James Thompson & Co., Inc.

456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CowcLvsIoNs or LAw 1. The Company is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Federation of Glass, Ceramic & Silica Sand Workers of America, CIO, American Flint Glass Workers' Union of North America, AFL, and its Local No. 1007, severally , are labor organizations and admit to membership employees of the Company. - 3. The Company has not engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (2) of the Act. [Recommendations omitted from publication in this volume.] JAMES TROMPSON & Co., INC. and TExTiLE WORKERS UNION Or AMERRICA, CIO. Case No. & -CA-1762. August 5, 1952 Decision and Order On December 12, 1951, Trial Examiner Horace A. Ruckel issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in any unfair labor practice alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel and the charging Union filed exceptions to the Intermediate Report and supporting briefs. The Respondent filed exceptions to certain findings made in the Inter- mediate Report and to certain rulings made by the Trial Examiner at the hearing, together with a brief in support of the Trial Examiner's ultimate conclusions. The Board 1 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed 2 The ruling are hereby affirmed. The Board has consideredtlie Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and finds merit in the exceptions of the General Counsel and the Union, and no merit in the Respondent's exceptions .3 Because of 1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [ Chairman Rerzog and Members Styles and Peterson]. 2 The Respondent contends that the Trial Examiner erred in admitting evidence as to employer solicitation of individual strikers to abandon the strike involved in this case on the ground that such conduct was not pleaded in the complaint or in the General Counsel's bill of particulars . There is no merit in this contention as the issue was fully litigated' at the hearing and the Respondent does not show that it was prejudiced in any respect by the absence of such pleadings. s The Respondent also filed a motion to strike the Union 's exceptions and brief "on the ground that it is a scurrilous document , which without any basis in the record or elsewhere , impugns the motives of the Trial Examiner, and accuses him of deliberate dishonesty." We hereby deny this motion . The Union's exceptions and brief do not exceed the bounds of proper argument. 100 NLRB No. 68. JAMES THOMPSON & CO., INC. 457 the Board's disagreement with the Trial Examiner, as hereinafter set forth, we make our own findings of fact, conclusions of law, and order .4 Summary of Events The facts giving rise to this proceeding are substantially as follows: The Respondent, a corporation, operates a textile manufacturing plant in Valley Falls, New York. The principal owners of the plant and officers of the corporation are Arthur Judell and Robert Judell, who have their principal office in New York City, about 150 miles dis- tant from the Valley Falls plant. The plant, which employs more than 70 production and maintenance workers, is operated by a plant superintendent, Frank V. Flanagan, who has sole charge of the plant subject to the control of the owners. Customarily Robert Judell visits the plant about every 2 weeks. On October 4, 1950, the Union's area representative, Sy Cohen, called Flanagan on the telephone. In the telephone conversation which ensued, Cohen in substance asserted that the Union represented a majority of the Respondent's plant employees and requested a con- ference for the purpose of negotiating a collective bargaining agree- ment; Flanagan replied that he doubted that the Union represented a majority of the employees. Thereupon Cohen offered to submit signed union membership cards to a check by a third party, such as a clergyman, or to have an election to determine the Union's majority status under the auspices of the New York State Mediation Board. When Flanagan insisted that he would handle the matter by calling a meeting of the employees that afternoon, the conversation terminated. Shortly thereafter, Flanagan posted on the plant bulletin board a company notice which made reference to the employees' union activity and called a meeting of employees to be held in the plant at 1 p. m. to discuss the matter.' Before noontime on October 4, 1950, according to the credible testi- mony of Flanagan, whom the Trial Examiner found to be a reliable witness, Flanagan questioned employees concerning their union activ- ity and as to the composition of the Union's bargaining committee. He also told one employee that the Respondent planned to give a wage raise and appealed to this employee "to live with" Flanagan until this could be accomplished, as more fully appears in the Inter- mediate Report and hereinafter. About noon on October 4, 1950, Cohen met with the employees and reported that Flanagan would not meet with the Union. The em- * we adopt the Trial Examiner's commerce findings, credibility resolutions wherever they have been made, and any other findings consistent with our Decision herein. Before holding the 1 p. m. meeting, Flanagan communicated by telephone with the 7udells. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees discussed the events of the morning, particularly Flanagan's conduct. Cohen warned the employees against possible employer reprisals and counseled boycott of the 1 p. m. meeting and-strike action, leaving to the employees the decision as to what course they should take. The employees then decided to boycott the 1 p. m. meeting and to resort to a strike. - The 1 p. m. meeting was attended by a substantial minority of the employees. According to the undisputed testimony of the Respond- ent's witnesses, including Flanagan and employees Jesse Slater and Viola Monohan, whom we credit, Flanagan in substance stressed that union organization was economically unfeasible because of the obso- lete condition of the plant, but promised that the Respondent would grant a general wage increase and urged the employees to return to work .6 A substantial majority of the employees in the bargaining unit did not return to work after the meeting, and shortly thereafter the Union established a picket line at the plant. During the strike, which the Union offered to terminate on Jan- uary 10, 1951, the Respondent solicited individual strikers to abandon the strike and return to work and to induce other strikers to do so, in several instances promising a benefit or threatening reprisals, and granted a general wage increase admittedly in part to reward non- strikers and replacements for crossing the Union's picket line, as more fully set forth below. On January 10, 1951, the Union wrote a letter to Arthur Judell, the Respondent's president, in which the Union made two requests : (1) To reemploy all strikers; and (2) to bargain collectively. In language, neither request was conditioned upon the granting of the other 7 On January 16, 1951, the Respondent replied that, with respect to reemployment, it "stands ready to take back as many of the strikers as is possible, and without discrimination"; 8 with respect to the re- quested bargaining conference, the Respondent said that it believes "that your Union never has represented the requisite majority." In this letter, the Respondent also stated that it desired to await the re- sults of an election, previously scheduled by the Board but which had been postponed as a result of the filing of union charges alleging a refusal to bargain. Further correspondence was exchanged between the parties in February 1951, in which in substance the Union of- fered to send a representative to arrange with the Respondent for the 6 Although the Trial Examiner relates the "general import" of Flanagan 's speech at the 1 p. m. meeting in his Intermediate Report, the Trial Examiner does not mention Flanagan's statements with respect to the wage increase or to returning to work. ' The letter is set forth in the Intermediate Report, section III, B, 1, c. 8 The Respondent's payroll for the period ending on January 14, 1951 , contains the names of 61 employees ; and, shortly thereafter, the Respondent had a full complement of employees. JAMES THOMPSON & CO., INC. 459 reinstatement of the strikers and withdrew its bargaining request pending disposition of the Union's pending charge, but the Respondent refused to meet with the Union for any purpose. During the period immediately following the Union's offer to re- turn the strikers to work, a limited number of the remaining strikers, some having abandoned the strike before January 10, 1951, indi- vidually applied to the Respondent for reinstatement. The Respond- ent followed a policy of insisting that the strikers sign an application list for employment and treating the matter of their reinstatement on an individual basis. Some strikers refused to sign the list, whereupon the Respondent denied them reinstatement. About 11 strikers signed the list. Of these, 5 were not reinstated. Of the 5,1 striker, sometime after signing the list, decided not to accept reinstatement, and 1 de- manded a lighter job when he applied. Altogether, about 33 strikers have not been reinstated. The complaint in this proceeding alleges in substance: (1) That the Respondent, among other things, interrogated its employees concern- ing their union affiliations, threatened them with reprisals if they joined or assisted the Union, promised and granted a wage increase to its employees for the purpose of discouraging membership in or rendering assistance to the Union, and refused to bargain collectively with the Union as the representative of the employees; (2) that the employees ceased work concertedly and went on strike; (3) that the strike was caused and/or prolonged by the Respondent's unfair labor practices; and (4) that the Respondent refused and continues to refuse to reinstate the strikers named in the complaint, all in violation of Section 8 (a) (1), (3), and (5) of the Act. Conclusions 1. The allegation of a refusal to bargain A. The Union's majority in an appropriate unit We find, in agreement with the Trial Examiner, that all production and maintenance employees and truck drivers, with certain specified exclusions, constitute a unit appropriate for collective bargaining purposes within the meaning of the Act." The Respondent contends that the Union never represented a ma- jority of the employees and that, even if it did, the Union obtained its majority status by making coercive statements in the course of soliciting union membership cards. We reject these contentions as being without merit. This.. is the same unit previously found to be appropriate by the Board in James Thompson & Co., Inc., Case No. 2-RC-2882, decided December 19, 1950 ( unpublished). 