Bartlett-Collins Co.

BARTLETT-COLLINS COMPANY 395 Union's written acceptance of June 17, 1954, exists which constitutes a bar to this proceeding. We find no merit in this contention. We are not persuaded by the evidence before us, that the Union's belated acceptance of the Employer's counterproposals, which were the subject of inconclusive negotiations conducted 4 months earlier, re- 'sulted in an agreement between the parties. In our opinion, it would be unrealistic to assume, under the facts and circumstances of this case, that the Employer's counterproposals remained in existence as a continuing offer which the Union was privileged to accept 4 months later and thereby to convert into a contractual obligation binding on the Employer. As the Employer timely raised the question of the Union's majority status, we find that a question of representation exists warranting an election at this time. 4. The following employees of the Employer constitute a unit ap- propriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act.' All production and maintenance employees at the Employer's Port- land, Oregon, mechanical instrument manufacturing plant, excluding office clerical employees, guards, professional employees, and super- visors as defined in the Act. [Text of Direction of Election omitted from publication.] 2 The unit description appears substantially as stipulated by the parties at the hearing. BARTLETT-COLLINS COMPANY and AMERICAN FLINT GLASS WORKERS' UNION OF NORTH AMERICA, AFL. Case No. 16-CA-421. October 19,1954 Decision and Order On September 8, 1953, Trial Examiner George A. Downing, issued his Intermediate Report in the above-entitled proceeding finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent Com- pany requested oral argument and filed exceptions to the Intermediate Report. The Respondent's request for oral argument is hereby de- nied as the record adequately presents the issues and the positions of the parties. 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 Interme- 110 NLRB No. 58. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD diate Report, the Respondent's exceptions, and the entire record in the case and finds merit in the Respondent's exceptions. 1. The Trial Examiner found that the Respondent, by failing to reemploy the 25 persons whose names are listed in Appendix A of the Intermediate Report attached hereto, violated Section 8 (a) (3) and (1) of the Act. We disagree. Upon careful analysis of the entire record, we find that the preponderance of the evidence fails to sup- port the above findings of the Trial Examiner. This case involves a situation growing out of a 15-day economic strike at the Respondent's plant, which began March 14, 1951. Of some 460 employees in the production and maintenance unit, about 170, predominately union members, participated in the strike. These were joined by 11 moldmakers whom the Union separately repre- sented as a craft group. Except for those strikers who returned dur- ing the strike and the moidmakers, all strikers had been permanently replaced by the end of the strike on March 29, Picketing ceased about 11 a. m. on March 29, and a conference be- tween the Respondent and the Union took place at 2 p. m. that day. With respect to the moldmakers the Respondent stated "that naturally they would return to work under the same conditions" as before the strike. The Union then asked whether the Respondent would take back the other strikers as soon as it could. The Respondent replied : "Naturally we are going to put on these people when we can. We'll do the best we can." The Union then announced that the strike was officially over and advised the strikers to make immediate application for employment. Following the termination of the picketing on March 29, about 100, strikers applied for employment, all but a few applying within a 21/2-week period. At the time of application, the Respondent did not require the strikers to file new written applications because it had their original ones. Rather, it placed their names on a separate list, and informed them that it would call them in the event of an opening.' Not counting the moldmakers, who were all reinstated, out of a total of approximately 170 strikers in the production and maintenance unit, a total of 103 returned to work. Of the latter, 30 returned during the strike and 73 after the strike.' Of those strikers who did not return to work, 38 either did not apply and/or abandoned any claim to reemployment. The rest include those named in the com- 1 The Trial Examiner found that the strikers ' applications were continuing in nature despite the Respondent 's practice to consider them only for a short period. However, whether or not the applications be considered as continuing , our ultimate decision that the General Counsel has not established discriminatory motivation on the part of the Respondent by preponderance of the evidence remains unaffected. 2 About 60 of these 73 strikers were reemployed during the first 3 weeks after the strike. In this respect the record shows that the Respondent, during April 1951, was overstaffed in the unit with an average employment of 511 as compared to 461 before the strike. BARTLETT-COLLINS COMPANY 397 plaint. The Trial Examiner found that 25 of the complainants had been discriminatorily refused reemployment.' As supporting a finding of discriminatory motivation, the Trial Examiner relies, inter alia, on the fact that only 2 of the 10 union officers and committeemen were reemployed and that a large majority of those named in the complaint walked the picket line during the last 2 days of the strike. However, the record shows that only 4 of the 10 union officers and -committeemen were named in the complaint.' And of these 4, 3 (Broyles, Sloan,5 and Asher) either specifically asked for their old jobs back, which were filled at the time, or unlike the great majority of the strikers, did not apply until 5 or more weeks after the strike. Moreover, although many of the complainants walked the picket line during the last 2 days of the strike, so too did, the evidence indicates, a substantial number of the strikers whom the Employer reemployed.6 Contrary to the Trial Examiner, we do not believe that the aforemen- tioned factors are sufficient to support a finding of discriminatory motivation on the part of the Respondent' The Trial Examiner found that the Respondent's statement to the Union at the March 29 conference to the effect that the Respondent would take the strikers back when it could constituted an agreement to rehire which conferred upon the permanently replaced economic strikers a "preferential status in future hirings" over new employees and "waived whatever rights it [Respondent] had to consider the strikers only as new employees." Even assuming that Respondent's remarks constituted an agreement to rehire, we disagree with the Trial Examiner to the extent that he implies that the failure to comply with this agreement was, in effect, discriminatory as a matter of law. Permanently replaced economic strikers merely have the right not to be penalized for their concerted activity, and are not entitled to preferential status in hiring. They are in the position of applicants 3 The Trial Examiner found that , as to 5 of the strikers named in the complaint, 4 made no application and 1 abandoned any claim to reemployment . No exceptions hav- ing been filed to these findings , they hereby are adopted without further comment. 4 with respect to the 6 remaining union officials , 1 did not go on strike , 2 returned to work, and, as found by the Trial Examiner, the remaining 3 abandoned any claim to i eempl oymen t. 8 Although Sloan is listed on General Counsel's Exhibit No . 