Gala-Mo Arts, Inc.

Gala-Mo Arts, Inc. and Local 157 of Federation of Glass, Ceramic and Silica Sand Workers of America, CIO. Case No. 1If-CA- 1096. July 1, 1955 DECISION AND ORDER On June 15, 1954, Trial Examiner Sydney S. Asher, Jr., issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent has not violated the Act in certain other respects and recommended dismissal of the com- plaint insofar as it contains allegations concerning such violations. 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 made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner to the extent consistent with our decision herein. 1. The Board unanimously agrees with the Trial Examiner that the Respondent, as set forth more fully in the Intermediate Report, inter- fered with, restrained, and coerced its employees by denying William E. Helms, the union president, the right to speak on behalf of the other casters ; ordering him to get his check and get out for that reason; threatening employees with reprisal because they had gone on strike or because of their union activities; and interrogating employee Dee Uthoff concerning his union activities in the context of such threats. Chairman Farmer and Member Rodgers, however, do not agree with the Trial Examiner that Respondent's remarks to employees William Causey, Kelly M. Nelson, and Arthur Pope to the effect that they were to leave the plant by 1 o'clock if they were going to join the strike is conduct violative of Section 8 (a) (1) of the Act. Contrary to the Trial Examiner, Chairman Farmer and Member Rodgers do not be- lieve that these remarks, fairly interpreted, constitute a discharge or a threat of discharge because of the employees' membership in or sympathy for the Union. Rather, they are of the opinion that the 113 NLRB No. 2. 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent sought no more than to exercise its right to operate its business in an orderly manner by being assured whether these em- ployees would be at work at 1 o'clock, October 1, 1953, or would join the strike that had already begun. The issue here is not, as our dissenting colleague states, whether a respondent may force an employee to choose between remaining a union adherent and continuing at work. The law on that issue is not in dispute. The sole issue here is the significance of the several state- ments made by the Respondent to the three employees in question; and the reasonable interpretation to be placed upon such statements, made as they were during a crucial period in the operations of the Re- spondent's business. Viewed in this context, the Respondent was speaking with the possibility that additional union adherents would momentarily join the strike then in progress. Once the Respondent knew whether employees Causey, Nelson, and Pope would also join the strike, it would be in a better position to judge the extent of the strike and what replacements would be required to carry on its nec- essary business operations. Under such circumstances, it can scarcely be expected that, in an effort to resolve such a pressing problem, an employer must use pre- cisely exact language to establish that his intent is to carry on his business in an orderly fashion rather than to engage in retaliation against union adherents. In view of the importance to an employer of his well-established right to replace economic strikers in the interest of the orderly operation of his business, Chairman Farmer and Mem- ber Rodgers do not believe that an employer's choice of language in the context present in this case should be so narrowly constructed as to deprive the employer of the means to effectuate that right. For reason stated in a separate opinion, Member Murdock dissents from this conclusion. 2. Chairman Farmer and Member Murdock agree with the Trial Examiner that Dee Uthoff was discharged in violation of Section 8 (a) (3) and (1) of the Act. For reasons stated in his separate opin- ion Member Rodgers dissents from this conclusion. The facts with regard to Uthoff's discharge are as follows : Uthoff, a farmer, was hired by the Respondent as a full-time employee in its shipping department on August 22, 1954. At that time Uthoff had to assure the Respondent, as a condition of employment, that he would not take time off in the future to harvest his crops. Indeed, only a week later and 1 week before he was peremptorily discharged by the Respondent on the ground that the Respondent was "caught up on his work," Uthoff was denied leave for 2 days to shuck corn. The respondent told Uthoff that he would be needed to take over the job of another shipping employee, Castleberry, who was scheduled to return to school. Thus, the record is clear that there was not the GALA-MO ARTS, INC. 3 slightest hint in the week immediately preceding Uthoff's discharge that the Respondent was contemplating such a discharge. The evi- dence, rather is to the effect that the Respondent fully intended to retain Uthoff through the period when Uthoff's crops would require harvesting. On September 2, however, Uthoff signed an application card for membership in the Union. The card visibly protruded from his shirt pocket. Foreman Tindall, observing the card, asked Uthoff if anyone had spoken to him about the Union and when Uthoff an- swered in the affirmative, Tindall said, "Well, if you want to work here you better leave this -union alone." Two days later Uthoff was discharged. Queried on September 7 by Helms, the Union's presi- dent, as to why the Respondent had let Uthoff go, Foreman Tindall replied, "Well, they run out of work." Helms then asked, "Was it the work that you was out of or was it that card you seen in his pocket?" According to Helms' uncontradicted testimony, Tindall "kind of laughed." Our dissenting colleague would apparently find that the Respond- ent's evidence of economic justification for the discharge of Uthoff is so clear on this record that it is a complete defense to the over- whelming evidence, set forth above, as to the Respondent's actual motivation in discharging Uthoff only 2 weeks after he was hired with the clear understanding that he would have to devote his full time to the job and that the job would extend through the harvesting of his crops. A decrease in the amount of work in the shipping depart- ment after September 2 is, of course, a factor to be considered in determining whether Respondent's stated reason for Uthoff's dis- charge was the true one. But it is a factor that must be considered in the context of all the evidence. It does not stand alone as an absolute answer to the charge that the Respondent seized the opportunity of slack work to rid itself of a union adherent. At the time Uthoff was hired there were four employees in the shipping department. During the next 2 weeks 2 more were hired, 1, Moore, a former em- ployee had previously worked for the Respondent. It was the testi- mony of the Respondent's president that the Respondent had a policy of laying off employees on the basis of departmental seniority. The fact that Moore had worked for the Respondent on a temporary basis for 1 or 2 weeks in 1952 is entirely irrelevant unless Moore had pre- viously worked in the shipping department. The Respondent intro- duced no evidence that Moore had ever been employed in that depart- ment. W. Golladay testified only that Respondent gave Moore a job in 1952 "for a week or ten days' time" when Moore, on leave, was home temporarily and needed employment for a short period of time. It is well settled that economic justification is a matter of affirmative defense. The General Counsel having proved a prima facie case of conduct violative of Section 8 (a) (3) of the Act, the burden of 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proof was on the Respondent to establish that Uthoff had less seniority than Moore. The dissenting opinion also relies upon the testimony of two witnesses for the Respondent to the effect that Uthoff quit his employment on September 5 by saying, "If you are that kind of people I don't want to work for you anyway." Uthoff, whose testi- mony is otherwise credited by the Trial Examiner , denied on the record that he had made such a statement. The conflict was not resolved by the Trial Examiner. We do not believe it should now be resolved in favor of witnesses who are many times discredited by the Trial Examiner. In any event, we are satisfied that the evidence produced by the Respondent as to its economic justification for selecting Uthoff for discharge is not sufficient to overcome the preponderance of evi- dence that he was, in fact, discharged because of his union activity in violation of Section 8 (a) (3) and ( 1) of the Act. 3. The Trial Examiner found that on October 1, 1953, 10 employees went on strike and 3 employees were discharged in violation of Section 8 (a) (3) of the Act. Of the 10 striking employees, the Trial Examiner found that 6 were unfair labor practice strikers and 4 were economic strikers. The Board is unanimously a ;reed that these 10 employees are all economic rather than unfair labor practice strikers. The facts with regard to the October 1 strike are briefly as follows : On the morning of that day the employees in the casting department through their spokesman , Helms, presented a grievance to the Re- spondent concerning their foreman 's distribution of molds. At that time C. E. Golladay, president of the Respondent, told Helms that he had no right to speak for the employees and ordered him to get his check and get out. Immediately thereafter, however, when the other casters indicated they would "walk out," if Helms were dis- charged, Golladay stayed the effect of his order by stating: "Well I will let you know in a few minutes. " Several conferences were then held by the Respondent in its office. Both Helms and James Adcock, vice president of the Union, participated on behalf of the employees. According to the testimony credited by the Trial Examiner, the only issues discussed during these conferences were the distribution of the molds and the Union's demand that Norvil Tindall and Clarence Mandrell, two of Respondent's foremen, be discharged. Helms took the position that the employees would strike unless their demands were met. The Respondent refused to discharge the foremen on the ground that management had the right to select its own foremen. In reply Helms stated: "Well, then, I am going out and talk to the men and we are walking out." On this note the conferences ended. The Trial Examiner found that, despite Golladay's earlier statement to Helms, the latter was never, in fact, discharged and was still an employee at the time the strike began. The record, in our opinion, supports this conclusion of the Trial Examiner. The extended discussions with GALA-MO ARTS, INC. 5 the Respondent in which Helms was the spokesman for the Union apparently had nothing to do with Golladay's personal remark to Helms earlier in the morning. The real dispute between the Repond- ent and its employees related to working conditions in the casting department and the retention of two foremen. Indeed, Helms testi- fied that at the conclusion of the second conference he had a discus- sion with Robert Dempster, attorney for the Respondent, in which Dempster insisted that Helms was quitting and Helms insisted he was being discharged. It would seem fairly clear in these circumstances that the Respondent was not taking such affirmative action as to defin- itively end Helms' status as yin employee. The Trial Examiner credits Helms' testimony that lie thereupon informed some of the casters, who had witnessed Golladay's unfair labor practice, that he had been dis- charged, without