Kaiser Aluminum and Chemical Corp.

KAISER ALUMINUM AND CHEMICAL CORPORATION 873 assistant credit managers, and all other supervisors as defined in the Act. is (2) All regular and regular part-time employees in the coffeeshop of the Employer's Minneapolis, Minnesota, depart- ment store, including cooks, food preparation, food service, sandwich and salad employees, waitresses, dishwashers, bus boy, cashiers, and assistant manager, but excluding all other store employees, the manager, and all other supervisors as defined in the Act.16 [Text of Direction of Elections omitted from publication in this volume, ] IS In accordance with Board policy, extra and "on call" employees though not eligible to vote are included in the unit. J. P. Wasson and Company. 104 NLRB 249. 16 See footnote 15, supra. KAISER ALUMINUM AND CHEMICAL CORPORATION and NEAL D. SULLIVAN, WENDELL OLSON, D. G. MORRISON, KENNETH DOTSON, FORREST PATTEN, KENNETH STRAYER, HAROLD E. MORFORD, CHARLES PETTIT, and CLARENCE HALE . Cases Nos . 19-CA-409, 19-CA-484, 19-CA-485, 19-CA-486, 19-CA-487, 19-CA-488,19-CA-518, 19-CA- 521, and 19-CA-522. May 11, 1953 DECISION AND ORDER On August 12, 1952, Trial Examiner Wallace E. Royster issued his Intermediate Report in this consolidated proceeding, finding that the Respondent had not violated Section 8 (a) (3) and (1) as 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 Respondent filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case,' and hereby adopts the findings,2 conclu- sions, and recommendations of the Trial Examiner only to the extent consistent with the following exceptions, modifications, and additions: 1. The Trial Examiner found, and we agree, that the Re- spondent did not violate the Act by discharging certain em- 1 These adequately present the positions of the parties ; therefore the General Counsel's request for oral argument is hereby denied. 2 The General Counsel excepts , with some merit, to certain fact findings the Trial Ex- aminer either made or failed to make. As the decision states those facts which the Board finds material, including a resolution of the credibility of certain witnesses , the Board need not, and does not, state those particular instances in which the General Counsel's exceptions have merit. 104 NLRB No. 102. 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees who struck on December 18, 1950, in breach of the no-strike clause then in effect. The circumstances and events leading to the work stoppage are not disputed. In November 1950 Philip Coyle, superintendent of industrial relations, was told that the Government had requested increased aluminum production and that a change in work schedules in the maintenance departments to provide round-the-clock cover- age would be necessary. He notified Robert O'Neil, chairman of the plant grievance committee, that he would like to discuss the proposed changes in the work schedules with the proper representatives of the contracting union, the United Steel- workers of America (herein USA or the Union). On December 5, 1950, the proposed changes were discussed between the Company and the Union, with the Union represented by two international field representatives- -Orr and Gatewood--and Robert O'Neil. The international officers accepted the new schedule, although O'Neil opposed it. On December 8, 1950, the Respondent posted a change-of- shift schedule for the maintenance department effective at midnight December 17, 1950. The affected employees objected to the new schedule and to the acceptance of it by the inter- national officers rather than its negotiation by the grievance committee.' They petitioned the Union for a special meeting in an effort to work out a more satisfactory schedule to be negotiated by the proper committee. The meeting was regularly called by USA officials for Sunday, December 17, 1950, a nonworkday. During the meeting, an alternative schedule change was proposed and the union officers were instructed to seek further negotiations. The president of USA Local 388, James M. Thompson, and Leo Gatewood, a USA international field repre- sentative, jointly called Plant Manager Arthur Branstad. Branstad testified to the following colloquy: Q. Did they ask you at that time whether you would negotiate with a union committee concerning the new schedule? A. They did. Q. And what was your reply? A. Well, they first called, and I don't know whether it was Mr. Thompson or Mr. Gatewood called; but they stated that they had been trying to get in touch with Mr. Coyle but could not find him, and that they were having a meeting and that there was a terrific objection to the schedule which we wished to place into effect, and that they did not know whether the schedule would go into effect as we had posted it or not, because of the terrific amount of objections to it. And they asked if we could call it off for SArticle 4 of the contract gave the Company "the final right to arrange working schedules" but provided that the "Grievance Committee and the Company, at the request of either, shall confer to determine whether, based on the facts of the situation, mutually satisfactory modified schedules can be arranged." KAISER ALUMINUM AND CHEMICAL CORPORATION 875 another week, and meet during the week to work out another schedule to put in its place . . . . Q. What was your reply? A. My reply was that we would place the schedule into effect that night. We could meet during the coming week and if we decided upon a change in the schedule, that could be placed in effect at a later date. Q. In other words, put the schedule into effect on Monday and then negotiate a possible change? A. Right. EEmphasis added, 7 On Sunday, December 17, 1950, Branstad and Coyle both received several anonymous telephone calls warning them that there might be a strike if the Company put the new schedule into effect. The Sunday meeting remained in session all day and adjourned about 11 or 11:30 p. m. without having disposed of the issue. Pursuant to a motion, the chairman, James Thompson, called a second meeting to convene at 7:55 a. m. the next morning to resume discussion of the same subject. No strike vote was taken, no strike call issued, and no picketing occurred. No suggestion was made that anyone miss work to attend the Monday meetings,4 although it was announced that the new schedule would be worked Monday, the next day. The Monday meeting convened about 8 a. m. and remained in session until 11 p. m.5 During the meeting, USA Local President Thompson received a copy of a telegram sent to Philip Coyle, superintendent of labor relations, by Cyrus S. Ching, Director of the Federal Mediation and Conciliation Service, urging the "parties to resume production at the earliest possible moment and use the grievance machinery of their contract to resolve any differences between them."6 After the telegram was read to the employees at the meeting, a motion was made and passed to "go back to work and nego- tiate" the differences. The schedules went into effect at 12:01 a. m., Monday, December 18. Coyle learned from Laut, the maintenance de- partment foreman, that they had "had an awful lot of absentees 4The regular monthly meeting of the Union fell on Monday , December 18, 