5 as applying on April 2, 1951, he testified that he did not apply until about 5 weeks after the termination of the strike, and we so find 6 Thus, there is testimony indicating that somewhere between 50 and 90 strikers walked the picket line each day on a rotational basis. Although there is also testimony that the number of strikers dwindled during the course of the strike, no figures are given. 7 The Trial Examiner finds it significant that the Respondent ceased to reemploy strikers in any substantial number around April 19, 1951, corresponding with its refusal to nego- tiate with the Union as the representative of its employees Unlike the Trial Examiner, we find no significance in this because the Respondent had long before questioned the Union's majority on March 28 , prior to the end of the strike. In any event, all hiring by the Respondent was substantially curtailed between April 19, when the Respondent was overstaffed , and August 1, 1951. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for new employment as to whom the General Counsel must sustain his burden of proving discriminatory motivation on the part of the Respondent. Nor do the cases cited by the Trial Examiner show otherwise.' In all those cases, discriminatory motivation was either independently evidenced by other conduct or admitted. In the in- stant case, however, we do not believe that the evidence is sufficient to support a finding of discriminatory motivation on the part of the Respondent. We note that the Respondent has a background free of unfair labor practices, that the great majority of the strikers who applied for reemployment were rehired, and that there is no showing that any of the rehired strikers, who were also union members and had participated in picketing, was discriminatorily treated upon return to work. Under all the circumstances and upon the entire record, we find that the General Counsel has failed to sustain his burden of proving discriminatory motivation by a preponderance of the evidence. Accordingly, as the evidence fails to establish that the complainants listed in Appendix A of the Intermediate Report attached hereto were refused employment for discriminatory reasons, we shall dismiss the complaint as to them. Vernon Harris: We do not agree with the Trial Examiner that by failing to promote former striker Harris to superior positions as they arose, the Respondent violated Section 8 (a) (3) and (1) of the Act. The Trial Examiner found that the Respondent's agreement to take back the strikers precluded its defense that Harris was rehired as a new employee in accord with a company rule. As hereinabove set forth, Harris, like the other strikers, was an applicant for new employ- ment and was not entitled to any preferential status. Therefore, in the absence of sufficient evidence on the record as a whole to show that the Respondent was discriminatorily motivated, we shall dismiss the complaint as to Harris. Accordingly, as we have found that the Respondent has not engaged in any of the unfair labor practices alleged in the complaint, we shall dismiss the complaint in its entirety. [The Board dismissed the complaint.] CHAIRMAN FARMER and MEMBER MURDocx took no part in the con- sideration of the above Decision and Order. 8foure-Dupont Manufacturing, Inc, 199 F 2d 631 (C A 2), enfg. as mod . 93 NLRB 1240 , Watson & Co, 124 F. 2d 845 ( C. A 7), enfg 30 NLRB 314 ; Union Bus Terminal of Dallas, Texas, Inc , 98 NLRB 458, enf. denied on other grounds, 211 F. 2d 820 (C. A, 5). Intermediate Report and Recommended Order STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act, as amended (61 Stat. 136), was heard in Tulsa, Oklahoma, from June 29 to BARTLETT-COLLINS COMPANY 399, July 6, inclusive, pursuant to due notice. The complaint issued on March 27, 1953, by the General Counsel of the National Labor Relations Board I and based on charges filed and served , alleged in substance 2 that Respondent had engaged in unfair labor practices proscribed by Section 8 (a) (1) and (3) of the Act (1) by discriminatorily refusing to reinstate or reemploy , following a strike which ended March 29, 1951, 30 employees 3 because of their union membership and activities or because they had engaged in other concerted activities , namely the strike; and (2) by reinstating one. Vernon Harris to an inferior position and refusing to restore him to his former posi- tion for similar discriminatory reasons. On Respondent's motion, and pursuant to order of Trial Examiner James A. Shaw, the General Counsel also filed particulars as to dates on which the employees had allegedly made application for, and had been denied , reinstatement or reemployment.. Respondent, by its answer filed May 8, 1953, denied the commission of unfair labor practices as alleged. All parties were represented at the hearing by counsel or by representatives and were afforded full opportunity to be heard, to examine and cross -examine witnesses,, to introduce relevant evidence, to argue orally, and to file briefs and proposed find- ings of fact and conclusions of law. The General Counsel and the Union filed briefs; and on request of the Trial Examiner, all parties filed reply briefs. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a Delaware corporation, with its principal office and plant at Sapulpa, Oklahoma, where it is engaged in the manufacture and sale of glassware and related products. Respondent purchases annually raw materials valued in excess of $1.500,000, more than 50 percent of which is shipped to it in interstate commerce. It sells annually manufactured products valued in excess of $2,500,000, more than 90 percent of which is shipped to extrastate points. Respondent is, therefore, en- gaged in interstate commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization which admits to membership employees of Respondent. III THE UNFAIR LABOR PRACTICES A. Background; synopsis of main events and issues Respondent has dealt with the Union for many years. Since about 1915, it has recognized the Union as the collective-bargaining agent for a unit of moldmakers and other skilled employees . In 1941, the Union extended its recognition claims to a separate unit of miscellaneous production and maintenance employees (which is here involved); and, following a consent election which the Union won, the Respond- ent recognized the Union also for that unit. During the course of the 1941 bargain- ing negotiations a strike occurred , which was settled upon the negotiation of a con- tract, and Respondent thereafter reinstated the striking employees. Subsequent contracts have covered the period down to March 8, 1951, and Re- spondent honored , during the same period, a checkoff arrangement based on the signed authorization of individual employees . There is no evidence (and no claim) that the Union's membership extended to employees other than those who had signed such authorizations . There is no history of prior unfair labor practices by 1 The General Counsel and his representative at the hearing are referred to herein as the General Counsel and the National Labor Relations Board as the Board Bartlett-Col- lins Company is referred to as Respondent and as the Company and the Charging Union above named as the Union, 2 The summary of the pleadings includes amendments made before and during the hear- ing All events referred to herein occurred in 1951 unless otherwise specified. 