Ohio Ferro Alloys Corp.

542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other labor organization , except to the extent that this right may be affected by an agreement executed in conformity with Section 8 (a) (3) of the Act. KNICKERBOCKER PLASTIC 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. OHIO FERRO ALLOYS CORPORATION and WILLIAM J. BARICSKA, JAMES VANCHURA, LOUIS BERNARDO, LEWIS PALMER, WALTER ORZOLEK, DAVID W. MORGAN, EDWIN LOWE HOOD, PETER A. SAVAGE, KARL W. KINDBERG, JOHN STAN, FRANK J. KUTKAL, JR., STAN- LEY ZUBOSKI, EDWARD CHRISTOPHER, PETE DAGRAVE, EDWIN E. NIXON, CHARLES W. SOLAK, R. R. HELMA, JAMES A. MILLER, MIKE MORAN, JR., HAROLD GRIMIN- GER, EDWARD SMITH, CLARENCE HOOD, JR., ANDY KLIKA, JOHN TAYLOR, WILLIAM J. SIMPSON, LOUIS ZALENSKI, JOHN A. KALO, HERMAN JOHNSON, WILLIAM F. SABOTA, JOSEPH W. FRANCZAK, JOSEPH OTTO, MARY S. JONES, EDWARD DOLEZAL, AND CHARLES T. MOORE. Case No. 8-CA-650. April 30, 1953 DECISION AND ORDER On November 20, 1952, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-entitled proceed- ing, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the Trial Examiner ' s findings , conclusions , and recommenda- tions , with the following additions and modifications.i As stated in the Intermediate Report, the United Mine Workers struck for recognition at 6 a. m. on November 17, 1951. Later that morning the Respondent advised the union officers that a i The Trial Examiner erroneously reported that one of the complainants who took a leading role in prevailing upon the employees to file charges, had been elected president of the United Mine Workers' Local in the Respondent's plant. The Trial Examiner apparently referred to employee Lewis Palmer. The record shows, and we find, that Palmer had not been elected president of the Local and that he had not held any other office in the Union. 104 NLRB No. 73. OHIO FERRO ALLOYS CORPORATION 543 rival claim for recognition had been received, but the strike continued. On the 20th the Union learned for the first time that the day before United Steelworkers of America, CIO, had filed a representation petition with the Board's Regional Office. The UMW thereupon offered to terminate the strike and to return all the strikers to work; no agreement was reached . Finally, on November 24, the strikers offered to return unconditionally but the Respondent refused to reinstate them. Only 3 of the original 58 strikers have since been recalled. We agree with the Trial Examiner ' s ultimate conclusionthat the strike was at all times lawful and that therefore when the strikers offered to abandon it they were entitled to reinstate- ment. We do not, however, adopt his subsidiary finding that, from November 20 on, immediate recognition remained an objective of the strike activity. On this question, the pertinent facts are as follows: On November 20, 1951, representatives of the Respondent and of the UMW met to agree on the terms of a State court injunction to regulate the picketing at the Respondent ' s plant. Immediately upon learning of the rival petition during the conference , DiStefano , the Union's representative, offered to call off the strike and to return all the employees to work. He asked the Respondent to reinstate all the employees , to assist in expediting a Board election on the Steelworkers ' petition and, in the event the Steelworkers lost the election, to hold a quick privately conducted election to afford the UMW an opportunity to prove its majority status. The conference was adjourned to permit the Respondent ' s representatives todiscuss this offer among themselves. When the conference was resumed the Respondent ' s president , Cunningham, stated that he would not take back two strikers , Neagos and Minozzi, because they had been convicted in a local court of assaulting a nonstriking employee. Consideration of the proposed settlement was dis- continued on this note . As a witness at the hearing , Cunningham admitted that the only reason why the Respondent broke off the discussion on November 20, and why the strike was not settled then and there, was his refusal to reinstate Neagos and Minozzi. The next day DiStefano met with Harris, the Respondent's personnel director , who tried to persuade him to abandon the UMW insistence on immediate reinstatement for Neagos and Minozzi. DiStefano refused to yield on the two men, but said that he would submit the matter to the union membership. On November 24 a union meeting was held. After Neagos and Minozzi declared their willingness to step aside so as not to jeopardize the chances of a strike settlement , the members voted to terminate the strike unconditionally and immediately reported back to the plant as a group and offered to work. On these facts, and on the record as a whole , it is clear that on November 20 the UMW abandoned its original objective of immediate recognition as majority representative . Its explicit offer to return all the employees to their work, coupled with the request that the Respondent speed a Steelworkers ' election, in which the noncomplying UMW could not participate, Can lead to no other conclusion. To hold that the purpose of the strike 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remained immediate recognition, would be to ignore, and indeed, to contravene the Union' s expressed intention of proving its majority by an election at a future date. Moreover, the Respondent' s admission , consistent with the testimony of the General Counsel' s witnesses , that the strike would have ended but for the dispute over Neagos and Minozzi, is practically an agreement between the contending parties as to the objective of the strike after November 20. We conclude, therefore, contrary to'the Trial Examiner, that from November 20 to 24 when the strikers offered to return unconditionally, the Union continued the strike, not for the purpose of winning recognition, but rather to obtain reinstatement for the two employees whom the Respondent deemed objectionable. Apart. from any consideration of the Respondent's right to refuse to take back Neagos and Minozzi, the strike, under well-established Board precedent, remained entirely lawful.' In these circumstances it is unnecessary to decide what the rights of the Respondent or the strikers would have been had the original objective of the strike not been abandoned. Ac- cordingly, we do not adopt the Trial Examiner's comments upon the legal consequences of a strike for recognition con- tinuing in the face of a rival representation petition. As the strike was a protected concerted activity, the strikers never lost their status as employees within the meaning of Section 2 (3) of the Act.' By requiring them to make individual applications for employment when they offered unconditionally to abandon the strike, the Respondent clearly indicated that it did not intend to afford them their statutory rights to rein- statement4 In pursuing such a policy of treating the strikers as new employees, the Respondent, by this conduct alone, deprived them of their rights in violation of the Acts The Re- spondent concedes that there was need immediately for a considerable number of employees on November 24, 1951. Without regard to the Respondent' s assertion as to precisely how many openings were in fact available on that date, we find that even if the regularly available jobs were less than the number of former strikers applying for such jobs, all such applicants who were denied reemployment were discriminated against when the Respondent failed to reinstate any of them to =Cf. Happ Brothers Company, 90 NLRB 1513. N. L. R. B. v. Remington Rand, Inc., 130 F. 919, 927; N. L. R. B. v. Mackay Radio and Telegraph Company, 304 U.S. 333. We find no merit in the Respondent's exception that the record does not support the Trial Examiner's finding that the employees offered to abandon the strike again on November 24. In addition to the evidence reported in the intermediate Report showing that the strikers, as a group, accompanied by union officers, reported to the plant on the 24th and told the Re- spondent that they had abandoned the strike and were available for work, the record contains a revealing conversation between DiStefano , the union representative, and Harris, the personnel director . On the afternoon of thesameday, Distefano called Harris on the telephone and said, "I thought we could get together and get this thing settled and get the boys back to work." Harris replied, "Well. Joe, I am afraid you are too late." Harris' statement leaves no doubt as to both the Respondent's awareness of the employees ' desire to return to work that day and its unwillingness to take them back. 'James Thompson and Co., 100 NLRB 456; St. Mary's Pipe Company, 54 NLRB 1226. OEHO FERRO ALLOYS CORPORATION 545 the available jobs .