1950. So that members and employees from all 3 shifts could attend the meetings without missing work, the Union normally conducted 2 sessions beginning about 10 a m. and 8 p. m. 6Respondent employed about 2,400 employees , some 1,400 in production and 300 to 350 in maintenance. The bulk of the operation. including maintenance, was on a 3-shift basis. Approximately 100 maintenance employees worked on each of 3 shifts . After midnight of December 17, 1950, the maintenance department changed to 4 shifts, reducing the number of employees per shift accordingly. The record does not disclose the identity of the em- ployees who attended the union meeting on Monday, December 18. One witness estimated that approximately 300 employees attended that meeting and that half were from the mainte- nance department. It is obvious, as the witness explained, that this number would not neces- sarily mean that anyone from the maintenance department would have had to miss work to attend, because more than 150 maintenance employees were off shift at any given time. 6For the reasons stated hereinafter , we disagree with the Trial Examiner who excluded this evidence on the ground that it was immaterial. The record does not disclose who called the Conciliation Service or what information it received, nor does it disclose the reason for the resumption-of-work motion. 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the graveyard turn" and that Tate, in the electrical depart- ment, had had the same experience .' About 8:30 a. m., Coyle learned from the guards that "they had been jammed with telephone calls of fellows reporting out. "9 Coyle asked what seemed to be the main reason given and was told that "a lot of them said they are going to a union meeting . A lot of them say they are sick, their wives are sick, their cars are broken down, and various things like that." Coyle then concluded that "what we thought might happen, had happened" and that they had a "work stoppage" on their hands. He telephoned the employment office, conferred with Branstad, and relying on the no-strike clause in the contract, decided to suspend all employees who were not on duty as scheduled, beginning at 12:01 a. m. Monday, unless they were off on leave or vacation. 9 The employment office prepared 205 suspension slips, 111 for ..not reporting for work in compliance with work-schedule in effect in department and reason for absence not in Company's opinion justified" and 94 for "aiding and abetting an unauthor- ized work stoppage in violation of the 1950 agreement," some of which included the charge of "inciting" such stoppage. Sometime during the day, and while the union meeting was still in progress , Coyle reported this action to some union official, although the decision to issue the suspension notices had been made without consulting the Union. After the end of the third shift on Monday, December 18, the employees who were absent that day began to report in. They were told by the guards that they were on the suspension list and not permitted to work. Several asked if the Company had not received a "copy of the telegram that we received at the union meeting to return to work and negotiate the differences." The guards referred them to the east gate for their suspension slips. The General Counsel contends that these facts do not support the Trial Examiner's finding that those individuals who remained away from work on December 18 to attend the union protest meeting engaged in a concerted work stoppage. We disagree. The fact that no strike vote was ever taken and no strike call issued suggests that the strike or concerted 'On the swing shift, the absenteeism in the machete shop was 84 percent; in the mill maintenance, 62.9 percent; in the pipe shop, 87.5 percent; in the electrical and pyrometric. 90 percent; and in the battery shop, 75 percent. a There were two standard procedures normally available to employees who wished to take time off: obtaining permission from a foreman or reporting intended absence to the guard who in turn notified the appropriate foreman. 9The no- strike clause in the contract reads: Article 7--ADJUSTMENT OF GRIEVANCES A. Purpose Except under the conditions set forth in this Article 7 (and in the case of the Union only after compliance with the International Constitution of the Union), there shall be no lockouts , strikes, or interruptions or cessations of work during the term of this agreement. Should any differences arise between the Company and the Union as to the meaning or application of the provisions of this Agreement , or as to any question relating to the wages , hours of work, or other conditions of employment of any employee, the same shall be disposed of in accordance with the provisions of this Article 7. KAISER ALUMINUM AND CHEMICAL CORPORATION 877 action was not authorized by the Union.10 However, like the Trial Examiner, we find no valid distinction between a con- certed decision to withhold services and the withholding of services for the purpose of concerted action aimed at a common objective. The fact that the employees requested negotiations on the work schedule and voted to return to work almost immediately following the Conciliation Service's directive to the Respondent to negotiate the differences is consistent only with the conclusion that what was involved was a work stoppage in the nature of a strike.11 2. In agreement with the Trial Examiner, we find no merit in the General Counsel's further contention that the discharge of certain employees for striking in breach of the no-strike clause was violative of the Act in view of Respondent's rein- statement of others who had engaged in the same conduct.12 The General Counsel contends that the Respondent selected the 13 strikers named in the complaint for final discharge for reasons other than their participation in the strike. However, the evidence in the record does not preponderate in support of that conclusion. 3. The Trial Examiner found that the Respondent, in suspending and then discharging Neal D. Sullivan,13 Forrest Patten, and Walter H. Booth,14 had acted upon a good-faith belief that these three, although they had not engaged in the strike, had incited, aided, or abetted the unprotected strike on December 18, 1950, and that their discharges did not violate the Act. The General Counsel excepted to these findings, 10See Local 760, International Brotherhood of Electrical Workers , A. F. of L. (Roane- Anderson Company), 82 NLRB 696, 704 at footnote 9. 11 Contrary to the General Counsel 's contention, we think this holding consistent not only with the express terms of the contract proscription but also with the statutory definition of "strike," title V, sec. 501. 12 We also find no merit to the General Counsel's contentions that those individuals who followed the procedures normally available for reporting off work were , for that reason, not strikers See Roane-Anderson Company, supra at 704. In Columbia Pictures Corpora- tion, 82 NLRB 568, on which the General Counsel relies , the finding that Mailes was not a striker is supported by evidence other than his request for an extension of his vacation. 