mentioning to them his threat of a strike because of their grievances. On these facts the Board is of the opinion that the motivating cause of the October 1 strike was the one announced by ITelms, the author- ized spokesman for the organized employees, namely, the Respond- cut's refusal to remedy the grievances presented to it that morning. We cannot subscribe to the Trial Exainmer's view that the initial un- fair labor practice of Golladay "set the chain of events in motion" which resulted in this strike. The record is clear that there would have been no strike but for I-lehns' insistence that the two foremen be discharged. The Trial Examiner's conclusion that at least six em- ployees struck totally unaware of what had occurred at the confer- ences and believing only that Helms had, in fact, been discharged seems to us dubious in the extreme. Accepting the Trial Examiner's finding that Helms, for an unexplained reason, deliberately failed to inform these employees of the nature and progress of his discussions with the Respondent, Helms was not the only employee who knew of the threat to strike made to the Respondent during the conferences. James Adcock had been present at the first conference and was in- formed correctly by Helms as to the progress of the second. Caster Walter Learue testified credibly that lie had refused to strike because the objective of the strike was to force the Respondent to discharge the two supervisors. Ife also testified that he realized lie could lawfully be replaced under such circunnstaunces. In view of these facts, we find it difficult to believe that the Re- spondent's small number of employees, totally no more than 40 or 45, and particularly those ni the casting department, of which there were only 7, remained incurious and completely unaware of what had actually transpired at the conferences with the Respondent, involving, as those conferences did, the settlement of grievances in which the casters were vitally concerned. In any event, we are satisfied that Helms, as president of the Union, had been authorized by the em- 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees to speak on their behalf and that his statement of the reason for the strike must be attributed to those who had authorized him to speak for them. Accordingly, we find that the Respondent did not vio- late the Act by refusing to reinstate any of these 10 striking employees on the ground that they had been permanently replaced on October 2, 1953. 4. The Trial Examiner found that employees Causey, Pope, and Nelson had been discharged in violation of Section 8 (a) (3) of the Act. As indicated above, the basis of his finding as to these employees relates to statements by the Respondent shortly before the strike to the effect that these employees had to make up their minds whether or not they were going on strike, and if they were going to strike to be out of the plant by 1 o'clock. The employees then left the plant. For reasons stated above in connection with the alleged violation of Sec- tion 8 (a) (1) of the Act, Chairman Farmer and Member Rodgers do not find that such remarks establish a violation within the meaning of Section 8 (a) (3) of the Act. Member Murdock dissents in his sepa- rate opinion below. ORDER Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Gala-Mo Arts, Inc., Sikeston, Missouri, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Local 157 of Federation of Glass, Ceramic and Silica Sand Workers of America, CIO, or any other labor organization, by discharging any of its employees, or discriminating in regard to their hire, tenure of employment, or any term or condition of employment. (b) Threatening reprisals against its employees because of their membership in or assistance to the Union named above, or any other labor organization, or because they voiced a common grievance on behalf of their fellow employees. (c) Notifying its employees that it will not enter into a collective- bargaining agreement with the Union named above, or any other labor organization. (d) Interrogating its employees regarding their union activities, affiliations, or sympathies in a manner violative of Section 8 (a) (1) of the Act. (e) Informing its employees that they would not be reinstated be- cause they had engaged in a strike. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. GALA-MO ARTS, INC. 7 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Dee Uthoff immediate and full reinstatement to his former or substantially equivalent position , without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay he may have suffered by reason of the Respondent's discrimination against him , in the manner described in the Intermediate Report under "Recommendations." (b) Upon request make available to the National Labor Relations Board or its agents, for examination and copying, all payroll records, social-security payment records, timecards , personnel records and reports, and all other records necessary to analyze and compute the amount of back pay due under the terms of this Order. (c) Post at its plant at Sikeston , Missouri, copies of the notice at- tached hereto marked "Appendix." 1 Copies of the said notice, to be furnished by the Regional Director for the Fourteenth Region, shall, after being duly signed by the Respondent's representative, be posted by it immediately upon receipt thereof , and maintained by it for sixty (60) consecutive days thereafter in conspicuous places , including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the complaint insofar as it otherwise alleges that the Respondent violated the Act be, and it hereby is, dismissed. MEMBER MrnlDOCV, dissenting in part : I cannot agree with that portion of the majority's decision which dismisses the alleged violations of Section 8 (a) (3) and (1) of the Act with regard to employees Causey, Nelson, and Pope. The record is clear that these employees were ordered out of the plant by the Respondent if they were union adherents an hour before picketing in connection with the strike began. The majority, how- ever, takes the position that it was not the Respondent's intention to discriminate against union adherents by this conduct. The Respond- ent's purpose, the majority finds, was only to gain information as to the future actions of Causey, Nelson, and Pope so that the Respondent "would be in a better position to judge the extent of the strike and what replacements would be required to carry on its necessary business 1 In the event that this Oider is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 379288-56-vol 113 2 S DECISIONS OF NATIONAL LABOR RELATIONS BOARD operations." This intention, which has been attributed to the Re- spondent by the majority, is contrary to the explicit testimony of the Respondent's president, C. E. Golladay, which appears in the record. Golladay testified in connection with his order to Arthur Pope as follows : Q. Why d id you tell him [Pope] to go by 1 o'clock? A. [C. E. Golladay] 1 o'clock was work time and there was a lot of tension around there about then. Those people that weren't happy about it, it would have caused a riot. I imagine. Q. You imagine it would have caused a riot ? A. I think so. Q. I f Mr. Pope had stayed? A. Any one of them who didn't have their minds made up as to what to do, would. [Emphasis supplied.] I can read the above testimony only as meaning that it was the intention of the Respondent to remove from its premises any employee who could not make up his mind whether to strike or work on the ground that the presence of such employees durnig a strike would have caused a "riot." To ignore this testimony, as the majority does, and to hold, on the contrary, that the Respondent had the innocuous inten- tion of merely seeking information for the purpose of determining its strike replacements creates for the Respondent a motive com- pletely different from its admitted one. Of course, I agree that a respondent 's "choice of language" must be considered in the context of a particular case and that its statements are subject to "reasonable interpretation ." When the plain language of those statements is considered, it is evident how unreasonable is the interpretation placed thereon by the majority. The testimony of William Causey, which is specifically credited by the Trial Ex- aminer, shows that the following conversation occurred between Causey and William Golladay, son of the Respondent's president, during the noon hour of October 1, 1953: Q. What did he [W. Golladay] say? A. [Causey] He said if I was Union to get out. Q. Was that the first thing he said? A. Yes, sir. Q. What else did lie say? A. That's all. Q. What did you say? A. I went and got out. What "reasonable interpretation" could Causey have drawn from Golladay's language? Should he have reasoned to himself that his Employer only wanted to know whether he would be working or strik- GALA-MO ARTS, INC. 9 ing at 1 o'clock? Should he have said to himself, "My employer doesn't really mean that I have to leave the plant if I belong to the Union. I can stay here and still retain my union adherence. My employer just wants to know if I'm going to be available for work because if I'm not he will have to hire a replacement." Is this the "reasonable interpretation" that a reasonable employee would have placed upon his employer's order to "get out" of the plant if he were "Union"? Or would he reasonably believe, as Causey did, that he was being ordered out of the plant unless he gave up his union adherence? The majority contends that I have too "narrowly constructed" the above language used by the Respondent. Under the majority's more liberal construction the Respondent's order to Causey to "get out" presumably means "you can stay." If the language of respondents before this Board is to be so liberally construed then black may be interpreted to mean white, night, day, and a discharge, retention in employment. From the majority's argument that the Respondent chose unfor- tunate language to express an intention which the majority says the Respondent had, i. e., information as to whether Causey, Nelson, and Pope would be working or striking at 1 o'clock, it would seem to fol- low that the majority is of the view that these employees were never, in fact, laid off or discharged. That they have been out of work because they obeyed their Employer's order to get out of the plant or give up their union allegiance is a result, apparently, for which they have themselves to blame. According to the majority, the Respondent did not intend to cause a cessation of their employment, even though that was the immediate and o7zdy effect of the Respondent's orders to these three employees. Clearly, I think a Respondent must be held responsible for the natural and foreseeable consequences of its conduct.' What is more natural and foreseeable than that an employee, who desires to retain his union adherence, will leave his job when lie is ordered to get out of the plant if he is "Union"? Section 8 (a) (3) of the Act forbids an employer to discriminate against an employee "to encourage or discourage union membership." Evidence of an employer's motive is unnecessary where the discrimination has the inherent effect of such encouragement or discouragement.' Section 10 (c) of the Act, how- ever, permits an employer to discriminate against an employee for "cause." Whether the Respondent's statements are to be construed "narrowly" or liberally, certainly they constitute something more than the mere expression of an argument, view, or opinion. Regardless of its intention, the Respondent was not engaging in idle conversation. ON. L. R. B. v. Radio Officers' Union