460 DECISIONS OF NATIONAL LABeR`.RELATIONS BOARD We are satisfied from a review of the record, as was the Trial Exam- iner, that the Union represented a numerical majority of the em- ployees before the Union made its bargaining request on October 4, 1950. The Respondent's payroll for the week ending October 8, 1950, lists 75 employees, including 2 watchmen whom the Board excluded from the appropriate unit in the representation proceeding, thus leav- ing 73 employees in the appropriate unit 10 Of 47 union membership cards introduced in evidence, which were sufficiently authenticated at the hearing, at least 38 cards were signed on October 3 and at least 40 were signed before 10 a. in. on October 4, 1950, when the Union made its bargaining request. Moreover, a majority of the employees in the unit began a strike for union recognition at noontime that day."' At the hearing seven employees 12 testified in substance that they were told by union solicitors that they would lose their jobs unless they signed union membership cards. In three instances, such state- ments were attributed to Sy Cohen, the Union's area representative; in three other instances, to Pat Kelley, an active union solicitor and an employee member of the Union's plant bargaining committee; and, in one instance, to Harold Stedman, an ordinary rank-and-file employee, who participated in no other union solicitation so far as appears. Stedman did not testify at the hearing; Cohen and Kelley denied making such statements. The Trial Examiner found it un- necessary to resolve the conflict in testimony, as he recommended dis- missal of the refusal-to-bargain allegation on other grounds, indicated below. We shall assume, without deciding, that these statements were made as testified by the seven employees referred to above.13 Assuming arguendo that the statements were coercive, the Union had majority status even if the cards' obtained by such statements are not counted. As stated above, there were 73 employees in the unit and 47 cards in evidence. At least 40 of these cards were signed before 10 a. in. on October 4, 1950, when the Union made its first bargaining request 14 Of these 40, there is testimony that such a state- ment was made to one of the signers, Jesse Slater, before he signed 10 We find, as contended by the Respondent, that there were no supervisory or managerial employees at its Valley Falls plant other than Plant Superintendent Flanagan and Office Manager John Spence neither of whom is listed on the payroll referred to above. 11 Contrary to a contention of the Respondent, the record does not establish that the Union coerced the employees to strike. 12 Dora Masterson , Helen O'Connor, Cyrus Thurbur, Davena Rennie, Jesse Slater, Helen Sweeney, and Mary Cooke. 13 Of the seven statements , one was made in the presence of an employee who was not in the unit and did not sign a card ; one was made in the presence of two employees who are also included in the group of seven; another statement was made in the presence of an employee who had signed a union membership card on the day before ; and a fourth state- ment was made in the presence of an employee who signed a card and became a member of the Union's plant committee on the same day. 11 This calculation omits the cards signed by M. Sweeney , C. Thurber, D. Rennie, D. Mas- terson, C. Carknard, M. Cox, and H. Sweeney. JAMES THOMPSON & CO., INC. 461 a card, and that a similar statement was uttered in the presence of another signer, Ernest Grogan. Deducting these 2 cards, however, the Union still had 38 valid cards. Stated otherwise, at most, 3 of the 7 statements were made before the Union's bargaining request; of these, 1 statement was made to an employee who did not sign a card. Clearly 4 of the 7 statements were made after the Union's bargaining request. Deducting all 6 cards, the Union still had 41 valid cards, of which at least 38 were signed before the Union's bar- gaining request. Moreover, none of the 6 who signed these cards, or any other -employee who signed a card, ever notified the Union, the Respondent, or the Board, before this proceeding, that he did not desire to be represented by the Union. Indeed, at a meeting of the Union, on the night of October 3, 1950, attended by about 50 em- ployees, the Union asked the employees whether they desired to with- draw from the Union, and none indicated that he did. On the basis of the foregoing, we conclude that the Union repre- sented an uncoerced majority of the Respondent's employees in an appropriate unit at all times material herein 15 B. The refusal to bargain The Trial Examiner found that the Respondent did not unlawfully refuse to bargain collectively on October 4,1950, or at any time there- after in substance for the following reasons: (a) Flanagan did not refuse to meet with the Union, but at most temporized; (b) the Re- spondent had a bona fide doubt as to the Union's majority status; and (c) the Union did not go far enough in forcing its demand for recog- nition or in bringing its majority status to the attention of the proper officials of the Respondent, and thus the Respondent's good faith was never put to a test. We do not agree. On October 4, 1950, when the Union made its first request for a bar- gaining conference, Plant Superintendent Flanagan stated that he doubted that the Union represented a majority of the employees, and made it clear that the Respondent would not meet with the Union for that reason. Although Cohen, the Union's representative, offered to demonstrate that the Union enjoyed majority status by submitting its union membership cards to a check by an impartial third party, such as a clergyman, or to an election to be conducted by the New York State Mediation Board, Flanagan took the position that he would handle the matter by calling a meeting of the employees. Flanagan then proceeded to question employees concerning their union activity 15 We find no merit in Respondent's contention that if any of the statements are coer- cive. all of the Union 's card should be treated as invalid designations . See, e. g., Top Mode Mfg. Co., 97 NLRB 1273 ; Safeway Stores, 99 NLRB 48 ; N. L. R. B . v. Karp Metal Products Co , Inc, 134 F. 2d 954 ( C. A. 2) ; N. L. R. B. v. Dadourian Export Co., 138 F. 2d 891 (C. A. 2). 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and as to the composition of the Union's bargaining committee, in one instance promising a wage increase if the employee would continue to "live with" him. Flanagan also promptly called a meeting of the em- ployees and sought to dissuade them from resorting to union organi- zation by, among other things, promising a general wage increase. Such direct dealing with the employees, in the face of a prior bargain- ing request by the Union which claimed and enjoyed majority status, in itself constituted a refusal to bargain with the Union, because it violated the essential principle of collective bargaining, and com- pletely negated the Respondent's asserted good faith in refusing to deal with the Union1e The Respondent's lack of good faith in resist- ing the Union's request for bargaining is further shown by its other conduct violative of Section 8 (a) (1) of the Act, consisting chiefly of solicitation of individual strikers to abandon the strike, coupled with promises of benefit and threats of reprisal, shortly after the strike be- gan, as more fully set forth hereinafter. We find that Respondent's refusal to recognize and meet to deal with the Union on October 4, 1950, was not motivated by any asserted good faith doubt as to the Union's majority status, but rather by a rejection of the collective bar- gaining principle and a desire to gain time within which to destroy that majority 1' In finding that the Union's initial bargaining request in this case was not made upon a proper company official, the Trial Examiner relied upon the Board's decision in Bausch t Lomb Optical Company, 69 NLRB 1104. In that case, the Board dismissed a refusal-to-bar- gain complaint where the union made its bargaining request to an employer's labor relations counselor at the very plant where company officials maintained their headquarters. However, more recently, in Somerset Classics Inc., 90 NLRB 1676, enfd. in 193 F. 2d 613 (C. A. 2), where, as here, the union's bargaining request was made upon the only company representative stationed at the plant, the Board factu- ally distinguished Bausch & Lomb on the ground indicated and held that it was inapplicable to such a situation. We conclude that Plant Superintendent Flanagan, who had sole charge of the Valley Falls plant subject to the control of absentee owners, had at least ostensible authority to receive a bargaining request, and thus was a proper per- son to whom to address the Union's bargaining request. It is signifi- cant in this respect that Flanagan did not assert any lack of authority on his part or refer Cohen to the Judells, and Flanagan in effect bar- gained directly with the employees rather than with the Union after he had communicated with the Judells. Moreover, when the Union 16 See, e. g., Geigy Company, Inc., 99 NLRB 822; Reeder Motor Co., 96 NLRB 831. "See, e. g., Everett Van Kleeck d Company, Inc, 88 NLRB 785, enfd. 189 F. 2d 516 (C. A. 2) ; Joy Silk Mills, 85 NLRB 1263, enfd . 185 F. 2d 732 (C. A. D. C.) ; Dismuke Tire and Rubber Company, Inc., 93 NLRB 479; Geigy Company, Inc., 99 NLRB 822. JAMES THOMPSON & CO., INC. 463 addressed a written request to bargain to President Judell on January 10, 1951, as more fully set forth below, the Respondent refused to honor the request. The Respondent now contends that it was justified in refusing to bargain with the Union in January 1951, when the Union made its request for bargaining in writing, in view of the pendency of the representation proceeding before the Board. We find that this con- tention has no merit. Under the circumstances detailed herein, no genuine question concerning representation of the employees ever existed in this case because at the outset the Respondent did not ques- tion the Union's majority status in good faith; indeed, the Respondent refused an opportunity to be enlightened as to the Union's majority status and promptly resorted to a systematic campaign of unfair labor practices to undermine the Union upon learning of its desire to repre- sent the employees in collective bargaining.18 In such a situation the Respondent's position, that it was entitled to await the results of an election, is not indicative of an acceptance of the principle of collective bargaining, but rather reflects its belief that its illegal conduct had precluded success by the Union in such an election.19 Nor would the fact that the Union may have lost its numerical majority justify the Respondent in its refusal to bargain with it on January 16, 1951. For we find that any such alleged loss of majority was attributable to the Respondent's prior unfair labor practices. Accordingly, we find that the Respondent refused to bargain col- lectively with the Union on October 4, 1950, and at all times there- after, particularly on or about January 16, 1951, in violation of Section 8 (a) (5) and (1) of the Act. We further find, as hereinafter set forth in paragraph numbered 2 (m), that the Respondent also refused to bargain collectively, in violation of Section 8 (a) (5) and (1) of the Act, by granting a unilateral wage increase. 2. The allegation of interference, restraint, and coercion The Trial Examiner recommended dismissal of the- allegation that the Respondent engaged in independent violations of Section 8 (a) (1) of the Act. In part, the Trial Examiner discredited certain testi- mony relating to such unfair labor practices; he did not mention certain incidents in his Intermediate Report; while, as to other in- cidents which he did report, he concluded that they did not constitute violations of the Act. We do not disturb the Trial Examiner's resolu- tions of conflicting testimony. However, based on admitted or 18 The finding in the representation case was thus induced in the mistaken belief that a question of representation had in fact arisen. The M. H. Davidson Company, 94 NLRB 142. 19 See cases cited in footnotes 17 and 18, supra. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD undenied testimony, which we credit, we find that the 'Respondent interfered with, restrained, and coerced the employees in the exercise of the rights guaranteed by Section 7 of the Act, in violation of Section 8 (a) (1) thereof by the following conduct: . (a) On the morning of October 4, 1950, before the strike began, Plant Superintendent Flanagan interrogated employees Chester Carknard, Irene Kelly, and Leighton O. Boom concerning their union activities, including questioning of Boom as to the composition of the Union's plant bargaining committee. (b) On the morning of October 4, 1950, before the strike began, Flanagan stated to Chester Carknard that the Respondent planned to give a wage raise and asked Carknard to "live with" Flanagan until this could be accomplished. (c) In his 1 p. m. speech to the employees on October 4, 1950, Flanagan stated that the Respondent would grant a general wage increase and urged them in effect not to resort to union organization and to return to work. (d) On October 5, 1950, Robert Judell, an officer of the Respondent, solicited striker Florence Cassidy to abandon the strike, offered her a wage increase, and stated that he would meet with a committee of employees but not with a union representative. (e) On October 5, 1950, Office Manager John Spence, a supervisor, who was authorized by Robert Judell to exhaust all means to induce the strikers to return to work, told striker John McArdle, a member of the Union's plant committee, that Robert Judell wished to see the committee but that Judell did not desire "to talk to the Union representative." (f) On or about October 6, 1950, Flanagan solicited Florence Cassidy to abandon the strike, stating that the Respondent could not have a union in "that tumble-down mill," and suggesting that she accompany him to the plant office where he would work out a pay raise for her. (g) On or about October 15, 1950, Judell and Flanagan, having met striker Michael Sweeney on the street, escorted him to the plant office where Flanagan dictated, and Judell typed, a back-to-work peti- tion and asked Sweeney to circulate it among the strikers; Sweeney signed the petition in the office but did not circulate it, turning it over to the Union. (h) Sometime in October 1950, Robert Judell stated to striker John McArdle, a member of the Union's plant committee : "John, I didn't think you would be mixed up like this. We can't afford to- run' the mill with the union with our machinery. John, bring all the boys back in, and in a week they will all be satisfied." (i) On October 19, 1950, Flanagan solicited striker Alfred Jensen to return to work and, when Jensen indicated that he would not JAMES THOMPSON & CO., INC. 465 abandon the Union, Flanagan suggested that Jensen obtain a job elsewhere, stating that a lot of strikers faced loss of their jobs. (j) Flanagan solicited striker Jack Rabbitt to return to work in November 1950 on two occasions; on one such occasion, on Saturday preceding Thanksgiving, Flanagan offered to give Rabbitt a turkey for Thanksgiving; when Rabbitt stated that he would not accept a turkey unless "all the others got one," Flanagan stated that the Re- spondent planned to give such turkeys only to four or five other strikers, notwithstanding the fact that the Respondent customarily gave Thanksgiving turkeys to all its employees in previous years. (k) During the strike, Flanagan visited the home of striker Warren Smith on six separate occasions for the purpose of soliciting him to return to work. (1) Sometime in October 1950, Office Manager John Spence urged .striker Irene Kelley to abandon the strike, stated in substance that the Respondent would move its mill from Valley Falls rather than deal with the Union, and warned that the strikers might go hungry as the Respondent could hold out for a year or more. (m) About October 15, 1950, the Respondent increased by $5 the weekly wage of each employee actively at work in the plan during the strike. The increase was paid by a $5 bill inserted weekly in each pay envelope. The Respondent did not advise the employees as to the reason for the pay increase. About January 1, 1951, the Respond- ent incorporated this increase in the regular weekly pay checks and made it a permanent wage increase. Noting that "Robert Judell testified that the reason for giving this increase was that because of the strike Respondent did not have a full complement of workers in the plant and those who were work- ing were doing extra work," the Trial Examiner concluded in sub- stance that the Respondent did not fail to bargain with the Union by granting this wage increase and that the wage increase "was not made for the purpose of discouraging union activity." We disagree. It is true that the Respondent did not have a full complement of employees as of October 15, 1950. However, the record establishes that those at work during the strike, although performing work other than their customary prestrike assignments, did not perform addi- tional work. Overtime pay was available for overtime work. More- over, the Respondent made the wage increase permanent and thus continued it in effect after the Respondent had a full complement of workers. Indeed, Robert Judell admitted at the hearing that the Respondent placed the $5 bills in the employees' pay envelopes, in part, to reward nonstrikers and replacements for crossing the Union's picket line. Under the circumstances, we find that the Respondent granted the $5 wage increase for the purpose of discouraging strike 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and other union activity. By such conduct, the Respondent interfered with, restrained, and coerced the employees in the exercise of the rights guaranteed by Section 7 of the Act, in violation of Section 8 (a) (1).- 3. The nature of the strike As noted above, the Trial Examiner concluded that the Respondent did not unlawfully refuse to bargain or engage in any unfair labor practice during the strike or before the strike. Noting that the em- ployees themselves, as distinguished from union leadership, made the decision to strike, that the employees themselves testified that they engaged in the strike in order to procure better wages, and that no employee testified to any other reason for the strike, the Trial Ex- aminer found that the strike was purely economic in character and that it was neither caused nor prolonged by any unfair labor practice of the Respondent. We do not agree. We have found that before the strike began, the Respondent unlaw- fully interrogated employees concerning union activities, urged them to abandon union organization by promising a wage increase, and refused to recognize and meet with the Union, the majority represent- ative of the employees. We have further found that these unfair labor practices were reported to the employees and they discussed them before deciding to strike. We have also found that, after the strike began, the Respondent engaged in numerous unfair labor prac- tices, including promises of reward to strikers to forego union organi- zation and threats of reprisal against them unless they did so. True, many employees testified, when cross-examined, that they resorted to strike action because they desired to obtain higher wages. Manifestly, the employees sought to utilize the practice and procedure of collec- tive bargaining as a means of obtaining economic concessions from the Respondent, and they decided to strike when the Respondent refused to recognize and meet with their representative for the purposes of collective bargaining. Contrary to the Trial Examiner, at least one or two employees did testify in substance that the employees struck because the Respondent refused to meet with the Union. While the employees made the decision to strike, Cohen advised such a course, warning against possible employer reprisals in view of the events of the morning of October 4, 1950. Virtually all the incidents set forth in paragraph numbered 2, above, were reported to the strikers assembled at union meetings about the time they occurred or shortly thereafter. At these union meetings, 20 The record also contains additional testimony , not discredited by the Trial Examiner, as to alleged unfair labor practices of a similar nature violative of Section 8 (a) (1) of the Act. In view of our disposition of this case , we find it unnecessary to determine whether the Respondent engaged in any unfair labor practice not specifically found in this Decision. JAMES THOMPSON & CO., INC. 467 the strikers customarily took a vote as to whether they desired to continue the strike. On all such occasions, the strikers voted to con- tinue the strike without a dissenting vote. Under all the circumstances, we find that the strike was principally a strike for union recognition as an immediate goal and was caused and prolonged by the Respondent's unfair labor practice, set forth above.21 4. The allegation of discrimination in the hire and tenure of employees A. As to the strikers generally - At the hearing the General Counsel conceded that, except as to Lawrence Lozo, the Respondent did not violate Section 8 (a) (3) of the Act in failing to reinstate the strikers unless, as he contended, the strike was an unfair labor practice strike. The Trial Examiner recommended dismissal of this allegation of the complaint as to the strikers generally 22 on two grounds : (a) The strike was not caused or prolonged by any unfair labor practice; and (b) the Union's offer to return the strikers to work was not unconditional. We disagree. We have found above that the strike was caused and prolonged by unfair labor practices on the part of the Respondent. Moreover, the Union's offer to return the strikers to work was unconditional. In its letter to the Respondent, dated January, 10, 1951, in separate para- graphs, the Union made separate requests that the Respondent re- employ the strikers and bargain collectively with the Union.23 In language, neither request was expressly conditioned upon the grant- ing of the other request. We believe that a reasonable construction of the Union's letter of January 10, 1951, compels the conclusion that the Union's offer to return the strikers to work was unconditional. Indeed, in its letter to the Respondent, dated February 7, 1951, the Union made it abundantly clear that its offer to end the strike and return the strikers to work was not conditioned upon the Respondent's bargaining with the Union. The pertinent part of this letter is as follows : I will not at this time enter into any further discussion regard- ing your company's meeting with the representatives of this Union relative to collective bargaining, inasmuch as the parties have made their position abundantly clear in previous communications. "The fact that a strike directed against an employer's unfair labor practices may also have an economic objective doesnot deprive the striking employees of their rights as unfair labor practice strikers. N. L. R B. v. Remington-Rand, Inc., 94 F. 2d 862, 872 (C. A. 2), cert. den 304 U. S. 576 and 589; N. L. R. B. V. Sartorius, 140 F. 2d 203 (C. A. 2) ; N. L. R. B. v. Stackpole Carbon Co., 105 F. 2d 167, 175-176 (C. A. 3), cert. den. 308 U. S. 605. zs Excluding Lozo. His case is considered below. _ 22 The letter is set forth in the Intermediate. Report, section III, B, 1, c. 227260--53-vol. 100-31 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Therefore I will let this matter rest until some higher authority than the parties decide the issue. As you requested I have again read your letter of January 16, 1951 and after reading this letter I again wish at this time to offer that a representative of our Union meet with a representative of the company for the purpose of returning all of the company's employees to work forthwith. I would appreciate your meeting with our Mr. Peter Zito to work out these details. In making these requests we are aware of the fact that you are refusing to bargain with our Union collectively and we are not asking you at this time to discuss any other ,question but this one inasmuch as the issue of collective bargaining is now before the National Labor Relations Board and inasmuch as that request was turned down by your company some time ago. The Respondent, however, refused to meet with the Union for any purpose. The Respondent now contends that the Union's offer to return the strikers to work was not unconditional on the further ground that, in its correspondence with the Respondent during `January and Febru- ary 1951, the Union requested that the Respondent meet with a union representative for the purpose of arranging the details of reinstate- ment of the strikers. We reject this contention, as this did not make the Union's offer