13 The Respondent excepts to the Trial Examiner 's denial of its oral motion to dismiss the complaint as to Sullivan on the ground that he had failed to exhaust the grievance procedures provided by the contract. Unlike Consolidated Aircraft, 47 NLRB 694, on which the Respondent relies , the present case involves an individual charging party who had reason to believe that he would find the Respondent Company and the Union on the same side, arrayed against his interests , in the event that he prosecuted a grievance . Under the circumstances , the Board does not require an individual employee to resort to the grievance procedure of a contract as a condition to obtaining relief under the Act. See Combustion Engineering Company, Inc., 86 NLRB 1264; Kansas Milling Company, 86 NLRB 925, enforced as to this point, but re- manded in 185 F . 2d 413 (C. A. 10). 14 The Respondent excepts to the Trial Examiner 's rejection of Respondent's Exhibit No. 1, being the judgment, findings of fact, and conclusions of law in the case of Booth et al. v. Kaiser Aluminum & Chemical Corporation, United States District Court, Eastern District of Washington, Northern Division, No. 943, wherein the court found, as did the Trial Ex- aminer, that the Company 's decision to discharge Patten and Booth was based on its deter- mination that they had aided, abetted, and incited an illegal work stoppage . We find merit in this exception as, in our view, that case, although not binding upon us, is not irrelevant. As we have given due consideration to the judgment, findings, and conclusions in that case, we find that the Trial Examiner 's ruling was not prejudicial . However, we are unable to reach the same conclusion as the district court for the reasons , fully detailed herein, which impel us to disagree with the Trial Examiner. 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contending (1) that the conduct attributed to them by the Respondent was itself protected; (2) that they did not in fact engage in the asserted misconduct, making any belief to the contrary irrelevant; and (3) that, assuming arguendo the Board found that a valid defense could be raised by the Respondent's claim of a good-faith belief that the dischargees made un- protected statements supporting the strike, the Respondent did not, and could not, reasonably believe that the employees involved had made the statements it attributed to them, but discharged them for other activities which are protected by the Act. As the Trial Examiner concluded that the Respondent enter- tained a good-faith belief that the three nonstrikers had supported the strike, he deemed it unnecessary to, and did not, resolve the conflict in testimony or pass upon witness credibility. The General Counsel requested the Board to make its own determination respecting the conflict in evidence and its independent credibility findings from the record, if the Board decided to determine whether in fact the dis- chargees made the statements in question. As the present record is sufficient for such a determination, we shall make such findings.'5 On December 20, 1950, the Respondent posted a notice to all employees that the Union and the Company were meeting and processing all suspension notices issued December 18, and delivered December 19, when most of the absentees reported back to work. The individual hearings pursuant to this notice and the discharge-grievance provision in the contract were begun on December 20, 1950, and continued until all grievances had been resolved without arbitration. As a result of these hearings, between 25 and 30 employees who "were absent for reasons entirely unrelated to the schedule change116 were promptly reinstated with back pay. The Re- spondent then discharged all other suspended employees, gradually reinstating the "less guilty," "the sheep and the followers," with various periods of probation. The 13 strikers named in the complaint were the only ones not ultimately reinstated. During the hearings on approximately 200 suspensions, Coyle interviewed some 450 employees within 4 or 5 weeks. On the basis of information which Coyle received during these interviews, the Respondent suspended Patten on January 22, 15 The Respondent's brief indicates that it considers the present record sufficient for this purpose. 16 For example, one of these employees had been at the hospital in attendance on his dangerously ill wife. Another had taken his brother to an army camp in Seattle. The Company went to great length in establishing the truth of the reasons given by these employees. In the cited examples, checks were made at the hospital and at the Seattle army camp, and in both cases , the employees ' stories were substantiated. (See Respondent's supporting brief, p. 23.) KAISER ALUMINUM AND CHEMICAL CORPORATION 879 1951, and Sullivan and Booth on January 23, 1951.!7 As we must resolve the conflict in testimony on these cases, we shall consider them separately and in detail. Patten Coyle testified that he was informed by Mead (a rank-and- file employee) sometime late in December or early in Janu- ary that Patten had "been telling some of the fellows that they had better stay off a few days. They could afford to do it. It wouldn't hurt them. They could stand it, and they would win this thing." Coyle did not know how many people he had questioned concerning this allegation, but he admitted that Mead was the only person he found who had heard Patten's alleged statements. Mead missed work on December 18 to attend the union meeting and was duly suspended. At the first stage grievance on his suspension, he admitted that he "had no defense to put up for not coming to work" but confessed that he realized that they "were in the wrong." At the hearing in this pro- ceeding , Mead testified that he had received a telephone call from Coyle shortly after that hearing and that Coyle asked if he knew "if anyone at the meeting . . . tried to get the men to stay off work." Knowing that Patten had worked December 18, he told Coyle "of the case of Patten." Coyle asked him for a statement , intimating that he might possibly have his job back. In the statement, he swore that Patten had on three occasions on Monday, December 18, told him, as well as other maintenance department employees, not to report to work on their scheduled shifts for a few days, "that a few days off wouldn't hurt us and that we could stand it and if we would remain off work we could 'show the Com- pany.' " Mead added that Patten reported that he had just come off shift and that no one was working in the shop. When he testified on the same subject, Mead denied that Patten had asked him personally not to work and admitted that he had voluntarily stayed away because "the rest of them did." Mead testified that Patten addressed the Monday meeting about 8 a. m., shortly after it convened. Mead was reinstated. Patten testified that he had attended both union meetings, arriving at the Monday meeting about 8:45 a. m. He claimed to have taken the union floor only once and then only to ask the union president to have Plant Grievance Chairman O'Neil explain what he had done to prevent the adoption of the present schedule. According to Patten, O'Neil explained that the International had "okayed that work schedule . . . over his head." According to Patten, this occurred at the Sunday meeting. Patten denied 17 When the General Counsel sought io question Coyle on the conduct attributed to Booth and others, the Respondent's counsel objected on the ground of materiality, saying: "I don't think he is entitled to know what conduct they engaged in. I think that is within the knowledge of the Company, as to what conduct they engaged in, in their opinion. I don't think it is up to the Board to sit in higher judgment, whether they made a reasonable decision or not, Mr . Examiner." The Trial Examiner properly overruled this objection. 