of the Commercial Telegrapheis Union, AFL, 347 U S 17 3 [bid 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It was ordering Causey, Nelson, and Pope out of the plant if they were "Union." These employees, then, were the objects of the Respond- ent's specific acts of discrimination. Either the Respondent's dis- crimination against these employees was in violation of Section 8 (a) (3) or it was for "cause." I know of no case, unless it be this one, where an order to a union employee to get out of the plant if he is for the union is a discharge for "cause," the "cause" being the right of the respondent "to carry on his business in an orderly fashion." If this is "cause" within the meaning of Section 10 (c) of the Act, then Congress must have intended to exempt from the proscriptions of Section 8 (a) (3) any discrimination based upon an employee's union membership shortly before a strike. I cannot read into this section of the Act so astonishing an exception. If an employer can force an employee to choose between his job and his union before a strike begins, does it not follow that all union members who remain at work during a strike can similarly be discharged for "cause"? In- deed, the majority would appear to be taking this very position. For the majority finds that at the time these employees were ordered out of the plant the strike was "then in progress."' If the strike was in progress and these employees were working the respondent was in an excellent position to determine for itself "the extent of the strike." But the Respondent, the majority finds, is entitled to more than that- The Respondent is entitled to a specific commitment from every em- ployee that he willl not strike or join an existing strike. The Respond- ent has the right, according to the majority, to secure such a com- mitment by ordering employees out of the plant if they are Union. I do not believe that an employer's right to replace economic strikers in order to carry on its business carries with it the additional right to discharge union members before they have even indicated that they will not be available for work during the existence of a strike or before it actually occurs. Certainly, employees who have continued to work. as the majority finds, after the inception of a strike have not by such conduct indicated that they are unwilling to continue to perform their duties even though they might be unwilling to forswear allegiance to the union, which was required by the Respondent in this case. As to employees Causey and Nelson, who were bluntly ordered out of the plant if they were union adherents, the effect of the majority's decision is to deprive employees of their right to remain at work and continue to be union adherents, a result which, in my opinion, is squarely contrary to the express terms of Section 8 (a) (3) and (1) of the Act. As to employee Pope, the effect of the majority's deci- 3 The record indicates that the casters, with one exception , left the plant between 11 a. in and noon Lunch period at the Respondent 's plant is from noon to 1 p in. At 1 p in a picket line formed outside the plant. Six casters and seven other employees did not report for work that afternoon . On these facts I am of the opinion that the strike actually began at 1 p in. GALA-MO ARTS, INC. 11 sion is to permit an employer to discharge a union adherent, who refuses to give up his union allegiance and side with the employer, because the employer "imagines" that the presence of employees at the plant who had not yet decided whether or not to join the strike would cause a "riot." I believe the Respondent's remarks to all three employees and its conduct in discharging them are equally violative of Section 8 (a) (3) and (1) of the Act, with only a shade of distinction between the remarks made to Causey and Nelson and those addressed to Pope. Certainly, it was clear to all of these employees that they had to give up any sympathy for the Union or concerted activity on its behalf if they were to remain in the Respondent's employ. This they refused to do, and for that they were discharged. Section 13 of the Act provides : "Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike...." [Emphasis supplied.] This language, it seems to me, together with the provisions of Section 8 (a) (1) and (3) of the Act guarantees an employee the right to strike, the right to make up his own mind whether or not 7ze will strike, and the right to decide when he will strike without any interference or pressure by his employer, unless otherwise specifically provided for in the statute. If an em- ployer, as the majority finds, can force an employee to make an im- mediate decision as to the exercise of his right to strike, is not that an interference with the right to strike specifically prohibited by Sec- tion 13 of the Act? Is not an order to an employee to get out of the plant unless he agrees immediately not to strike an act of discrimina- tion discouraging his union membership also clearly prohibited by Congress in Section 8 (a) (3) ? I can answer these questions only in the affirmative. In my opinion, the majority's decision in this case as to these three employees is an infringement upon rights specifically granted them by Congress in this Act. For these reasons I dissent. MEMBER RODGERS, dissenting in part : I would not adopt the Trial Examiner's finding that Dee Uthoff was unlawfully discharged on September 4, 1953, and not recalled there- after because of his union adherence. The Trial Examiner arrives at the above-mentioned result by mak- ing the following subsidiary findings (1) that the Respondent had no economic justification for any layoff in the shipping department on September 4, 1953, (2) that the Respondent disregarded its general policy of adhering to seniority in layoff situations, in that it elected to lay off Dee Uthoff rather than Moore, and (3) that the Respondent inexplicably failed to recall Dee Uthoff when two job openings sub- sequently developed in the shipping department. 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD These subsidiary findings of the Trial Examiner are, in my opinion, unsupported by the record : (1) The Trial Examiner finds an absence of economic justification for the layoff of two employees from the shipping department on Sep- tember 4, because during the next 2 weeks this department spent a total of 21 and 181/2 hours , respectively , in overtime work. But these facts which the majority concedes to be "a factor to be considered in deter- mining whether Respondent's stated reason for Dee Uthoff's discharge was a true one" serve, in my opinion, only to confirm the validity of the Respondent's position in this case, for the small amount of over- time work involved, amounting to little more than 1 day's work a week for 2 employees, can scarcely be viewed as requiring the full-time services of 2 additional employees for the entire 2-week period relied upon by the Trial Examiner. This Board certainly has no authority to require that an employer retain unneeded workers to establish the purity of his motives. (2) In finding that Dee JTthof had greater seniority than Moore, the Trial Examiner appears to rely solely on the fact that Moore was hired about a week later than Dee Uthotf in August 1953 The Trial Examiner gives no consideration whatsoever to the fact that Moore had been previously employed at the Respondent's plant, prior to his entering the military service. For the Trial Examiner to conclude that the Company disregarded its general policy of adherence to seniority, he would have to find that Moore was not previously em- ployed in the shipping department, otherwise Dee Uthoff would have less seniority. However the Trial Examiner has made no such find- ing and, indeed, the record is too inconclusive to support such a find- ing. This being so, the Trial Examiner's conclusion that the Gen- eral Counsel has sustained the burden of proving that the Respondent disregarded its general policy of adhering to seniority in layoff sit- uations is unconvincing, to say the least. (3) The Trial Examiner's final finding, that the Respondent offered no explanation for its failure to recall Dee Uthoff when vacancies later developed in the shipping department, cannot serve as a basis for his ultimate conclusion. For the finding cannot be said to be based upon a clear preponderance of all the evidence in the record inasmuch as the Trial Examiner has failed to consider the testimony of two of Respondent's witnesses to the effect that on September 5, Dee Uthoff visited the plant in the company of Murphy, and inquired of the Respondent as to the reason for the layoffs. When advised by the Respondent that insufficient work was the reason, Dee Uthoff re- torted: "I thought I was working for some pretty nice people. If you are that kind of people I don't want to work for you anyway." The foregoing, since it has not been discredited by either the Trial GALA-MO ARTS, INC. 13 Examiner or the majority, well serves nn my opinion to "explain" why the Respondent did not thereafter recall Dee Uthoff. On the basis of the foregoing , and the entire record, I believe that the General Counsel has failed to prove by a preponderance of the evidence that Dee Cthof was discriminated against on or after Sep- tember I, 1953 . Accordingly, I wwwoulct disiuiss the complaint as to him. ^ITJIAE P PETl rsoN mid l.rrnn >u took no part ni the consideration of the above Decision and Order. APPENDIX \(rrlcI. TO ALL E JILOYEF.s Pursuant to a Decision and Order of the National Labor Relations Board, and m order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: Wn: WILL NO'r discourage membership in Local 157 of Federa- tion of Glass, Ceramic and Silica Sand Workers of America, CIO, or any other labor organization, by discharging any of our employees or in any other manner discriminating in regard to their hire, tenure of employment, or any terns or condition of employment. WE WILL NOT threaten reprisal against our employees because of their membership m or assist nice to the above-named Union, or any other labor organization, or because they voice a common gn•ieN Dance on behalf of their fellow employees. Wr wniia, Nor notify our employees that we will not enter into a collective-bargaining agreement with the above-named Union, or any other labor organization. AVE WILL NOT interrogate our employees regarding their union activities, affiliation, or sympathies in a manner violative of Sec- tion 8 (a) (1) of the Act. WE WILL NOT inform our employees that they would not be reinstated because they had engaged in a strike. Wr W ILL Nor in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations A1ct. WE, WILL oiler to Dee Uthoff immediate and full reinstatement to his former or substantially equivalent position, IN ithont preju- dice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered by him as a result of the discrimination against him. All our employees are free to become, remain, or refrain from becom- ing members of the above-named Union or any other labor organiza- 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion, except to the extent that this right may be affected by agreements in conformity With Section 8 (a) (3) of the National Labor Relations Act, as amended. GALA-MO ARTS, INC., Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPOR r STATEMENT OF THE CASE This proceeding involves allegations that Gala-Mo Arts, Inc., Sikeston, Missouri, herein called the Respondent, interfered with, restrained, and coerced its employees in certain specified respects from about August 1 to about November 1, 1953, and discharged employee Dee Uthoff