson and the three Powells because they were blacklisted. Citation of authority is scarcely necessary to establish the coercive character of such conduct . See, for example, N. L. R. B. v. Carolina Mills, supra; N. L. R. B. v. Blair Quarrie Inc., 152 F. 2d 25 (C. A. 4) ; N. L. R. B. v. Piedmont Wagon Co. , 176 F. 2d 695 (C A. 4)." Also forbidden by Section 8 (a) (1) was Shuford 's statement that the uphol- sterers had quit and his refusal to confer with them concerning the work stoppage or their return to work , as well as the various statements by Frye, Teague, and Martin that Respondent would not take back the upholsterers but would replace them with a new crew. Myers Products Corporation, 84 NLRB 31, 51, and cases cited ; and cf. Happ Brothers Company, Inc., 90 NLRB 1513; N. L. R. B. v. Greensboro Coca-Cola Co., 180 F. 2d 840 (C. A. 4). 23 Independent as distinguished from derivative violations. u The interrogation and threats found violative of Section 8 (a) (1) were not privileged under Section 8 (c) which permits expression of "any views , argument, or opinion" un- accompanied by "threat of reprisal or force or promise of benefit ." The threats were plainly coercive. Interrogation , not being an expression of "views, argument , or opinion," has been recognized as a form of interference and intimidation . Joy Silk Mills V. N. L. R. B., supra; N. L. R. B. v. Kropp Forge Company , 178 F. 2d 822 (C. A. 7) ; N. L. R. B. v. LaSalle Steele Company, 178 F. 2d 829, 832 ( C. A. 7) cert. denied 339 U. S. 963; N. L. R. B. v. Gate City Cotton Mills, 167 F. 2d 647, 649 (C. A. 5). 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The refusal to bargain a. The appropriate unit; the Union's representation of a majority therein It is concluded and found that all of Respondent's production and maintenance- employees, excluding all supervisors (as the term is defined in Section 2 (11) of the Act) and all office clerical employees, guards, and professional employees, constitute a unit appropr'ate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. Respondent's payrolls disclose that, at the time of receipt of the Union's request for recognition and bargaining on October 19, there was a total of 115 employees in the above unit. "Either on October 19 or 20, the Union filed with the Board's Winston-Salem office 59 signed membership cards (General Counsel's Exhibit 2) ; and shortly thereafter it filed 3 additional cards dated October 11, 12, and 16, respectively. (General Counsel's Exhibit 3.) Because of the confusion in the testimony as to the identity and signature, the General Counsel took no position on the card of Dora Weber or Melvin. The General Counsel conceded also that Grant Stillwell, who signed one of the cards, was not on Respondent's payroll for the week ending October 21. In addition the General Counsel failed to produce any evidence that Hubert H. Pitts signed the card which bore his name. These reduce the Union's total designations to 59. Respondent attacked the validity of the authorization on 14 of the cards because they were undated. However, the testimony of Reed Johnston, in charge of the Board's Winston-Salem office, establishes, and it is hereby found, that all of the cards were filed in that office on or about the date of the filing of the representation petition on October 20. They could not therefore have been taken subsequently during the strike and the picketing Rb Other unrebutted testimony establishes, and it is hereby found, that all of- the cards which were forwarded to the Winston-Salem office were obtained during the course of the Union's organizational campaign in September and October 1950. Respondent also questioned the validity of the designations on the cards of Loyd Bowman, Millard Farmer, and Jack Eugene Collins," because the alleged signatures appeared not on the line provided therefor but in the body of the designation in the blank provided for the member's name. However, Farmer and Bowman testified personally that they actually affixed their signatures in the upper blank, and Elmer Frye testified to having seen Collins place his signa- ture on the card. It is therefore concluded and found that the said cards of Bowman, Collins, and Farmer constituted valid authorizations to the Union to represent said employees. Preston Hefner testified as General Counsel's witness that he had signed his membership card on October 16, the date indicated thereon, and that it was before the strike began. Called later as Respondent's witness, Hefner testified that he had signed the card during the strike while he was on the picket line. Hefner's latter testimony was obviously incorrect and is not cred- ited, since his membership card was a part of General Counsel's Exhibit 2 which was filed, as previously found, in the Board's Winston-Salem office on or about October 20. Respondent also attacked the authorization signed by Eugene W. Martin. Martin testified that he did not read the card, that Brown stated to him that R5 In identifying the cards of Ted Ford Gant and H. D. Johnson , whose signatures he had procured and which were dated respectively October 12 and October 13, Elmer Frye testified mistakenly that he had signed them up on the picket line. Gant later identified his card and testified that he had signed it on the date it bore. 26 Not to be confused with E. E. ( Eugene ) Collins, for whom a separate card was filed. LONGVIEW FURNITURE COMPANY 327 if anyone tried "to foul the set-up" ( i. e., the Union ) he would either be whipped or would have to get out and get another job. On cross -examination Martin testified that Brown told him that by signing his name to the card, that would `.give us a chance to vote or get out and get you another job" ; that he assumed from Brown's remarks that lie would get into trouble if he continued to stay and did not sign and that the other employees would make it so hard on him lie would have to leave. Brown denied Martin's testimony . He testified that Martin was discussing the Union and stated that either he or his brother, Clarence , had belonged to the Union in Tennessee and that a union was all right if it was handled right. Brown testified that someone in the crowd at the time remarked that if they joined they were in the Union , that he gave Martin a card , and that Martin signed it. Martin's testimony is not credited . In his demeanor and in various aspects of his testimony later to be adverted to (see infra, pp. 332, 333 ), Martin evinced au imaginative and nervous disposition , easily excited , and prone to exaggeration. It is significant also that of 60 other identifiable employees who had signed cards, more than half of them testified at the hearing but none claimed to have been similarly threatened. It is therefore concluded and found that at the time of the Union 's request to bargain on October 19 , it represented a total of 59 employees and a majority of the employees in the aforesaid unit. b. The refusal to bargain Respondent delayed acknowledgment of the Union's request to bargain from (October 19 to October 25, and in reply referred to the Union's filing of the repre- sentation petition and to the assignment of the matter to a field examiner as ob- viating the necessity for a bargaining conference. Even were this regarded as the equivalent of an assertion of Respondent's belief that it could await certifica- tion of the Union before bargaining, it would furnish no defense to the refusal to bargain. NLRB v. Inter-City Advertising Company, 190 F. 2d 420 (C. A. 4), decided July 16, 1951, enforcing and quoting with approval from 89 NLRB 1103; Ken Rose Motors, 94 NLRB 868; M. H. Davidson Company, 94 NLRB 142. The evasion of the request and the failure to make a specific negative response does not, of course, preclude a finding of a refusal to bargain, because Respond- ent's conduct, hereinafter referred to, was tantamount to a rejection of the request. Somerset Classics, 90 NLRB 1680, and cases cited; and see Pacific Plastic & DI fg. Co., 68 NLRB 52; N. L. R. B. v. Crown Can Co., 138 F. 2d 263; 266 (C. A. 8), cert. den. 321 U. S. 769; N. L. R. B. v. Lettie-Lee, Inc., 140 F. 2d 246, 247 (C. A. 9). The evidence fails to support Respondent's position as expressed at the hearing that it entertained a good-faith doubt that the Union in fact represented a majority of its employees. First, no such contention was made in Respondent's letter of October 25, nor at any other time prior to the hearing. Nor did Re- spondent make any attempt to ascertain whether the Union represented a majority. Cf. N. L. R. B. v. Inter-City Advertising Company, supra. Indeed, during Councill's earlier interrogation of Brown, Brown had informed Councill that a majority had signed cards, and Councill, far from expressing doubt,' proceeded to ascertain what demands would be made. Furthermore, Respond- " Significant also was Frye's testimony as to the wearing of union badges in the plant during the campaign : "Almost every one you seen had one." 