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD making any speech on Monday and testified that he had not asked anyone not to work on December 18. O'Neil verified that he (O'Neil) took the floor to make such an explanation on Sunday , December 17. Employee Strayer heard Patten address the one question to the meeting chairman on Sunday . Although Strayer was at the Monday meeting throughout the entire session, he did not see Patten take the floor or hear him speak . Sullivan also verified Patten's version of Patten's Sunday remarks, and confirmed the fact that Patten did not speak on Monday while Sullivan was present. At his first grievance hearing, Respondent told Patten that it possessed affidavits indicating that he had incited, aided, and abetted the alleged work stoppage . Patten asked to be informed of the statements in order that he might be able to explain or refute them. Respondent refused , stating that the information was secret . Patten then went to the international union officer , who allegedly represented the employees and purported to defend them in the grievance hearings , and sought to determine the nature of the informa- tion which the Company claimed to possess which warranted his discharge . The union officer again refused to disclose the information to him because "lots of times, it would lead to hard feelings , to fight , or possibly to bloodshed." Under these circumstances , we believe that Patten's version of his conduct at the union meetings on December 17 and 18, corroborated by at least two other witnesses , is supported by the preponderance of the evidence . Accordingly we find that he did not make the statements which Mead attributed to him. In view of the fact that Mead was admittedly the sole informant against Patten and had self-serving reasons for reporting someone to Coyle, that Patten was neither asked about nor told the statements on which his discharge was purportedly based, we do not believe that Coyle could reason- ably have believed that Patten made the statements which Mead attributed to him. We therefore find, in addition, that Coyle did not entertain a good-faith belief that Patten had incited , aided, or abetted the strike. Sullivan Coyle testified that Cleveland , the union grievance man in Patten's department , told him sometime late in December 1950 that Sullivan had "told some of the fellows that they would have to stick together . They could beat the company on this work schedule change. Words to that effect ." He admitted that Cleveland was his only informant against Sullivan. Later in his testimony , Coyle admitted questioning Cleveland con- cerning Sullivan . He said that Cleveland reported that Sullivan had "made statements to the effect that if a fellow -- if the fellows stuck together and held out a few days, or held out long enough , or stayed together , that they would be able to whip the company on this thing ." When asked whether he had investigated this allegation , Coyle admitted that he has relied on Cleveland ' s statement , because he had known him a long KAISER ALUMINUM AND CHEMICAL CORPORATION 881 time and had noticed that he "is the kind of a fellow that will tell you the truth." On January 16, 1951 , Cleveland signed an 11fidavit stating, in part, "it was common knowledge that Mr. Sullivan was not going to work the new schedule . During the Monday morning meeting I personally saw and heard Mr. Sullivan say 'guys we have to stick together on this thing .' " He also asserted that in his opinion "Mr. Sullivan was in great degree responsible for the concerted defiance of the officers of the Union and the Company in that as a result of his urging , a number of employees failed to report for work as scheduled in accord- ance with the contract ." He testified that he had seen Sullivan on Monday morning "going around to the various parts of the hall." When Sullivan came over near him, Cleveland heard him say "that the boys had better stick together there, and stay out, that they were giving them lay-off slips at the mill." Sullivan reported for work at 4 p . m. on Monday, December 18, his regular reporting time. Mechanical Superintendent Laut praised him for coming in and urged him not to go home. Sullivan testified that he told Laut that if he were going home, he would have stayed home in the first place. Union Shop Steward Wallgren approached him and asked him what he was doing there. When Sullivan replied that he was there to work, Wallgren told him that if he stayed , not "a damned man in this pipe shop " would work with him. Sullivan replied, "Look here, if I am here , I am going to stay here ." According to Sullivan , Wallgren then made the same speech to another pipefitter who did go home. Wallgren was discharged by Laut for persuading an employee to leave work, but was later reinstated . Sullivan admitted that he had attended the union meetings on December 17 and 18, for about 1 ? hours each. Although he admitted talking "to the guys in the union" at the meetings, he specifically denied telling them to stick together, urging them to stay out, reporting that the Company was issuing layoff slips, or, for that matter , seeing Cleveland at the meeting . Although Sullivan had offered to pay dues, the Union had refused to accept them after January 1950 . Sullivan was neither asked about nor told of the statements Cleveland attributed to him . He did not process a grievance. Most witnesses were asked whether they had made or heard statements similar to those attributed to Sullivan . They all denied either making or hearing anyone else make such statements. Considering his relationship to the Union and his refusal, despite threats, to leave work, we think Sullivan' s testimony internally consistent . Accordingly , we credit his denial that he made the statements Cleveland attributed to him . In view of the fact that Coyle relied solely upon the statement of an official in a union which refused to accept Sullivan, we are unable to conclude that Coyle could reasonably believe that Sullivan had incited, aided , or abetted the strike. Accordingly, we also find that Coyle did not entertain a good-faith belief that Sullivan had incited , aided, or abetted the strike. 