on or about September 4, 1953, and 13 other em- ployees on or about October 1, 1953,1 and has since failed or refused to reinstate them, because they joined or assisted Local 157 of Federation of Glass, Ceramic and Silica Sand Workers of America, CIO, the Charging Party, herein called the Union, and because they engaged in concerted activities with other employees for the pur- poses of collective bargaining and other mutual aid and protection. It is alleged that such conduct violated Section 8 (a) (1) and (3) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. After the issuance of a complaint and an amended complaint by the General Counsel 2 and the filing of an answer by the Respondent, a hearing was held before me at Sikeston, Missouri, on January 18, 19, and 20, 1954. All parties were represented and participated fully in the hearing. At the close of the hearing, the Respondent moved to dismiss the entire complaint. Ruling on this motion was reserved. It is now disposed of in accordance with the findings and conclusions set forth below. The Respondent and the General Counsel filed briefs, which have been duly considered.3 Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Missouri corporation engaged in the manufacture and sale of ceramic products, with its principal office and place of business at Sikeston, Missouri. During 1953, the Respondent shipped finished products valued at in excess of $50,000 from its Sikeston plant to points outside the State of Missouri. It is accordingly found that the Respondent was, at all material times, engaged in commerce within the mean- ing of the Act. It. THE LABOR ORGANIZATION INVOLVED Local 157 of Federation of Glass, Ceramic and Silica Sand Workers of America, CIO, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Events prior to Uthof}'s separation On February 5, 1953, the Union's parent organization was certified by the Board as the collective-bargaining representative of the Respondent's production and main- 1 These 13 employees are : Ivadell Adcock, James Adcock, William Causey, William E. Helms, William Kelley, Bobby Joe Klingel, Elmer Lilly, Roy Livingston, Marion Loveless, Katie Mills, Golita Montgomery, Kelly M. Nelson, and Arthur Pope. 2 The designation General Counsel includes the General Counsel of the National Labor Relations Board and his representatives at the hearing 8 The Respondent's brief characterizes as "inexcusable" the General Counsel's conduct during his cross-examination of Reverend Madron Gershon Joyce, a witness for the Respondent. I find nothing improper in the conduct of the General Counsel while cross- examining this witness. GALA-MO ARTS, INC. 15 tenance employees? During the months of February and Marche the parties held several negotiation meetings but did not succeed in reaching agreement upon a con- tract. On March 28 the Respondent's employees struck. This strike lasted approxi- mately 2 weeks. At its end, all strikers were reinstated. The parties met again a number of times in an attempt to arrive at a contract, but the attempt proved fruitless. B. The separation of Dee Uthoff 1. Facts For a number of years, Dee Uthoff has rented and operated a 160-acre farm outside Sikeston. He had a substantial crop failure in 1953 due to the drought and needed work. Early in August, Uthoff applied for work to C. E. Golladay, president of the Respondent. Golladay said that he was not hiring anyone at that time, but suggested that Uthoff come back a week later. Accordingly, Uthoff returned to the Respond- ent's plant during the following week. He told Golladay that he farmed. Golladay asked if it would be necessary for him to stop work to harvest his crops. Uthoff replied that it would not. Golladay pointed out that he did not want to hire em- ployees who would have to take time off from work and Uthoff assured him that he would not have to do so.6 On August 22, Uthoff was hired to work in the Respond- ent's shipping department under Foreman Leo McCormick. At the time, there were three other full-time nonsupervisory employees in the shipping department: James Learue, Kelly M. Nelson, and Donald Castleberry. During the next 2 weeks, 2 other full-time employees were added to the department. One of these (Murphy) was a newly hired employee and the other (Robert Moore) was a former employee of another department. Thus, so far as departmental seniority was concerned, Uthoff ranked third from the bottom. During the week beginning August 31, Uthoff asked Golladay if he could have 2 days off to shuck corn. Golladay refused, explaining that he wanted Uthoff to take over the job of Castleberry, who was going to start school.? Uthoff therefore remained at work that week, obtaining outside help to shuck the corn. Beginning the first week in September, Castleberry worked part time instead of full time. On September 2, Uthoff signed an application for membership in the Union's par- ent organization. He placed the application card in his shirt pocket in such a way that the letters "C.I.O." could easily be seen. On the same day, Norvill Anderson (Rube) Tindall, foreman of the Respondent's casting department, asked Uthoff if anybody had spoken to him about the Union. Uthoff replied that someone had ap- proached him a few days before. Pointing to the application card in Uthoff's pocket, Tindall then said: "Well, if you want to work here you better leave this union alone." 8 At the end of the working day on September 4, on orders from Golladay, McCor- mick handed Uthoff two paychecks and informed him that Golladay would not have any further need for him, because he was "caught up on his work." Murphy was also laid off at the same time. On the following day, Uthoff and Murphy went to see Golladay at the plant. Uthoff asked Golladay why he had been laid off. Golladay re- plied that he was caught up on his work and was through with Uthoff. Uthoff stated that, since he had received two paychecks, he considered that he had been discharged. He inquired why he had not been given previous notice. Golladay answered that he was not in the habit of doing that. Uthoff and Murphy then left .9 On September 7, William E. Helms, president of the Union, asked Tindall why Uthoff had been laid off. Tindall replied: "Well, they run out of work." Helms ' Case No. 14-RC-2043 (not reported in printed volumes of Board Decisions and Orders). 5 All dates refer to the year 1953. 8 The findings of fact with regard to this conversation are based primarily upon the credited testimony of Uthoff. 7 The findings of fact with respect to this conversation are based primarily upon the credited testimony of Uthoff, substantially corroborated by that of Golladay. 8 The findings of fact with regard to this conversation are based upon Uthoff's credited testimony. Tindall denied generally questioning any employee concerning his union activi- ties and membership, and specifically denied telling Uthoff that if he wanted to work in the plant he had better leave the Union alone. I do not believe his denial. 8 The findings of fact with respect to this conversation are based primarily upon the credited testimony of Uthoff, substantially corroborated by that of C. E. Golladay and William Golladay, who also was present. Murphy did not testify. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then asked: "Was it the work that you was out of or was it that card you seen in his pocket?" According to Helms, Tindall "kind of laughed " 10 Moore left the shipping department on or before September 12. On September 14 a new employee, Bobby Joe Klingel, was hired in that department. John McLain became a shipping department employee between September 26 and October 1, either as a newly hired employee or as a transfer from another department.11 And Reva McLain was hired in the shipping department on October 1. However, the Re- spondent has never recalled Uthoff. 2. Contentions and conclusions regarding Uthoff's separation The General Counsel contends that the Respondent discharged Uthoff because it learned that he had joined the Union. The Respondent denies that it discharged Uthoff. It maintains that he was employed merely as a temporary employee, and that he was laid off rather than discharged. The Respondent apparently bases its contention that Uthoff was a temporary em- ployee partly upon the fact that he was operating a farm, a full-time occupation. It argues from this that Uthoff was not in a position to accept a permanent full-time job even if one had been offered him. But the Respondent does not explain the positive testimony of Uthoff on cross-examination that he intended to work permanently for the Respondent. In addition, it appears from Uthoff's testimony, which I credit, that at the time he was hired Golladay made it clear that he was seeking permanent help. Furthermore, Golladay admitted that he did not tell Uthoff that his employ- ment was temporary. Even when Uthoff on September 5 asked Golladay for an explanation for his layoff, Golladay did not contend that Uthoff had been a temporary employee. I accordingly conclude that Uthoff was hired as a permanent rather than a temporary employee, and that the Respondent's defense that Uthoff was a tem- porary employee was an afterthought. It will be recalled that Uthoff was told that he was laid off because the shipping department was caught up on its work Yet the shipping department employees worked a total of 45 hours overtime during the week ending September 5 (the week of Uthoff's separation), 21 houis overtime during the week ending September 12, ar,,d 181/4 hours overtime during the week ending September 19. Moreover, the Respond- ent pays its employees time and a half for overtime work Under the circumstances, I conclude that on September 4 there was no economic justification for laying off two employees in the shipping department and that Golladay was not candid with Uthoff when he said the department was caught up on its work. In short, I find that lack of work was a pretext used to get rid of Uthoff, whose union adherence was known through Foreman Tindall.12 Even assuming that there was economic justification for the layoff of two shipping department employees, the choice of Uthoff for layoff was discriminatory. Golladay testified that the Respondent followed departmental seniority in laying off and in recalling laid-off employees. Although both Murphy and Moore were junior to Uthoff with regard to seniority in the shipping department, Uthoff and Murphy were chosen for layoff, while Moore was retained No explanation for this failure to follow the Respondent's general practice was attempted Nor did the Respondent explain why it failed to recall Uthoff when Klingel was hired and McLain brought in. In view of Tindall's warning to Uthoff regarding his union adherence only 2 days before his discharge, the lack of economic justification for the layoff of two employees in the shipping department at the time, the choice of Uthoff for termination while retaining Moore who was his junior in departmental seniority, the failure of the Re- spondent to recall Uthoff when Klingel and the McLains were added to the depart- ment, the other violations of the Act hereinafter found to have been committed by the Respondent, and the Respondent's invalid defense that Uthoff was a temporary 10The findings of fact with iegaid to this conversation are based upon the uncontia- dicted testimony of helms. Although Tindall testified, he did not deny Helms' testimony in this respect 11 McLain's name does not appear on the shipping department payroll for the weeks ending September 5, 12, 19, or 26. Yet Kelly Al Nelson, a shipping department employee, testified