$ Accordingly, we find, like the Trial Exam- iner, that by denying reinstatement to the entire group of strikers on November 24, 1951, the Respondent violated Section 8 (a) (3) and (1) of the Act as to all of them. THE REMEDY As the Trial Examiner recommends, proper remedy of the mass discrimination found requires reinstatement of the employees who were unlawfully mistreated because of their concerted activity. We agree with the Trial Examiner's conclu- sion that on the facts of this case the Respondent is not now relieved of its obligation to reinstate the 46 returning strikers named in the complaint, merely because it hired certain additional unskilled workers during the short-lived strike. T The Respondent argues that regardless of any other facts contained in the record, we must hold that for each employee who was hired during the strike, one of the strikers lost every right to reinstatement. On this remedy issue of the case, we deem the following facts to be pertinent: The Respondent opened the plant here involved on October 3, 1951, when the first furnace was turned on. A second furnace was put into operation on November 13, 1951, 4 days before the strike, and a third early in January 1952. During this period of expansion, for which definite plans had been made far in advance, the plant was in a "shakedown stage." Employees were continuously hired as laborers and at a later stage assigned to various classifications, none of which, however, required skilled work. When the strike started on November 17, there were 79 employees in the unit; 58 participated in the strike. Between November 17 and November 24, when the strike ended, 30 new employees were hired and started work. Within the next 6 days the Respondent hired 40 more employees, all of whom were at work by December 9, 1951. The planned expansion continued steadily, but the record does not show the specific dates of later hirings. Three strikers, Robert Kelly, Talek, and Walker, were put back to work in late December and early January. By April 1952, when the Board conducted an election for the Steelworkers, there were approximately 177 eligible employees, including 65 whose ballots were challenged but never opened. The bulk of the challenged ballots was cast by strikers who had been denied reinstatement. If the group of employees in the bargaining unit had consti- tuted a permanent and fixed complement before and after the 6 Brown and Root Incorporated, et al., 99 NLRB 1031, enforced in pertinent part 203 F. 2d 139 (C. A. 8). 7 The complaint originally listed 53 strikers ; by amendment at the hearing the number was reduced to 49. The Trial Examiner recommends a dismissal of the complaint as to 3 of these: Andy Klika because he was a supervisor , Mike Moran because he had been discharged for cause before the strike, and Edward Smith because he had been in a hospital for a week after the strike and it does not appear that he ever returned or participated in the strike. As the record supports these findings, and as no exceptions were filed to these recom- mendations , we have adopted the Trial Examiner's recommendations as to Klika , Moran. and Smith. 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strike events, there would be merit in the Respondent's argument . As the Board has consistently held, an employer is privileged to replace economic strikers "in order to carry on his business"; $ although an economic striker retains his status as an employee for purposes of reinstatement to his former position,' the employer is not required to dismiss a permanent replacement in order to make room for the striker. Under such circumstances, the number of permanent replacements hired during an economic strike who are still at work when the strikers made application directly reduces the number of strikers entitled to reinstatement. 10 On the particular facts of this case, however, we cannot infer, as the Respondent would have us do, that the 30 employees put to work during the strike and still at work at the time of the strikers' application were hired only in order permanently to replace the strikers. The organization of the Respondent's plant had not been completed before the strike started, nor had its employee complement reached its planned peak. On the contrary, the plant was in the process of steady expansion and day-by-day hiring was continuous before, during, and after the strike. Nothing in the record supports the Respondent's contention that it had abandoned its expansion plans when the strike started and that all hirings during the strike were limited to replace - ment of the strikers. Rather, as all employees, new-and old, were unskilled laborers indistinguishable as to abilities and initial duties, the Respondent's labor force was essentially an amorphous, continuously increasing, overall employee comple- ment. That the Respondent's purpose in the hirings throughout this period was not purely to protect its economic position, is also shown by its treatment of the strikers during the first few days after November 24, while it was taking on 40 new employees. Although the great mass of strikers who had unconditionally offered to return to work milled about the plant for a day or two after abandoning the strike, none was put to work. Moreover, 11 of them yielded to the Respondent's improper insistence that they execute applications as new employees, but were nevertheless ignored while other unskilled workmen were being hired. The privilege of replacing economic strikers is intended as a shield against the economic impact of the strike. In this case, the Respondent is attempting to use it as a sword to destroy the reinstatement rights of striking employees. As we consider the Respondent's demonstrated discriminatory motivation against the strikers as a group, together with the concomitant plant expansion, which was more than sufficient to embrace all of the returning strikers, we are persuaded that but for their concerted activities the Respondent would have restored all of them to their work. Therefore we hold, like the Trial Examiner, that the accretions to the employee group 9Arthur D. Wiltse d/b/a The Ann Arbor Press , 85 NLRB 58. 63, enforced 188 F. 2d 917 (C.A. 6). 9Columbia Pictures Corporation, 82 NLRB 568. 'ON. L. R. B. v. Mackay Radio & Telegraph Company, 304 U. S. 333, 395, 346. OHIO FERRO ALLOYS CORPORATION 547 during the strike are insufficient reason to deny reinstatement to any of the complainants . Indeed , the record amply supports the conclusion that the Respondent would have added the 30 employees even if the strike had never occurred. Because 3 of the complainants , Robert Kelly, Talek, and Walker, have already been restored to their jobs, we shall not order reinstatement for them but shall limit the remedy in their cases to back pay for the period of discrimination against them . However , in the entire circumstances of this case , we see no reason for denying reinstatement to any of the other complainants , and shall order reinstatement of all 43 whose names are set out in the attached Appendix A. ORDER U on the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Ohio Ferro Alloys Corporation, Canton , Ohio , its officers , agents, successors , and assigns , shall: Cease and desist from: (a) Discharging or refusing to reinstate employees in con- sequence of or by reason of their participation in lawful strike or other concerted activities. (b) Discouraging membership in a union of the employees own choice by discriminating in regard to the hire and tenure of employment of its employees. (c) In any other manner interfering with , restraining, or coercing its employees in the exercise of the right to self- organization , to form labor organizations , to join or assist a labor organization of their own choosing , to bargain collectively through representatives of their own choosing , and to engage in concerted activity for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all of such activities , except to the extent that such right may be affected by an agreement requiring 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) Offer to the employees listed in Appendix A herein immediate reinstatement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges , dismissing , if necessary, all persons hired on or after November 25, 1951 , in the manner provided in the section of the Intermediate Report entitled "The Remedy." (b) Make whole all those employees listed in said Appendix A and employees Robert Kelly , Julius Talek , and Walter J. Walker for any loss of pay they may have suffered by reason of Respondent 's discrimination against them , in the manner provided in the section of this Intermediate Report entitled "The Remedy." 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at its Brilliant, Ohio, plant, copies of the notice attached hereto and marked "Appendix B."11 Copies of said notice , to be furnished by the Regional Director for the Eighth Region , shall, after being duly signed by the Respondent's representative, be posted by the Respondent 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. (d) Notify the Regional Director for the Eighth Region in writing , within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. It In the event that this order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX A Baricska , William J. Bechtel, Richard Bernardo, Louis Briggs, Joseph Christopher, Edward Czapp, George J., Jr. DaGrave, Pete Dolezal, Edward Fortz, Mike Franczak, Joseph W. Griminger, Harold Helms , Robert F. Hood, Clarence, Jr. Hood , Edwin L. Hutkai, Frank J., Jr. Jones , Mary S. Johnson , Herman Kalo , John A. Kelly, Thomas Kemo, Henry Kindberg, Karl W., Sr. Mamula, Eli McGraw, Robert E. Miller, James A. Moore , Charles T. Morgan , David W. Nixon, Edwin E. Orzolek, Walter Otto, Joseph Palmer, Lewis Sabota, William F. Savage , Peter A. Simpson, William J. Skeen, Roy Solak, Charles W. Stan, John Taylor, John Vanchura, James Waligura, Joseph Whiting, Elmer L. Yanczura, Edward G. Zalenski, Louis Zuboski, Stanley APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: OHIO FERRO ALLOYS CORPORATION 549 WE WILL NOT discharge or refuse to reinstate em- ployees in consequence of or by reason of their participa- tion in lawful strike or other concerted activities. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization , to form labor organizations , to join or assist 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 , and to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL offer to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Bariscka , William J. McGraw, Robert E. Bechtel, Richard Miller , James A. Bernardo , Louis Moore , Charles T. Briggs, Joseph Morgan, David W. Christopher , Edward Nixon , Edwin E. Czapp, George J., Jr. Orzolek, Walter DaGrave, Pete Otto, Joseph Dolezal, Edward Palmer, Lewis Fortz, Mike Sabota, William F. Franczak, Joseph W. Savage, Peter A. Griminger , Harold Simpson, William J. Helms, Robert F. Skeen, Roy Hood, Clarence, Jr. Solak, Charles W. Hood, Edwin L. Stan, John Hutkai, Frank J., Jr. Taylor, John Jones, Mary S. Vanchura, James Johnson, Herman Waligura , Joseph Kalo, John A. Whiting, Elmer L. Kelly, Thomas Yanczura , Edward G. Kemo, Henry Zalenski, Louis Kindberg, Karl W., Sr. Zuboski , Stanley Manula, Eli WE WILL make the employees named below whole for any loss of pay suffered as a result of the discrimination: Kelly, Robert Talek , Julius Walker, Walter J. All our employees are free to become or remain members of any labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of 283230 0 - 54 - 36 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment against any employee because of membership in or activity on behalf of any such labor organization. OHIO FERRO-ALLOYS CORPORATION, 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 This matter arises upon a complaint dated July 11, 1952,1 by the General Counsel 2 of the National Labor Relations Board, herein called the General Counsel and the Board, respec- tively, through the Regional Director for the Eighth Region (Cleveland, Ohio). against Ohio Ferro Alloys Corporation, herein called the Respondent, which alleged, in substance, that the Respondent had in various enumerated ways since or about November 1, 1951. interfered with, restrained, and coerced its employees and that on or about November 17, 1951, the employees of the Respondent ceased work concertedly and went on strike, which strike ended on or about November 24, 1951, when the various named employees applied for reinstatement but that the Respondent refused to reinstate the said employees because they had assisted or had become members of the United Mine Workers Union, hereinafter called the Union or UMW, or had participated in the strike of November 17, and that thereby the Respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Labor Management Relations Act of 1947, 61 Stat. 136, herein called the Act. The Respondent duly filed its answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Copies of the various charges, complaint , and notice of hearing thereof were duly served upon the Respondent and the individuals involved. Pursuant to notice a hearing was held between July 28, 1952, and August 1, 1952, inclusive, at Steubenville, Ohio, before the undersigned Trial Examiner. The General Counsel and the Respondent were represented by counsel . All parties participated in the hearing and were given full opportunity to be heard , to examine and cross -examine witnesses , to introduce evidence bearing upon the issues , to present oral argument , and to file briefs and proposed findings of fact or conclusions of law or both The General Counsel and the Respondent argued orally at the conclusion of the hearing and the Respondent on September 9, 1952, filed a written brief. Upon the entire record in the case and from his observation of the witnesses , the under- signed makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Ohio Ferro Alloys Corporation is, and has been at all times material herein, a corpora- tion duly organized under and existing by virtue of the laws of the State of Ohio with its principal office in Canton , Ohio. It owns and operates plants in Tacoma, Washington , Phflo, Ohio, and Brilliant , Ohio, where it is now and has been continuously engaged in the manu- facture of ferro-alloys. The Respondent , in the course and conduct of its business opera- 1 The complaint is based upon original charges filed by various individual complainants on and after December 12, 1951, and subsequent amended and additional charges filed by these individuals, the last of which was filed on May 21, 1952. 2 The term specifically includes the counsel for the General Counsel appearing at the hearing. OHIO FERRO ALLOYS CORPORATION 551 tions, annually causes and has continuously caused , at all times mentioned herein, its finished products , having a total value in excess of $25,000, to be sold , transported, and delivered in interstate commerce to and through the States of the United States other than the State of Ohio from its plants within the State of Ohio . The Respondent , in the course and conduct of its business operations , annually causes and has continuously caused , at all times material herein , its finished products , said finished products having a total value in excess of $50,000, to be sold to the Timken Roller Bearing Company and Republic Steel Corpora- tion, each of which , in turn, annually causes and has continuously caused, at all times material herein, their products , having a total value in excess of $25 ,000, to be sold , trans- ported, and delivered in interstate commerce to and through the States of the United States other than the State of Ohio from their plants within the State of Ohio. The Respondent admits, and the undersigned finds, that the Respondent is engaged in commerce within the meaning of the Act. IL THE LABOR ORGANIZATIONS INVOLVED United Mine Workers of America, District 50, and United Steelworkers of America, CIO, herein called the Steelworkers, are labor organizations admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Chronology of events The facts of this case are very simple . The law applicable thereto is not. In addition to being simple the facts of this case are hardly in dispute except for a difference of about 24 hours between the witnesses for the General Counsel and those for the Respondent re- garding events occurring on and after November 24, 1951. However, due to various tech- nicalities introduced into the field of labor relations by the Taft -Hartley Act , a complicated legal situation has arisen from these simple facts. When the instant case arose the Respondent was operating three separate plants. One of these was located at Philo , Ohio, on Muskigum River, a few miles south of Zanesville, Ohio. A second was at Tacoma , Washington. The plant involved in this case was located near Brilliant , Ohio, a few miles south of Steubenville , on the Ohio River. The Philo plant is the oldest of these three . The employees at this plant have been repre- sented for the purposes of collective bargaining since 1937 by the United Steelworkers of America, CIO. Employees at the Tacoma plant have been represented by this same Union since an N. L.R.B. election and certification in 1942 . During World War II, the Company operated a third plant at Wenatchee , Washington, which was owned by the Defense Plant Corporation. The employees at the Wenatchee plant were represented by the Laborers and Hod Carriers Union , AFL, following an N.L. R.B. election and certification. Construction of the Brilliant plant began early in 1951 . A few employees were hired beginning in July. Operations at this plant actually commenced on October 3, 1951, when the first of 3 $450 ,000 furnaces was turned on. At this time, more employees were hired, bringing the total number of employees to around 55 at that time . A second furnace was put into operation on November 13, 1951 ; and in an anticipation of this, and of cleanup work which had to be done upon completion of the construction of this furnace, additional em- ployees were hired , so that as of November 16, 1951 , there was d total of 93 employees at this plant, including 5 plant-protection personnel and 8 supervisory personnel. Beginning about the time the first furnace went into operation on October 3, 1951, the United Mine Workers began a campaign to organize the Respondent ' s employees at the Brilliant plant. R. D. Crawford , then plant superintendent , maintained close watch over this development through reports coming to him from his lower supervisory personnel. As is common knowledge United Mine Workers has never seen fit to comply with the requirements of Section 9 (f), (g), and (h) of the Act , which require the filling of non-Com- munist affidavits by union officers with the Board and the filing of financial and other data with the Secretary of Labor . By the terms of the Act this failure to comply deprives United Mine Workers of the right to avail itself of the processes of the Board in matters of repre- sentation as well as of unfair labor practices. This fact complicates this whole case and explains most of the subsequent events herein. By registered letter dated November 13 , 1951, and received by the Respondent at Brilliant the following day, United Mine Workers informed the Respondent that it was the representa- tive of the majority of the Respondent ' s employees at the Brilliant plant and requested the Respondent to so recognize and bargain with it on behalf of those employees . This letter was 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD forwarded to, and received by, John P. Harris,I Respondent ' s personnel director, at the Respondent' s main office at Canton , Ohio, on November 15, 1951. Also on November 15, 1951, Harris testified that he received a telephone call in Canton from one Goss , an official of the Steelworkers , who orally requested that the Respondent bargain with his Union , claiming that a majority of the Respondent' s employees at Brilliant had become members of that Union.4 Harris answered that the Respondent was unable to recognize and bargain with the Steelworkers because of the conflicting claim to recognition which he had already received from United Mine Workers. On November 16, 1951, Joseph DiStefano, regional director of UMW, called at the Brilliant plant and requested the guard , Chief of Police Larke, for permission to see Superintendent Crawford , telling Larke that he desired to discuss the matter of recognition and bargaining with Crawford . Upon orders from Crawford , Larke, who also handled at least part of the labor relations work at the plant ,6 then informed DiStefano that the Respondent' s officials were busy in the plant and unable to see him that day but would see him the