conditional. Clearly, the Union desired reinstate- ment of the strikers, but no more. As the Respondent had indicated in its letter of January 16, 1951, that it might not reinstate all strikers, the Union merely sought to discuss the matter with the Respondent as a means of obtaining reinstatement for them. As stated above, on January 16, 1951, the Respondent replied to the Union's offer to return the strikers to work by stating that the Re- spondent "stands ready to take back as many of_ the strikers as is possible, and without discrimination." We find no merit in the Re- spondent's contention that this was an adequate offer of reinstatement. For, when the Union sought to meet with the Respondent to arrange the details of reinstatement, the Respondent refused. Moreover, the Respondent does not contend, and there is no showing, that work was not then available for a normal complement of employees,' about 73; indeed, the Respondent had a full complement of employees at least as early as March or April 1951. Finally, whenever strikers individu- ally applied for reinstatement, as a limited number did, the Respond- ent invoked a policy of requiring them to sign an application list for employment and refused them reinstatement when they declined to sign such list. Even some strikers who signed such list have not been 24 At that time the Respondent had about 61 employees on its payroll. JAMES THOMPSON & CO., INC. 469 reinstated, for reasons which do not affirmatively appear. In addi- tion, other strikers, who did not individually' apply for reinstatement, have not been reinstated. On the basis of the foregoing, we conclude that the Respondent un- lawfully failed and refused to reinstate the strikers remaining on strike on January 11, 1951. As the strike was caused and prolonged by unfair labor practices, when the Union unconditionally offered to return all strikers to work, the Respondent was under obligation to reinstate all such strikers, discharging, if necessary, all replacements to provide jobs for the strikers.25 The Respondent's conduct, follow- ing the Union's unconditional application for reinstatement, fell short of fulfilling this obligation. While stating that it "stood ready to reinstate as many strikers as possible," the Respondent refused to meet with the Union to arrange the details for reinstatement, and shortly thereafter implemented this position by requiring the strikers to make individual applications for employment, thus clearly indicating that it did not intend to afford the strikers their statutory right to rein- statement. By pursuing a policy of treating the strikers in effect as new employees, the Respondent, by this conduct alone, deprived the strikers of their rights as unfair labor practice strikers.26 Accordingly, we find that, at least from the date when Respondent refused to meet with the Union to arrange details for reinstatement, on February 6, 1951, the Respondent refused to reinstate the strikers, thus discriminating with respect to their hire and tenure of employ- ment to discourage membership in the Union, in violation of Section S (a) (3) of the Act, thereby interfering with, restraining, and co- ercing the employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act, in violation of Section 8 (a) (1) thereof. B. Lawrence Lozo Lawrence Lozo, a member of the Union, was the most active em- ployee-organizer on behalf of the Union. He joined the ranks of the strikers at the outset. The Respondent had knowledge of Lozo's union activity which met with Plant Superintendent Flanagan's dis- pleasure. On October 3,'1950, Flanagan reminded Lozo that he, Flanagan, had picked Lozo ". . . out of the gutter" at the time he was first hired by giving him $5 to enable him to eat, and told Lozo to do, his union organizing on his own time. - The Respondent contends that it refused to reinstate Lozo because of his connection with a missing bale of material. Shortly after the beginning of the strike, Lozo and striker Raymond Sullivan were in '° See, for example, Black Diamond S. S. Corp. v. N. L. R. B., 94 F. 2d 875 (C. A. 2). 26 See , for example, St. Mary's Sewer Pipe Co., 54 NLRB 1226; N. L. R. B. v. Americans Mfg Co., 106 F. 2d 61 (C. A. 2). 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sullivan's car following,a company truck, operated by Flanagan and Robert Judell, to see where they were going to deliver certain material in order to ascertain whether the consignee operated a union plant. A bale of material, having an estimated value of $250 or $300, fell off the truck. Fearing that they might be accused of having stolen it, Sullivan stored the bale in his barn. Flanagan and Tudell knew that they had been followed by Sullivan and Lozo. Flanagan dispatched a State trooper to Sullivan's home, and the bale was recovered. Asked by the State trooper whether he wished to press charges, Flanagan replied that he did not and, addressing himself to Sullivan, stated, according to his own testimony which we credit, "Sullivan, you are lucky, you have someone like me that does not have you arrested. I don't think you are a criminal. I think you did this thing in a moment of excitement. You are going to get into trouble so long as you hang around here. Do me a favor and keep away." Sullivan never in- -dividually applied for reinstatement and has not been reinstated. Lozo applied for reinstatement on two occasions, about Thanks- giving 1950 and in March 1951. On the first occasion, Flanagan stated that he had no work. At this time, the Respondent did not have a full complement of workers; and Flanagan admitted in his testimony that he made this statement, i. e., that there was no work available, because he was "annoyed at Lozo." On the second occasion, according to Flanagan's testimony, which the Trial Examiner appears to have credited as we do, Flanagan, repeating what he had said on October 3, 1950, when he objected to Lozo's union activity, again reminded Lozo that he "didn't treat me right" in face of the fact that Lozo had been befriended by Flanagan at the time of hiring, and Flanagan referred to the bale incident as reasons for denying him work. The Trial Examiner found that Flanagan regarded Lozo's union activity as an act of ingratitude, but concluded that the record did .not establish by a preponderance of the evidence that this was the ,reason for denying Lozo reinstatement. We do not agree. As stated above, Lozo was the chief employee protagonist for the Union. His union activity was known to the Respondent. Flanagan was annoyed with Lozo as a result of his, union activity. Flanagan refused to press criminal charges against Sullivan in connection with the bale incident; and Flanagan admitted that Sullivan did not engage in a criminal act by picking up the bale of material and storing it in his barn.27 Lozo's conduct in this respect at most was no worse than Sullivan's. When Lozo first applied for reinstatement, Flanagan assigned an admittedly false reason for denying reinstatement to Lozo, and did not then assign the bale incident, which had by that time taken 27 Sullivan did not make an individual application for reinstatement. We believe that Sullivan's conduct was not such as to make him unfit for reinstatement , as the Respondent appears to contend. JAMES THOMPSON & CO., INC. 471 place, as ground for refusing to reinstate Lozo. We conclude that the Respondent did not deny reinstatement to Lozo because of the role he played in the bale incident. On the other hand, as the Trial Exam- iner found, Flanagan from the outset regarded Lozo's union activity as an act of ingratitude. Under the circumstances, particularly in the light of the Respondent's other unfair labor practices, we believe that the record establishes by a preponderance of the evidence that the Respondent refused to reinstate Lozo on or about a week before Thanksgiving Day, 1950, and in March 1951, because of his union activity. Accordingly, we find that the Respondent discriminated in respect to hire and tenure of employment of Lawrence Lozo to discourage membership in the Union, in violation of Section 8 (a) (3) of the Act, thereby interfering with, restraining, and coercing employees in the exercise of the rights guaranteed by Section 7 of the Act, in violation of Sections 8 (a) (1) thereof. The Effect of the Unfair Labor Practices upon Commerce The activities of the Respondent set forth in this Decision, occurring in connection with the operations of the Respondent described in, section I of the Intermediate Report, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. The Remedy Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. We have found that the, Respondent has refused to bargain collec- tively with the Union as the representative of its employees. We shall therefore order that the Respondent, upon request, bargain collectively with the Union. We have found that the Respondent's employees went out on strike on October 4, 1950, and that the strike was caused and prolonged by the Respondent's unfair labor practices. We have also found that in February 1951, the Respondent discriminatorily refused to reinstate those employees remaining on strike. The Respondent contends that the strikers should not be reinstated because they allegedly engaged in violence on the picket line and in other misconduct, such as blocking ingress to and egress from the plant. We agree with the Trial Examiner that the record fails to show that any serious misconduct occurred. As the record does not, 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD establish that any striker, including Sullivan and Lozo, engaged in any misconduct which warrants denial of the usual remedy of reinstatement, we reject this contention. Accordingly, except as stated below, we shall order the Respondent to offer those strikers who have not since been reinstated 2a immediate and full reinstatement to their former or substantially equivalent positions, dismissing, if necessary, any employees hired since October 4,1950, to replace them. If, after such dismissal, there are insufficient positions remaining for all these employees, the available positions shall be distributed among them, without discrimination because of their union membership, activity, or participation in the strike, fol- lowing such system of seniority or other nondiscriminatory practice as has heretofore been applied in the conduct of the Respondent's business. Those strikers for whom no employment is immediately available after such distribution, shall be placed upon a preferential hiring list with priority determined among them by such system of seniority or other nondiscriminatory practice as heretofore has been applied in the conduct of the Respondent's business and thereafter, in accordance with such list, shall be offered reinstatement as positions become available, t nd before other persons are hired for such work. Reinstatement, as provided herein, shall be without prejudice to the employees' seniority or other rights and privileges. We shall also direct the Respondent to reimburse the foregoing employees, except as stated below, for any loss of pay they may have suffered by reason of the Respondent's discrimination against them, by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of the discrimination to the date of the Respondent's offer of reinstatement, less his or her net earnings during such period, to be computed in the manner hereinafter provided. At the hearing 10 other strikers 29 who have not been reinstated testified that they would be unwilling to accept an offer of reinstate- ment unless the Respondent recognized the Union and/or altered the conditions of employment. In view of their testimony, and for reasons which impel our policy of denying strikers back pay while out on strike and until they make unconditional application for work, we believe it will best effectuate the policies of the Act to condition the Respondent's offer of