without contradiction that McLain was working in the shipping department on October 1 13 In my opinion, although the unexplained simultaneous separation of Murphy (whose union membership or lack of membeiship the record fails to reveal) weakens this con- clusion somewhat, it does not destroy its validity. GALA-MO ARTS, INC. 17 employee, it is found that the Respondent discharged Uthoff on September 4 and thereafter failed to recall him because of his known union adherence . This con- duct was violative of Section 8 (a) (3) of the Act. It also interfered with, coerced, and restrained the Respondent 's employees in violation of Section 8 (a) (1) of the Act. C. The strike of October 1 and subsequent events On October 1, the Respondent had approximately 40 or 45 nonsupervisory employees , of whom 7 worked in the casting department under Foreman Tindall. These casters were paid on a piece -rate basis, according to the type of mold they were using . Tindall was responsible for distributing the molds among the casters. Employee William E. Helms, a caster and president of the Union , had been requested by the other casters to speak to Tindall about equalizing the molds. At about 9 or 9.30 a. in . on October 1, in the casting department , Helms told Tindall that the casters had requested him to talk to Tindall about the way he divided the molds among them .13 Tindall went to the Respondent 's office and returned to the casting department accompanied by C. E. Golladay and William Golladay, the Respondent's secretary . The casters stopped work and gathered around. C. E. Golladay asked Helms what the trouble was. Helms replied that the men had asked him to talk to Tindall about equalizing the distribution of the molds , as they did not think the work was being fairly distributed . Golladay replied : "Why don't you let them talk for themselves! You got no right to talk for them." Golladay then said to Helms: "Come to the office and get your check and get out of here." At this point Roy Livingston, one of the casters, protested that the casters had asked Helms to talk for them and stated that if Helms was discharged they would all "walk out." Golladay asked each caster if that was the way he felt. Each answered affirmatively. Golladay then said : "Well, I will let you know in a few minutes." 14 Golladay returned to his office and, by telephone , requested Robert A. Dempster , the Respond- ent's attorney, and Reverend Madron Gershon Joyce, pastor of a Sikeston church, to come to the Respondent 's plant, the latter as a neutral observer. They did so. At about 10 a. in., Helms and Caster James Adcock , vice president of the Union, were summoned to the Respondent's office. Present there were C. E. Golladay, William Golladay, Dempster, and Reverend Joyce. Dempster asked Helms to explain the nature of the complaint. Helms replied that Tindall was not distributing the molds equally and was not intelligent enough to be foreman, and the casters wei e not going to work unless Tindall was discharged . Helms also complained that Clarence Henry (Sonny ) Mandrell, then foreman of the dipping department, was too young to be a foreman , and would also have to be discharged .15 Dempster asked Golladay if Tindall was a satisfactory foreman and Golladay replied that he was. Helms and Adcock were then asked to leave the room, and both returned to work. Tindall was brought in and the complaint against him discussed.ls After Tindall left the room , William Golladay again summoned Helms to the office. Helms asked if Adcock could accompany him, but Golladay replied: "No . It won't '3 Helms and Tindall gave conflicting versions of this conversation . However, it is unnecessary to decide which version is the more accurate , as both testified that the con- versation started with helms complaining to Tindall about the distribution of the molds and ended by Tindall going to the office. It The findings of fact with respect to this occurrence are based upon a synthesis of the testimony of Helms and casters James Adcock , William Kelley, and Roy Livingston. C E Golladay, Tindall, and Caster Walter Herman Leannie testified that, during the course of this gathering, Helms threatened that the men would walk out unless Golladay dis- charged Tindall and Claience Henry (Sonny ) Mandrell , then foreman of the dipping department . However, C E. Golladay admitted telling Helms that he had better get his check William Golladay did not testify about this occurrence I do not credit the version of Golladay, Tindall , and Learue. There was a conflict as to whether or not Tindall used piolanity toward Helms or Helms threatened bodily halm to Tindall . I find it unnecessary to resolve this conflict 16 Mandrell was then 1S years of age. On the previous day, Helms had received a com- plaint about Mandrell's conduct from an employee under Dlandrell 's supervision The merit or lack of merit in this complaint is not in issue. 'A Tindall was called in at Dempster's suggestion Dempster testified that he did not suggest calling in Mandrell , because he considered the complaint against Mandrell friv- olous C. E. Golladay at first testified that Mandrell was also called in, but later changed his testimony in this respect. 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD take a minute." 17 Accordingly, Helms returned to the office alone; 18 and found the same people there. Dempster stated that he found no merit to the complaint against Tindall, and believed management had the right to select its own foremen. C. E. Golladay added that Tindall and Mandrell had given satisfactory service and he could see no reason to remove them. Helms replied: "Well, then, I am going out and talk to the men and we are walking out." Helms asked William Golladay: "Shall we go ahead and finish our molds?" and William Golladay replied: "I wish you would." The meeting then disbanded.19 Later that morning, Helms asked William Golladay if there was some way that the matter could be settled. William Golladay replied: "No, you heard what Mr. Dempster told you. Get on out." 20 Helms reported to Adcock that Golladay had stated that he did not intend to discharge Tindall and Mandrell because the Union wanted them discharged, and asked Helms if he had finished his work. Helms fur- ther related to Adcock that Dempster had told him: "Go back and get [your work] finished and get out." 21 Adcock told Caster Walter Herman Learue that the casters intended to walk out at noon because the Respondent was going to retain Tindall and Mandrell as foremen. Learue replied that he would not join a walkout aimed at enforcing such a demand.22 Between 10 and 11 a. m., Helms told the other casters that Dempster had ordered him to clean up his molds and get out. Living- ston remarked that they had agreed to walk out if Helms was discharged and they would stick to that decision. Accordingly, all the casters except Learue cleaned up their molds and left the plant between 11 a. m. and noon.23 Lunch period at the Respondent's plant is from noon to 1 p. m. At about 1 p. m., a picket line formed outside the plant. The pickets bore signs reading: "This com- pany unfair to organized labor," "Gala-Mo pottery workers on strike," and "Fellow workers, don't cross picket line, please." Six casters and 7 other employees (2 finishers, 2 shipping department employees, a sponger, a ware carrier, and a slip maker) did not report for work that afternoon. During that afternoon, the Re- spondent replaced all the casters and some, but not all, of the other employees who had failed to return to work at 1 p. M.24 17 The findings of fact with respect to this conversation are based upon the uncontra- dicted testimony of Helms. Although William Golladay testified, he did not mention this conversation >e There is a conflict in the testimony as to whether or not Adcock accompanied Helms on his second visit to the office. In view of Helms' undenied testimony that he asked William Golladay if Adcock could come to the office with him, and was told that it could not be done, I find that Adcock did not accompany Helms to the office the second time. 17 The findings of fact with respect to these meetings in the Respondent's office are based primarily upon Dempster's credited testimony, substantially corroborated by that of C. E Golladay and Reverend Joyce, and in part by that of William Golladay. Helms, on the other hand, testified that he told Dempster that he did not want the two foremen discharged, but merely desired correction of their methods, and that Dempster replied that Helms should finish his work and get out He denied that he had threatened to call a strike unless the two foremen were discharged. Helms' version, although corroborated in part by that of Adcock, is not credited In this connection, the report that Helms made to Adcock after the meeting, described below, corresponds more closely to Dempster's version than to Helms'. 2U The findings of fact with regard to this conversation are based upon Helms' uncon- tradicted testimony. Although William Golladay was a witness, he did not contradict Helms' testimony in this respect. 21 The findings of fact with respect to this conversation between Helms and Adcock are based upon Aclcock's uncontradicted testimony. 22 The findings of fact with regard to this conversation are based upon the uncontra- dicted testimony of Learue. Although Adcock testified, he did not deny Learue' s testi- mony in this respect. Learue also testified that he had a substantially similar conversa- tion with Helms at about the same time, but Helms denied this. I deem it unnecessary to resolve this conflict. 23 The findings of fact with respect to Helm's report to the other casters and their decision to walk out are based upon the uncontradicted testimony of Casters William T. Kelley and Roy Livingston. 24 The new casters hired that afternoon were Paul Dowdy, Lloyd Freeman, John Horner, Bryan Layne, Jesse Phillips, and James Washburn. In addition, James Learue, an em- ployee of the shipping department, and Albert Maynard , a kiln fireman, were transferred to the casting department that afternoon. On the other hand, there is no evidence that either the slip maker or the ware carrier was replaced. GALA-MO ARTS, INC. 19 Between 6:30 and 7 a. in. on the following morning, October 2, Helms and Ad- cock returned to the plant. Helms informed William Golladay that all the striking employees had requested him "to ask [Golladay] for their jobs back." Golladay re- plied that they had all been replaced. He further remarked that the replacements were not union members, and added • "You and Adcock won't be in there to organize them." 25 On October 5 or 6, all of the strikers except Helms appeared at the plant in person and sought for reinstatement. They were informed by C. E. Golladay that their jobs had been filled. On November 1 a new sign, reading "Striking for contract," appeared on the picket line. On November 10 and 11, representatives of the pal ties met and nego- tiated for the return of the strikers and for a contract. These negotiations proved fruitless. There was still a picket line in front of the Respondent's plant at the time of the hearing, and none of the strikers had been returned to work. D. Interference, restraint, and coercion 1. Contentions of the parties The complaint alleges that, from about August 1 to November 1, the Respondent interfered with, restrained, and coerced its employees in the following respects. (a) Threatening its employees that they would not be reinstated if they engaged in a strike; (b) stating to its employees that they would not be reinstated because they had engaged in a strike; (c) threatening to discharge its employees because of their union activities and sympathies; (d) interrogating its employees concerning their union activities and membership, (e) stating to its employees that it would never sign a contract with the Union, (f) warning its employees to refrain from support- ing or joining the Union if they desired to continue to work for the Respondent, (g) stating to the president of the Union that he had no right to speak for the employees; and (h) instructing employees supporting the Union or its president to leave the plant. The Respondent's answer denies these allegations.26 The complaint further al- leges that the conduct described above was engaged in by the following representa- tives of the Respondent: C. E Golladay, William Golladay, Norvill Anderson Tin- dall, and Clarence Henry Mandrell. The conduct alleged to have been engaged in by each of these individuals will now be discussed seriatim. 