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Booth Coyle testified that he understood that Booth "was active in trying to get other employees not to work" from the fact that Booth gave an employee hired to replace a suspended or discharged striker "a rough time--called him a few names, and asked him what the hell he was doing in there, scabbing on the boys --things of that nature ." He testifiedthat Booth had told two replacements that "he was giving a day's pay a week to protect the boys on the outside ." Coyle learned this some- time in January . Coyle asserted that he had talked to both employees , verifying their stories. One of the employees , George Hanson, was rehired Decem- ber 27 or 28, 1950 . He testified that he had met Booth the first night he went back to work and that Booth had expressed surprise at seeing him back, "due to the fact that they were having labor trouble ." Hanson told Booth that he had been informed that the strike was not authorized by the Union. Booth then said that he didn't know but that he was giving 1 day's pay each week totheboys onthe outside . He also testified that he had voluntarily reported this conversation to the electrical superintendent, Tate, and had , at Tate's request, prepared a statement for Coyle . Contrary to Coyle's testimony, he denied talking to Coyle . In talking to Tate, he had "com- plained about the treatment that the boys , the ways the boys had been treating [him]. That is, all those I had contact with." Harry Brown, the other employee named by Coyle, did not testify. Riggin and Schuler testified that they had heard Booth use the epithet "scab ." Both denied reporting the incidents to any company official. Booth did not recall conversing with George Hanson on or about December 28, and denied questioning Hanson on why he was working or calling him a "scab ." During his grievance hearing, Booth was asked if he was aware of a fund which had been set up sometime during the 2-week period following December 18 for employees who had been suspended. He ad- mitted he was aware of the fund but denied having made any contribution to it or having been solicited for contributions. He was told that the Company had at its disposal "information which to it is conclusive" that he "did incite, aid and abet this work stoppage ." He asked to see the evidence but was told that it was secret. Under all the circumstances , we credit Booth and find that he did not make the statements which Coyle claimed he had. As the strike ended on December 19, 1950 , we do not believe that Coyle could reasonably believe that any statements made 10 days later incited, aided , or abetted the work stoppage of December 18 . We therefore make the additional finding that Coyle did not entertain a good -faith belief that Booth had incited, aided , or abetted the strike. KAISER ALUMINUM AND CHEMICAL CORPORATION 883 Conclusions as to Patten, Sullivan, and Booth The Board has found that the 3 nonstrikers, Patten, Sullivan, and Booth, did not make the statements attributed to them. It therefore follows that if their discharges, as the Respondent contends, were predicated on their connection with the Decem- ber 18 work stoppage, they could have been based only upon their attendance at the union meeting of December 18, a clearly protected concerted activity so far at least as these 3 non- strikers were concerned. Under these circumstances Re- spondent's allegedly good-faith belief that the statements were made may not serve as a valid defense to the discharges for protected concerted activity. As such discrimination interfered with, coerced, and restrained the employees in the exercise of their statutory rights, and also discouraged membership in a labor organization, we find that their discharge violated not only Section 8 (a) (1) but also Section 8 (a) (3) of the Act." Moreover, the Board is of the further opinion that even if the conduct ascribed to the 3 nonstrikers had actually occurred, it would not have amounted to conduct inciting, aiding, or abetting the strike. For this additional reason we find that the 3 nonstrikers were discharged for engaging in a protected concerted activity in violation of Section 8 (a) (3) and (1) of the Act.19 As already indicated, we have found that the Respondent did not have a good-faith belief that these employees had engaged in the conduct ascribed to them. The record also establishes, in this connection, that the Respondent sought a legal excuse for their discharges. The facts are as follows: Booth, Sullivan, and Patten were rival union advocates. Both the Respondent and the incumbent Union's officials were aware of their activities on behalf of AFL unions. It is a matter of record that both the Respondent and the incumbent CIO Union were opposed to AFL craft severance.20 The hostility was not limited to that Board proceeding, nor was it confined to theory. In 1946 the Respondent, at the request of the CIO Union, discharged 3 employees for AFL activity, one of whom was Booth. Booth was reinstated about 10 days after his dis- charge, at which time his foreman warned him against further participation in AFL activity. Booth did continue his AFL activity with the knowledge of both the Respondent and the CIO Union. I Sullivan was ordered by his foreman in 1949 to stop lBThe Chairman and Members Houston and Styles join in the conclusion that the three nonstrikers had not actually engaged in the conduct ascribed to them. 19 Members Houston, Murdock. Styles, and Peterson agree in this finding; Chairman Herzog disagrees as to Patten and Sullivan. 20 Permanente Metals Corporation, 89 NLRB 804, decided April 27, 1950 (the Respondent operated the Trentwood plant under the corporate name of Permanente Metals Corporation). nRiggin testified that Booth, the only man working in the electrical department during the day shift on December 18, 1950, told him that "in his 23 years of AFL experience" he had never had a "deal like that" but that "it was not worth getting fired over , and them like that had no business talking to us in the first place." Riggin reported this conversation to his friend O'Neil, the chairman of the union grievance committee , and to two union officials, Orr and Gatewood. 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD soliciting in behalf of the AFL even though the solicitation was being done on his own time, because as the foreman stated, "They are raising hell with me." In 1949 the union list con- taining the names of AFL adherents included, among others, Booth, Patten, and Sullivan. Union officials, including the international officers, who jointly participated with Respondent in the grievance hearings of the suspended employees herein, announced their intention to procure the discharge by Re- spondent of the AFL sympathizers and planned methods to accomplish this objective. Mohondro, general foreman in the maintenance department during 1949 and 1950, testified, with- out contradiction, that during these years he had 5 or 6 con- versations with Respondent's superintendent of industrial relations, Coyle, relating to the AFL adherents. On one occasion, Coyle referred to the AFL supporters as "sons-of- bitches" and directed Mohondro to discharge them all. Coyle reversed his decision when he learned that the CIO Union could not furnish machinists. On another occasion during the same period, Coyle, referring to the AFL adherents, said, "Someday we will get rid of those sons-of-bitches." We be- lieve that Coyle thought that the CIO union strike of December 18 fortuitously provided the propitious setting for ridding the Company of Booth, Patten, and Sullivan. We