reinstatement to these 10 strikers upon their 28 They include : Bella McArdle , Earl P. Carknard , Burton Colony, Robert J. Couser, Jr., Margaret Cox, Helen Crandall , William Daley, Orvin Van Duren , Fred Fisk , Major T. Lloyd, Irene Kelley, Karl Koch, George Lewis, Doris Lloyd, D. McGee, Warren Smith , Leroy Tate, Harold Stedman, Raymond Sullivan , Richard Speanberg, and Elizabeth Thurber. Those employees are hereinafter listed in Appendix A. ze Including Patrick Kelly, Chester Carknard , Florence Cassidy, Katherine M. Hyland, Vernard A. LaBarge, Alfred Jensen, Edward Washburn , Rose Jensen, John Bernard Rabbitt, and John McArdle. These employees are hereinafter listed in Appendix B. JAMES THOMPSON & co., INC. 473 application for work, and to suspend the accrual of their back pay from the date they testified to the date of application for reinstate- ment. We shall order the Respondent to pay each of these 10 em- ployees a sum of money equal to the amount he or she normally would have earned as wages from the date of the Respondent's discrimination to the date each of them testified at the hearing, and, in the event of a refusal of reinstatement after application therefor, we shall award additional back pay to said employees during the period from five (5) days after the date of such application to the date of offer of rein- statement, less his or her net earnings during said periods, to be com- puted in the manner hereinafter provided. Another striker, Leighton O. Boom, testified that he did not desire reinstatement as he had obtained employment elsewhere. We shall therefore not order that Boom be reinstated. We shall also not award him back pay, as Boom obtained his present employment before any discrimination in this case occurred and would not have left his present job to return to work for the Respondent when the Union offered to end the strike. Hence the discrimination did not cause Boom any monetary loss. Of those named in the complaint, four strikers who have been, reinstated were not reinstated until sometime after February 1951: We shall award these employees, namely, Martin Cook, who was reinstated on March 26, 1951, Jesse Slater, who was reinstated on April 23, 1951, Ernest Gragan, who was reinstated on April 30, 1951, and Leon Cook, who was reinstated on June 29, 1951, back pay from the date of discrimination to the date on which each of them was reinstated 30 We have further found that the Respondent unlawfully refused to reinstate Lawrence Lozo. Lozo testified that he does not desire re- instatement. We shall therefore not order that he be reinstated. However, we shall direct the Respondent to pay him back pay from 1 week before Thanksgiving Day, 1950, the date of the first refusal to reinstate him, to the date when he testified at the hearing, less his net earnings during said period, to be computed in the manner herein- after provided. In accordance with our usual practice in such cases, as the Trial Examiner recommended dismissal of the discrimination allegations of the complaint, we shall not award back pay to any employee for the period from the date of the Intermediate Report to the date of our Decision and Order herein. Loss of pay shall be computed on the basis of each separate calendar quarter or portion thereof during the period from the Respondent's discriminatory action to the date of a proper offer 40 These employees are hereinafter listed in Appendix C. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of reinstatement. The quarterly periods, hereinafter called quarters, shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which these employees would normally have earned for each such quarter, or portion thereof, their respective net earning s,31 if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter.32 - We shall also order the Respondent to make available to the Board upon request payroll and other records to facilitate the checking of the amount of back pay due and to determine the right to reinstate- ment under our Order. We expressly reserve the right to modify the back-pay and reinstate- ment provisions of our Order herein, if made necesary by a change of conditions in the future or to make such supplements thereto as may hereinafter become necessary in order to define or clarify their application to a specific set of circumstances not now apparent. Additional Conclusions of Law 1. All production and maintenance employees and truck drivers at Respondent's Valley Falls plant, exclusive of office and clerical employees, watchmen, guards, shipping clerks, professional employees, and all supervisors as defined in Section 2 (11) of the Act, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 2. Textile Workers Union of America, CIO, was on October 4, 1950, and at all times since has been, the exclusive bargaining repre- sentative of all employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 3. By refusing on October 4, 1950, and at all times thereafter, to bargain collectively with the aforesaid Union as the exclusive bar= gaining representative of the employees in the aforesaid appropriate unit, the Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 4. By discriminating in regard to the hire and tenure of employment of some of its employees, thereby discouraging membership in the aforesaid Union, the Respondent has engaged and is engaging in 81 By "net earnings" is meant earnings less expenses, such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where, which would not have been incurred but for the unlawful discrimination and the con- sequent necessity of his seeking employment elsewhere . Crossett Lumber Company, 8 NLRB 440. Monies received for work performed upon Federal , State, county, municipal, or other work-relief projects shall be considered earnings. Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 11 F. W. Woolworth Company, 90 NLRB 289. JAMES THOMPSON & CO., INC. 475 unfair labor practices with the meaning of Section 8 (a) (3) of the Act. 5. By the above unfair labor practices and by otherwise interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. Order Upon the 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, James Thompson & Co., Inc., Valley Falls, New York, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating employees concerning their union membership, activities, and sympathies, or the identity of union committee mem- bers; threatening employees with loss of employment if they joined a union; and granting a wage increase or promising a wage increase or other benefits to discourage union membership or activity. (b) Discouraging membership in Textile Workers Union of Amer- ica, CIO, or any labor organization of its employees, by discharging or refusing to reinstate any of its employees because of their union membership or activity, or in any other manner discriminating in re- gard to their hire or tenure of employment, or any term or condition of their employment. (c) Refusing to bargain collectively with Textile Workers Union of America, CIO, as the exclusive representative of all its production and maintenance employees and truck drivers at its Valley Falls, New York, plant, -exclusive of office and clerical employees, watchmen, guards, shipping clerks, professional employees, and all supervisors as defined in the Act, with respect to labor disputes, grievances, rates of pay, hours of employment, and other terms and conditions of employment. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring 476 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Textile Workers Union of America, CIO, as the exclusive representative of all the employees in the above-described unit with respect to labor disputes, grievances, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Offer to those employees whose names are listed in Appendix A hereto and, upon application, offer to those employees whose names are listed in Appendix B hereto, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, in the manner set forth in The Remedy section of this Decision and Order. (c) Make whole Lawrence Lozo and the employees listed in Ap- pendices A, B, and C, hereto, for any loss of pay they may have suffered or may suffer because of the Respondent's discrimination against them, by payment to each of them of a sum of money equal to the amount he or she normally would have earned as wages during the applicable period or periods, as the case may be and in the manner set forth in The Remedy section, less his or her net earning during such period or periods. (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 reports, and, all other records necessary for a determination of the amounts of back pay due and the right of reinstatement under the terms of our Order herein. (e) Post at its plant at Valley Falls, New York, copies of the notice attached hereto and marked "Appendix D." Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent, be posted by it immediately upon receipt thereof and maintained 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the Second Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. sa In the event that this Order is enforced by a United States Court of Appeals , there Shan 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." JAMES THOMPSON Sk CO., INC. Appendix A Bella MacArdle Earl P. Carknard Burton Colony Robert J. Couser, Jr. Margaret Cox Helen Crandall William Daley Orvin Van Dusen Fred Fisk Major T. Lloyd Irene Kelley Karl Koch George Lewis Doris Lloyd D. McGee Warren Smith Leroy Tate Harold Stedman Raymond Sullivan Richard Speanberg Elizabeth Thurber Appendix B Patrick Kelley Chester Carknard Florence Cassidy Katherine M. Hyland Vernard A. LeBarge Alfred Jensen Edward Washburn Rose Jensen John Bernard Rabbitt John McArdle Appendix C Martin Cook Jesse Slater Ernest Grogan Leon Cook 477 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix D 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, as amended, we hereby notify our employees that : WE WILL NOT interrogate our employees concerning their union membership, activities, and sympathies, or the identity of union committee members; threaten employees with loss of employment if they joined a union; and grant a wage increase or promise a wage increase or other benefits to discourage union membership or activity. WE WILL NOT discourage membership in TEXTILE WORKERS UNION OF AMERICA, CIO, or in any other labor organization of our employees, by discharging or refusing to reinstate any of our employees, or any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment, as authorized in Section 8 (a) (3) of the National Labor Relations Act. WE WILL bargain collectively upon request with TEXTILE WoRx- ERS UNION OF AMERICA, CIO, as the exclusive representative of all employees in the following bargaining unit with respect to labor disputes, grievances, rates of pay, hours of employment, and other terms and conditions of employment, and if an understand- ing is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All our production and maintenance employees and truck drivers at our Valley Falls, New York, plant, exclusive of office and clerical employees, watchmen, guards, shipping clerks, professional employees, and all supervisors as defined in the Act. WE WILL offer the employees named below immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to any seniority or other rights and privi- -:,-,JAMES THOMPSON. & CO., INC . 