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent's supervisors immediately embarked upon a coercive campaign of unfair labor practices which were plainly designed to destroy the Union's majority and to make a free election impossible. The evidence therefore establishes that Respondent's refusal of the Union's request for bargaining was not motivated by any bona fide doubt as to its majority but by a desire to gain further time in which to undermine its support. N. L. R. B. v. Inter-City Advertising Company, supra; N. L. R. B. v. Joy Silk Hills, supra, affirming 85 NLRB 1263; N. L. R. 11. v., Everett H. Van Kleeck d Co. Inc., 189 F. 2d 516 (C. A. 2). It is therefore concluded and found that on October 19, 1950, and thereafter, Respondent refused to bargain with the Union and thereby engaged in unfair labor practices proscribed by Section 8 (a) (5) and 8 (a) (1) of the Act. 3. Discrimination a. The discharge of Ball and Frye The discharge of Ball and Frye presents the problem, common to many unfair labor practice proceedings, of determining whether the discharge of leading adherents of the Union was due to their activities on behalf of the Union or was for the cause asserted by the Employer, here that they walked off the job with- out permission. That Ball and Frye were active in union affairs entitled them, of course, to no special privileges and afforded them no immunity against dis- ciplinary measures or discharge in case they ignored or flouted work rules or managerial authority. Central Wisconsin Motor Transport Company, 89 NLRB 1204, and cases cited ; Crag Lumber Co., 95 NLRB 917. The preponderance of evidence establishes that they well understood they were supposed to report to a foreman before leaving the job, and it is their testimony and Brown's that they in fact did so. Smith denied that they did and denied further that they were with Brown when Brown reported his departure. That is the first and the main factual issue. The preponderance of the evidence requires that it be resolved against Respondent. First, it is undisputed that Brown, Ball, and Frye left the upholstery depart- ment in company 28 and that they walked out through the shipping department There is no evidence that they tarried or separated in leaving the plant, and Smith's testimony is in agreement with Brown's as to the time he met Brown on the way out. The circumstances therefore support the testimony of Brown, Ball, and Frye that they were together or in close proximity to each other when they met Smith, and their testimony, which is mutually corroborative, is credited as to their conversation with Smith " Smith's testimony as to his subsequent conferences with Foreman Frye and Councill was that he simply reported that he did not know where Ball and Frye were, and he denied that he reported that they had walked off the job-or that they had walked off without permission. Councill, on questioning by the Trial Examiner, confirmed Smith's testimony that Smith reported that he had not seen the two men and did not know whether they had left or not. The discharge of two leading union adherents on this base is plainly suspect, in spite of the evidence that the upholsterers had recently been warned against walking off the job. Such a severe penalty was obviously not in keeping with the Respondent's prior lax practices under which employees had been accorded considerable freedom in absenting themselves from work ; and Respondent's m That fact is corroborated by Respondent 's witness, Eugene Martin. " This finding resolves the issue of Smith's denial that Ball and Frye were with Brown and the issue whether Smith actually heard or could have heard the former when they spoke to him. LONGVIEV-FURNITURE COMPANY 329 evidence failed to establish a single instance of either discharge or of disciplinary action for a comparable dereliction 80 But the record contains more direct evidence that Respondent was not in fact motivated by the alleged breach of a work rule. Thus, James Martin testified that on the afternoon of November 3, before he knew of the discharge, Foreman Frye had warned him about participation in union activities because Respondent was ridding itself of two employees who had "gone too far." Martin's testimony to the foregoing effect has been credited in a previous section of the report. Furthermore, Miller testified that when he inquired of Foreman Frye why Brown also was not being discharged, Frye replied that "it would look bad to terminate all three at once." Miller's testimony is credited over Frye's denials." It is therefore concluded and found on the entire evidence surrounding the incident, as well as on the earlier evidence of Respondent's campaign to defeat the Union, that the reason assigned by Respondent for discharging Frye and Ball was a baseless pretext to rid itself of two leaders in the Union's campaign ; that said discharges were effected not for the cause assigned by Respondent, but because of the leadership of the two employees in union activities, cf. N. L. R. B. v. Greensboro Coca-Cola Co., supra; and that Respondent thereby engaged in un- fair labor practices within the meaning of `Section (8) (a) (3) and (1). b. The discharge of the upholsterers The upholsterers having gone on strike in a current labor dispute remained Respondent's employees at the time that Brown endeavored to discuss with Shu- ford the settlement of the dispute." Shuford, however, peremptorily informed Brown that when the upholsterers walked out they had quit and he refused to confer with them concerning the settlement of the dispute and their return to work. Respondent immediately adopted and confirmed that statement of its president and carried it into effect through the various acts and statements of its supervisors that the upholsterers would not be reinstated, that a new crew was to be hired in their places, and by the actual recruiting of such a crew.33 Respondent's actions were, therefore, no mere "tactical maneuver" directed toward inducing the upholsterers to abandon the strike and to return to work, such as the Board has had occasion to consider in a number of cases. See, for example, Myers Products Corporation, 84 NLRB 32, and cases cited p. 49, foot- note 46. To the contrary they had the opposite design of preventing the return of the strikers and of filling their jobs by permanent employees. It is therefore concluded and found that by its said statements and actions, Respondent, on November 7, 1951, discharged the following upholsterers because they had engaged in union and other concerted activities (N. L. R. B. v. Greens- OD The three instances cited by Respondent were based on entirely different causes John Benefield was discharged for refusal to perform, and for failure to report for, overtime work on Saturday morning. Bob Spake was fired because of repeated absenteeism, and Everett Bowman was fired for being drunk on the job. ez Smith, who was present part of the time when Miller was talking with Frye, testified he did not hear Frye make such a remark, but admitted that he was not paying attention and that he did not recall that he stayed near them after Frye actually delivered the. checks to Miller. - 82 This is true regardless of whether the strike be viewed as economic in origin or as an unfair labor practice strike, since there is no evidence that by the time of Brown's call to Shuford, Respondent had replaced any of the upholsterers with permanent employees. N. L. R. B. v. Remington Rand Inc., 130 F. 2d 919 (C. A 2) ; N L. R. B. v. Mackay Radio and Telegraph Company, 304 U. S. 333; Home Beneficial Life Ins. Co. v. N. L. R. B., 159 F. 2d 280 (C. A. 4); N. L. R. B. v. Greensboro Coca-Cola Co., supra. Actually as hereinafter found the strike was an unfair labor practice strike. See section d, infra. 83 Foreman Frye testified that he intended to keep as upholsterers all who were found qualified after training. 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD boro Coca-Cola Co., supra) ; Loyd Bowman, Walter Brown, Earl Correll, Eugene Collins, Jack Collins, LeRoy Giles, Odes Gurley, Loyd Hoke, Frank D. Miller, Ben Roberts, Fred Seagle, G. N. Shepherd, Floyd Shook, and John E. Young, and that Respondent thereby engaged in unfair labor practices within the mean- ing of Section 8 (a) (3) and (1)." c. The discharge of Harold R. Clarmpitt The legal issue here is identical with that presented by Respondent's conten- tion that it refused reinstatement to the other upholsterers because of the re- fusal of certain nonstriking employees to work with them. The issues are, therefore, resolved together under the caption "The Refusal to Work with Strikers," infra. d. The refusal to reinstate the strikers A preliminary question to be determined, before reaching the main issue whether Respondent's refusal to reinstate the strikers was discriminatorily mo- tivated, concerns the cause and character of the strike. It has been found that Respondent acted from discriminatory motives in discharging Ball and Frye and that it thereby committed unfair labor practices pioscribed by the Act. The evidence is undisputed that the strike by the upholsterers was because of that discharge and because of Respondent's refusal to reinstate Ball and Frye Such it strike, which was induced by and which had for