therefore find that they were discharged to eliminate AFL sympathizers.22 Sucha discharge violated not only Section 8 (a) (1) but also Section 8 (a) (3) of the Act. THE REMEDY Having found that the Respondent engaged in 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. The Respondent having discriminated in regard to the hire, tenure, and conditions of employment of Neal D. Sullivan, Forrest Patten, and Walter H. Booth, we will order that the Respondent offer reinstatement to Sullivan, Patten, and Booth to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges; and further that it make them whole for any losses suffered because of the discrimination, by payment to each of them of a sum equal to the amount he would normally have earned as wages from the date of such discrimination23 to the date of the issuance of the Intermediate Report, and from the date of the issuance of this Decision to the date of the offer of reinstate- ment, less his net earnings during that period. Such computation shall be in accord with the Board's usual policies. See Crossett Lumber Co., 8 NLRB 440, 497-8; F. W. Woolworth Co., 90 NLRB 289. 22 The Board is unanimous in reaching this conclusion. 22 As the record does not permit us to determine whether such discrimination dates from the date of the suspension or the date of the final discharge of the employees involved, we leave such determination to compliance. KAISER ALUMINUM AND CHEMICAL CORPORATION 885 Having found that the Respondent did not violate the Act by certain other conduct alleged in the complaint , we shall dismiss the complaint as to such allegations. Upon the basis of the foregoing findings of fact, and upon the entire record in the case , the Board makes the following: SUPPLEMENTAL CONCLUSIONS OF LAW 1. By interfering with, restraining , and coercing its em- ployees 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) (1) of the Act. 2. By discriminating in regard to the hire and tenure and the terms and conditions of employment of Patten , Sullivan, and Booth, thereby discouraging membership in the United Steelworkers of America, CIO, or any other labor organiza- tion, 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. 3. 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 Re- spondent , Kaiser Aluminum and Chemical Corporation, its officers , agents, successors , and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in or support of United Steel- workers of America, CIO, or any other labor organization of its employees , by discriminatorily discharging or suspending its employees , or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. (b) In any like or related manner interfering with, restrain- ing, or coercing its employees in the exercise of their right to self-organization , to form labor organizations , to join or assist United Steelworkers of America, CIO, or any other labor organization , to bargain collectively through representatives of their own choosing , 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 rights 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 Neal D . Sullivan, Forrest Patten, and Walter H. Booth immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their 283230 0 - 54 - 57 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seniority and other rights and privileges, and make them whole in the manner set forth in the section entitled "The Remedy." (b) Post at its plant at Trentwood, Washington, copies of the notice attached hereto and marked "Appendix A." 24 Copies of said notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being signed by Respondent's representative, be posted by 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Nineteenth Region in writing, within ten (10) days from the date of this Order, what steps Respondent has taken to comply therewith. IT IS FURTHER ORDERED that the complaint be, and it here- by is, dismissed insofar as it charges Respondent with other violations of Section 8 (a) (3) and (1) of the Act. u In the event that this Order is enforced by a decree of the 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 NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in or activities on behalf of United Steelworkers of America, CIO, or any other labor organization of our employees, by discharging or suspending any of our employees, or in any other manner discriminate against them in regard to hire or tenure of employment or any term or condition of employment. WE WILL offer to the following named individuals immediate and full reinstatement to their former or sub- stantially equivalent positions without prejudice to any seniority or other rights and privileges previously en- joyed, and make them whole for any loss of pay suffered as a result of the discrimination as set forth in the Deci- sion and Order: WALTER H. BOOTH FORREST PATTEN NEAL D. SULLIVAN WE WILL NOT in any like or related manner interfere with, restrain , or coerce our employees in the exercise of their rights to self-organization, to form labor organi- zations, to join or assist United Steelworkers of America, KAISER ALUMINUM AND CHEMICAL CORPORATION 887 CIO, or any other labor organization, to bargain collec- tively through representatives of their own choosing, to engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a con- dition of, employment as authorized in Section 8 (a) (3) of the Act. All our employees are free to become or refrain from be- coming members in the above-named union or any other labor organization;. except to the extent that the right to refrain may be affected by a lawful agreement requiring membership in a labor organization as a condition of employment. KAISER ALUMINUM AND CHEMICAL 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 and Recommended Order STATEMENT OF THE CASE Upon individual charges duly filed and served, the General Counsel of the National Labor Relations Board , herein called , respectively , the General Counsel and the Board, filed his complaint against Kaiser Aluminum and Chemical Corporation, herein called Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat . 136, herein called the Act. In respect to unfair labor practices, the complaint alleges that the Respondent discriminatorily discharged and thereafter refused to reinstate 16 individuals because they had engaged in protected concerted activity. Re- spondent's answer asserts that the discharges complained of were made because the indi- viduals concerned either had engaged in a work stoppage or had aided , abetted , and en- couraged others to do so in violation of a contract provision contained in an agreement between the Respondent and United Steelworkers of America , CIO, herein called USA. Pursuant to notice, a hearing was held before me in Spokane , Washington , from June 9 through June 13, 1952 . All parties were represented by counsel , participated in the hearing, and were afforded full opportunity to examine and cross -examine witnesses and to introduce evidence pertinent to the issues . At the close of the General Counsel's case-in-chief, counsel for the Respondent , joined by counsel foe USA, moved to dismiss the complaint in its entirety. After argument , I granted the motion in respect to all but Three , namely , Neal D. Sullivan, Forrest Patten, and Walter H. Booth, following which Respondent put in its proof. Subsequent to the close of the hearing, the General Counsel filed a motion for reconsider- ation of the cases dismissed and petitioned to reopen the hearing . The motion and the petition are hereby denied. All parties were afforded opportunity to file briefs with the undersigned . None has been received. Upon the entire record in the case and from my observation of the witnesses , I make the following: 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT L THE BUSINESS OF THE RESPONDENT Kaiser Aluminum and Chemical Corporation , with its principal office and place of business in Oakland. California , operates a number of plants in several States of the United States, including one at Trentwood , Washington. Annual sales and shipments of aluminum ,products from the Trentwood plant to points outside the State of Washington are valued in excess of $ 1,000 ,000. The jurisdiction of the Board on commerce grounds is not contested. IL THE ALLEGED UNFAIR LABOR PRACTICES For a number of years Respondent has contracted with the USA as the exclusive bar- gaining representative of its employees at the Trentwood plant . Particularly in 1946 and 1949 various craft unions sought to displace the USA in respect to segments of the bar- gaining unit . Certain of those whose discharge is here complained of were active in support of the rival organizations . In September 1950 the Respondent and USA entered into an agree- ment which was in effect at the time the discharges were made . Article 7 of the agreement reads , in part: Except under the conditions set forth in this Article 7 (and in the case of the Union only after compliance with the International Constitution of the Union), there shall be no lockouts , strikes , or interruptions or cessations of work during the term of this agreement . Should any differences arise between the Company and the Union as to the meaning or application of the provisions of this agreement or as to any ques- tion relating to the wages , hours of work , or other conditions of employment of any employee, the same shall be disposed of in accordance with the provisions of this Article 7. Sometime during the fall of that year the Respondent considered placing its maintenance force upon rotating shift schedules , and in early December advised a committee of the USA of its decision to place new shift schedules in operation Monday. December 18. Following this announcement much discussion occurred among the approximately 350 maintenance workers in connection with the change . The feeling of the men was one of strong opposition to the innovation The maintenance force , consisting of machinists , mechanics , electricians, carpenters , plumbers, sheet-metal workers , and the like, appears to have been the core of strength for craft unions. On December 17, a Sunday , a special USA meeting was held, attended largely by mainte- nance workers , in which it was urged that the question of rotating shifts be the subject of negotiation with Respondent and that an attempt be made to change the decision in that respect. Some sentiment was expressed in the meeting to the effect that USA had not effec- tively represented the desires of the membership in acceding to Respondent ' s proposal During the course of the meeting a telephone call was placed to Arthur H . Branstad, the plant manager, asking that he meet with a committee of USA for the purpose of negotiating further in connection with the maintenance schedules . Branstad replied , he testified, that he would meet with the USA committee during the following week, but that he expected all men to report for work on Monday in accordance with the new schedules . The meeting recessed or adjourned or ended in the evening hours on Sunday, but resumed again early on Monday morning , not to adjourn until approximately 10 p. m . that night About 200 main- tenance workers failed to report as they were scheduled on Monday , and as soon as manage- ment learned of any such failure a suspension slip was made out for that employee . Approx- imately 200 maintenance workers received such suspensions . Within the several weeks following, in accordance with contract grievance procedures , the case of each suspended man was investigated . Superintendent of Industrial Relations Philip E . Coyle testified cred- ibly that it was his decision to Invoke the suspension procedure , that he did so on his own responsibility without consultation with representatives of USA, and that as soon as he became satisfied that a suspended individual had absented himself from work for a valid reason not in connection with the USA meeting of December 18 he returned him to work. All others were afforded opportunity for hearing. The net result was the discharge of the 16 individuals named in the complaint , 13 of whom had failed to work as scheduled on De- cember 18. KAISER ALUMINUM AND CHEMICAL CORPORATION 889 It is the theory of the General Counsel, expressed at the hearing and reiterated in his motion for reconsideration and petition to reopen the hearing , that the 13 who failed to report for work did so not in concert with each other or with anyone, that they had attended the meetings of December 17 and 18 because of their very direct and personal concern with the question of shift. changes , and that in no sense did they or any of them engage in a con- certed refusal to work so as to bring them within the prohibiting clause of the contract. The General Counsel explains the selection of these 13 for discharge by asserting that many of them were individuals whose preference for other representation was known to the Re- spondent and to the USA and that the Respondent , with the acquiescence of USA, found here a convenient opportunity to rid itself of individuals whose activity for rival labor organi- zations was irksome to both. However , the record contains no evidence of recent activity by any of the individuals in opposition to the collective-bargaining representative and only the most speculative evidence that the USA failed to represent the interests of the affected individuals in good faith during the hearings which followed the suspensions and preceded the discharges . Furthermore, I cannot accept the General Counsel's premise that by re- maining away from work on Monday, December 18, while in attendance at the meeting these men did not in fact and in law engage in an activity which amounted to a concerted stoppage of work for the purpose of enforcing a demand upon the Respondent . I regard it as immaterial that none of those who attended the meeting was there at the request of any USA official or anyone else in a position of leadership, that none was asked or requested to remain away from work, or that there was no express agreement among them to withhold their services from the Respondent . The quotation offered by the General Counsel in his motion for reconsideration taken from international Brotherhood of Electrical Workers, AFL, 82 NLRB 696. The very fact of such mass quitting alone supplies persuasive evidence , sufficient in the absence of a plausible and adequate explanation, to support