3 Wiley Asher , Beryle Broyles , Marie Berg, Edith Berryhill , Paul A Bailey, William Banks, Jr, Alice Cowan, Irene Dunbar , Shelton Dickey , Walter Fleming, Nora Gann, Agnes Hammond Holland , Wilma Hoover , Iva Hamm , Ila Mae Johnson , Nola C Jones, Althea Moses, Ruth Nelson , Roy Nelson , Virgie Philyaw , George Pickering, Russell Porter, Mary Lou Riley , Leona Sawyer , Dempsey Shelton , Abner C. Shackleford , Toney Sloan, Toni Toliver, Lola Wilson , Marvin Walker 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent. Certain charges which the Union filed approximately a year before the 1951 strike were dismissed. In January 1951 , the Union gave -formal notice that it proposed termination of the contract as of March 7, and that unless a modification or a new contract were agreed upon in the meantime , it intended to call a strike of the miscellaneous workers. On March 5, during the pendency of negotiations, Respondent issued a form letter to all employees, informing them that in event of a strike it proposed to operate the plant, that it intended to fill the jobs of employees who struck, and that after the strike it would take back any strikers who wished to return, if and when work was available for which they were qualified, provided they had not engaged in any improper or unlawful conduct in the meantime . Negotiations having proved unsuccessful, the Union called a strike on March 14, which was continued until March 29. There is no claim of any prior unfair labor practices, the General Counsel conceding that the strike was an economic one. There were a total of 461 employees in the unit at the time the strike began, of which approximately 160 were union members.4 Approximately 170 employees were strike participants at the beginning of the strike 5 (plus 11 moldmakers outside the unit), and approximately 136 at the end (plus moldmakers ). Respondent continued to operate the plant by dint of hiring new (permanent ) employees and by reinstating all strikers who applied. Indeed, by the end of the strike on March 29, Respondent had replaced all strikers in the miscellaneous unit, and upon the General Counsel's concession at the hearing that the evidence did not show otherwise, the Trial Examiner granted the Respondent 's motion to dismiss the complaint insofar as it alleged a discriminatory failure to reinstate strikers. The issues which remain herein involve alleged discrimination in the failure to reemploy 30 of the strikers as vacancies arose following the end of the strike (73 were so reemployed ), and alleged discrimination surrounding the reemployment of Vernon Harris. The complaint pleads that the discrimination was because of union member- ship or because of participation in the strike, and the General Counsel stated at the hearing that his contention was that Respondent 's discrimination was because of union membership and "last ditch" participation in the strike by the employees whom he had included in the complaint.6 Respondent 's position , as stated by its witnesses at the hearing, was that employ- ment was denied the strikers named in the complaint for the sole reason that no jobs were open at the time their respective applications were filed or were current. B. The termination of the strike; the applications for employment The picketing was ended around 11 a. in. on March 29, and at 2 p. in. a con- ference was held between Union and Company representatives looking to the ter- mination of the strike . The Union, through Clark Gamble, an International repre- sentative, first inquired the Company 's position as to the return of the moldmakers, all of whom had remained on strike throughout the period and who had not been 6 The statistics which are given herein are only approximately accurate, since they constitute attempted reconciliation of various charts and tables, in evidence, which are not themselves accurate in some respects. For example, the master chart (Respondent's Exhibit No. 5) designates 161 employees as strikers, whereas Coley's list of applicants (General Counsel's Exhibit No 5) lists the names of 4 other strikers (Florence Moore, Mildred Tucker, Wanda Anderson, and Robert Spruill), and Respondent's lists of reinstated strikers (Respondent's Exhibits Nos 6 and 7) contain the names of 5 others (Roscoe Deckard, Fred Erber, Lucille Lewis, Rex Miller, and C B. Tillis). Similarly, the chart designates as reinstated during the strike four strikers (Alphonso Alexander, Delbert Boyd, Otes Riggs, and Grant Staiger), whose names are not included in the list of strikers reinstated 5 Nonunion strikers present no significant question , since only a small proportion of the strikers were not members of the Union, and the evidence does not establish the extent to which they actively supported the strike. Coley's list indicates that there were only three who were not reemployed after the strike 9 The complaint does not include a number of strike participants who were not reinstated. The General Counsel represented at the hearing that many of them had "drifted away" after the strike and had not made themselves available to the Union or to the field examiner during the investigation of the charges. It is inferred that they have accepted permanent employment elsewhere or have chosen, for other reasons, to abandon any claim to reemployment by Respondent That inference is also applied herein to Russell Porter, who, though included in the complaint, did not appear as a witness. BARTLETT-COLLINS COMPANY 401 replaced. The Company, through Charles Bartlett, its vice president, and Karl Mueller, its counsel, readily agreed that it would reinstate the moldmakers and would "recognize them" as previously. Gamble then referred to his knowledge that the Company had hired "a lot of people" during the strike and inquired as to the Company's position on taking back the other strikers "as soon as you can find places for them." Bartlett replied that most of the jobs had been filled, but that it was "naturally" the Company's position to take the strikers back as soon as it could, "because those are the people that know this job," and that there would be no discrimination against them because of their participation in the strike. The conference ended with the announcement by Gamble that the strike was officially terminated and by Mueller's congratulations to Gamble upon the peaceful conduct of the strike. The evidence does not show that express reference was made to the question whether individual applications were necessary . However, it was apparently under- stood that they were-presumably to indicate availability for employment 7-because Gamble, in announcing the.results of the conference at the Union 's strike head- quarters, advised the strikers "to immediately make applications for employment through Mr. Coley," and because he subsequently continued to advise other strikers to make their applications . Cf. ibid. Actually, many of the strikers had begun to make application upon the removal of the picket line at 11 a. in. They, and those who joined them later, formed a line, were admitted singly to Coley 's office, and were there interviewed individually.8 The evidence is not in conflict as to the tenor of the interviews. Upon the striker's statement of his desire to return to work, Coley's response was to the effect that all jobs had been filled, that there were no openings , and that he would call the applicant when a vacancy arose.9 Coley told none of the applicants that it was either proper or necessary for them to renew their applications periodically. To the contrary, he told some of the applicants , who specifically inquired , that new applications were un- necessary, that he had their names and their telephone numbers on the list and would call them when anything became available. Coley in fact kept a list, entitled "Strikers available for work," on which he en- tered the names and telephone numbers or addresses of most of the strikers who applied to him.10 