its sole object procuring from Respondent rectification of its unlawful acts was an unfair labor practice strike, and the strikers therefore remained Respondent's employees until reinstated or offered reinstatement by Respondent. N. L. R. B. v. Remington Rand, Inc., 130 F. 2d 919, 927-8 (C. A. 2) ; N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U. S. 333. But even were it assumed arguendo that Respondent discharged Ball and Frye for cause and that the strike was economic in its origin, there is no doubt that it was immediately converted into an unfair labor practice strike by Respondent's unfair labor practices and was prolonged as such by Respondent's continuing unfair labor practices. N. L. R. B. v. Remington Rand, Inc., supra; N L. R. B. v. Ci rnley Chemncals, Inc., 188 F. 2d 91 (C. A. 5) ; The M. H. Rttzwoller Co. 15 NLRB 15, enf'd. as modified, 114 F. 2d 432 (C. A. 7). Thus, as has been found, Re- spondent by its statements and actions on November 7, discharged 14 striking upholsterers with the design of preventing the termination of their work stop- page and their return to work. Such unfair labor practices not only prolonged the strike but resulted in broadening it to all departments. Or were it again assumed arguendo that Respondent's actions did not rise to the level of a dis- charge, yet the statements by Shuford and those which followed by his super- visors were nevertheless coercive utterances which constituted unfair labor prac- tices under Section 8 (a) (1) of the Act, as found in section B, 1, supra. In any event, therefore, the strike was prolonged by Respondent's said conduct and by its other unfair labor practices subsequent to the strike as herein found, and hence became an unfair labor practice strike. The foregoing findings elimi- nate the contention that Respondent had replaced the strikers, insofar as posi- tions were available, with permanent employees. The strikers were entitled, upon u It is immaterial from the standpoint of the remedy to be applied whether Respondent's conduct be viewed as violative only of Section 8 (a) (1), since the remedy will be identical. Smith Victory Corporation, 90 NLRB 2089, enfd. 190 F. 2d 56 (C. A 2) ; Ohio Oil Com- pany, 92 NLRB 1597; Dant & Russell, 92 NLRB 307; and of Gullett Gin Co. v. N. L. R. B., 179 F, 2d 499 ( C A. 5), reversed on other grounds, 340 U. S. 361. LONGVIEW FURNITURE COMPANY 331 their unconditional application on December 12, to reinstatement to their former positions (Julian Freirich Co., 86 NLRB 542; Ford Brothers, 73 NLRB 49, 70; Athens Mfg. Co., 69 NLRB 605, 608) ; and Respondent's denial of reinstatement constituted per se discrimination in hire and tenure of employment. (Rockwood Stove Works, 63 NLRB 1297). Respondent's evidence at the hearing was directed toward establishing in de- fense of its said action (1) that numerous strikers had engaged in threats, acts of violence, and other misconduct on the picket line of so flagrant a character as to bar them from reinstatement, and (2) that nonstriking employees had noti- fied Respondent that they would refuse to work with many of the strikers be- cause of their misconduct on the picket line. Those defenses will be discussed in order following the summarization of the evidence relating thereto. Strike Incidents The Union set up a picket line on the morning of November 8, and maintained it until shortly before the application for reinstatement. On the first day the line was established there was temporary blocking of the entrances by some of the strikers. Thus, Illa Canupp testified that as she attempted to enter the plant some of the strikers were standing in front of each door and that she was in- formed by several of the upholsterers, including Brown and Loyd Bowman, that she could not go in. She testified that the sheriff and constable later came there and opened the doors," that Councill came out and announced that the door was open to all who wanted to enter, and that she then went in. Polly Jones testi- fied that Brown, Loyd Bowman, and Fred Seagle similarly informed her that she could not enter the plant and that they actually blocked her entrance by retreating in front of her from her car all the way to the steps leading up to the entrance where she was finally blocked. Brown denied that he or the others had retreated in front of Jones or blocked her entrance and testified that he only attempted to persuade Jones not to go into work. However, he admitted having told Jones that they wanted to keep the employees out and wanted to keep the plant shut down until they could get the strike settled. Jones' testimony is credited. Burl Smith testified that the first morning the pickets were at the plant three men stopped him at the platform, of whom Howard Cook was the only one he knew; that Cook said "Smith, you can't go in there . . . we are going to close this damn thing down until we get what we want, and ain't nobody going in there." Smith inquired whether lie could go in to get his tools, and Cook replied "No, you will have to go to the office and have them bring them." Smith's testimony was not denied. Preston Hefner testified that the day the picket line was formed he was entering the plant early through a window in order to fire up the boilers and that Jack Collins and Lester Ramsay grabbed him by the coat and pulled him out, saying "You can't go in. We closed the damn thing down and we mean for it to be down until we get a damn union here." Hefner acceded to their further direction that he go home and get off the premises, telling them that he was not in the habit of fighting. No denial of Hefner's testimony was made. Illa Canupp, Kat Smith, and Polly Jones testified to an incident later during the strike when Kat Houser allegedly assaulted Canupp in an attempt to block Canupp's entrance into the plant. Canupp testified that the day prior to the incident Loyd Bowman had stated that "if we can't keep you damn women 31 Brown fixed this time as around 8 a. m. Reporting time was 7 a m. 332 DECISIONS OF NATIONAL LA,1194 t+ELATIONS BOARD in there away we will get some women up here to beat you up and tear your clothes off if necessary." Kat Smith testified that Elmer Frye made a similar threat to her the day before the incident. As Canupp, Jones, and Smith arrived at the plant the next clay , there were present Kat Houser, Nancy Harrelson , Martha Leatherman , Ollie V. Craig, and Katie Miller. As the former group left their cars Houser approached them, fol- lowed by the others in her group. Houser first told Jones that she could not go in, but Jones ran ahead and got inside the door . Smith also got inside the door ahead of Canupp. Houser told Canupp that if she went in, there would be trouble, and Canupp replied that nevertheless she was going in. There- upon, as Canupp started up the steps Houser caught Canupp by the arm and pulled her down. However, Canupp caught hold of the side of the door and pulled herself in. As Houser took hold of Canupp's arm one of the other girls with Houser said "Come on, girls, let's get them [or her]," and thereupon ap- proached. However, Jones testified that by that time Pitts, the sheriff or con- stable, had come over and got the pickets across the street. The evidence does not establish that Harrelson, Craig, Miller, and Leatherman had any part in the assault on Canupp or that their actions on the occasion amounted to a blocking or attempted blocking of the entrance of the plant. Thus, Kat Smith testified that the other girls with Houser were gathered around but did not do anything, and there is no testimony by any of the other witnesses that they did. Councill, for example, saw the actual "wrestling in the door- way," but saw none of Houser 's companions. The Houser group (except Miller) testified for the General Counsel; they admitted that Houser took hold of Canupp's arm but denied that Houser pulled Canupp down the steps. Houser admitted that she said to Canupp "We want to talk to you. There might be trouble." She admitted also that she pleaded nolo contendere and was convicted and fined $50 and costs on a charge of assault- ing Canupp. The evidence establishes that the foregoing was the only occasion on which women strikers engaged in picket line activity. Eugene W. Martin testified to a number of occasions on which he was allegedly threatened by strikers , singly or in groups. Martin testified on cross-examina- tion that he had been discharged from the Armed Forces under a nervous disability and that because of his condition he was naturally fearful when out- numbered, and that even the calling of "bad names" had a bearing on his physical condition. His testimony was denied , insofar as alleged threats were concerned, by a number of witnesses for the General Counsel , whose account of the Esso incident disclosed that Martin 's version was at best an exaggerated and imaginative one. Martin testified that he did not join the upholsterers in the walkout on November 6 but went to a nearby cafe for breakfast and that Brown -and a group of the upholsterers shortly came in. Brown asked him why he did not stick with them and he replied that he did not think they were doing the right thing ; thereupon Brown threatened that Martin would be whipped if he went back into the plant and that "we are going to get you." Brown admitted that incident but denied the making of any threats on the occasion. Martin testified that on Thursday after the walkout he drove to the plant to get his pay check and that James Martin approached his car and informed him he would have to get permission of the strikers on the picket line to go into the plant or else "an escort and a damn good one." James Martin admitted that he told Eugene "we are all trying to keep everybody out that we can" and that he requested him to talk to the other strikers before going in. James testified LONGVIEW FURNITURE COMPANY . 