2. C. E. Golladay C. E. Golladay was, at all material times, president of the Respondent and a super- visor within the meaning of the Act. As previously described, at about 9 or 9 30 a. in. on October 1, he accompanied Tindall to the casting department where Helms complained to him that Tindall was not distributing the molds fairly. Golladay asked Helms why he did not let the men talk for themselves, asserting that Helms had no right to speak for them, and finished by ordering Helms to get his check and get out. It is clear that Helms had a right to speak on behalf of his fellow-employees, and that this right was protected by Section 7 of the Act. Golladay's attempt to deny Helms his right therefore constituted an interference forbidden by Section 8 (a) (1) of the Act, regardless of the merit or lack of merit in Helms' complaint about Tindall. And it is no defense that Golladay later, after conferring with his attorney, did discuss the grievance with Helms and Adcock. Between noon and 1 p. in. on the same day, Arthur Pope, a slip maker, was eating lunch in the plant with Kelly M. Nelson, an employee of the packing department. Neither of them knew that there was going to be a strike. C. E. Golladay approached w The findings of fact regarding this conversation are based upon a synthesis of the testimony of Helms and Adcock William Golladay testified that Helms stated. "Bill, that damn bunch let me down If you will let me go back to work I will tear up these cards, forget all about our trouble ," and that Golladay replied that Helms ' job had been filled. He denied saying. "You and Adcock won't be in there to organize them." His version is not credited 2a C E. Golladay testified without contradiction that, immediately after the end of the March strike, he cautioned the Respondent 's foremen that the union activities of the em- ployees was a "hands-off proposition" and that the foremen should not express themselves on the subject. This is no defense. It is well settled that an employer is not relieved of responsibility for the conduct of its supervisors contrary to its neutrality instructions, wheie the instructions were not communicated to the nonsupervisory employees . Wades- boro Pull-Fashioned Hosiery Mills, Incorporated, 72 NLRB 1064 , 1072-3. 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them and told Pope that he liked Pope's work but that Pope had to make a decision one way or the other by I p. m., whether to join the employees who had decided to go out on strike. He also told Nelson: "You are either for me or against me, and if you are against me be out by 1 o'clock " 27 It would seem that the right to join in concerted activities is not subject to a time limitation such as that Golladay sought to impose upon Pope and Nelson. It is accordingly found that, by forcing them to make a decision before a particular hour, Golladay illegally interfered with their rights protected by Section 7 of the Act, and thus violated Section 8 (a) (1) of the Act. During the following week, Ivadell Adcock and Roy Livingston, two of the strikers, went to the plant. Livingston inquired of C. E. Golladay if they could go back to work. Golladay replied "No, you'll never work for me again " Ivadell Adcock asked if that applied to her and Golladay answered that it did. When Ivadell Adcock asked why, Golladay responded "You walked out on us twice." 28 As these employees had a statutorily protected right to strike against the Respondent, Golladay interfered with that right by indicating that he would discriminate against them for striking, and therefore violated Section 8 (a) (1) of the Act. 3. William Golladay William Golladay was, at all material times, secretary of the Respondent. He was a supervisor within the meaning of the Act. Between noon and 1 p m. on October 1, William Golladay told employee Nelson- "If you belong to the Union get out right now." 29 At about the same time, William Golladay told Wiliam Causey, a ware carrier: "If you belong to the Union get out of here." 30 These orders to Nelson and Causey to leave the plant were clearly retalia- tion against them because of their membership in the Union. As such, they were violative of Section 8 (a) (1) of the Act. As has already been related, on the morning of October 2, Adcock on behalf of all the strikers offered to return to work Golladay informed him that they had all been replaced Remarking that the replacements were not union members, Golladay added. "You and Adcock won't be in there to organize them." I do not consider this remark coercive. 4. Norvill Anderson Tindall Norvill Anderson (Rube) Tindall was, at all material times, foreman of the Re- spondent's casting department. The parties stipulated that he was a supervisor within the meaning of the Act On August 1, after working hours, Tindall stated to employee Arthur Pope that Helms and Adcock or any other union members were "just kidding themselves" if they thought they were going to get a contract because they never would.31 This remark indicated that the Respondent had determined never to sign any contract with the Union. It underscored the futility of concerted activities, and was therefore violative of the Act.32 As set forth above, on September 2, Tindall asked Uthoff if anybody had spoken to him regarding the Union. Such interrogation, especially when coupled with other conduct violative of the Act, is proscribed by Section 8 (a) (1) of the Act.33 In the 27 The findings of fact with regard to this conversation are based primaifly upon the credited testimony of Nelson and Pope, substantially corroborated by that of C E. Golladay. 2s The findings of fact with regaid to this conversation are based upon the mutually corroborative testimony of Ivadell Adcock and Livingston C. E. Golladay denied that he had told Ivadell Adcock and Livingston that they could never work for the Respondent again Neither William Golladay nor Barbara Galley testified about this conversation, although Adcock testified without contradiction that they were present. I do not credit C E Golladay's denial 29 The findings of fact with iegard to this conversation are based upon the credited testi- mony of Nelson, corroborated in part by that of William Golladay and Mandrell, who were present at the time. Harry Moore, who also overheard the conversation, did not testify. 30 The findings of fact with regard to this incident are based upon Causey's credited testi- mony. William Golladay denied making the statement attributed to him by Causey. I do not credit Golladay's denial in this respect. 31 The findings of fact with respect to this conversation are based upon the credited testimony of Pope Tindall denied making this statement to Pope. His denial Is not credited. 32 Augusta Bedding Company, 93 NLRB 211, 212. 33 Standard-Coosa-Thatcher Company, 85 NLRB 1358. GALA-MO ARTS, INC. 21 same convei sation, Tindall warned Uthofl: "If you want to work here, you better leave this union alone." Threats of this nature predicting economic reprisal for union activities have been condemned by the Board and the courts as coercive and prohibited by Section 8 (a) (l) of the Act On September 7, Helms discussed Uthoff's separation with Tindall. In the course of this conversation, Helms accused Tindall of telling employees "we don't even have a union." Tindall replied- "You don't," to which Helms retorted: "What did we win the election for7" Tindall answered: "You don't have a contract. I'll guaran- tee you won't get one." 34 Like Tindall's earlier remark to Pope, this indicated the futility of further union activities. It was therefore coercive and proscribed by the Act. On September 30, after working hours, Tindall told Pope that C. E. Golladay "is really mad" and that "something is going to pop." He added that Golladay was "getting tired" of Helms and Adcock trying to tell him what to do. He finished by stating. "You just watch me, I'll get something on Mr. Helms or Mr Adcock. They will go out of there talking to themselves If we get rid of them two we would have a pretty nice place to work." 35 It is found that this statement threatened reprisals against Helms and Adcock because of their concerted activities, and therefore vio- lated Section 8 (a) (1) of the Act.36 5. Clarence Henry Mandrell Clarence Henry (Sonny) Mandrell was, until December, foreman of the Re- spondent's dipping department. The parties stipulated that he was a supervisor within the meaning of the Act at all material times Mandrell was present on October 1 when William Golladay told employee Nelson. "If you belong to the Union get out right now." After Golladay left, Mandrell said to Nelson. "Kelly, we would like to have you, but that's up to you." 37 I find no violation of the Act in this remark. 6. Conclusions with regard to interference, restraint, and coercion It is found that, since about August 1, the Respondent has interfered with, re- strained, and coerced its employees by the following conduct. (a) C. E. Golla- day's statement to Helms on October 1 denying Helms' right to speak on be- half of the other casters, and his order to Helms to get his check and get out, (b) C. E. Golladay's direction to Pope on October 1 to leave the plant by 1 p. m. if he was going to join the strike; (c) C. E. Golladay's similar order to Nelson on the same day, (d) C. E. Golladay's statement to Ivadell Adcock and Roy Livingston during the week following October 1 that they would never work for the Respondent again because they had gone on strike twice, (e) William Golla- day's order to Nelson on October 1 to get out of the plant if he belonged to the Union; (f) William Golladay's similar order to Causey on the same day, (g) Tindall's statement to Pope on August 1 that the Respondent would never sign a contract with the Union; (h) Tindall's similar remark to Helms on September 7; (i) Tindall's interrogation of Uthoff on September 2 regarding his union ac- tivities, and his threat of reprisal if Uthoff engaged in union activities, and (j) Tindall's remark to Pope on September 30 that he would "get something" on Helms and Adcock. It is further found that Mandrell did not engage in any conduct violative of Section 8 (a) (1) of the Act. 14 The findings of fact iegarding this conversation are based upon Helms' credited testi- mony Although Tindall did not specifically deny this testimony, he denied generally telling any employee that the Respondent would never sign a contract with the Union. His denial is not ci edited ° The findings of fact with regard to this conversation are based upon the credited testi- mony of Pope Tindall denied having made such a statement, but I do not credit his denial in this respect a°The General Counsel also intioduced evidence of a conversation between Tindall and Pope on (•tobei ' and aiiotiiei conversation between Tindall and Livingston 2 weeks before the October l strike In both instances, however, the General Counsel specifically disclaimed any contention that Tindall's conduct on these occasions was violative of Section 8 (a) (1) of the Act 97 The findings of fact with respect to this conversation are based upon the credited testi- mony of l\landrell Nelson testified that Mandrell asked him if lie was a member of the Union iandiell specifically denied having done so His denial is credited. 