Most of the applications were made within a few days, but others were scattered over a period of 7 months. See the following tabulations made from Coley's list: March 29----------------- 3511 April 9--------------------- 2 March 30----------------- 23 April 10-------------------- 2 March 31----------------- 5 April 11-------------------- 1 April 2------------------- 12 April 16-------------------- 2 April 3------------------- 3 August 13------------------- 1 April 4------------------- 4 August 18------------------- 1 April 5------------------- 2 September 10---- 1 April 6-------------------- 5 ------------ October 26------------------ 1 Coley's list contained the names of all employees listed in the complaint except Edith Berryhill Pickering, Althea Moses, Roy Nelson, Abner Shackleford, and Marvin 7 Cf. American Manufactia ing Company of Texas, 98 NLRB 226; Seventeenth Annual Report, NLRB, 1952, p 143 8 Althea Moses' testimony that she was interviewed by Coley on March 29 with a group of other employees is not credited She was unable to give the name of any employee who was present with her, and all other evidence is that Coley interviewed each applicant singly. Coley denied that Moses made application to him, and her name is not included on the list which Coley compiled of strikers who applied to him after the stiike It is found that Moses did not in fact apply 9 The fact of their replacement was known to the strikers, who were thus applicants for new employment, and who, in frequent instances, expressly stated their willingness to take any job that was open. Cf Textile Machine Works, Ina, 105 NLRB 618 30 As later shown, Coley's list did not contain it record of all telephone applications, despite his testimony that lie made a record of all such calls on his list ii Of this figure, 19 applied after removal of the picket line and before Gamble's "ofli'ial" termination of the strike around 2 •20 p in The figure does not include Andrew Me ors, who applied for reinstatement at 7 :30 a in on the morning of March 29, but who is shown by Respondent's list of reinstated employees to have returned to work on March 30. 338207-55-vol 110-27 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Walker. The General Counsel concedes in his brief that no personal application was made by Roy Nelson or by Abner Shackleford.12 For reasons elsewhere stated (see footnote 8), Althea Moses' testimony that she applied to Coley is not credited. Similarly, Marvin Walker's testimony was too vague, both as to time and as to con- tent, to support a finding, over Coley's denials, that he applied to Coley for reemployment. Edith Pickering testified that she applied to Coley by telephone approximately a month after the strike ended and was informed that there were no jobs open, but that Coley would put her name on the list and would call her later (in event of an opening). Coley testified that he had no record and no recollection of such a call, although he had made a record of all such calls on his list of strikers available for employment. The list does not, however, support his latter claim, since a number of the witnesses for the General Counsel testified to periodic calls to Coley, which, with few exceptions, were not noted on the list. Beryle Broyles, among others, gave credited testimony that she called Coley twice concerning reemployment prior to the date (September 10) which is entered on his list. . It is therefore found on the basis of Pickering's credited testimony that she applied to Coley on or about May 1, 1951.13 In addition to their initial applications, most of the employees listed in the com- plaint testified to one, or several, or periodic renewals of their requests for employ- ment, some by telephone and some in person. Coley's responses were, as on their initial applications, that there were no jobs open at the time, but that he had their names on the list and would call them if vacancies arose. Coley did in fact call some of the applicants with offers of employment (e g., Iva Hamm, Leona Sawyer), which they were unable to accept immediately for various reasons; and when those applicants renewed their requests for employment, they were again told that Coley would call them in event of openings. On two occasions subsequent to the end of the strike, the Union called Respondent's attention to its failure to reinstate many of the strikers and sought to negotiate with Respondent on the matter. Thus, on April 24, Gamble called Bartlett to request a meeting to negotiate a contract, and complained also that a number of strikers had not been put back to work. Referring to production troubles in the plant, Gamble suggested that the sensible thing to do was to work out an agreement under which all the strikers would be taken back. Bartlett called back shortly and stated in effect that the Company was happy with things as they were and would let them remain.14 Rufus K. Ritchie, another International representative of the Union, called Bartlett on August 6, and pointed out that a number of the strikers had not been reemployed, especially union officers and committeemen. Bartlett replied that he did not know that such was the case. Ritchie requested a meeting "to see if something could be worked out." Bartlett stated he would be away for a few days but would call Ritchie on his return. Around August 13 or 14, Bartlett called, stated that he had talked with Mueller, that the Company's position was that the Union no longer rep- resented a majority of the employees, and he did not feel that anything could be gained by a meeting. Ritchie stated that the Company's position would force the Union to file a charge, and Bartlett replied that the Company would stand on its decision. There was no further contact with the Company. 12 Shackleford 's testimony as to discussions with Foreman Cloyd in a cafe were inade- quate as an application for employment, since under Respondent's hiring practices Coley did all hiring and all applications were made to him. 'a Respondent introduced in evidence application forms of Wiley Asher, George Picker- ing, and Tom Toliver for withdrawal of funds due them under the employees' retirement trust, which forms contained the statement that the applicant had "informed the Company that he has definitely left their employ." Asher testified that Coley assured him that withdrawal from the retirement fund would not affect his future employment by the Company, because Coley had placed his name on the list of those to be returned to work. Pickering and Toliver testified similarly that Coley informed them that the withdrawal of their retirement funds would not affect their rights to return to work. Their testimony is credited ; Coley's testimony contained no direct denial that he had given such assurances. i* Gamble admitted that he understood Bartlett's call related to his request for a meeting to negotiate a contract . The evidence showed that as early as March 28, Respondent had taken the position that the Union did not represent a majority of the employees, and it reiterated that view in a letter to the International Union in June. BARTLETT-COLLINS COMPANY 403 C. Evidence concerning failure to reemploy strikers Respondent reemployed a total of 73 strikers (in addition to reinstating the mold- makers), more than three-fourths of whom were hired within 3 weeks. However, it failed to reemploy, among others, the 30 strikers covered by the complaint, al- though the evidence shows that during the period from the end of the strike through the month of April 1953, Respondent hired a total of 510 new employees in its vari- ous departments and job classifications, distributed as follows: Selecting and