479 leges previously enjoyed, and make them whole,for any loss of pay suffered as a result of the discrimination against them, in the manner set forth in the section entitled "The Remedy" of the Board's Decision : Bella MacArdle Earl P. Carknard Burton Colony Robert J. Couser, Jr. Margaret Cox Helen Crandall William Daley D. McGee Orvin Van Dusen Fred Fisk Major T. Lloyd Irene Kelly Karl Koch George Lewis Doris Lloyd Waren Smith Leroy Tate Harold Stedman Raymond Sullivan Richard Speanberg Elizabeth Thurber WE WILL offer to the employees named below, upon applica- tion, immediate and full reinstatement to their former or sub= stantially equivalent positions, without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay which they may suffer as a result of discrimination against them, in the manner set forth in the sec- tion entitled "The Remedy" of the Board's Decision : Patrick Kelly Chester Carknard Florence Cassidy Katherine M. Hyland Vernard A. LaBarge Alfred Jensen Edward Washburn Rose Jensen John Bernard Rabbitt John McArdle WE WILL make whole the employees named below for any loss of pay suffered as a result of the discrimination against them, in the manner set forth in the section entitled "The Remedy" of the Board's Decision : Lawrence Lozo Martin Cook Jesse Slater Ernest Grogan Leon Cook All our employees are free to become or remain members of TEXTILE. WORKERS UNION OF AMERICA, CIO, or in any labor organization. We will not discriminate in regard to hire or tenure of employment or any 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD term or condition of employment against any employee because of membership in or activity on behalf of any labor organization. JAMES THOMPSON & CO., INC., Employer. Dated ---------------- --- By ------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE Upon a second amended charge, filed on April 11, 1951, by Textile Workers Union of America, CIO, herein called the Union, the General Counsel of the National Labor Relations Board, herein called respectively the General Counsel and the Board, by the Regional Director for the Second Region (New York, New York), issued a complaint dated July 27, 1951, against James Thompson & Co., Inc., herein called Respondent, alleging that Respondent had engaged in and was engaging in certain unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the complaint, accompanied by a notice of hearing, were duly served upon Respondent and the Union. With respect to the unfair labor practices the complaint alleged in substance that Respondent (1) on about October 4, 1950, and at all times thereafter refused to bargain collectively with the Union as the exclusive representative of all em- ployees in an appropriate unit, despite the fact that a majority of the employees in an appropriate unit had designated the Union as their bargaining representa- tive; (2) during the same period interrogated its employees concerning their union affiliations, warned them against joining or assisting the Union, kept its meeting places under observation and surveillance, and on or about October 15, 1950, granted a wage increase to its employees ; and (3) on or about January 10, 1951, refused to reinstate 36 named employees and subsequently refused to rein- state 5 others because they participated in a strike caused and prolonged by Respondent's unfair labor practices, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. On August 15, 1951, Respondent filed an answer admitting certain allegations of the complaint with respect to the nature of its business, but denying that it had engaged in any unfair labor practices. Respondent later filed a demand for a bill of particulars dated August 27, 1951, which Trial Examiner Buchanan, in an order dated August 31, granted in part. Counsel for the General Counsel complied with this order. Pursuant to notice, a hearing was held at Albany, New York, from October 1 to 8, 1951, before Horace A. Ruckel, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel and Respondent were represented by counsel and participated in the hearing. The Union was represented by an organizer. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the conclusion of the General Counsel's case, the 'Trial Examiner denied a motion by Respondent to dismiss the complaint for JAMES THOMPSON & CO., INC . 481 want of proof, but reserved ruling on a similar motion at the conclusion of the hearing. On motion of the General Counsel the allegation of. surveillance was dismissed. The parties engaged in oral argument and were advised that they might file briefs with the Trial Examiner by October 23. Subsequently the time within which to file briefs was extended to November 20. On this date Re- spondent filed a brief. Upon the entire record in this case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is and at all times material herein has been a Delaware corpora- tion having its principal office and place of business in New York City. It operates a manufacturing plant: at Valley Falls, New York, herein called the Valley Falls plant, the only one involved in these proceedings, where it is engaged in the manufacture,,; sale, and distribution of buckrams, twines, mosquito nettings, and other loose fabrics and related products. During the year ending December 31, 1950, Respondent, in the course and conduct of its business opera- tions, caused to be purchased, transferred, and delivered to its Valley Falls plant cotton yarn and other materials valued in excess of $750,000, of which approximately 90 percent was transported to said plant in interstate commerce from States of the United States other than the State of New York. During the same period Respondent caused to be manufactured at its Valley Falls plant products valued at in excess of $1,000,000, of which approximately 75 percent was transported from said plant in interstate commerce to States of the United States other than the State of New York' II. THE LABOR ORGANIZATION INVOLVED Textile Workers Union of America, CIO, herein called the Union, is and at all times herein mentioned has been a labor organization admitting employees of Respondent to membership. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The alleged refusal to bargain; other alleged acts of interference , restraint, and coercion 1. The appropriate unit The complaint alleges that all production and maintenance employees and truck drivers at Respondent's Valley Falls plant, exclusive of office and clerical employees, watchmen, guards, shipping clerks, professional employees, and all supervisors as defined in Section 2 (11) of the Act, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. Respondent in its answer denies that the above-described unit is an appro- priate one, but at the hearing proposed no other. The undersigned finds that this unit insures to employees of Respondent the full benefit of their rights to self-organization and collective bargaining, and otherwise effectuates the policies of the Act. 1 The facts on •ommerce were stipulated to by the parties. 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Representation by the Union of a majority in the appropriate unit During the latter part of September 195b , Lawrence Lozo, one of Respondent's employees, got word to the Union that Respondent's employees were interested in organization . On October 2, according to Lozo, or on October 3, according to Sy Cohen, an organizer and international representative for the Union whose jurisdiction covers Rensselaer County in which Valley Falls is located, and whose testimony I credit, arrived outside Respondent's plant and talked with Lozo. At this time Cohen gave Lozo a number of union application cards and himself, according to his testimony , obtained the applications of about 14 em- ployees. Observing the interest of the employees , Cohen that afternoon had circulars printed and distributed and engaged a hall for a meeting that evening. At the meeting various other applications were received , so that on the following day, October 4, Cohen had in his hands a substantial number of applications, the precise number and the precise time when he obtained them being of more than usual importance because Cohen at 10 o 'clock on the morning of October 4 requested Respondent to bargain with the Union. There are in the record 47 applications of which 32 are not dated. Of the 15 dated cards 14 of them are dated October 3 and 1 "October ." Lozo testified that 18 of these 47 cards were obtained by him on October 3. Three of these signers testified however, that they were not signed up by Lozo but by someone else. Respondent urges that this, together with other particulars of Lozo's testimony, serves to discredit Lozo as to the date upon which all of the cards which found their way into his possession were signed . Cohen's testimony, however, is to the effect that prior to 10 o'clock on the morning of October 4 he had in his possession , obtained from Lozo and other sources, a total of be- tween 50 and 60 cards, excluding duplicates . Lozo was not particularly im- pressive as a witness and Cohen's testimony is, to a certain extent, discredited because the total number of cards signed , offered in evidence , was only 47. There is, however, substantial evidence in the record , and I find, that on the morning of October 4, prior to 10 o'clock , Cohen had in his possession , obtained from Lozo and other sources and including those that he had procured himself, a total of 47 cards, and that this constituted a majority of the employees within the appropriate unit. Respondent contends , however, that a number of these were obtained by coercive methods. For example, Dora Masterson , Helen O'Connor, Cyrus Thurber, Davena Rennie, Jesse Slater , Helen Sweeney, and Mary Cooke testified that Cohen or Pat Kelly, the latter one of the active rank -and-file organizers, in substance told them , in one or two instances in the presence of other workers, that if they did not sign up in the Union they would no longer have jobs , and that for this reason they signed . Some of these witnesses also placed this time after 10 a. in. on October 4. Cohen and Kelly denied making any such statements. Some of these witnesses were not too convincing and it is difficult to evaluate their testimony.. For if there is one thing that this record reveals clearly it is that union organization was accomplished practically within 24 hours in an atmosphere of enthusiasm which was subsequently dissipated when the strike began to fail and the employees wanted their jobs back and regretted their association with the Union. In view of my later findings I do not find it necessary to resolve the conflict of testimony herein involved. 3. The alleged refusal to bargain Frank Flanagan is the superintendent of the Valley Falls plant. He is directly responsible to Arthur and Robert Judell, the owners of Respondent JAMES THOMPSON & CO., INC. 483 whose office is at 112 Prince Street, New York City. Flanagan is in daily com- munication with New York via interoffice communications and by phone, in addi- tion to which Robert Judell, who is assistant treasurer and in charge of the actual management of the plant, visits it on an average of once in 2 weeks. It is clear from the record that Flanagan does not make decisions of any great importance himself but refers such questions to the New York office. Cohen admitted while testifying that he ascertained at the union meeting on the evening of October 3 that the Judells were the owners of the Respondent, and that he ascertained their New York address. It does not appear, however, that he had any knowl- edge as to the extent of Flanagan's authority at Valley Falls. Cohen admittedly at no time ever made contact with either of the Judells concerning recognition of the Union' At 10 o'clock on the morning of October 4, 1951, Cohen called Flanagan on the telephone, identified himself as a representative of the Union, told Flanagan that the Union had a majority of the employees, and that he wished to sit down and discuss a contract with him. Flanagan replied, according to Cohen, that he doubted that the Union had a majority of the employees, to which Cohen answered that he did not blame Flanagan for doubting him and suggested that a third party, such as a clergyman, check the cards or that an election be held under the auspices of the New York State Mediation Board. Flanagan then went on to say, according to Cohen, that he would "do it the way he always done it"' and would calla meeting of the employees that afternoon. The conversation lasted about 5 minutes and "wasn't too unpleasant." Flanagan admitted while testifying that Cohen's version of this conversation was substantially accurate, except that instead of saying he would "do it the way he always done it" he- said that he would "like to speak to my people about this," apparently meaning the employees rather than his supervisors. 