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. The discriminatory discharges 1. Contentions of the parties The General Counsel contends that Helms was discharged by C. E. Golladay on October 1 because he acted as spokesman for the other casters in voicing a com- mon grievance, that the other employees named in the complaint then struck be- cause of Helms' illegal discharge, and that the strikers unconditionally offered to return to work on October 2. He argues that since they were unfair labor practice strikers, they were entitled to reinstatement regardless of whether or not they had been replaced. The Respondent, conversely, denies that Helms was discharged by Golladay on October 1, and maintains that Helms and the other 12 employees named in the complaint voluntarily terminated their employment. The Respondent further contends that Helms, as spokesman for the others named in the complaint, demanded that the Respondent discharge Tindall and Mandrell, that the Respondent refused to do so, and that the employees then struck to en- force this demand. Finally, the Respondent maintains that all the strikers had been permanently replaced at the time they sought reinstatement. The General Counsel and the Respondent treat all the employees named in the complaint as a single group, and attempt to apply the same rules of law to all of them. However, I deem it necessary to divide them into several groups, and to consider each group separately. 2. The dischargees William Causey was a ware carrier; his duties were to carry lamps from the kiln to the lamp finishers. Shortly after noon on October 1 Causey was in the plant. He did not know that some of the employees had planned a strike for that afternoon. William Golladay approached Causey and told him: "If you belong to the Union, get out of here." Causey did not reply, but immediately left the plant. Arthur Pope was a slip maker. He was a member of the Union but had never attended any union meeting Kelly M. Nelson was employed in the shipping department. Shortly after noon on October 1, Nelson and Pope were eating lunch together in the plant. Neither of them knew that there was going to be a strike. C. E. Golladay approached them and told Pope that he had never had a better man, but Pope had to make a decision one way or another by 1 p m. whether to join the others who had gone out on strike. He also said to Nelson: "You are either for me or against me, and if you are against me be out by 1 o'clock." Shortly after this, William Golladay said to Nelson: "If you belong to the Union get out." Nelson and Pope then left the plant. The statements of C. E Golladay and William Golladay to Causey, Pope, and Nelson were, in effect, discharges of these employees because they sided with the strikers, and not with the Respondent. Accordingly, these three employees had not voluntarily quit their employment nor were they strikers 38 They were simply employees discharged because of their prounion sympathies. So far as they are concerned, the purpose of the strike is immaterial. Noi does it matter whether they unconditionally offered to return to work or whether they were permanently replaced. I am of the opinion and hold that they were discriminatorily dis- charged on October 1 in violation of Section 8 (a) (1) and (3) of the Act.39 3. The Union's leaders William E. Helms and James Adcock were casters employed by the respondent. They were, respectively, president and vice president of the Union and attended all negotiating meetings between the Union's parent organization and the Respondent 40 According to the Board, "The essence of a strike is the voluntary concerted withhold- ing of labor requested by an employer" Columbia Pictures Corporation, et at., 82 NLRB 568, 577, set aside 191 F. 2d 217 (C A 9). 3° Pope testified without contradiction that, before leaving the plant, he had requested Tindall to bung him his paycheck, that Tindall had agreed to do so, that on October 2 Pope saw Tindall and inquired if he had brought the check, and that Tindall replied : "We gave it to air Helms. He is representing you fellows." I deem this incident immaterial to the issues herein. 40 Early in August Helms had a dispute with C E Golladay concerning the piecework rate applicable to a particular mold. Although there was some testimony about this incident, I do not consider it material. GALA- MO ARTS, INC. 23 As has been previously related, on October I at about 9 a. m. C. E. Golladay told Helms that he had no right to talk for the other casters and directed him to get his check and get out. The General Counsel contends that this constituted a discharge of Helms for engaging in concerted activities . Had Golladay followed through with his direction to Helms to get his check and get out, there would undoubtedly be con- siderable merit in the General Counsel's contention . But almost immediately, being informed that Helms ' discharge would precipitate a strike by the other casters, Golla- day said • "Well, I will let you know in a few minutes." While this remark did not rescind Helms' discharge then and there , it did indicate that instead of enforcing the discharge immediately Golladay would hold it in abeyance and give it further con- sideration and announce his final decision later. Thereafter, Helms did not go to the office and get his check nor did he leave the plant. Furthermore, nothing was said to Helms in the meeting at 10 a. m. attended by Dempster which amounted to a dis- charge.41 I conclude that Helms had not been effectively discharged and was still an employee on October 1 when the strike began. As Golladay's direction to Helms to get his check and get out constituted an unfair labor practice, the question arises whether or not that unfair labor practice precipi- tated Helms' strike. In view of Helms' ultimatum that the casters would strike unless Tindall and Mandrell were discharged, it is concluded that Golladay's remark to Helms earlier that day was not the reason Helms walked out. I am convinced and find that Helms struck because of the refusal of the Respondent to accede to his de- mand that the two foremen be discharged, and that the Respondent understood the strike to have been called for that reason. Nothing in the signs carried by the pickets indicates the contrary. So far as Adcock is concerned, the same may be said. Adcock attended the first part of the 10 a. m. conference and was present when Helms issued his ultimatum that if Tindall and Mandrell were retained the casters would walk out. Moreover, when Helms returned from the second part of that conference, he told Adcock that Golladay had stated that he did not intend to let Tindall and Mandrell go merely because the Union wanted them discharged. In view of these circumstances, I find that Adcock, like Helms, struck not because of Golladay's direction to Helms to get his check and get out, but instead because of Golladay's later refusal to discharge the two foremen involved. Thus, they were not unfair labor practice strikers, but economic strikers subject to permanent replacement. The contention that they volun- tarily quit their jobs is without merit and is rejected.42 On October 2, Helms, on behalf of all strikers, unconditionally offered to return to work. At that time, however, the casters had all been permanently replaced.43 Accordingly, I find that the Respondent did not violate the Act by refusing to reinstate Helms and Adcock on October 2. 4. The unfair labor practice strikers William Kelley, Elmer Lilly, Roy Livingston, and Marion Loveless were casters. They were present on October 1 when Golladay told Helms: "Why don't you let them talk for themselves? You got no right to talk for them. Come to the office and get your check and get out of here." Between 10 and 11 a. m. that day, Helms reported to them that Dempster had ordered him to clean up his molds and get out. They then jointly agreed to strike in protest, and did so between I 1 a. m. and noon. In brief, these four casters witnessed Golladay's statement to Helms at about 9 a. m., which has been found to have been coercive. They were not thereafter advised by any representative of the Respondent that Golladay had changed his mind and decided to keep Helms. Furthermore, they did not know that Helms had threatened to call 41 William Golladay's remark to Helms between 10 a. in and noon • "You heard what Mr. Dempster told you. Get on out.", was not intended as a discharge of Helms in my opinion. Rather, I view it as an iteration of the Respondent 's refusal to accede to Helms' demand for the ouster of the two foremen, even if a strike resulted. 1 It is clear that none of the employees involved herein intended to relinquish his em- ployment Andrews Company, 87 NLRB 379, 393. 43 The General Counsel contends that the casters were not replaced by bona fide per- manent employees , and that no casting was performed between noon of October 1 and the unconditional offer to return to work before the workday began on October 2 Learue testified credibly, however, that these were 5, 6, or 7 employees in the casting department on the afternoon of October 1 who "took out what lamps were in the molds , cleaned the mold out , put them back together and set them up for the next morning"-normal work of casters . Nor does the record support the General Counsel 's contention that the replace- ments were temporary rather than permanent. 