packing------------------------------------- 210 Decorating --------------------------------------------- 162 Automatic forming machines------------------------------- 28 Machine shop and mold cleaning- -------------------------- 4 Warehouse and shipping ---------------------------------- 93 Maintenance ------------------------------------------- 13 Nineteen of the persons included in the complaint had been employed in the select- ing and packing department, 5 in decorating, 5 on the automatic forming machines, and I in machine shop and mold cleaning. As the exhibits contain no breakdown of the job classifications for which the new employees were hired in the selecting and packing department, it is impossible to determine the exact dates on which job open- ings became available for strikers who were formerly employed in that department.15 Similarly, though the exhibits do list the job classifications of new employees in the other departments, the job descriptions do not accord sufficiently with the witnesses' descriptions of their respective jobs that it can be definitely determined, save in an occasional instance, when job openings occurred which should have been offered to the former employees. It is clear, however, that in most cases there were vacancies within a short time of the applications, because Respondent continued its hiring of new employees following the end of the strike and had employed a total of 158 by the end of the year. The following evidence offers additional support for the General Counsel's claim of discrimination: Practically all of the strikers included in the complaint had walked the picket line either the morning of, or the day before, the end of the strike. Of a total of 10 union officers and committeemen, Respondent employed only 1 officer, Mary Easley (finan- cial secretary), and 1 committeeman, Andrew Meyers. The circumstances surround- ing both are significant. Meyers had applied for and was granted reinstatement prior to the end of the strike. His case is to be contrasted with Lola Wilson, who also applied to Coley prior to the removal of the picket line on March 29, and who was told to come back to work. Learning that the picket line was shortly to be removed, Wilson waited until it was taken off, then lined up with the other strikers and was interviewed by Coley, who listed her name with the others and stated that he would call her if anything became available. Easley had moved from Sapulpa following the strike, but in September 1951 Coley made a special trip to her home, some 20 miles from Sapulpa, and offered her em- ployment. Easley was unable to accept at that time, but was later hired in February 1952, after notifying Coley that she was available for employment. Easley also testified, without denial from Coley, that shortly before the hearing Coley had dis- cussed with her the impending hearing in this case, stating among other things that a lot depended on the testimony to be given, that he was glad to have her back in the Company's employ, but that he would not "walk across the street for some of them," and that that was why he had come to look her up (for employment). Although the General Counsel makes no claim of antiunion conduct by Respond- ent save in the failure to reemploy the strikers as alleged, the Union points to certain evidence as establishing not only Respondent's antiunion disposition but as constitut- ing implied threats not to reemploy the strikers. It is unnecessary to review that evidence in detail. In certain respects the statements on which the Union relies were ambiguous; others were innocuous or were clearly protected as free speech under Section 8 (c); and in its entirety the evidence was wholly inadequate to sustain the Union's contentions. Evidence offered by Respondent to refute the claim of discrimination may be sum- marized as follows: Bartlett issued no instructions that any of the strikers should not be reemployed, but told Coley only that strikers were to be treated as other applicants without dis- crimination. 1B The evidence shows that there was frequent shifting of employees from job to job in that department, though some jobs were confined to male employees and others to female. 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Though Coley assured the strikers that he would call them as jobs became open, and did not inform them that their applications would be considered only while cur- rent, Respondent's view was that no discrimination was thereby involved, and offered Coley's explanation of his hiring practices, from which the following facts appeared: Coley was a 1-man personnel department for a plant which employed more than 500 employees. He performed by himself all the duties surrounding the interviewing and hiring of all employees and the keeping of all employment records. Coley did the actual hiring on the requisition by foremen of such employees as were needed, and he sometimes had to act quickly to fill vacancies where the foremen were un- able to continue operations by shifting employees within the department. Written applications were taken from all new applicants, and once an employee was hired, his application was kept on file permanently. If no jobs were open at the time applications were filed, Coley's practice was to inform the applicants that he would call them if vacancies arose, and he would then file the applications with other current ones in his desk to be referred to as employees were needed to fill vacancies. However, Coley considered applications to be current only for a period of from 2 weeks to a month, and he periodically cleared out his current file by removing from it applications which were more than a month old and by placing them in an inactive transfer file. In turn, Coley cleared out the in- active files every 6 months by destroying old applications in order to conserve space. Coley also testified that in cases where an applicant reapplied, his application was replaced in the current file for a new period of currency. Coley's explanation of his limitation on the currency of applications was that he had learned from experience that job seekers in Sapulpa were generally not available after a week or two, having either moved on or accepted other employment, and that he had found it a waste of time to attempt to contact applicants even a week after their application. He admitted that although his practice was to inform applicants that he would call them if vacancies arose, what that amounted to, though not dis- closed to the applicants, was that he would call them if vacancies arose within the next 2 weeks. Coley testified that he had adhered to the foregoing practice for some 8 or 10 years, and that he did not handle the strikers' applications any differently than he did those of new applicants. Since the strikers were former employees, Coley had their original written applications on file and he required no new applications from them. What he did was simply to list them as available for work,16 but as in the case of new applicants, he considered their applications to be current for only about 2 weeks. Thus, Coley testified that he did not refer to the list when vacancies arose more than 30 days after the applications listed thereon; that although he kept the list in his transfer files he did not, for example, refer to it when vacancies arose as late as October 26, 1951; and that although he listed Alice Cowan's application on that date, it was considered as only "for the immediate future," and the list was replaced in the transfer files. Coley also testified that he considered all the strikers as eligible for employment; and although evidence was developed of circumstances which might have excused Respondent's failure to reemploy certain of the strikers (e. g., physical or other disability), Coley testified that those covered by the complaint were not hired for the sole reason that there were no job openings for them at any time when their applications were current. D. The reemployment of Harris Harris was employed at the time of the strike as "head lehr boy" over plain lehrs in the selecting and packing department. Contrary to the General Counsel's con- tention that Harris was only a leadman, the testimony of Harris and Bartlett showed that he possessed supervisory status.17 Harris had, however, long been a union memb-r and his membership was known to Respondent, as was his participation in the strike. Coley's list of strikers available for work shows that Harris applied to him on April 6. Harris testified that he had first spoken to Beaver (head supervisor of selecting and packing), who told him his regular job was filled, but that he might 1e At least through April 16 There is a gap from then until August 13, and the only entries thereafter are for single applicants on August 18, September 10, and October 26. 