following day if he would return. DiStefano left with a remark to the effect that tomorrow night might be too late as the employees were in the mood to strike. About 6 a.m. on Saturday , November 17, 1951, the Respondent's employees struck and began picketing the Respondent 's plant because of the Respondent 's failure to meet with UMW to discuss recognition and bargaining . All parties agreed that the UMW was striking for recognition . The Respondent's records proved that out of a total nonsupervisory em- ployment of 79 employees , 58 ceased work in concert on November 16, and that only 21 employees continued to work during the strike . In order to keep the 2 furnaces operating, the Respondent was forced to transfer personnel from its Philo plant to Brilliant and to advertise for employees. About 7: 30 a. in., or slightly, thereafter, DiStefano met with Respondent ' s president, Mr. Ronald Cunningham , at the plant gate where he again demanded that the Respondent recog- nize and bargain with UMW. In answer Cunningham advised DiStefano that "We would meet with no union in connection with recognition ; that the employees of that plant or any other plant would have the right to vote, a secret vote, for the Union of their choice, and that we would not become embroiled in an unfair labor practice of recognizing a union by the manner which he was attempting." DiStefano replied that he would continue to picket the plant until the Respondent recognized the Union. That ended the conference and the strike continued. 6 By letter dated November 17, 1951. Harris from Canton answered UMW's request for recognition by refusing on the ground that there were conflicting claims for recognition made by United Mine Workers and by the Steelworkers and thus the Respondent was required to await an N.L.R.B. certification before recognizing either Union. 7 On Monday , November 19, the Respondent sought injunctive relief in the State court against the mass picketing which was going on at its plant . On Tuesday, the parties met in the offices of the Respondent's Attorney Albaugh in Steubenville and agreed upon the terms of the injunction which thereafter issued. It was during this conference that the UMW learned that the Steelworkers had that day filed with the Board a petition for certification to become the bargaining agent for the Respondent ' s employees. At this same meeting, either just before or just after receiving the above information regarding the Steelworkers ' petition, DiStefano offered to call off the strike and return all the employees to work if the Respondent would reinstate all the employees , assist in getting a prompt election on the Steelworkers' petition and, in the event that the Steelworkers lost that election, hold a quick privately conducted election to determine if UMW represented a majority of the Respondent' s employees and thereafter recognize United Mine Workers if it won that election. However , on the previous Sunday, two striking employees had been arrested for assaulting a nonstriking employee and tried and convicted before the mayor sPrior to his 12-year employment by the Respondent, Harris had been employed as an organizer for the Steelworkers. 4Although not doubting at all that this call occurred , subsequent events cast grave doubts upon the accuracy of the claims made by Goss therein. SLarke and the other witnesses for the Respondent were a bit confused as to just when Larke assumed his duties in the personnel field. $Besides the testimony of Cunningham quoted above, there is evidence in the record, which the undersigned credits, that Cunningham also informed DiStefano that the Steelworkers claimed to represent a majority of the Respondent 's employees and that he had legal advice to the effect that the United Mine Workers strike was illegal. tof course, under the terms of the Act, it was impossible for UMW to petition the Board for certification, to appear upon any election ballot, or to be certified by the Board. OHIO FERRO ALLOYS CORPORATION 553 of Brilliant. 8 Because of this incident Respondent refused to reinstate the two employees involved . The question of the reinstatement of these two men proved to be the stumbling block to the proposed settlement at this time so that the strike continued in full force and effect. On Wednesday , November , 21, DiStefano and Harris met at lunch to discuss the matter further but again reached an impasse over the reinstatement of these two employees . During this meeting Harris advised DiStefano to act quickly because the Respondent was replacing the strikers rapidly through their advertising methods . DiStefano agreed that he would let Harris know what the men decided. Nothing further was done until Saturday, November 24, 1951, when a union meeting was held in Yorkville, Ohio, at which the employees voted to abandon the strike and to make themselves available for work at the Respondent' s plant. The two employees involved in the assault case agreed that they did not desire to return to the Respondent ' s employ and advised the men to proceed without them.9 Immediately following the meeting at Yorkville on November 24, the men , together with United Mine Workers' officials , drove to the Respondent ' s plant where the Respondent was notified that the Union had voted to abandon the strike and that the employees were making themselves available for work . It was also arranged that all groups of strikers should enter the plant for the purpose of securing their paychecks , this being the regular payday at the plant . About 5 p. m. Harris received a telephone call from DiStefano in which he was informed that the strikers had voted to abandon the strike and were available for work. Harris agreed , but was unable , to notify Cunningham and call DiStefano back. io On Sunday , November 25, Harris was again informed by Organizers Sabatino and Strauss that the men had voted to abandon the strike and desired to return to work . Harris answered that, as he was not a production man, he did not know the Respondent ' s personnel needs as the Respondent had hired a number of men during the strike and requested a postpone- ment of the meeting until Superintendent Crawford returned to the plant that afternoon with his work schedule so that the Respondent could figure out how many men it needed . Subse- quently when Crawford did return to the plant , this meeting was reconvened at which time Harris informed the union officials that the strikers would have to file new applications for work and would be treated as applicants for employment just as though they had never been in the plant previously. During both these meetings on Sunday , strikers were present dressed for work and carry- ing their lunch pails. Subsequently only 11 strikers made out new applications for employment but on both Saturday and Sunday Larke made a list of those striking employees who made known their desire to return to work . ii The record is clear that the Respondent reinstated none of the employees who had ceased work on November 17 until at least the month of December, although admitting that at least 11 of those men had executed new application forms as required by Harris . Only 3 strikers have been reinstated subsequently and they were em- ployed as new applicants for work. The Respondent' s employment record also proved that 3 new employees commenced work on November 17, 2 on November 21, 5 on November 22, 12 on November 23, 8 on November 24, 2 on November 25, 6 on November 26, and 12 on November 27, with others 8THis donviction was subsequently upheld upon appeal and the resulting fine was paid. 9 To this point the parties are in almost complete agreement on the facts . From this point on, however , a 24-hour differential develops between the testimony of the witnesses for the General Counsel and those on behalf of the Respondent. Without deciding this conflict at this time, the undersigned will, for the sake of convenience, use the dates contended for by the witnesses for the General Counsel which are 24 hours in advance of those contended for by the Respondent. ii Harris' testimony as to the substance of the DiStefano call was that he was merely asked for a meeting. The undersigned believes Harris to have been honestly confused about this because, if that had been the sum total of the call , there would have been no necessity for Harris to have telephoned Cunningham , and therefore concludes that the DiStefano call also included the strikers ' offer to return to work which alone would have required Harris to talk to Cunningham. liRespondent was unable to locate this Saturday list at the time of the hearing. Larke testified, however , that the list was a list of those employees who had picked up their pay- checks . In view of the fact that the Respondent knew what checks had been made out, this testimony by Larke was unimpressive . There was also a conflict between Larke and a number of the strikers as to whether Larke refused to supply the strikers with application forms. The undersigned, however, does not believe that this conflict need be resolved. 