4. The strike - Following this conversation Flanagan posted a notice calling a meeting of the employees in the plant at 1 p. m. The Union called a meeting at the same hour at a nearby tavern. During the interval Kelly and other active adherents of the Union urged the employees to attend this meeting rather than that called by Flanagan, and Cohen came to the mill during the noon lunch period and talked with a committee of the Union and a number of other employees at the plant gates urging the same thing. Cohen reported to them that he had telephoned Flanagan and that the latter had refused to meet with him, and a discussion ensued about what should be done. Cohen said he thought it possible that Flan- agan would meet with the committee without Cohen being present. Some of the employees demured to this suggestion, stating that they should all "stick to- gether." In addition, according to Cohen, various employees reported that Flan- agan had questioned them concerning the union buttons they were wearing that morning and advised Cohen of the meeting scheduled for 1 o'clock. Cohen told the employees that they were in the majority and they could either go to the meeting called by Flanagan and listen to what he had to say, or they could boycott the meeting and not return to work after the lunch period. As a result, the employees assembled around Cohen went "up the hill" to the tavern. Cohen 2 The only other communication between any representative of the Union and Respondent took place on January 10, 1951, when, as hereinafter appears, Jack Rubenstein, State director of the Union, wrote Arthur Judell purportedly for the purpose of terminating the strike which took place on October 4. 3 There is nothing to indicate what Flanagan meant by this reference. 227260-53-vol. 100--32 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD waited in front of the plant to advise other employees of the meeting, after which lie himself went to the meeting place. As a result of the two rival meetings taking place at the same hour there was considerable milling around among the employees, some attending the meeting called by Flanagan,' some the one called by the Union, while others managed to make both. A substantial majority of the employees ended up at the union meet- ing from which they did not thereafter return to work. I find that they were, as of noon on October 4, on strike. Conclusions as to the Nature of the Strike The General Counsel contends that the strike was caused by Respondent's un- fair labor practices consisting of (1) its refusal to bargain with the Union on October 4 and (2) certain statements attributed to Flanagan made prior to the strike. As to the former, I do not find that Flanagan's statements to Cohen on the telephone constituted a refusal to bargain. Flanagan did not refuse to meet with representatives of the Union but at the most temporized, giving as his reasons that he doubted that the Union had a majority and his desire to talk to the em; ployees at a meeting. Flanagan in fact was not a representative of Respondent with authority to negotiate with the Union. Moreover, he had never previously been faced with such a situation and it is apparent that Cohen's demand came as a surprise. I find that Respondent had bona fide doubt that the Union, which had only begun organization of the employees the previous day, had a majority. His natural reaction, in view of his limited authority in the mill, would be to communicate the Union's demand to one of the Judells at New York. He hardly had time to do this before the strike was called. I find that the Union did not go far enough either in forcing its demand for recognition or in bringing its majority status to the attention of the proper officials. I do not find that the relations of the parties even reached a point at which Respondent's good faith could be put to the test e In fact, Flanagan did not close the door upon a meeting with union repre- sentatives. Cohen himself testified, as has been found, that he told the em- ployees during the lunch hour that he believed that Respondent would meet with the committee without himself being present, and gave his approval to this course.' It is hereinafter considered whether certain statements made by Flanagan during the morning of October 4 of themselves constituted unfair labor practices which in turn contributed to the calling of the strike. Counsel for the General Counsel during oral argument cites instances, one involving Irene Kelly and others involving Chester Carknard and Pat Kelly. Irene Kelly testified that on November 3 she left a union newspaper and an unsigned application card on her desk because she wanted Flanagan to see it, thinking that perhaps he would 4 There is little credible evidence as to what Flanagan said at the meeting. One or two witnesses , for example, Viola Monahan called by Respondent, testified that Flanagan said that conditions were such that Respondent could not afford to raise wages , and that it could not operate the weave shop under a union 1 find that this was the general import of Flanagan's talk and that his remarks concerning the Union did not include any threats of reprisal or force or promise of benefit such as would remove it from the protection of 8 (c) of the Act. - See Bausch t Lamb Optical Company, 69 NLRB 1104. 6 An employer may not, of course, insist upon bargaining with his employees without the presence of an outside representative . Flanagan made no such suggestion. It was made by Cohen to a group of union employees and is of significance only in indicating that Cohen himself did not believe that the Respondent had finally refused to bargain with the Union. JAMES THOMPSON'& CO., INC. 485 ask her about it. Kelly was not disappointed. Flanagan, in making his rounds, approached her desk and passed the time of day with her briefly. Later, Kelly noticed that the card was missing, although the union paper remained on her desk. At the meeting that evening, Kelly signed up with the Union and received a union button. In the plant the next morning Flanagan, again making his rounds, spoke to her. Kelly testified that he touched her right shoulder on which she wore her button and said that he thought that he had seen a union paper on her desk to which Kelly replied that she had later taken it home. Flanagan then asked her if she had read it and she said she had not because she hadn't time, but that if Flanagan wanted to see it she would go home and get it, to which he replied that she need not mind, that he would obtain one elsewhere. Flanagan testified that he could not recall having noticed the union paper but that he did observe that there were one or two unsigned union cards and that he took one of them to examine it. Giving Kelly's testimony its full weight and effect I find nothing coercive in this incident, and would not even had Kelly not set the stage in the first place. Carknard testified that on the morning of the strike Flanagan came up to him in the plant and asked him what the union buttons, one of which Carknard was wearing, were "all about." Carknard informed him that they were organ- izing a union in reply to which Flanagan, according to Carknard, stated that a union would never work in the plant and that Carknard ought to know that. Flanagan then, according to Carknard, asked him if he knew who the member of the union committee were and Carknard replied that he did not. Flanagan's testimony was to the effect that Carknard's button was one of the first that he saw indicating that the employees were joining the Union, that he asked Cark- nard "what was doing." Carknard reminded Flanagan that he had asked for a raise in wages which he had not received. Flanagan replied, according to his own testimony, that Respondent was going to give a raise and that he wished Carknard would "live with" him until it could be accomplished. He denied saying anything about the Union not working in the plant at that time, but ad- mitted that after his speech to the employees at the 1 o'clock meeting, Carknard came up to him and said that "the Union will be in here yet," to which Flanagan rejoined that he did not think that a union would work in the plant. Flanagan denied saying anything about a union committee. I did not find Carknard to be a convincing witness. He had considerable diffi- culty in answering questions as to what Flanagan said without embodying his own conclusions, whereas I found Flanagan to be straightforward and respon- sive. I credit his testimony as against that of Carknard and find that he did not make the statements attributed to him by the former concerning the union committee. I also find that Flanagan's mention of the inappropriateness of a union in the mill took place after the 1 o'clock meeting and hence could not have contributed to the calling of the strike. Moreover, I do not find the remark to be coercive in character. Patrick Kelly, one of the most active of the rank-and-file leaders of the Union, testified that on the morning of October 4 he was wearing a union button in the plant when Flanagan approached him and said: "Pat, I hear there is some talk of a union," to which Kelly replied : "I guess that is right, Frank." This was all the conversation. I do not find that any of the above remarks attributed to Flanagan constituted interference, restraint, and coercion, and assuming that they did there is no evidence that they contributed in any way to the calling of the strike. The further contention of the General Counsel that the union members feared that Flanagan would attempt to undermine the Union's majority at the 1 o'clock 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting is without foundation in anything that Flanagan said prior to the call- ing of the strike. Numerous witnesses called by the General Counsel testified on cross-examina- tion that their reason for going on strike was to procure better wages. None testified as to any other reason. Testimony of this type is ordinarily, to my mind, not conclusive as to the cause of a strike., Strikes are customarily called by union officials or organizers and their reasons may include a well-grounded fear based upon experience with coercive actions and declarations of the em- ployer immediately prior to the strike that the union strength will be dissipated unless the employees are called out onto the picket line. These reasons may or may not be communicated to the employees themselves. I attach somewhat more than usual significance to this type of testimony in this case, however, because, as has been found above and as is elsewhere reflected in the record, Cohen, when he addressed a group of employees including the committee, outside the plant at noontime on October 4, clearly put it up to the employees whether they should strike or not. He made it clear that they could do as they pleased, that the matter was up to them, that it was their union, and that if they struck it would he their strike. At the most, he advised the strike. It is clear to me, on the record as a whole, that both the organizing and the striking were done on the spur of the moment and on a wave of enthusiasm engendered solely by the desire for higher wages and better working conditions. The strike, I find, was purely economic in character and was not caused by any unfair labor practices of Respondent. There was no refusal, I have found, to bargain with the Union and the remarks of Flanagan, set forth above, did not constitute interference, restraint, and