17 Although Bartlett's testimony contained some suggestion that Shelton Dickey was also a supervisor in his job of "head unpacker," his duties and responsibilities were not shown by the evidence to be such as to so qualify him. Furthermore, Respondent's payroll iecords failed to designate him as a supervisor (as it did in the case of Harris and others). BARTLETT-COLLINS COMPANY 405 go on the floor (as a new hand) at the bottom rate of 75 cents. Coley in turn informed Harris that he would take Harris' address and phone number and would call him whenever there was an opening. Sometime later Coley called Harris' wife and gave her a message that Harris should report for work, but by the time Harris was able to do so, Coley informed him the job had been filled by promoting an em- ployee from the floor. The evidence does not indicate whether the job in question was Harris' former job or some other one. Harris was finally hired on October 3 as a set packer at 75 cents an hour. He quit on or about January 31, 1952, after getting up to 80 cents because (he testified) he was getting only about 3 days work a week. Harris also testified that after his re- employment various superior job openings arose for which he was qualified and for which he applied, but they were given to new employees or others with less seniority than he. No denial of that testimony was made. Coley testified that, pursuant to an old rule of the Company, Harris was treated as a new employee when he came back on October 3, because he had been out for more than 90 days. Bartlett testified that Harris was not returned to his position as head lehr boy only because the job had been filled, and that neither Harris' union membership nor his strike activities had anything to do with it. E. Concluding findings 1. The failure to reemploy strikers The strike in this case being an economic one, Respondent was free to replace the strikers and was not required, upon the termination of the strike, to discharge its new employees in order to make places for the strikers. N. L. R. B v. Mackay Radio ct Telegraph Company, 304 U. S. 333. While there is no claim here that any of the employees named in the complaint were not replaced during the strike, the issue under the evidence is whether, in view of Respondent's promise to reemploy the strikers as vacancies arose, Respondent acted discriminatorily in failing to do so. To sustain his position, it was incumbent upon the General Counsel to show that (1) jobs became open for which the strikers who applied 18 were qualified, (2) absent a discriminatory motive, Respondent would have considered the strikers for reemployment, and (3) the strikers were denied employment because of their union membership or because of their participation in the strike, rather than on some other permissible basis. Cf. Textile Machine Works, Inc., 96 NLRB 1333, 1352. Respondent's records show unquestionably that it hired many new employees throughout the various job classifications in which the strikers were qualified and had formerly been employed. In addition, Respondent's witnesses admitted at the hearing that the strikers were all eligible for employment; that they were experienced, and therefore valuable, employees who, all things being equal, would be preferred over new, untried applicants; and that Respondent had denied them employment on the sole ground that there were no jobs open during any time when their ap- plications were current. The crucial remaining issue, whether Respondent was motivated by discriminatory considerations in denying employment to the strikers included in the complaint, is to be decided against a background which shows a long history of collective bar- gaining wholly free of unfair labor practices. Nor is there evidence here of unfair labor practices prior to or during the strike, or of overt acts or statements short of unfair labor practices, from which an intent to discriminate against strike participants might be inferred. If discrimination is to be found herein, it must be based on the following facts, which strongly support the General Counsel's position: 1. Respondent's agreement at the end of the strike to take back the strikers as soon as it could find places for them. That promise was in fact no more than a repetition of the one contained in Respondent's letter of March 5 to the employees, that after the strike it would take back any strikers who wished to return to work, if and when work became available for which they were qualified. 2. Coley's promises to individual strikers to call them when jobs became open for them; his representations, sometimes express and sometimes implied, that renewal of their applications was unnecessary, and his failure to disclose to them his men- tally reserved limitation on the currency of their applications. 3. Acknowledgment by Bartlett and Coley that the prior training and experience of the strikers rendered them valuable employees, whose qualifications would or- 11 It is found that individual applications were necessary to indicate availability for employment. Cf Americana Mfg Co. of Texas, supra., enf. denied on other grounds, 203 F. 2d 212 (C A 5). No such applications were made by Althea Moses, Roy Nelson, Abner Shackleford, and Marvin Walker. See section B, supra. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dinarily entitle them to preference over new, inexperienced applicants. Obviously, any nondiscriminatorily motivated employer would prefer experienced employees for vacancies over untried outsiders, absent evidence, not here present, of a specific valid reason for preferring the outsiders. Here, Bartlett's recognition that the strik- ers "knew this job" was the reason expressly given for Respondent's willingness to take back the strikers. 4. The occurrence of numerous vacancies for which the strikers were qualified, but for which Respondent hired new employees. It is also significant that Respondent ceased to reemploy strikers in any substantial number around April 19, which coin- cided roughly with Respondent's refusal to negotiate with the Union as the repre- sentative of the employees. 