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD being employed throughout the month of November. Subsequent to the 11th, and including those listed above, the Respondent employed 70 new men who took over from the super- visors and the employees transferred from the Philo plant. Subsequently the Board processed the petition for certification filed by the Steelworkers in its usual course, holding hearings in December and in January, and in April holding an election at which the striking employees were permitted to file challenged ballots. As the election was won by the Steelworkers by a vote of 74 to nothing, the 65 challenged ballots of those employees who had been on strike were never opened or counted as they could not have affected the result of the election. Consequently, on April 11, 1952, the Steel- workers was certified as the bargaining representative of the employees of the Respondent at its Brilliant plant. B. Conclusions The salient facts of this case can then be sufficiently summarized as follows: After organizing the Respondent's employees at its new Brilliant, Ohio, plant, UMW, a noncom- plying union, on November 15 requested recognition from the Respondent and on November 17 struck the Respondent's plant effectively when this recognition was not promptly forth- coming. The Respondent's refusal to recognize UMW was based upon a private telephone call during which a claim to majority status was made by an organizer on behalf of the Steelworkers, a union which had complied with the Act. This claim was formalized on Novem- ber 19 by the filing of a petition for certification with the Board by the Steelworkers; on No- vember 24, UMW abandoned the strike and the strikers made an unconditional offer to return to work. At the time this unconditional offer to return to work was made, only a minority of the strikers had been permanently replaced but the Respondent required the returning strikers to apply for work as new applicants for employment. Thereafter the Respondent filled the vacant jobs with new employees, failing to reinstate even those strikers who com- plied with the requirement that they fill out new application forms. In April 1952, the new and increased crew of employees voted unanimously in favor of the Steelworkers as their bargaining agent. Although the strikers were permitted to cast challenged ballots at the election, these ballots were never opened for the reason that, being a minority of the total of the votes cast, the challenged ballots could not have changed the results of the election. Steelworkers was thereafter certified as the bargaining agent. The individual strikers filed charges of discriminatory discharge and refusal to reinstate upon which the complaint herein issued. Probably the single most important fact is this whole coterie of facts is that UMW had failed to execute the so-called non-Communist oath as required by Section 9 (h) of the Act because that failure disqualified UMW from making use of the processes of the Board such as seeking Board certification, appearing upon the ballot at the election conducted on the Steelworkers' petition, or attempting to redress any unfair labor practices which might have been committed by the Respondent The single fact not only complicated the legal situation created by the above simple facts but, more importantly, affected the actions of the various parties here involved This qualifying technicality permeates this case from its beginning to its end, factually as well as legally. By reason of the UMW's failure to comply with Section 9 (h) of the Act, the Act prohibited the Board from investigating or processing any matter concerning representation or any charge of unfair labor practices made by UMW. Thus, by the terms of the Act itself, UMW was restricted by law to self-help, i e., the strike, in all matters pertaining to representa- tion or to unfair labor practices. Thus, there was no peaceful administrative process to which UMW could turn to secure the representation it requested from the Respondent--and from the effectiveness of the strike apparently was entitled to, if the desire of the employees is to be the deciding factor. is In addition to the above as the Respondent points out in its brief, it has not been contended, and indeed, it could not be, in view of the fact that [UMW] is not in compliance with the Act, that the strike against Respondent was an unfair labor practice strike by reason of Re- spondent's refusal to recognize [ UMW]." This is a correct exposition of the law for the reason that, as the Board could not by the terms of the Act itself find any action of the Respondent to be an unfair labor practice in regard to UMW, the strike by UMW members could not have been caused by unfair labor practices. With this prelude or introduction we may not turn to a consideration of the legal points made in the Respondent's brief which state the Respondent's contentions as follows: 12 For strike action as proof of majority status, see N . L. R. B. v Harris-Woodson Co , 179 F. 2d 720 (C. A. 4), Lebanon Steel Foundry v. N. L. R. B., 130 F 2d 404 (C. A. D. C.), cert denied 317 U. S. 659, and 7-Up Bottling Co of Miami, Inc., 92 NLRB 1622. OHIO FERRO ALLOYS CORPORATION 555 In answer to the charges and the complaint it is the Company ' s position that- A. The Strike Called by District 50, United Mine Workers, was Unlawful and Employees Participating Therein Forfeited all Rights Under the N.L.R.A. B. Those Employees Who Did Not Participate in the Strike But Who Failed to Cross the Picket Line and Report for Work Did Not Engage in Concerted Activity and Had no Protection Under the N.L.R.A. C. Those Who Filed Charges were Fronting for District 50, a Non -Complying Union. D. The Board was Estopped and Foreclosed to Proceed with the Investigation of Any of the Charges and Was and Is Estopped and Foreclosed to Issue and Proceed with the Complaint. E. The Strike was an Economic Strike and the Company Had the Right to Replace Strikers ; It Did Replace Substantially All of the Strikers Before the Strike Ended. F. Those Strikers Not Replaced Had the Duty to Make Written Application for Reinstatement and the Company' s Refusal to Reinstate Anyone Who Did not Make Such Application Did Not Amount to Discrimination Under the N.L.R.A. It is obvious that the first two contentions are entirely dispositive of the charges and the complaint . To that extent all the remaining contentions can be considered secondary . They might be likened unto a spare tire on an automobile equipped with puncture-proof tires. The primary or, as described by the Respondent , the "puncture proof tire" argument, which Respondent contends is dispositive of the complaint , is that the UMW strike was illegal and that by participating therein the individual strikers forfeited all rights to pro- tection under the Act. As a corollary to this the Respondent further contends that those employees who did not actively participate in the picketing although not reporting for work were not engaged in concerted activities and thus had no protection under the Act. These issues are without doubt the most important inthis case and will be considered here together. Respondent' s argument runs as follows: UMW was striking to force the Respondent to recognize it as the exclusive bargaining agent of its employees in the face of a conflicting claim for such recognition made by the Steelworkers; that under the doctrine of the Midwest Piping and Supply Company case, 63 NLRB 1060 , it would have been an unfair labor practice for the Respondent to have recognized UMW under such circumstances so that the strike was, in fact, to force the Respondent to commit an illegal act; and so, the object of the strike being illegal , the strike itself was illegal and the employees participating therein were engaging in an illegal act and thus placed themselves beyond the protection of the Act and subject to discharge at the discretion of the Respondent . In support of this con- tention the Respondent cites among others , such well-known cases as N. L. R. B. v. Fan- steel Metalurgical Corporation, 306 U. S. 240; Southern Steamship Company v. N. L. R. B., 316 U. S. 31; N. L. R. B. v. Sands Mfg. Co., 306 U. S. 332; American News Co., 55 NLRB 1302; N. L. R. B. v. Brashear Freight Lines, Inc., 119 F. 2d 379; and Thompson Products, Inc., 72 NLRB 886. All of these are cases which hold a strike to be illegal because either its purpose was to force the employer to commit some act prohibited by statute such as granting a wage increase in violation of the War Emergency Act or recognizing a union in violation of a previous certification of another union by the Board ; or else because the methods used by the strikers were unlawful such as striking in violation of the mutiny statute, as unlawfully seizing private property , or violating the Union' s own "no strike" agreement These cases have held such conduct to be so violative of lawful conduct as to remove those participating therein from the protection of the Act. In analyzing this contention we must start from the premise that a strike for recognition is a legal strike. is This remains the rule even though the strike is conducted by a noncom- plying union because the compliance sections of the Act only disqualifies such a union from utilizing the procedures of the Board but does not make action by such a union illegal. is Howland Dry Goods Company, et al., 85 NLRB 1037, enfd. 191 F. 2d 65 (C. A. 2); Thayer Co., 99 NLRB 422. See also Senate Report No. 105 on S. 1126 at p . 22 where it is stated : "It is to be observed that the primary strike for recognition (without a Board certification ) is not prescribed." See also the House Conference Report No. 510 on H. R 3020 which contains these state- ments: "It is to be observed that the primary strike for recognition (without a Board certifi- cation) was not prohibited." Thus even the 1947 amendments did not make a strike for recognition illegal. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus, if the strike is to be found unlawful as claimed, that finding is due solely to the con- flicting claim to majority status made by the Steelworkers at or about the time of the strike and not because the purpose or method of the strike was illegal. Respondent appears to argue that the strike on November 17 was illegal from its inception. Let us analyze this a moment. The facts show that the strike began at 6 a. m. on November 17, 11 hours before UMW received even its first intimation that the Steelworkers, or any other union, claimed any interest in the plant. This was before the first information UMW had, or could have had, of the Steelworkers alleged interest in representing the employees for that claim had only been made previously in a private telephone conversation from the Steelworkers' organizer to Harris on November 15 but Harris did not convey notice of the Steelworkers' claim to UMW until he dictated his letter of November 15 in which he refused recognition to UMW because of conflicting claims. Respondent makes no claim that UMW knew of the conflicting claim before the commencement of the strike but meets the issue head on by contending in its brief that its own knowledge--not UMW's or the strikers--was all that was needed to make the strike illegal. Thus the Respondent's argument leads to the anomalous result that UMW and the individual strikers were committing an illegal act by striking because of an unsupported claim conveyed in a private telephone conversation by Steelworkers' organizer to Harris of which neither UMW nor the strikers individually could have knowledge until one or the other of the parties to this telephone conversation chose to reveal it. So an otherwise legal strike would appear to become an illegal strike at the whim of private parties other than the actor himself- -or more specifically on whether or not either Harris or the organizer subsequently chose to reveal the telephone call and the claim there made. This would appear to be a most tenuous demarcation between legality and illegality. Suffice it to say that this contention goes far beyond the holding of any of the cited cases in each of which the striking union knew that its purpose was contrary to con- gressional statute or that its methods violated private property rights at the time the strike began. In the Thompson Products case the strikers knew of the previous Board certification and in the Midwest Piping case all parties recognized the competition between unions. To now extend the Midwest Piping doctrine by elimination of the necessity of knowledge of the adverse claim would appear not only to be contrary to established precedents but also to well-recognized general principles of the common law. Thus, the undersigned must hold that the UMW strike of November 17 was legal at its inception. A contrary holding would place a union and its members completely at the mercy of an unscrupulous employer working in cahoots with an equally unscrupulous business agent of another union who might well fabricate a conflicting claim to representation for the very purpose of illegalizing an otherwise legal strike so as to subject the individual strikers to dismissal for their own particular purposes. Surely the sponsors of this Act who em- phasized that the Act freed the individual employees from the domination of both unions and employers could have intended no such result.14 Therefore, the strike of November 17 began as a legal strike for recognition and, as such, was a protected concerted activity. The question then arises as to whether it became illegal thereafter Under the reasoning set forth above, the first occasion when this transformation might have occurred was about 7:30 a. m. November 17, when President Cunningham informed UMW that the Respondent could not recognize it because of the claim made by the Steelworkers. At this time he'added that he had legal advice to the effect that the strike was illegal. Now UMW had come into possession of the knowledge of the conflicing claim, the information which the Respondent maintains made this strike illegal Does the acquisition of that knowledge transform the legal strike into an illegal one? The undersigned believes not. True, UMW now had the information that the Steelworkers claimed some interest, that it had made a claim orally over the telephone to Harris that it represented a majority of the Respondent ' s employees. However , men with as much experience in labor relations affairs as Harris had well know that union organizers , as a class, are notoriously optimistic in making oral claims to majority representation especially when there is nothing formal or binding in their method of making such a claim . Harris might even have recognized that organizers as a class have been known to bluff on occasions when conceivably a bluff might help out his own union. Respondent knew that this claim made over the telephone amounted to little or nothing, at least until such time as a petition for certification had been filed with the Board , if ever. As it was so perturbed over the "mass picketing" by the strikers around its plant that it sought injunctive relief therefrom on the very first court day after the picketing began, the mass picketing should have caused Respondent to quaere the bona fides of the Steel- workers' claim and indicated to it as a reasonable man that there might not be too much 14 There is in this record not one iota of evidence of unscrupulous action by any of the parties here involved. The above statement is supposititious only. OHIO FERRO ALLOYS CORPORATION 557 substance in the Steelworkers' claim. Due to the informality of the claim and to the myriad of possibilities as to possible future action , or lack thereof, it would hardly seem logical that the UMW legal strike should be transformed into an illegal act merely because some optimistic organizer for some other union had made some questionable informal claim that his union represented a majority of the employees . If the rule is to the contrary , then any such optimistic--or unscrupulous--business agent holds the power to delay recognition of a majority union indefinitely and is thus possessed of the ability to thwart the desire of the employees . Surely the framers of this legislation who professed publicly to be so anxious to curtail the powers of unscrupulous labor leaders could have intended no such results from their legislation. So the undersigned is constrained to hold that even the knowledge of the Steelworkers' claim did not transform the strike of November 17 into an illegal act. The next question, of course, is whether this strike, legal at its inception , became illegal upon the formal filing of the Steelworkers ' petition with the Board and the UMW's knowledge thereof on November 19. By the formal filing the Steelworkers indicate more clearly that they considered that a real question concerning representation existed at the plant. Now at least Respondent is faced with two apparently bona fide claims to the right to representation, one evidenced by a full-fledged and effective strike by UMW and the other dignified by the formal filing of the petition with the Board . However , again experienced labor men like Harris recognize that , as a practical matter, things beyond number can and, more often than not, do intervene between the filing of a petition and a final determination of the ques- tion posed by that petition. This is a universally recognized phenomenon. Among others Steelworkers might withdraw the petition or the Regional Director might dismiss the peti- tion based upon the Steelworkers ' inability to show the requisite 30-percent membership in the plant , the administratively determined prerequisite for the processing of any such petition. As a matter of fact, by November 19 the strike had been going on long enough so that the Respondent knew that 58 out of its 79 employees had ceased work in concert in order to force the Respondent to recognize UMW. It knew that on this showing Steelworkers could not make the requisite showing of interest to prevent having its petition dismissed un- less some of the replacements or some of the strikers executed cards for the Steelworkers. Men experienced in labor relations would know that there was more than a probability that the Steelworkers' petition would be dismissed on the ground that no real question concerning representation existed at the Respondent' s plant because the facts indicated the unlikelihood that Steelworkers could show the requisite membership in the plant so as to be able to create a bona fide question concerning representation . In view of the difficulty the Steel- workers would have in even making a showing of interest , how could Steelworkers be ex- pected to secure a majority vote in any election? Is the mere filing of such a petition for certification then to be the catalytic agent by which a legal strike for recognition is trans- formed into an illegal act? The undersigned is forced to hold that, at least in a case such as this where it is so highly questionable whether the petition in fact raised a bona fide question concerning representation, this filing creates no transformation from a legal to an illegal strike. Otherwise a majority union or the individual members thereof are again at the mercy of the unscrupulous . Again the interest of the employees themselves appears paramount. The Board in the William Penn Broadcasting Company case, is recently modified the principles of the Midwest Piping doctrine as follows: In conformity with these views , we conclude that the pendency of a petition for certi- fication imposes no duty upon an employer to refrain from continuing exclusively to recognize and deal with an incumbent bargaining representative, such as we have here, unless the petition has a character and timeliness which create a real question concerning representation. Although we are not here dealing with an incumbent union situation , the principle is equally applicable in a case like this where it is almost mathematically demonstrable that the filing of the petition fails to raise any bona fide question concerning representation. In order to sustain the Respondent 's contention here , the undersigned would have to extend the Midwest Piping doctrine far beyond any of the cases cited in the Respondent ' s brief. Since the decision of the Ninth Circuit Court of Appeals in the Flotill is case and the Board's decision in the William Penn case , it appears that the Midwest Piping doctrine may be modi- fied--but not extended. is 93 NLRB 1104. 