333 that it-was Eugene who suggested the necessity of an escort, and that he departed, saying, "I will get the damn law and see what this is all about." Leroy Giles corroborated Jaines' version of the incident, whose testimony is credited. It is unnecessary to summarize in detail the evidence relating to Martin's alleged claim that he was threatened at an Esso filling station in Hickory on a Saturday morning. This is so because Martin's testimony is completely over- borne by several witnesses for the General Counsel and because of its own inconsistency. At best the alleged threats consisted of the admitted fact that James Martin called Eugene a damn liar and his claim that Loyd Bowman told him that he would be sorry if he went back to the plant. On the point of incon- sistency, Martin first named as present Frye, Brown, Ball, Loyd Bowman, Junior Young, Fred Seagle, and Curley Correll, and later added during the course of his direct examination the names of James Martin and Floyd Shook. On cross-examination a few minutes later he named as present Frye, Ball, Brown, Bowman, Young, James Martin, and Clyde Ennis, and testified that he did not remember Correll being there, and did not remember that, during his direct examination, he had mentioned Correll as being there. On recross-examination Martin testified for the first time that Brown had also said to him that if the strikers got back in the plant they would make it hard on him. Brown and Ball testified that they were not present during the Esso station incident and had never heard of it until the hearing. Correll also testified that he was not present. Their testimony was corroborated by Elmer Frye and James Martin, who testified that only they, Shook, and Harold Clampitt were present. Frye and Martin denied that threats were made by anyone present. Their testimony is credited. Passing reference is also adequate for Martin's testimony concerning the fol- lowing of his car in downtown Hickory one night. Martin admitted that the incident began in the presence of city policemen to whom he had already expressed his fears that there would probably be trouble. Other evidence established that Martin's car was parked at the time behind the building which housed the union hall. Because of these circumstances and of Martin's known antipathy to the union, it was not unreasonable for the union members to make some check of Martin's movements to ascertain whether he was engaged in surveillance or other antiunion activity. Martin's fears of trouble were disproved under his own account,,since he testified that the other cars at no time bumped into his or attempted to force him off the road and that the occupants made no threats and no show of violence. Again Martin's nervous condition appeared responsible for the importance he accorded the incident. Thus he testified that it put fear into him to be so followed by a group of men with the purpose ( in his mind) that they would do him bodily harm if they could find him outside the city limits. Yet according to Martin's account the car trailing occurred over a period of over 2 hours, and although he drove on to Lenoir that night, he was unable to state whether he was followed out of the city limits or not. Martin testified to another occasion on which, as he was leaving the plant in his car, Ennis had run alongside of it, slapped it three times, and dared him to get out, adding, "We've been wanting to get ahold of you for a long time anyhow." Ennis denied the incident. However, Burl Smith corroborated Martin's testi- mony, which is therefore credited. The testimony concerning the Bolick incidents varied widely from witness to witness, but the discrepancies are more apparent than real, since the witnesses, because of their relative positions in respect to the happenings, heard and saw different segments of the incidents. The incidents occurred early in the strike and began with the arrival at the parking lot of Curt Bolick, Norma Bolick, his 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wife, Kat Smith, and Burl Smith in Curt Bolick's car Bolick testified that he was stopped at the road by Shepherd and Loyd Bowman and that Shepherd said "you can't go in there today. We ain't letting nobody go in today . . . You might as well turn around and go back home ;" and that Brown then came up and said "If you pull in here, we will turn your car over and burn it up." Bolick testified that Herman, the constable, then came up and directed him to pull in and park. Norma Bolick testified to substantially similar effect but added Ball, Ennis, and Young as members of the group who had stopped them. Kat Smith's testi- mony was not clearly related to the incident, and she testified that she did not see at all the incident which following concerning Lee Bolick's car. Burl Smith's testimony was corroborative of the Bolicks that Shepherd told Bolick he could not go into the plant and that Brown threatened to turn the car over if they did not leave. Smith testified that Ball also told Bolick he could go in if he wanted to but he would not recognize his car when he came back out. Bolick testified that as he drove in to park, Lee Bolick drove up in his car, that Brown said "Come on, boys, let's turn his car over," and that the group went over to Lee's car. Norma Bolick's testimony was again substantially corrobora- tive. The Bolicks also testified that the constable was present at the time the threats were made, but that he went into the office as the crowd started to Lee Bolick's car. Curt Bolick testified that his view was partially blocked of the occurrences which followed, but Norma Bolick testified that in the group around Lee Bolick's car there were Brown, Anton, Ball, Young, Loyd Bowman, Earl Correll, and Frank Miller, and that the first four of that group took hold of the car and raised it up Lee Bolick testified that he was first stopped by some strikers. including Elmer Frye, as he started to pull into the parking lot and that Frye told him not to go in ; that Brown then Caine up and asked Bolick not to go in and stated that he "was talking like a mother." Bolick testified that when he refused, Brown attempted to open the car door which was locked, that Brown stated that Bolick could not go- in, and motioned for the other strikers to come over. Bolick recalled as present Ennis, Leiter Ramsey, Young. Ball, Brown, and Fred Seagle. He testified that Young said that they would turn Bolick's car over if he didn't leave and that the group (except Brown who had walked away) caught hold of the ear and lifted it up as if to turn it over. They asked him if he would leave if they let the car back down, and lie agreed to. Bolick testified that as he drove away Tall said, "If that ain't enough, we will follow you on over in the highway." Curt Bolick testified that after Lee Bolick drove away, Elmer Frye and Ball came back to his car and that Ball said to, him "You can go in now, but if you do, you won't recognize your car when you come out " Lee Bolick testified that he swore out a warrant as a result of the incident and that he named on information and belief 21 participants as defendant. Respond- ent's counsel, Smith, represented that 11 of the defendants were convicted and found guilty and that a nonsuit was taken against the others on Bolick's state- ment that he could not identify them. The most candid testimony by the General Counsel's witnesses concerning the Incident was given by Ball, who testified that there were from 6 to 10 men around the car. Ball admitted that someone threatened to overturn the car and that members of the group, including at least himself, Ennis, Seagle, Ramsey, and 88 Miller testified that although he was named as a defendant to the Bolick warrant and identified by Norma Bolick at the trial as being present around Lee Bolick's car, he was not at the plant the day the Incident occurred; that although he was not acquitted in the local court, the charges against him were dismissed In the "high court" at Newton. Respondent offered no rebuttal to that testimony , and it is credited. LONGVIEW FURNITURE COMPANY 335 possibly Young, took hold of the car and rocked it back and forth until Bolick agreed tp leave. Ennis' admissions were similar to Ball's. Ball also testified that it would have been easy enough for them to have turned over the car if they had wanted to. Brown, Frye, Ball, and Shepherd denied the various