coercion. B. Alleged discriminatory refusal to reinstate strikers upon the termination of the strike 1. Events during the strike a. Solicitation of strikers A picket line was thrown across the road leading to Respondent's plant and the strike continued effective for some weeks when it began to disintegrate and various of the strikers returned to work. Up until January 10, 1951, when Rubinstein wrote the Respondent at its New York office a letter which the General Counsel contends is an application for reinstatement of the strikers and in effect a termination of the strike, there was no communication of any kind between Respondent and the Union. Rubenstein's letter is hereinafter considered. The General Counsel does contend that it constituted a demand for recognition or for bargaining. It could not be this and at the same time be an unconditional application for reinstatement. Counsel for the General Counsel, however, contends that certain acts of Respondent during the strike converted the strike into an unfair labor practice strike by prolonging it, even assuming that it was economic in origin. These events are hereinafter considered. Jack Rabbitt testified that in November Flanagan visited him on one occasion at his home and asked him to go back to work, tendering him a $5 bill which he had in his hand. Rabbitt said he would not go back until the others did. Flanagan, while testifying, admitted that he asked Rabbitt to come back to work and denied that lie had offered him the bill. I credit Flanagan's testimony in this respect. Around Thanksgiving time Flanagan encountered Rabbitt on the street and, according to Rabbitt, offered him a turkey for Thanksgiving, which Flanagan said he was giving some of the employees. Rabbitt refused JAMES THOMPSON & CO., INC. 487 the turkey unless everybody got one. It appears from Flanagan's testimony that it was Respondent's custom to distribute a-number of turkeys to employees at Thanksgiving time. Accepting Rabbitt's testimony at its face value I do not find that it constituted interference, restraint, or coercion. John McCardie testi- fied that on October 5, the day following the calling of the strike, he met John Spence, Respondent's office manager, on the street and Spence told him that Robert Judell would like to talk to the committee of union employees but did not want to talk to the Union's representative. Spence did not testify. Alfred Jensen testified that on October 19, while he was on the picket line, Flanagan passed him and, after mutual greetings, asked him why he did not go back to work, stating that when the union trouble was over there would be a lot of employees without jobs, but that if the Union won, the plant moved to close down. Flanagan admitted asking Jensen to go back to work but denied stating that the mill would close down. I accept Flanagan's testimony as being in accord with the fact. Flanagan admitted that during the strike he met Florence Cassidy, another employee, on the lane going down hill from the mill and asked her to come back to work, and that in substance he stated that Respondent could not have a union "in that tumbled-down mill." Flanagan also admitted meeting Carknard on the street and asking him to come back to work. John McCardie testified that on one occasion during the strike Robert Judell en- countered him on the street and, after some other conversation, told him that Respondent could not afford a union in view of the machinery they had in the mill, meaning, I find, that the machinery was obsolete, and the mill was not making enough money to pay higher wages, and asked McCardie, a member of the union committee, to get the other employees to come back to work and that he would give them something to satisfy them with their working condi- tions. Judell suggested, according to McCardie, that since McCardie had broken a previous strike he should break this one. McCardie stated that he had in fact broken a previous strike. Judell, while testifying, admitted the substance of McCardie's testimony except that he denied suggesting that McCardie break the strike or having any information that McCardie had broken a previous one, and I accept his denial as truthful. Edward Washburn testified that on or about October 11, during the strike, he encountered Robert Judell and had a conversation during which Judell said that conditions at the mill were such that Respondent could not afford to run the mill with the Union and asked him if he wanted Valley Falls to become a "ghost town" like Schaghticoke, a neighboring community. Judell admitted, while testifying, that he probably made these statements, in substance. There is nothing to indicate that Judell's reference to a "ghost town" meant anything other than that the strike itself was bad economically for Valley Falls. I do not find that the above statements attributed to Flanagan and Judell constitute interference, restraint, and coercion, nor do I find any substantial evidence in the record that, as contended by the General Counsel, they prolonged the strike and thereby converted it into an unfair labor practice strike. Such cause and effect may not be presumed.' b. The wage raise granted nonstriking employees About October 14, some 10 days after the beginning of the strike, Respondent increased by $5 the weekly wage of each employee who was working in the plant ' See Anchor Rome Mills, Inc., 86 NLRB 1120, where the Board found no proof that unfair labor practices of an employer during a strike, consisting of letters to three strikers threatening them with discharge if they did not apply for their jobs by a given date, prolonged the strike. 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during the strike. The increase was paid by a $5 bill inserted in each pay envelope. Robert Judell testified that the reason for giving this increase was that because of the strike Respondent did not have a full complement of workers in the plant and those who were working were doing extra work. About Jan- uary 1, 1951, this increase was incorporated in the regular weekly pay checks and became a permanent wage increase. I find without merit the General Counsel's contention that, under the circumstances of this case, this wage in- crease constituted a failure to bargain with the Union or was made for the purpose of discouraging union activity. c. The alleged failure to reinstate the 8triker8 On January 10, 1951, for the first time since October 4, 1950, the Union com- municated with Respondent. A letter written that day was as follows : January 10, 1951 Mr. Arthur Judell James Thompson & Co. Inc. 112 Prince Street New York 12, N. Y. Re: Valley Fall8'Plant Dear Sir : Regarding our present controversy between your company and the union, I am requesting that the company re-employ all of the former employees of the company who were employed prior to the start of the controversy, and as their representative I wish to state their desire for re-employment. The union likewise requests that you meet with representatives of the union for the purpose of collective bargaining. The union feels that your refusal to bargain in the past can only result in misunderstanding and avoidable costs to all parties concerned. I would appreciate your setting an early date for such a meeting. In order to facilitate matters, I suggest that copies of answers to this communication be addressed to Mr. By Cohen, Box 496, Albany, N. Y., who will participate in or handle these negotiations for this office. Very truly yours, [ s/dl JACK RUBINSTEIN Respondent replied to the above letter on January 16 advising the Union that its "stands ready to take back as many of the strikers as is possible, and without discrimination." With respect to that portion of the Union's letter requesting a meeting, Respondent reasserted its belief that the Union did not represent a majority of the employees and asserted its hope that a representa- tion election, which had been scheduled for January 11, 1951 , and which had been postponed at the request of the Union, would take place . A further ex- change of letters followed , the union officials requesting a -meeting with repre- sentatives of Respondent . Each such request was coupled with a contention that the Union represented a majority and that Respondent should bargain with it. Insofar as the Union's letter of January 10 may be said to be an application for the reinstatement of the strikers , it is clear that it was coupled with, if not conditioned upon, Respondent's discussing the question of recognition with the Union. It is too familiar law to warrant citation that an application for re- JAMES THOMPSON & CO., INC . 489 instatement must be unconditional to be effective. I do not find that it was unconditional here. Shortly after January 16 Robert Judell instructed Flanagan to post in the mill a list for employees seeking reinstatement to sign. Flanagan's testimony was to the effect that it was Respondent's belief that the Union's letter of January 10 presaged a general application of strikers for reinstatement. In fact no such general return to work took place, possibly for the reason, among others as is apparent from the testimony of various strikers, that Respondent's offer to take back all applicants without discrimination was not communicated to all the strikers. Eleven strikers, however, did return to the plant and affix their names to the list. Somewhat later 16 additional strikers made applica- tion in person and were rehired. During the strike Respondent hired some replacements. The General Counsel conceded during oral argument that if the question of an unfair labor practice strike is eliminated, and I have eliminated it, there is no evidence in the record that Respondent's failure to reinstate any strikers, with the single exception of Lozo, was discriminatory e Lozo came to work for Respondent in April 1950 as a truck driver's helper. His activity as one of the rank-and-file organizers has previously been related. Flanagan admitted that he observed Lozo circulating throughout the mill on October 3 on what he believed to be union business, and that he told Lozo that if he was working for the Union to do so on his own time, reminding him that on the day he was hired he was hungry and Flanagan gave him $5 to enable him to eat. Lozo first applied for reinstatement during the latter part of November, and was told there was no work for him. He again applied in March 1951, and was refused work by Flanagan who reminded him again of the circum- stances under which he was hired and told him that he was not being reinstated because of his part in taking a bale of goods during the strike. On the occasion referred to one of Respondent's trucks was being followed by Lozo and Sullivan, another striker, when a bale of material valued between $250 and $300 fell off the truck and was picked up by the two strikers and put in Sullivan's barn. It was eventually recovered by the police. Sullivan, unlike Lozo, did not apply for reinstatement. The issue is perhaps a close one, since Flanagan evidently considered Lozo's joining the Union an act of ingratitude, but I find that the preponderance of the credible evidence does not establish that Respondent refused Lozo reinstatement for this reason. CONCLUSIONS OF LAW 1. Respondent, James Thompson & Co., Inc., is and at all times relevant herein was engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Textile Workers Union of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. Respondent has not engaged in any unfair labor practices within the meaning of the Act. [Recommendations omitted from publication in this volume.] $ For this reason I do not find it necessary to discuss Respondent's contention that certain of the strikers are not eligible for reinstatement because of acts of violence during the strike, other than to say that in my opinion such acts as occurred were not serious. The strike, as a whole, was conducted in an orderly manner,