16 180 F. 2d 441. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the mathematics facing the Respondent in this situation , it is extremely doubtful that any question would have been raised if the Respondent had recognized UMW as requested and even more so that the Respondent could have been held to have committed any unfair labor practice by such recognition . A reasonable man could hardly have come to the con- clusion that the Steelworkers' claim raised any question concerning representation at the Respondent' s plant. Nor does the fact that the Board ultimately certified the Steelworkers as the bargaining agent for the employees at the plant militate against the above because of the fact that this certification resulted from the vote of an entirely new and different crew of employees than those who had been employees in November 1951. Those employees who ceased work con- certedly for the purpose of securing the recognition of UMW as their bargaining agent remained employees throughout the dispute for the reason that they had ceased work "as a consequence of, or in connection with, a current labor dispute" and thus retained their status as employees of the Respondent under the definition of "employees " contained in Section 2 (3) of the Act. Moreover, these striking employees were permitted to vote chal- lenged ballots only at the election . These challenged ballots were never opened or counted for the reason that the new crew then working for the Respondent was numerically larger than the group of strikers and voted unanimously for the Steelworkers . Thus, the challenged ballots of the strikers were not opened being numerically insufficient to change the results of the election even though unanimously cast for UMW. During his oral argument the General Counsel argued that the purpose of the November 17 strike was changed on November 19 when UMW learned that the Steelworkers ' petition had been filed. For at that time UMW offered to return all the strikers to work if the Respondent would assist in securing a quick Board election and, if the Steelworkers lost that election, a privately conducted election whereby UMW could prove its majority and secure recognition. But this suggestion was rejected by the Respondent on the ground that it would not reinstate two employees who had been convicted of an assault upon a nonstriking employee. The General Counsel maintained that UMW thereby abandoned its demand for recognition and that the strike continued thereafter in order to prevent the discharge of these two employees. This argument is ingenious but unconvincing to the undersigned who, upon these facts, can only hold that perhaps the reinstatement of the two employees involved was added to the preexisting demand for recognition at this time but cannot hold that the demand for recog- nition was abandoned at that time . Both demands , however, were abandoned with the end of the strike and the offer of the men to return to work without the two aforementioned indi- viduals on November 24. Therefore , in keeping with the publicly professed purposes of this Act to protect the rights of the individual employees , the undersigned must find that to and including the date the strike ended , the strike of UMW for recognition was an4 remained a legal strike and a protected concerted activity upon the part of the individual employees who concertedly ceased work in order to secure recognition of UMW as their bargaining agent . Thus, the Respondent' s primary contention is faulty and therefore does not determine this case. We then arrive at the question as to what kind of a strike this was . The undersigned agrees with the Respondent , as noted above, that the strike of November 17 was, due to UMW's failure to comply with the Act , an economic strike. In such a strike an employer is entitled to replace the strikers permanently during the course of the strike but, upon an unconditional offer to return to work by the strikers , the strikers are entitled as a matter of right to those jobs remaining unfilled at the time of such offer. 17 The Respondent's brief states that "it did replace substantially all of the strikers before the strike ended." This contention , however, does not jibe with the Respondent's own ad- mitted employment records. These employment records of the Respondent prove that the Respondent filled 40 jobs on and after November 25, 1951 . 18 These records show further that 8 men went to work on November 24 but whether before or after the strike offered to return is not clear. How- ever, as the General Counsel had the burden of proof on this point, the undersigned is bound to conclude that these 8 positions were filled before the offer was made . Thus, when the strikers made their offer to return to work , there were 40 unfilled jobs available for them and to which, under the law , they were entitled to be reinstated as a matter of right. ilUnion Bus Terminal of Dallas, Inc., 98 NLRB 458; Tyrrell County Lumber Company, 101 NLRB 155. i8As only 2 positions were filled by the Respondent on November 25, it is apparent that the 24-hour differential between the Respondent and the Union as to when certain events occurred would thus affect only 2 positions. OHIO FERRO ALLOYS CORPORATION 559 The undersigned perceives no reason to break these 40 positions down according to job classifications in view of the Respondent's uncontradicted testimony that it was employing unskilled labor only and that the plant was so new that it was still in the "shakedown" stage so that these unskilled employees were being shifted practically daily from one job to another as circumstances required. Hence it is clear that any production man could do any of the jobs involved here and that job classifications under these conditions are meaningless and unnecessary. The Respondent maintained that prior to the end of the strike it had interviewed a number of men and upon the strength of those interviews had hired them for a definite future date, a date which proved to be after the strike . The Respondent contends that these positions must be considered as having been "permanently filled" as of the end of the strike. From the employment records the number of such positions herein involved is four . 19 Due to the vicissitudes of fate these days and to the uncertainty as to whether those men who had been interviewed would ultimately actually assume the position for which they were hired, the undersigned believes that the only strikers who can be considered to have been " perma- nently replaced" are those whose jobs were actually filled by a permanent employee at the end of the strike. Nothing else would amount to permanent replacement. Thus, at the time of the strikers ' offer to return to work, 40 jobs remained unfilled in the Respondent' s plant to which the 58 strikers were entitled to be reinstated. In regard to the 58 returning strikers , the Respondent says in its brief: "Those strikers not replaced had the duty to make written application for reinstatement and the Company's refusal to reinstate anyone who did not make such application did not amount to discrimi- nation." At the time of the offer to return to work, the Respondent informed the returning strikers that it would require new application forms from each of them which would be given the same consideration as those of all other applicants for employment and, when objection was made that this would make the strikers into applicants for employment instead of employees , the Respondent answered that the returning strikers would be treated just as though they had never been in the plant before. if the strike of November 17 had been, in fact, an illegal strike as in the Fansteel case or the Fafnir Bearing Company case, m then the Respondent ' s positiotr might welihave been a correct exposition of the law applicable to the situation . But, as found above, this strike was not illegal. This was a legal strike for recognition and employees who ceased work in concert did so as a consequence of, or in connection with, a current labor dispute and thus, by the terms of the Act (Section 2 (3)) remained employees of the Respondent entitled to reinstatement as a matter of right to the 40 positions remaining unfilled at the time of their unconditional offer to return to work. Thus, while the Respondent had an absolute right at its discretion to replace these economic strikers permanently during the period of the strike ,21 it enjoyed no right to exercise Its discretion under the circumstances here existing to reduce the returning strikers from their status of "employees" to the status of "applicants for employment" or to force them to compete against the labor market for these 40 open positions . Of course, the strikers would have had to compete against themselves for the 40 positions and the Respondent could pick and choose among them so long as it exercised its discretion in a nondiscriminatory fashion. If an employer at its discretion could reinstate those among the strikers whom it wanted to keep in competition with the labor market , then Section 2 (3) of the Act is meaningless. By thus demoting the returning strikers (or returning employees) to status of "applicants for employment" whose appli- cations would be considered along with those of all other applicants for employment at the discretion of the Respondent , the Respondent , in effect, deprived the returning strikers from their status of employees and in violation of the Act discharged them. As the Tenth Circuit Court of Appeals in N. L. R. B. v. Shenandoah Dives Mining Company so succinctly said: " This constituted an unfair labor practice." :s Thus as employees , the strikers were under no duty to file new applications for employ- ment as claimed by the Respondent . Subsequent events proved that the returning strikers had little, if any, chance to regain their employee status upon Respondent's exercise of its discretion among all applicants for employment because the Respondent hired none of the returning strikers --not even any of the 11 who submitted to the Respondent 's illegal reduc- i9 Again the records prove that the Respondent had only interviewed four men prior to the end of the strike who actually commenced working after the end of the strike. 