threats attributed to them during the incidents, their version being that they simply attempted to persuade the Bolicks and the occupants of their cars not to go in to work. Brown also denied that he went to Lee Bolick's car, denied that he participated in or even saw anything of the incident concerning it, but he admitted that he was a defendant to the Lee Bolick warrant and that he was convicted on the charge of assaulting Lee Bolick. The denials of the General Counsel's witnesses are not credited. The entire atmosphere of the Bolick incidents, as conclusively established by the final and climactic act of driving Lee Bolick off the premises, was one of coercion, threats, and threatened violence. It is concluded and found on the basis of all the evidence that the participants in said acts were as follows : Anton, Ball, Brown, Loyd Bowman, Earl Correll, Ennis, Frye, Lester Ramsey, Fred Seagle, G. N. Shepherd, and John E. Young. Paul Hollar testified to a number of occasions on which he was threatened by strikers, singly or in groups. He testified that the day before the machine room joined the upholsterers on the strike, Auton and Ennis told him that if he did not sign a union card and go out with them they were going to get a crowd together and beat him. He testified further that a few days after the strike started he stood on the picket line one morning at the request of the strikers but did not do so any more because he did not like the circumstances. A day or so later Ennis and Anton came to his house, questioned him as to why he was not on the picket line, and threatened that if he (lid not go back they would carry off his hogs, his chickens, his boy's pets, and would otherwise "aggravate" him in every way possible. He testified however that thereafter he and his wife went through the picket line daily." Hollar testified also that on another occasion Anton and Ennis cursed him and that one afternoon as he was leaving work in his car, Ennis who had a stick in his hand, dared him to get out of the car. Anton did not testify. Ennis denied making the various threats which Hollar attributed to him on the fore- going occasions. His denials are not credited. Hollar testified that Lester Ramsey, while holding a knife, had also cursed him and dared him to get out on the road. Ramsey did not testify. Hollar also testified that James Martin threw tacks in front of his car as he drove up one morning. Hollar admitted that his wife had thrown a stick out of the car at Martin on the occasion. Martin testified that what he had done was to motion Hollar's car down the road and denied that he had strewn tacks in front of it. Martin's testimony, which was corroborated by Frank Miller, is credited. Rodney Bradshaw testified that as he arrived at the plant one morning four or five strikers came up. including Leroy Bowman who said, "You boys are not going in this morning. You fellows can go home or go to the hospital either one. You are not going inside." However, Bradshaw did not know Bowman's com- panions. The General Counsel did not seek reinstatement for Leroy Bowman. 81 Hollar made hearsay references to an incident at his home which his wife reported to him on November 18. Mrs. Hollar was not called as a witness , and Hollar's testimony, which was not connected or corroborated, was clearly incompetent. Westinghouse Elec- tric Corporation, 94 NLRB 415. Respondent's counsel conceded the Trial Examiner should not give the testimony probative weight. 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mark Whisnant testified that he was approached on the parking lot by a group of whom he knew only Loyd Bowman and that Bowman told him that if.they got back in there they would make it so hard on him that he would have to quit Mrs. T. A. Miller testified that she drove her grandson, Mack Barger, to and from the plant during the strike; that Henry Starnes came to her home and told her that the CIO had directed him to tell her she was in danger going there, that if she took Barger in the next day "the women would take care of [her] and the-men would take care of the boy," and that they were going to close the doors the next morning and no one could get in. She testified however that she disregarded the warning and continued to carry Barger to the plant. She testified further that one afternoon she went to the plant a little early and that Anton and someone else whom she did not know told her there was not any "law" there that afternoon and they "were going to get the damn scabs as they came out that evening." Anton did not testify. However, Starnes testified credibly that Barger was not normal mentally ; that Foreman Teague had in fact requested Starnes' assistance in keeping control of Barger on the job because Starnes had some influence over him ; that it was due to his influence over Barger that the Union requested him to see Mrs. Miller and request that she keep Barger at home dur- ing the strike because of his condition. Starnes testified that he simply re- quested Mrs. Miller to keep Barger home for a day or two and denied the threats which she had attributed to him. Starnes'-testimony is credited. gat Smith testified that Ennis threatened her in the road one afternoon while holding a stick, and dared her to come out into the road. The remaining incidents boil down to a variety of cursing and name calling," such as are common to practically all strikes. The leaders in such activity were identified as Brown, Ball, Ennis, and Frye, but one or more instances of cursing and/or name calling were also attributed to each of the following : Anton, Charles Ball, Christine Beane, Loyd Bowman, Howard Clampitt, Earl Correll, Eugene Collins, Jack Collins, Leroy Giles, James Martin, Frank Miller, Lester Ramsey, Ben Roberts, Fred Seagle, G. N. Shepherd, Floyd Shook, and John Young. In addition Canupp testified that Mrs. Martha Leatherman said over the loud- speaker, referring to the nonstriking women employees, that "us women would not be working if we were not the boss men's girl friends." Certain contentions advanced by Respondent at the hearing were directed at attempting to attribute to strikers who were identified as present on the picket line eoresponsibility for acts in which they were not shown to have participated. However, the principle is well established that unlawful conduct, by a union or by an individual, cannot affect the reinstatement rights of a striker who does not participate in such conduct. Deena Artware, Inc., 86 NLRB 732, 734, 801; Standard Oil Company of California, 91 NLRB 783; N. L. R. B. v. Ohio Calcium Company, 133 F. 2d 721 (C. A. 6) ; Republic Steel Corporation v. N. L. R. B., 107 F. 2d 472 (C. A. 3), affd., as modified, 311 U. S. 7; El Paso Electric Company, 13 NLRB 213, enfd. 119 F. 2d 581 (C. A. 5). The Refusal to Work with Strikers Pertinent for consideration here is the evidence concerning the discharge of Harold R. Clampitt, section A, 6, supra, to which reference is again made. The ae E. g. trash, low-down trash , damn women, scabs, damn scabs , low-down scabs, yellow scabs, crummy scabs, damn bitch, son of a bitch , damn son of a bitch, scabby son of a bitch There was testimony that "scab " was defined over the loudspeaker In terms similar to Jack London's definition. LONGVIEW FURNITURE COMPANY 337 testimony of Kat Smith, Illa Canupp, and Eugene Martin there summarized is typical of that of Respondent's other witnesses to which only brief reference need be made. The following additional examples will suffice to give the full flavor of the employee complaints. Hollar testified that he reported to Teague the various happenings during the strike to which he had testified as a witness ; that he told Teague he would not work with anyone who engaged in the strike; and that he specifically referred to Anton, Ennis, and Pat Powell, the latter of whom had cursed at him. Mark Whisnant testified that as a result of Loyd Bowman's threat, to which he had testified, he informed Foreman Frye that he would not continue working with the upholsterers if they came back into the plant. Polly Jones testified that she informed Foreman Frye during the strike that she would not work with Christine Beane (who had cursed her) or Nancy Harrelson "or any of those women who were in that group who were going to assault us that morn- ing." (i. e. Harrelson, Houser, Craig, Leatherman, and Katie Miller) 39 Councill testified to a number of similar refusals which were made to him or to other foremen by other employees, but that testimony was not connected or corrobo- rated by other witnesses. In at least two instances the striking employees (M. A. Weaver and Leonard Davis) testified in rebuttal and denied the truth of the reports about which Councill had testified. Attention is now turned to the question whether the foregoing evidence establishes Respondent's defenses to the reinstatement of the strikers. (1) There is no. doubt that the 11 participants in the Bolick incidents engaged in violence and threats of violence designed to bar the entry of nonstriking employees into the plant. The events leading to and the attempt to turn over the Bolick car under the circumstances disclosed by the record exceeded the bounds of permissible concerted activity. Bradley Washfountain Company, 89 I4LRB 1662, enfd. 188 F. 2d 357 (C. A. 7). Furthermore, a number of those participants also engaged in one or more incidents involving threats and forcible blocking- of the entrance of nonstrikers into the plant. Thus Brown, Loyd Bowman , Ramsey, and Seagle were participants in such incidents on the first day the picket line was set up, and Ramsey, Anton, and Ennis were parties to the threats of violence made to Hollar. Ennis also threatened Kat Smith and Eugene Martin Outside of the participants in the Bolick incident, certain other strikers also engaged in one or more instances which involved the blocking of entrances, threats,. and violence. Thus Jack Collins participated with Ramsey in the forcible exclusion of Hefner from the plant on the first day of the strike, and Kat Houser on a later occasion used such force in attempting to exclude Isla Canupp as led to her conviction and fine of $50 for committing an assault.'