370288-56-vol 113-3 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a strike if the Respondent refused to discharge Tindall and Mandrell . It is true that the honest but mistaken belief of strikers that their employer had committed an un- fair labor practice does not turn an otherwise economic strike into an unfair labor practice strike 44 But that rule does not apply here . Here there actually had been an unfair labor practice committed-Golladay's remarks indicating that Helms was dis- charged because he acted as spokesman for the other casters. And this unfair labor practice was, so far as these casters were concerned , the motivating cause of their strike. It is immaterial that the Respondent honestly believe that these casters struck in order to enforce demands for the discharge of the two foremen 45 The controlling factor here is that the Respondent committed an unfair labor practice which caused the casters to strike , in good faith believing that it was neces- sary to do so in order to protest the unfair labor practice they had witnessed. Under the circumstances, it would not be equitable to place the loss upon the casters, solely because Adcock had made other demands unknown to them. As between these innocent employees and the Respondent whose unfair labor practice set the chain of events in motion, I am convinced that the burden should fall upon the Respondent. Accordingly, it is found that these four casters struck on October 1 because they heard Golladay tell Helms that he was discharged , and that their strike was therefore an unfair labor practice strike. It follows that when Helms made an unconditional offer to return to work on their behalf on October 2, they were entitled to reinstate- ment regardless of whether or not they had been replaced. The Respondent's failure to reinstate these casters on the morning of October 2 consequently violated Section 8 (a) (1) and (3) of the Act. Goleta Montgomery, chairman of the Union, was a sponger . Ivadell Adcock, vice chairman of the Union, was a finisher in the finishing department . Both had, at one time or another, represented the Union at bargaining negotiations with the Respondent . Between 10 a. m. and noon on October 1 , Montgomery advised Ivadell Adcock that the Union might call a strike because Helms had been dis- charged. Ivadell Adcock, in turn, told two other union members that there might be a strike at noon. Both women left the plant at noon and did not return at 1 p. M. As previously described, Ivadell Adcock and Roy Livingston later applied for reinstatement and were told by C. E. Golladay that they would never work for the Respondent again because they had gone on strike. Like the four casters discussed above, Ivadell Adcock and Montgomery learned of the Respondent's unfair labor practice and struck because of it. Also like the four casters mentioned above, neither Adcock nor Montgomery appear to have had any knowledge that Helms had threatened to call a strike if the two foremen were not discharged. And, like the four casters , the Respondent honestly but mistakenly believed that they had joined the strike to enforce Helms' demands. It is accord- ingly found that Montgomery and Ivadell Adcock were unfair labor practice strikers, and whether permanently replaced or not, were entitled to reinstatement on October 2 when they unconditionally applied for reinstatement through their agent, Helms. The Respondent's failure to reinstate them on October 2 constituted a violation of Section 8 (a) (1) and (3) of the Act. 5. The remaining strikers Bobby Joe Klingel worked in the shipping department . He was a member of the Union. Klingel did not testify . The record shows that he, like the employees discussed above, left the plant at noon on October 1 and failed to return at 1 p. in. when the lunch period ended. In the absence of evidence that he knew of Golladay's unfair labor practice, it must be assumed that Klingel struck for the reasons given by Helms to the Respondent, namely, to enforce the Union 's demand that Tindall and Mandrell be discharged. Accordingly, he was an economic striker, subject to being permanently replaced. Was Klingel replaced before Helms made the unconditional offer to return to work on behalf of all strikers on October 2? A new employee, Reva McLain, was hired "Max Sax, d/b/a Container Manufaetaieing Company v N L B B, 171 F 2d 769 ( C. A. 7) ; and East Texas Steel Castings Company, Inc , 108 NLRB 1078. 45 It has been held that an employer's lack of knowledge that his employees were on strike did not deprive the strikers of their rights under the Act, and that they were never- theless protected against discharge for sticking. Home Beneficial Life Inswrance, Company, Inc v. N. L R B ., 159 F. 2d 280, 286 ( C. A 4), reh. denied March 10, 1947, cert . denied 332 U. S. 758 , motion for clarification denied 172 F. 2d 62 ( C. A. 4). GALA-MO ARTS, INC. 25 as a permanent replacement in the shipping department on the afternoon of October 1. But as has already been described, Nelson, an employee of the shipping depart- ment, had been discriminatorily discharged between noon and 1 p. m. that day. From the record it is impossible to determine whether Reva McLain was a permanent replacement for Nelson or for Klingel. As the General Counsel has failed to sustain the burden of proving that on the morning of October 2, Klingel had not been permanently replaced, I find that the Respondent's failure to reinstate him on October 2 was not a violation of the Act. Katie Mills was a finisher in the finishing department. On October 1, between 10 a. in. and noon, Ivadell Adcock told Mills that there might be a strike at noon that day.46 Mills left the plant at the beginning of the lunch period at noon and did not return at 1 p. in. There is no evidence that Mills knew that the Respondent had committed an un- fair labor practice by Golladay's statement to Helms that he was discharged. In the absence of such evidence, it must be assumed that Mills, like Klingel, struck for the objectives announced by Helms to the Respondent, namely, to enforce the Union's demand that the Respondent discharge Tindall and Mandrell. Accord- ingly, she was an economic striker. I turn now to the question of whether or not Mills' job had been filled when she offered to return to work through her agent, Helms. On the afternoon of October 1, Elsie Lane, a dipper, was told that she would be "moved up . . . to a finisher" and a new employee, Wilma Alford, was hired as a dipper-presumably to take Lane's place in that job. On the morning of October 2, Lane actually commenced her new assignment as a finisher. In the meanwhile, early on October 2, an un- conditional offer of reinstatement had been made on behalf of the strikers, includ- ing two finishers, Ivadell Adcock and Mills. I find that Lane had already been transferred to finishing before the offer to return to work was made. However, it cannot be ascertained from the record whether Lane was a replacement for Ivadell. Adcock or for Mills. Under the circumstances, I conclude that the General Coun- sel has failed to prove that Mills had not been permanently replaced as a finisher on the morning of October 2.47 Accordingly, I find that the Respondent's failure to re- instate her on October 2 was not violative of the Act.48 Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Local 157 of Federation of Glass, Ceramic and Silica Sand Workers of Amer- ica, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Ivadell Adcock, William Causey, William Kelley, Elmer Lilly, Roy Livingston, Marion Loveless, Golita Montgomery, Kelly M. Nelson, Arthur Pope, and Dee Uthoff, thereby discouraging membership in the above-named labor organization, the Re- spondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8 (a) (3) of the Act. 3. By such conduct, and by other acts interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Re- spondent has engaged in and is engaging in unfair labor practices within the mean- mg of Section 8 (a) (1) of the Act. 4. The above-described unfair labor practices tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce and are unfair "The findings of fact regarding this conversation are based upon Adcock' s undenied testimony Mills did not testify. Adcock denied stating that the strike had been called because the Respondent refused to discharge the two foremen. She did not testify what reason she assigned for the strike. I find that she assigned none. 47 The General Counsel's contention that no finishing department vacancy had been filled on October 2 is without merit William Golladay testified: "I do not believe we put but one woman in the finishing depaitment on October 2nd," thus confirming that Lane had been transferred to finishing. Polish National Alliance of the United States of North America, 42 NLRB 1375, 1396, cited by the General Counsel, is not in point. There Ziol- kowski was an unfair labor practice striker, not an economic striker. 'e As it has not been found that the Respondent violated the Act by failing to reinstate any employee who struck to force the discharge of the two foremen, I deem it unnecessary to decide whether or not a strike for such an objective is protected. Compare Fontaine Converting Worts, Inc 77 NLRB 1386, and Joanna Cotton Mills v. N. L R. B , 176 F. 2d 749 (C A. 4) ; with N L. N B v. Phoenix Mutual Life Insurance Company, 167 F. 2d 983 (C A. 7), cert. denied 335 U S 845. 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent has not discriminated against James Adcock, William E. Helms, Bobby Joe Klingel, and Katie Mills. Upon the basis of the above findings of fact, and conclusions of law, and upon the entire record in the case, I make the following: RECOMMENDATIONS As has been found above, the Respondent interfered with, restrained, and coerced its employees by various type of conduct. In addition, it discouraged membership in the Union by discriminatorily discharging or refusing to reinstate 10 employees. Because of the underlying purpose and tendency of this unlawful conduct, I conclude that there exists danger that the Respondent will in the future commit other unfair labor practices. Accordingly, it will be recommended that the Respondent cease and desist from the unfair labor practices found and also from in any other manner infringing upon the rights guaranteed in Section 7 of the Act. Affirmatively, it will be recommended that the Respondent offer to the employees found to have been discriminatorily discharged or denied reinstatement immediate reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges. If there are not sufficient positions available in appropriate job classifications, the Respondent shall make room for the employees ordered reinstated by dismissing to the extent necessary employees oc- cupying such classifications who were hired after noon, October 1, 1953.49 If after such dismissals there are still not sufficient positions available, all existing positions in the appropriate job classifications shall be distributed among the employees ordered reinstated and other employees who were hired before noon, October 1, 1953, without discrimination against any of them because of his or her union affiliation or strike or concerted activities, following such system of seniority or other nondiscriminatory practices as would normally have been applied by the Respondent to determine job retention rights upon a reduction in force. All employees remaining after such dis- tribution, including those ordered reinstated, for whom no employment is immediately available, shall be placed upon a preferential list and offered reemployment as work becomes available in a suitable classification, and before other persons are hired for such work, in the order required by the Respondent's normal seniority system or other nondiscriminatory practices. It will also be recommended that the Respondent make whole the employees found to have been discriminatorily discharged or denied rein- statement for any loss of earnings they may have suffered because of the discrimina- tion against them, by paying to each of them a sum of money equal to the amount he or she normally would have earned from the date of the discrimination against him or her 50 to the date of the offer of reinstatement, less his or her net earnings during the said period. The back pay provided for herein shall be computed on a quarterly basis in the manner established by the Board; earnings in one particular quaiter shall have no effect on the back-pay liability for any other period. [Recommended Order omitted from publication.] 46 In the case of Uthoff, after September 4, 1953 5° Uthoff was discriminatorily discharged at the close of work on September 4, 1953. Causey, Nelson, and Pope were discriminatorily dischaiged before 1 p. in on October 1. ivadell Adcock, Kelley, Lilly, Livingston, Loveless, and Montgomery were discriminatorily denied reinstatement on October 2, before the star t of the workday. Barry Controls, Incorporated and United Steel Workers of America, CIO, Petitioner. Case No. 1-RC-3970. July 6, 1955 DECISION AND DIRECTION On April 25, 1955, pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted under the direction and supervision of the Regional Director for the First Region among employees of the Employer in the stipulated unit. 1.13 NLRB No. 5.