2073 NLRB 1008. n N. L. R . B. v. Mackay Radio and Telegraph Co., 304 U. S. 333. 22 See also Kansas Milling Co . v. N. L. R. B., 185 F . 2d 413 (C. A. 10), and Clausen d/b/a Luzern Hide and Tallow Company, 89 NLRB 989, enforced 188 F . 2d 439. 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lion of their status by filing new application forms--until long after the 40 positions here in question had been filled by completely new applicants for employment. Although these 58 strikers had been satisfactory employees until the time of the strike, the Respondent employed a 100 percent new crew . Even at the time of the hearing the Re- spondent had only reemployed 3 of the strikers . Such an exercise of discretion would hardly seem to have been nondiscriminatory. Respondent also maintained that those employees who ceased work but did not participate in the picketing were not "acting in concert, ' and thus fell outside the protection of the Act. The short answer to this is that these individuals were acting in concert when they ceased work--which is sufficient under the Act. Respondent further objected to five named individuals for specified reasons . The ob- jections made to Edward Dolezal and Richard Bechtel have been decided adversely to Re- spondent in the preceding paragraph. Respondent objected to Andy Klika on the ground that he was a supervisor and thus beyond the purview of the Act. Respondent' s position here is justified by Klika's own description of his duties . The complaint accordingly will be dismissed as to him . As to Edward Smith. Respondent contended that he entered a hospital a week prior to the strike and never reported back for work during or after the strike. This being true according to Smith's testimony, he will also be dismissed from the complaint . As to Mike Moran, Respondent claimed and proved that he had been discharged for absenteeism prior to the strike. So Moran will also be dismissed from the complaint. In addition to the above-described " puncture proof tire" arguments , the Respondent has a few minor arguments which require a few words . The Respondent contended that the in- dividuals here should not have been permitted to file their individual charges of discrimi- nation based upon the Respondent 's "refusal to reinstate each of them because they were merely "fronting" for a union which had not complied with the Act. It should be noted that the charges filed by these individuals referred exclusively to their own individual right to reinstatement to their jobs . There is nothing in any of the charges referring to rights of UMW, if any. Thus it is difficult to discern just how these individuals attempting to claim rights which were exclusively their own personal rights can be said to have been "fronting" for anyone except themselves individually . The evidence does show that one of the claimants here had been elected president of UMW Local at the plant and assumed a rather leading role in instigating the investigation which resulted in the issuance of this complaint. it also shows that the field examiner for the Board took statements from some, if not all , of the com- plainants at UMW hall. And further UMW records were used to secure the names of other individual employees who might individually care to file a charge. In the debates on the Act much was said to the effect that noncomplying unions only were penalized by the com- pliance sections of the Act but that all individual rights had been zealously not only protected but enlarged . According to its sponsors the rights of the individual had been made of para- mount importance by the amendments . Thus it would seem that a very strong case of -front- ing" would have to be made out before Section 9 (f), (g), and (h) of the Act should be read in such a fashion as to hold individuals , as well as labor organizations , disqualified from the use of Board procedures under the above -quoted sections which by their phraseology relate exclusively to labor organizations . Any such interpretation of the above sections appears to the undersigned to be far beyond his power or duty. Another, and a different , problem would have arisen if these individuals had been attempting by indirection to secure some right for UMW which it could not have secured by itself by reason of its noncompliance. However, under the facts presented here , the undersigned cannot, for a variety of reasons , hold that the claimants here, or any of them, were "fronting" for UMW. The Respondent' s next argument is that the Board was "estoppel and foreclosed to proceed with the investigation of any of the charges was and is estopped to issue and proceed with the complaint" by reason of the fact that it proceeded to process the Steelworkers' petition for certification and subsequently, in fact, certified the Steelworkers . This claim of estoppel and foreclosure of the Board in its protection of public rights has been decided adversely to the Respondent's contention here too often to require further comment. In conclusion the Respondent also argues that the object of the Act is to stabilize and har- monize labor relations and that a Board order reinstating the claimants here would disrupt its already established good relationship with the Steelworkers . Unfortunately this is true although the argument itself is not convincing for the reason that the more coerced and docile the employees are in a plant the more applicable the Respondent's argument. The result is unfortunate here for the undersigned is convinced from the Respondent' s labor relations history that it is not antilabor . Nor does the undersigned believe that the Respondent was intentionally antiunion in the instant proceeding. The undersigned does believe that the Respondent , faced with the maze ofthe technicalities in the Act in the hurry and the excitement OHIO FERRO ALLOYS CORPORATION 561 of the strike situation, honestly but mistakenly selected a false turn thus coming to the con- clusion that the strike was illegal and the strikers no longer employees. This honest error has had, and will continue to have , unfortunate results for all three of the parties herein involved : The UMW employees , the Steelworkers who replaced them, and the Respondent. The undersigned does not like the confusion which is bound to result anymore than the Respondent will but, if the Act is to be enforced as written , then the UMW strikers are entitled to and must be reinstated. The undersigned , therefore, holds that the Respondent's requirement that the returning strikers file new applications and at the Respondent's discretion be considered in common with all other applicants for employment from the whole labor market just as though they have never been in the plant before was a violation of the rights of such returning employees under Section 2 (3) of the Act and that the Respondent thereby failed and refused to reinstate these employees to the 40 vacant positions in order to discourage membership in the UMW in violation of Section 8 (a) (3) and 8 (a) (1) of the Act. N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent , set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices , it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action which the undersigned finds necessary to effectuate the policies of the Act. It has been found that the Respondent on November 24, 1951, discriminated in regard to the hire and tenure of employment of those employees listed in Appendix A attached hereto by failing and refusing to reinstate them to the 40 positions at the Respondent ' s plant then unfilled with the result of discouraging membership in UMW. The undersigned will, there- fore, recommend that the Respondent offer to those employees listed in said Appendix A immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges , until the said 40 positions are filled. The undersigned will also recommend that the Respondent make these individuals whole for any loss of pay they may have suffered by reason of such discrimination by payment to them as a group of a sum of money equal to that which 40 of them would have earned as wages from November 24, 1951, the date of the Respondent' s discrimination as to them, to the date of the offer of reinstatement to 40 of them less the net earnings of 40 of the em- ployees there listed during such period in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289. This fund then will be divided among all the strikers in accordance with their individual rights thereto. Upon a consideration of the record as a whole , the undersigned is convinced that the Respondent' s discrimination in refusing to reinstate the strikers, though due to an honest mistake, indicated an attitude of opposition to the purposes of the Act generally. In order, therefore, to make effective the interdependent guarantees of Section 7 of the Act, thereby minimizing industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, it will be recommended that the Respondent cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record, the undersigned makes the following: CONCLUSIONS OF LAW 1. By discriminating in the hire and tenure of employment of those employees listed in Appendix A by refusing and failing to reinstate 40 of them on November 24, 1951, thereby discouraging membership in a union of their own choosing and thereby interfering with, restraining , and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and 8 (a) (1) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.)