° It is, therefore, concluded and found that the actions of the following strikers exceeded permissible bounds of protected concerted activity : C. D. Anton, Wayne Ball, Jr., Walter Brown, Loyd Bowman, Earl Correll, Clyde Ennis, Perry E, 89 Mrs. Mabel Bowman testified vaguely that Nancy Harrelson and/or Christine Beano had said something about her in the shop before the strike as a result of which she in- formed Foreman Frye and Martin after the strike that she would not work with them. Bowman admitted that neither Harrelson nor Beane had done or said anything to her dur- ing the strike, and that she could not recall what it was that they had done or said before the strike which caused her complaint. 49 As previously found, Harrelson, Craig, Miller, and Leatherman took no part in the assault on Canupp, nor does the evidence establish that they blocked or attempted to block the entrance of Canupp , Jones, or Smith. 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Frye, Lester Ramsey, Fred Seagle, G. N. Shepherd, John E. Young, Jack Collins, and Kat Houser." Respondent was privileged, if it chose, to discharge, to refuse reinstatement to, or otherwise to discipline the said 13 employees for their participation in the unprotected activity which they engaged in as above found. However, an em- ployer may waive his right to discharge employees or to refuse to reinstate them for such a reason, and once having made the waiver an employer cannot later assert it as a valid reason for a discharge or a refusal to reinstate, Wallick & Schwalm, Company, 95 NLRB 1262, and cases cited. Similarly, although em- ployee participation gives an employer the right to discharge or to refuse rein- statement for such conduct, the employer may act for entirely different reasons. If an employer in fact discharges or refuses to reinstate an employee for dis- criminatory reasons, the circumstance that the employer might have discharged him for a valid reason, for example, participation in unprotected activities, is not subsequently available as a defense to the discriminatory action, ibid. What is at issue, therefore, is whether Respondent in fact denied the strikers rein- statement for the reason it relies upon or whether such denial was discrimina- torily motivated. Again pertinent for consideration are the actions and statements of Respond- ent's president and supervisors immediately after the third walkout. These establish that Respondent endeavored to terminate as employees all the uphol- sterers, announced its intention not to reinstate them, and set about replacing them. On December 12, though Respondent was then aware of many of the acts of misconduct chargeable to various strikers, Councill made no reference to that subject (cf. Stilley Plywood Co., Inc., 94 NLRB 932, and cases there cited, footnote 12) but denied the application on the sole ground that there were no jobs open at the time for any of the strikers.42 Yet Respondent's payrolls show that by that date Respondent had employed 10 new employees to replace strikers. Since, as above found, the strikers were unfair labor practice strikers they retained their status as employees, were entitled to reinstatement to their former jobs or the equivalent, and Respondent was legally required to discharge the new employees if that should be necessary to make room for the returning strikers. Thus, accepting Respondent's contention that a cancellation of orders and other disruption of production incidental to the strike had necessitated the cur- tailment of operations, there were available on December 12, 10 jobs to which returning strikers should have been reinstated. Yet Respondent chose to stand on Councill's statement that there were no jobs open, without reference to or hint of undisclosed or mentally reserved reasons for refusing the application. Subsequent events confirm the view that on December 12, Respondent did not in fact deny the application because of the misconduct of any of the strikers. The hiring and discharge of Harold Clampitt is of significance. Thus, nonstriking employees had called to Respondent's attention during the strike alleged acts of misconduct on Clampitt's part of the same character as those attributed to various 41 It is further found that the actions of Howard Cook, testified to by Burl Smith, were not sufficiently flagrant in character to constitute unprotected activity, since Smith's testimony does not establish that Cook made threats or any attempt to bar Smith 's entry into the plant . It is also found that the various incidents of cursing and name calling did not exceed the limits of permissible concerted activity, and were not of such character as to render the employees who engaged therein unsuitable for reemployment . Nashville Corporation 94 NLRB 1567 ; Sunset Line and Twine Company, 79 NLRB 1001; Pevey Norvell Company, 80 NLRB 225. 42 Significantly the Union 's committee who applied to Councill consisted of Brown and Loyd Bowman , to each of whom Respondent 's witnesses attributed a number of specific acts of misconduct ; yet Councill made no reference to their misconduct and gave no indica- tion it was denying them or any other strikers reinstatement because of misconduct. LONGVIEW FURNITURE COMPANY 339 other upholsterers. Yet, though such complaints were typical of reports that Respondent had received from other nonstriking employees during the strike and on which it allegedly acted in refusing to reinstate other strikers, Respondent reemployed Clampitt on December 18. The evidence justifies the inference that it was the repetition of the com- plaints by Smith and others and the specific refusal to work with Clampitt that first suggested to Respondent the belated after-thought that its refusal to rein- state the other strikers should be defended on the ground of misconduct and re- ports of misconduct received during the strike That inference seems conclu- sively established by testimony of Foreman Frye on cross-examination. Thus Frye testified that he did all the hiring in the upholstery department, and that the Company did not have anything to do with his determination whether to rehire particular strikers. He testified further with reference to Frank Miller, as an example, that he would have determined himself whether Miller should be rehired, that he had no personal objection to taking Miller back, but that he had heard the reports of employees that Miller and others had been on the picket line and had cursed the nonstrikers; that he had hired back one such striker (Claln- pitt), and that the employees had refused to work with him. Frye continued: ... as far. as a personal reason I would take Miller back any time, but if the others refused to work with him, no use to try it. Frye then applied the Clampitt and Miller examples to all the upholsterers be- cause of reports from nonstrikers that they would refuse to work with the up- holsters if rehired : Q. And because they told you that you didn't hire them? A. We hired one and tried it out and it didn't work. Q. But you didn't hire the rest of them? A. No, sir, there had been discussion about several, I don't recall which one (s), but it has been several times, but there were several I would like to have had back, and would if it had not been for these people refusing to work with them. (Emphasis supplied.) Pressed for the names of such employees , Fry mentioned specifically Floyd Shook, and then concluded : Far as my personal feeling and personal opinion any of them except the two [Ball and Frye] I Tired. ( Emphasis supplied.)" Furthermore, though admittedly aware of misconduct and violence on the part of certain nonstrikers , equally as serious as that which some of the strikers en- 43 Frye's testimony on redirect examination that he did not set the policy as to taking back employees who had engaged in violence or misconduct does not persuasively con- trovert his testimony on cross-examination, since it does not appear from his earlier testi- mony or from other evidence in the record that if there was in fact a policy as suggested, it was communicated to or followed by Frye in determining who should be rehired. Al- though Councill testified at one point that it was hii decision as to whether the stinkers should be returned to work, he was then referring to his position and his responsibility vis-a-vis Shuford ; and he admitted at a later point that he gave no instructions to any of his foremen as to who should or should not be employed At best, it appeared from other testimony of Frye and Councill that they sometimes conferred about filling job vacancies and discussed the qualifications of applicants, including strikers, but at no point was direct or convincing denial made of Frye's testimony that lie made the determination as to the rehiring of the upholsteiers See, for example, Frye's testimony as to the manner in which Councill'concuired in Frye's decision to rehire Clampitt, section A, G. supra. 