5. The reinstatement, belatedly, of a single union officer 19 and the failure to rein- state a single committeeman save for one who applied prior to the end of the strike. Of significance also is the fact that the large majority of the strikers who are covered by the complaint were active picket line participants up to the last day of the strike. The foregoing circumstances plainly make out a prima facie case-and will require a finding herein-that Respondent was discriminatorily motivated 20 in failing to employ the strikers covered by the complaint unless overborne by countervailing evidence offered by Respondent. Cf. Law and Son v. N. L. R. B., 192 F. 2d 236, 238 (C. A. 10), citing Montgomery Ward ct Co. v N. L. R. B., 107 F. 2d 555, 560 (C. A. 7), and see Sixteenth Annual Report, NLRB, 1951, p. 162; Seventeenth Annual Report, NLRB, 1952, p. 135. The absence of any record of prior unfair labor practices has already been men- tioned, but that circumstance is, of course, universal to all cases of first offenders. The question here is whether Respondent was in fact a first offender. The evidence also shows that Respondent reinstated a large number of the strikers, particularly during the first weeks following the end of the strike. It is not material, however, that Respondent did not choose to discriminate against all strikers or against all union members, particularly when the list of those who were denied employment consisted predominantly of union officers and committeemen and members who had actively engaged in picketing up to the closing hours of the strike. Indeed, the latter fact indicates that, while making a superficial showing of compliance with its agree- ment to reemploy the strikers without discrimination, Respondent was eliminating from consideration those whose reemployment would most likely lead to a recrudes- cence of union activity. Finally, Respondent emphasized Coley's testimony that he had followed his nor- mal hiring practices without discrimination as between strikers and new applicants, and that although he had promised to call the strikers if vacancies occurred, and did not inform them of any limitation on the currency of their applications, that also accorded with his consistent practice in the case of new applicants. But by agreement and by law Respondent's obligation to reemploy the strikers differed significantly from any it owed to new applicants. First, Respondent had readily agreed, upon termination of the strike, to take back the strikers as vacancies occurred. That agreement was as definite and specific, for example, as the one involved in Wilson ct Co v N. L. R. B., 124 F. 2d 845, 847 (C. A. 7), enfg. 30 NLRB 314, and more specific than that in N. L. R. B. v. Roure-Dupont Manufactur- ing, Inc., 199 F. 2d 631 (C. A. 2), enfg. as mod. 93 NLRB 1240, 1242, where the employer's agreement was to reemploy the strikers as it "rebuilt its business." Yet in the latter case, a striker's right to reemployment was held to survive beyond the quitting of his permanent replacement some weeks after the termination of the strike, and the employer's failure then to recall the striker to his old job was held to have constituted proscribed discrimination. The present case is also a fortiori to Union Bus Terminal of Dallas, Inc., 98 NLRB 458, where, in the absence of an agreement by the employer to return eco- nomic strikers to their jobs, the Board ordered the full reinstatement of a striker who 19 Coley's offer of employment to Easley was not made until after Ritchie had pointed out to Bartlett that Respondent's discrimination against union members was especially noticeable in the failure to reemploy union officers and committeemen and after the filing of the original charge Furthermore , the evidence as to Coley 's special efforts to seek out Easley for employment and the nature of his conversation with her shortly before the hearing strongly suggests that Easley was a favorite of Coley's and that he had selected her for employment for that reason 20 That the finding of a discriminatory intent must be inferred from the other evidence does not of course detract from its force , since direct evidence of an intention to violate the Act is rarely obtainable . N L It. B. v. Piedmont Wagon f Mfg Co., 176 F. 2d 695 ( C. A 4) ; Hartsell Mills Co. v. N. L R. B, 111 F. 2d 291 (C. A. 4). BARTLETT-COLLINS COMPANY 407 had been permanently replaced during the strike where the replacement had been dis- charged prior to the striker's application to return to work. Here the Respondent's agreement precludes any question whether the strikers' rights had been permanently extinguished by recognizing and affirming that they continued to exist, thereby giv- ing the strikers preferential status in future hirings. Thus, Respondent had waived whatever rights it had to consider the strikers only as new employees; indeed, its promise, and its resultant obligation, to take back the strikers did not differ in sub- stantial effect from the obligation an employer owes to recall employees who are in a layoff status. Cf. Wilson d Co., supra. Furthermore, the evidence disclosed a wholly natural and logical explanation why Respondent should have preferred to reemploy the strikers: they constituted a pool of old experienced employees, whose qualifications were obviously superior to those of untried outsiders. Bartlett expressly recognized that fact in stating his willingness to take back the strikers because, "those are the people that know this job." The record contains other similar acknowledgments by Bartlett and Coley that the strikers were valuable employees by reason of their training and experience, and that such qualifications would normally entitle them to preference, "all things being equal." Aside from the foregoing, Respondent neither imposed nor suggested conditions at the strike settlement conference save the occurrence of job openings for which the strikers were qualified (though it was obviously understood that the strikers were to apply individually to demonstrate their availability for employment). There was no suggestion, for example, either then or in the individual interviews with Coley, that periodic renewal of applications was required, or that Coley would consider the applications for only a brief temporary period. Indeed, Coley's repre- sentations to the strikers were directly to the contrary, i. e., that it was unnecessary for them to renew their applications because he had placed their names on a list from which he would call them as vacancies arose. Thus, the evidence in its entirety establishes that the strikers' applications were understood to be continuing ones. The foregoing circumstances leave without warrant Coley's imposition of an addi- tional (and undisclosed) condition that the strikers' applications would be considered for only a short and indefinite period. And whether he imposed that condition with or without Respondent's authorization, or with or without its knowledge is immaterial, since Respondent had delegated to him full authority in all matters concerning the actual reemployment of the strikers. Furthermore, the evidence shows that Respondent deliberately chose not to reemploy the strikers involved in this proceeding after Bartlett's attention was twice called to its failure to do so. Under all the evidence, therefore, it is no defense that Coley's handling of the strikers' applications did not differ from the treatment he accorded to new applications, for Respondent's obligation to reemploy the strikers was unaffected by Coley's mentally reserved and undisclosed conditions as to the currency of the strikers' applications. Upon the basis of the preponderance of the evidence on the record as a whole, it is therefore concluded and found that by failing to employ the persons whose names are listed in Appendix A hereto, Respondent discriminated against them for the purpose of discouraging membership in the Union and thereby engaged in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 2. The reemployment of Harris In view of Harris' known strike participation, he was obviously included