an inference that the cessation of work was the outcome of strike or concerted action aimed at a com- mon objective. is apt, but, contrary to the General Counsel, I am convinced that the record here provides no plausible or adequate explanation to rebut that inference . Indeed evidence that 200 workers failed to report for work, that many if not all of them did so because of their attendance at the meeting, are factors which convince me that a decision, perhaps unvoiced, had been reached to withhold their services from their employer pending resolution on precisely what course of action might best serve their needs. Having reason to believe that the 13 workers had engaged in a strike in violation of con- tract undertaking, the Respondent was privileged to discharge them , as it did, even though it elected to return to work others who were guilty of precisely the same conduct. I Neal D. Sullivan was first hired by the Respondent in June 1946 and became a member of USA. In 1949 the USA ceased accepting his dues and refused his offers of payment. In the same year Sullivan passed out a dozen cards from some American Federation of Labor union and secured signatures to them. He also attended several meetings sponsored by that union and was proposed for the office of committeeman. In the spring of 1949 his super- visor, Guimont, asked if he was distributing AFL literature and when Sullivan admitted that he was , told him that he must stop. Nothing more came of the incident. Sullivan attended the USA meeting on December 17 but reported for work as scheduled on the following day. On January 22, 1951, he was suspended and thereafter discharged . Perhaps because he was not a member of USA Sullivan did not pursue the contract grievance procedures in an attempt to secure reinstatement. Superintendent of Industrial Relations Coyle testified that in late December he was informed that Sullivan had attended the USA meetings on December 17 and 18. According to Coyle, at the Monday meeting Sullivan told those gathered there that i All the strikers were liable to the discharge penalty . As an alternative theory , the General Counsel asserts that the selections for final discharge were predicated at least in part upon a "trading" agreement between the Respondent and the USA whereby the latter permitted the discharge of some loyal members in exchange for the discharge of others who preferred other unions. There is no competent evidence to support this theory. Testimony that a representative of USA admitted such an arrangement is not admissible against the Re- spondent. 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if they „ ould stick together they could defeat the Company . Boyde Cleveland , a maintenance mechanic, testified that on December 18 Sullivan told the men in the meeting that they had better stick together and stay out . Cleveland reported this statement to'Coyle about mid- January . On the basis of this evidence Sullivan was suspended and discharged. Forrest Patten began work for Respondent in July 1946 . In 1948 or 1949 he passed out membership cards for the International Association of Machinists and according to Patten his foreman , Arnold Smith, saw the cards in his toolbox . Patten attended the meetings on December 17 and 18, but worked his shift on both days On January 22 he was suspended and thereafter in a grievance hearing was accused by the Respondent of inciting the men to strike and advising them not to report for work on the new schedule . Coyle testified that he was informed Patten had told other employees in the meeting of December 17 or 18 that they could afford to take a few days off and if they would stick together they could win their point. George W. Mead, a machinist in Respondent's employ, testified that he attended the meeting on December 18, did not report for work on that day, was suspended and later reinstated . According to Mead, Coyle inquired of him if he knew of anyone at the meeting who tried to get the men to remain away from work. Mead told him that Patten was one who had done so and on January 10 executed an affidavit to that effect . On the basis of this information Coyle testified he decided that Patten should be discharged. Walter H. Booth, an electrician, began work for Respondent in 1946 and began almost immediately to organize for the international Brotherhood of Electrical Workers. For this activity and, at the demand of USA, Booth was discharged but later reinstated . When he came back to work, according to Booth, his foreman told him that he no longer could be active in behalf of the IBEW . Booth attended the meetings of December 17 and 18, but did not miss his work shift and, he testified , did not advise anyone to remain away from work. On January 23 he was suspended from employment and, after grievance hearings, dis- charged . According to Coyle, he learned in early January that Booth had been making it unpleasant for two employees hired in late December, after the suspension of most of the workers in the maintenance department , by calling them scabs , and that Booth was con- tributing weekly a day's pay for the assistance of those under suspension . At a grievance hearing on February 2, 1951 , Booth asserted that he did not in any way support the work stoppage and had discouraged others from doing so . He further denied that he had made any contribution to any fund for the assistance of suspended workers . George R. Hanson and Wyman E. Riggin both testified that shortly after December 18 Booth accused each of them of being a scab because they were working while their friends were not . Both testi- fied , however , that they did not report the incidents to management. Coyle testified that he learned of these incidents and also that Booth considered the work stoppage to be proper. For these reasons, he testified , Booth was discharged. One might speculate to a conclusion that the discharges of Sullivan , Patten, and Booth were made because they had in the past supported AFL unions and because Sullivan was for some reason unacceptable as a member to the USA. Evidence to support such a conclusion, in my opinion, does not survive objective examination. Coyle had evidence before him when the three cases were considered which indicated strongly that all had supported the work stoppage and urged others to participate in it . It is true that this evidence was denied, but there is little reason, indeed I find none , to believe that Coyle did not act upon a good- faith conviction . Upon a consideration of the entire record I am not convinced that Coyle acted for any reason other than those he testified to or that the USA was instrumental in any fashion in preserving the jobs of those suspended workers whom it favored and securing the discharge of those it did not I find that by the discharges of Sullivan, Patten, and Booth the Respondent did not violate the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The operations of Respondent constitute trade, traffic , and commerce among the several States within the meaning of Section 2 (6) and (7) of the Act 2. Respondent has engaged in none of the unfair labor practices alleged in the complaint. [ Recommendations omitted from publication ] .