227200-53-vol 100-23 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaged in, Respondent retained the former in its employ , without imposition or suggestion of disciplinary action of any kind." Of further significance is the fact that Respondent made no attempt in its answer to the complaint to plead as an affirmative defense that the employees had engaged in unprotected activities, that its counsel in his opening statement made no suggestion of such a defense, and that it was near the end of the first day of the hearing on the cross-examination of a witness for the General Counsel that the defense was first hinted at. Respondent 's counsel represented even then that he could not undertake to give the details as to which of the strikers, under Respondent's contentions, were not entitled to reinstatement because of acts of violence since he did not then know which were the ones who had engaged in such conduct. Cf. Wallick & Schwalm Company, supra. Affirmative evidence that Respondent acted through discriminatory motives in denying the application for reinstatement was furnished by Teague's statements to 4 strikers in January that they were blacklisted and could not be hired unless they got off the list. Teague's refusal of jobs to the 4 strikers occurred at a time when Respondent was rapidly expanding its operations . Thus, the number of employees jumped from 34 for the week ending December 22, to 63 for the week ending January 6, and then reached a total of 94 by the week ending January 27. That evidence , plus other evidence that Respondent in many instances sought out qualified employees ( and there is no evidence that any of the strikers were not qualified ) whom it wished to employ or reemploy , refuted Respondent's contentions as to its employment practices and established that Respondent con- tinued its discriminatory hiring practices when it expanded its operations after January 1, 1951. (2) Nor can Respondent rely on the stated refusals of nonstrikers to work with the striking employees . First, for reasons which are fully stated above, Respondent did not in fact deny the application for reinstatement because of said refusals . Secondly, it is well established that an employer is under a duty to insure that its right to hire, discharge , or transfer is not delegated to any anti- union or prounion group of employees , Majestic Metal Specialties , Inc., 92 NLRB ]854, and cases cited; Detroit Gasket & Manufacturing Company, 78 NLRB 670, and cases cited. Accordingly, the Board has frequently held with judicial approval that an employer violates Section 8 (a) (3) of the Act when he knowingly permits the exclusion of an employee from the plant by any union or antiunion group, Pappas & Company, 94 NLRB 1195 , and cases cited ; Fred P. Weissman Company, 69 NLRB 1002, enf'd. 170 F. 2d 952 (C. A (3), cert. denied 336 U. S 972; Hudson Motor Car Company, 34 NLRB 815, enf'd. 128 F. 2d 528 (C. A. 6) ; Wilson e Company, Inc. v. N.L.R.B., 123 F. 2d 411 (C. A. 8) N.L.R.B. v. Goodyear Tire & Rubber Company, 129 F. 2d 661 (C. A. 5), enf'g. 21 NLRB 306; N.L.R B. v. American Car & Foundry Company, 161 F. 2d 501 (C. A. 7), enfg. 66 NLRB 1-031. Objections by employees to the manner in which others engage in concerted activities constitute no limitation on the right to participate therein ; certainly they do not create or enlarge employer rights, nor do they relieve or diminish an employer's obligations, which remain unaffected by employee pressure or other exigencies of the moment which might render expedient an infraction of the statute, Majestic Metal Specialties, Inc, supra; N. L. R. B. v. Star Publishing Co., 97 F. 2d 465 (C. A. 9) ; McQuey-Norris Manufacturing Co. v. N. L. R. B., 116 F 2d 748 (C. A. 7), cert. denied 313 U. S. 565 46 i+ Thus, Councill knew that Mrs Paul Hollar had shot at a group of strikers in front of her home and had thrown a stick at another , and that Hollar had been arrested and convicted of driving recklessly through the picket line. 4' The foregoing considerations , in the opinion of the undersigned , distinguish the case from N L. R . B. v. Wytheville Knitting Mills , 175 F. 2d 238 ( C. A. 3). LONGVIEW FURNITURE COMPANY 341 The foregoing reasons also dispose of Respondent 's contention, expressed at the hearing, that it acted on the basis of a good-faith belief based on the reports received from employees, that the strikers had engaged in unprotected activ- ities. Furthermore, in situations like the present the burden is on the employer afrmatively to prove that the employees who were discharged or denied rein-- statement actually engaged in unprotected activities. Standard Oil Company of California, 91 NLRB 783; Ohio Associated Telephone Company, 91 NLRB 932; Montgomery Ward cC Co., 90 NLRB 1244; Porto Rico Container Corporation, 89 NLRB 1570; Jefferson. Standard Broadcasting Company, 94 NLRB 1507; Stew- art Die Casting Corporation v. N. L. R. B., 114 F. 2d 849, 856 (C. A. 7), cert. den. 312 U. S 680; Home Beneficial Life Ins. Co. v. N. L. R. B., 159 F. 2d 280, 284-5 (C. A. 4) cert. den. 332 U. S 758. It is therefore concluded and found on the basis of the entire evidence that by refusing to reinstate the strikers on December 12, and since, and by discharging Harold Clampitt on December 18, Respondent discriminated against said em- ployees because they had engaged in the strike and in other concerted activities, and that Respondent thereby engaged in unfair labor practices within the mean- ing of Section 8 (a) (3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in con- nection with the operations of 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 thereof. V. THE REMEDY It having been found that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent engaged in certain acts of interference, restraint, and coercion, it will be recommended that Respondent cease therefrom. It having been found that from November 19, 1950, and thereafter, Respondent refused to bargain collectively with United Furniture Workers of America, CIO, it will be recommended that Respondent, upon request, bargain collectively with said Union. It having been found that Respondent discriminatorily discharged Perry E. Frye and Wayne Ball, Jr., on November 3, 1950; that it discriminatorily dis- charged Loyd Bowman, Walter Brown, Earl Correll, Eugene Collins, Jack Col- lins, Leroy Giles, Odes Gurley, Loyd Hoke, Frank D. Miller, Ben Roberts, Fred Seagle, G. N. Shepherd, Floyd Shook, and John E. Young on November 7, 1950, and that it discriminatorily discharged Harold Clampitt on December 18, 1950; and that it thereafter refused to reinstate said employees (except Fred Seagle, Odes Curley, and Loyd Hoke), it will be recommended that Respondent offer to each of said employees (except Seagle, Gurley, and Hoke ) immediate and full reinstatement to his former or substantially equivalent position (see The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827), without prejudice to his seniority or other rights and privileges, and make each of them (except Seagle) whole for any loss of pay that they may have suffered by payment to each of them of a sum of money equal to that which he normally would have earned as wages from the respective dates of the dis- crimination against each of them to the date of Respondent's offer of reinstate- 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment, less his net earnings during said period's Cf . Crossett Lumber Company, 8 NLRB 440, 497-8. Said loss of pay shall be computed on the basis of each separate calendar quarter or portion thereof during the period from Respondent's discriminatory actions to the date of a proper offer of reinstatement. The quarterly periods herein called "quarters" shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deduct- ing from a sum equal to that which each said employee would normally have earned for each such quarter or portion thereof his or her net earnings, if any, in other employment during said period. Earnings in one particular quarter shall have no effect upon the backpay liability for any other quarter F. W. Wool- worth Company, 90 NLRB 289. Respondent offered uncontroverted testimony that Fred Seagle had entered the Armed Forces of the United States shortly after the strike It will