within Respondent's agreement to reemploy all the strikers as vacancies arose for them. There is no question here whether there was (or could have been) discrimination against him at the time of his application by reason of failure to reinstate him to his old (supervisory) position, since he had been permanently replaced in it. He was later offered and accepted a job of lesser rank and pay, which, so far as is shown by the record, was all that was available. Any claim of discrimination must, there- fore, rest on the subsequent refusal to promote him as better jobs opened up. There was no denial that such openings occurred, and Coley admitted that Harris was treated as a new employee, because he had returned after more than 90 days. Though Coley claimed that such action was pursuant to an old rule of the Company, the contract, significantly, does not include it. Furthermore, the evidence relating to strikers who were actually reemployed by Respondent shows that the rule was not adhered to, since a number of strikers were reemployed at their old jobs more than 90 days after the strike ended. Aside from the foregoing, Respondent's agree- ment at the end of the strike precludes the asserted defense. Thus, no condition was then asserted or implied that the strikers' rights were in any manner to be subject to, or to be influenced by, the fortuitous circumstance that particular vacancies, which they were to be reemployed to fill, might occur more or less than 90 days after the end of the strike. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD That Harris had formerly occupied a supervisory position, or that some of the positions which became available after his reemployment may also have been of supervisory rank, did not, of course, remove Harris from the protection of the Act: "At the time the discrimination took place, he was clearly a protected employee, and his prospects for promotion were among the conditions of his employment. The Act protected him so long as he held a nonsupervisory position, and it is immaterial that the protection thereby afforded was calculated to enable him to obtain a posi- tion in which he would no longer be protected." N. L. R. B. v. Bell Aircraft Cor- poration, 206 F. 2d 235 (C. A. 2). It is, therefore, concluded and found that Respondent discriminatorily failed and refused to promote Harris to superior positions as they arose, and thereby engaged in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connec- tion with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY It having been found that Respondent has engaged in certain unfair labor prac- tices, it will be recommended that it cease and desist therefrom, and that it take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent has discriminated against the persons whose names are listed in Appendix A hereof by, refusing to reemploy them subsequent to their respective individual applications, it will be recommended that Respondent offer to them immediate and full reinstatement to their former or substantially equiva- lent positions,21 dismissing, if necessary, employees who were hired subsequent to the respective applications of said former persons. Respondent shall also make whole the said persons, except Ruth Nelson and Alice Cowan 22 for any loss of pay they may have suffered by payment to each of them of a sum of money equal to that which he normally would have earned as wages between the dates each would have been employed 23 except for Respondent's discrimination against him, and the date of Respondent's offer of reinstatement as herein provided, less his net earnings during said period. It having been found that Respondent has discriminated against Vernon Harris by failing to promote him to superior positions as they arose subsequent to his re- employment on October 3, 1951, it will be recommended that Respondent make him whole for any loss of pay he may have suffered by payment of a sum of money equal to that which he would have earned as wages in the superior positions in which he would have been employed (see preceding footnote), except for Respondent's discrimination against him, less his net earnings with Respondent during the period down to January 31, 1952.24 The computations of loss of pay as recommended herein shall be made on a quarterly basis, in the manner provided in F. W. Woolworth Company, 90 NLRB 289. Upon the basis of the above findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 2. By failing and refusing since March 29, 1951, to reemploy the persons whose names are listed in Appendix A hereof, Respondent discriminated against said a Included here are the various positions which said persons held from time to time and all those for which they were qualified for employment r' Nelson and Cowan admittedly made no efforts whatevei to seek other employment after the termination of the strike. za As the record does not furnish an adequate basis for determining the dates or the order in which said persons would have been reemployed, those matters will need be considered at the compliance stage of this proceeding Cf. Carolvna Mills, Inc., 92 NLRB 1141, 1146, Deein2 Products Compwnuj, 93 NLRB 549, 555. u No basis has been laid herein for a recommendation of reinstatement Thus, there is no claim of a constructive discharge (Harris testified that lie quit voluntarily), nor is there evidence of a subsequent application for reinstatement. CONTINENTAL CAN COMPANY, INC. 409 persons thereby discouraging membership in the Union and thereby engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 3. By discriminatorily failing and refusing to promote Vernon Harris to superior positions subsequent to his employment on October 3, 1951, Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Appendix A Initial Application Name 1951 Wiley Asher___________ March 31 Paul A. Bailey_________ March 29 William Banks, Jr------ March 29 Marie Berg______:_____ March 29 Beryle Broyles__________ June 30 Alice Cowan--------- October 26 Irene Dunbar____________ April 3 Shelton Dickey__________ April 4 Walter Fleming________ March 30 Nora Gann______________ April 2 Iva Hamm_____________ April 11 Agnes H2mmond Holland-March 29 Wilma Hoover________ August 18 Initial Application Name 1951 Ila Mae Johnson--------- April 6 Nola C. Jones ----------- April 4 Ruth Nelson ------------ April 6 Edith Berryhill Pickering__ May 1 George Pickering-------- April 2 Virgie Philyaw___________ April 9 Mary Lou Riley---------- April 5 Leona Sawyer__________ March 29 Dempsey Shelton______ March 30 Toney Sloan____________ April 2 Tom Toliver___________ March 30 Lola Wilson___________ March 29 CONTINENTAL CAN COMPANY, INC., PLANT No. 40 and INTERNATIONAL ASSOCIATION OF MACI-IINISTS, LOCAL No. 31, A. F. L., PETITIONER. CONTINENTAL CAN COMPANY, INC., PLANT No. 40 and AMALGAMATED LITHOGRAPHERS OF AMERICA, LOCAL No. 38, C. I. 0., PETITIONER. Cases Nos. 17-RC-1851 and 17-RC-1863. October 19, 1954 Decision and Direction of Elections Upon separate petitions duly filed under Section 9 (c) of the Na- tional Labor Relations Act, a consolidated hearing was held before Margaret L. Fassig, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in these cases, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. International Association of Machinists, Local Lodge No. 31, A. F. L., herein called the TAM; Amalgamated Lithographers of America, Local No. 38, C. I. 0., herein called the Amalgamated; United Steelworkers of America, CIO, herein called the Steelwork- ers; and International Union, United Automobile Workers of Amer- ica, AFL, herein called UAW-AFL, are labor organizations claiming to represent certain employees of the Employer. 110 NLRB No. 56.