there- fore be recommended that Respondent, upon application by Seagle within 90 days after his discharge from the Armed Forces, offer him immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and that Respondent make Seagle whole for any loss of earnings he has suffered or may suffer by reason of Respondent's discrimination against him by payment to him of a sum of money equal to the amount which he normally would have earned as wages -during the period (1) from the date of the Respondent's discrimination against him to the date of his entry into the Armed Forces of the United States, and (2) from a date 5 days after his timely application for reinstatement, if any, to the date of offer of reinstatement by the Respondent, less his net earnings during said period, American Steel Foundries, 67 NLRB 27. It has been found that many of Respondent's employees went on strike on November 6 and November 8, 1950, and that said strike resulted directly from and was prolonged by Respondent's unfair labor practices. It has been further found that on December 12, 1950, the Union applied to Respondent for reinstate- ment of the striking employees and that Respondent refused to reinstate them. However, Respondent's payroll records establish that the following striking employees were reinstated on various dates subsequent to the Union's applica- tion on December 12: W. M. Barnes, Henry Carswell, Pauline Coble, Ruth Cor- rell, Preston Hefner, Maurice Hudson, Evelyn Killian, Blaine Leonhart, Dale Lowman, Nevert McNeely, Margie Morrison, Lester Stamey, Ervin Willis, George White, Charles Winkler, Richard Winkler, and J. C. Winkler. It will therefore be recommended that Respondent make each of said employees whole for any loss of pay that they may have suffered by payment to each of them of a sum of money equal to that which he normally would have earned as wages from the respective dates of the discrimination against them to the respective dates of their reinstatement, less their net earnings during said period, said loss of pay to be computed in the same manner as set forth above for other employees. The evidence establishes that Respondent offered reinstatement to employee John J. Bynum sometime after January 1, 1951, and that Bynum declined employment. It will therefore be recommended that Respondent make Bynum whole for any loss of pay he may have suffered during the period between Decem- ber 12, 1950, and the date of his decline of reinstatement, said loss of pay to be computed in the same manner as set forth above for other employees. The evidence also established that Elmer Leonhart was reinstated sometime after January 1, 1951, and that he quite thereafter. It will therefore be recom- u Loyd Hoke and Odes Gurley were reinstated during the week ending December 16, 1950, and their back pay, if any, should be computed only through the period ending December 9, 1950. LONGVIEW FURNITURE COMPANY 343 mended that Respondent make Leonhart whole for any loss of pay he may have suffered during the period from December 12, 1950, and the date of his rein- statement. Said loss of pay to be computed in the same manner as set forth for other employees above. As Hubert Pitts quit Respondent's employ on October 21, 1950, he will be eliminated from the remedial order. Dora Weber (Melvin) will also be elimi- nated because of insufficiency of proof of identity and of employment. The foregoing cases reduce to 39 94 the number of striking employees for whom the amended complaint sought reinstatement and back pay and as to whom reinstatement was denied as herein found. The names of said employees are set forth in Appendix A hereto attached. It will therefore be recommended that Respondent offer to the 39 employees listed in Appendix A immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges and make them whole for any loss of pay they may have suffered by payment to each of them a sum of money equal to that which he normally would have earned as wages from December 12, 1951, to the date of Respondent's offer of reinstatement to each, less his net earnings during said period. Said loss of pay shall be computed in the same manner as set forth above for other employees. Since the evidence establishes that there was some curtailment of-Respondent's operations as a result of the strike, it may be that there is not sufficient employ- ment immediately available to afford immediate reinstatement to all the em- ployees for whom reinstatement is recommended herein. It will therefore be further recommended (1) that Respondent dismiss, if necessary, any employees hired since November 7, 1950, to fill the places previously held by those for whom reinstatement is herein recommended; (2) that if there is still not sufficient employment immediately available to allow that all the others be offered imme- diate reinstatement, those employees remaining shall be placed upon a prefer- ential list, following such system of seniority as was applied in the conduct of Respondent's operations prior to November 7, 1950, and shall thereafter be offered employment in accordance with such list, in their former or equivalent positions as such positions become available and before other persons are hired for the work which they formerly had done, without discrimination against any employee because of his union affiliation or activity; and (3) that the periods for which back pay shall be computed as herein provided shall end in all cases with the offer of reinstatement, if employment is available, or with the placement of the employees' names on the preferential list, as herein provided, if no employment is available. In order to insure compliance with the foregoing back-pay and reinstatement provisions it will be recommended that Respondent be required upon reasonable request to make all pertinent records available to the Board and its agent. F. W. Woolworth Company, supra. The violations of the Act which Respondent committed are, in the opinion of the undersigned, persuasively related to other unfair labor practices proscribed by the Act and the danger of their commission in the future is to be anticipated from Respondent's conduct in the past. The preventive purposes of the Act will be thwarted unless the order is coextensive with the threat. In order, there- fore, to make more effective the interdependent guarantees of Section 7, to pre- vent a recurrence of unfair labor practices and thereby minimize the industrial 47 Councill testified to hearsay reports that Floyd Jarrell could not be reached on Re- spondent's attempted offer of reinstatement. His testimony was not connected or cor- roborated. Jarrell appeared at the hearing as a witness for the General Counsel. No reason appears therefore why he should be excluded from the remedial order. 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strike which burdens and obstructs commerce and thus effectuate the policies of the Act, it will be recommended that Respondent cease and desist from in- fringing In any manner upon the rights guaranteed in 'Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CoNcLusIoNS of LAw 1. United Furniture Workers of America, CIO, Is a labor organization within the meaning of Section 2 (5) of the Act. 2. All of Respondent's production and maintenance employees , excluding all supervisors (as the term is defined In Section 2 (11) of the Act) and all office clerical employees, guards, and professional employees , constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. At all times since October 18, 1950, the Union has been and now is the ex- clusive representative of all the employees In the aforesaid unit for the pur- poses of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By failing and refusing at all times since October 19, 1950, to bargain col- lectively with United Furniture Workers of America, CIO, as the exclusive representative of the employees in the aforesaid unit Respondent has engaged in and is engaging in unfair labor practices with the meaning of Section 8 (a) (5) and (1 ) of the Act. 5. By discriminating in regard to the hire and tenure of employment of the Individuals who are referred to under the preceding section entitled "The Remedy," thereby discouraging membership in United Furniture Workers of America, CIO, Respondent has engaged In and is engaging in unfair labor prac- tices within the meaning of Section 8 (a) (3) and (1) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act , Respondent has engaged in and Is engaging in unfair labor practices within the meaning of Section 8 (a) (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. [Recommendations omitted from publication In this volume.] GEORGE SEXTON, AN INDIVIDUAL, D/B/A SEXTON WELDING COMPANY and LOCAL No. 105, INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS & HELPERS OF AMERICA, AFL. Case No. 9-CA-513. July 23, 195$ Decision and Order On June 10, 1952, Trial Examiner Arthur Leff issued his Inter- mediate Report in this proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain . affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the. Intermediate Report and a supporting brief. 100 NLRB No. 57.