United Grinding Service, Inc.

UNITED GRINDING SERVICE, INC. Dawson, Thurmon Duran, John B. Encinias, Petro Estrada, Aurelio G. Falls, Bennie W. Garcia, Jose C. Garcia, Patrick Garcia, Raymond Garduno, Henry D. Gonzales, Jess Guterriz, Joe Guyton, Roy Hara, Frank Hastings, Carlisle H. Holmes, Charles Houston, L. C. Houston, Leo D. Houston, Willie T. Hurtado, Abram Iverson, Toby Jiron, Lee Lewis, Frank M. Lopez, Alphonso L. Lucero, Arsenio Marquez, Jose R. Martin, Joe Martinez, Alvin Martinez, Joe Martinez, Joe L. McMillon, George Milano, Samuel J. Morgan, Willie L. Mortensen, Orland E. Olson, Irving E. Padilla, Maurilio Petzholdt, George Pillar, Ulysses I. Poole, Jim Romero, Louis J. Romero, Rudolph Sanchez, Jose A. Simpson, Casey Trujillo, Joe C. Trujillo, Joe R. Trujillo, Max J. Trujillo, Mike Ulibarri, Willie Valdez, Joe M. Velasquez, John L Young, Lloyd R. Gross, Leroy D. 67 WE WILL reimburse the employees of Plants 1 and 2 for all initiation fees and dues paid to our union subsequent to June 9, 1955. WE WILL NOT restrain or coerce the employees of Broderick Wood Products Company in the right to engage in or refrain from engaging in any or all of the activities guaranteed them by Section 7 of the National Labor Relations Act, except to the extent that such right may be affected by an agreement re- quiring membership in a labor organization as a condition of employment, executed in conformity with Section 8 (a) (3) of the Act. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, LocAL No. 13, AFL-CIO, Labor Organization. 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. United Grinding Service, Inc. and Lodge 12 of District 37, Interna- tional Association of Machinists, AFL-CIO. Case No. 39-CA- 688. June 7,1957 DECISION AND ORDER On November 20, 1956, Trial Examiner Reeves R. Hilton issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, -as set forth in the copy of the In- termediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair 118 NLRB No. 13. 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor practices and recommended that the complaint be dismissed with respect thereto. Thereafter, the Respondent filed timely exceptions to the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three -member panel [Chairman Leedom and Members Murdock and Rodgers]. 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 Inter- mediate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. 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 the Respondent, United Grinding Service, Inc., Houston, Texas, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Lodge 12 of District 37, Inter- national Association of Machinists , AFL-CIO, or any other labor or- ganization of its employees , by discriminating in regard to their hire or tenure of employment or any term or condition of employment be- cause of their membership in, or activity on behalf of, any such labor organization. (b) In any other manner interfering with, restraining , or coercing its employees in the exercise of the right to self-organization , to form labor organizations, to join or assist Lodge 12 of District 37, Inter- national Association of Machinists , AFL-CIO , or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or .protection, or to refrain from any or all such activities except to the extent such right may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to L. F. Binford, V. I. Donaldson, Kenneth Doud, Charles A. Heinrich, J. S. Ivey, J. R. Jones, Ollie B. Kerr, Hayes Lee, John C. Ward, James L. Watson, and S. L. Wight immediate and full rein- statement to their former or substantially equivalent positions, with- out prejudice to their seniority or other rights and privileges. .(b) Make whole each of the above -named employees in the manner. set forth in the section of the Intermediate Report entitled "The UNITED GRINDING SERVICE, INC. 69 Remedy" for any loss of pay each may have suffered by reason of the Respondent's discrimination against him. (c) Preserve and, upon request, make available to the 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 the amount of back pay due and the right of reinstatement under the terms of this recommended order. (d) Post at its plant copies of the notice attached to the Intermedi- ate Report marked "Appendix A." 1 Copies of said notice, to be fur- nished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent 's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for a period of 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 with any other material. (e) Notify the Regional Director for the Sixteenth Region in writing, within ten (10 ) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges that the Respondent unlawfully interrogated its employees, that supervisory employees Magee and French threatened or warned the employees concerning their union activities or membership, and that the Respondent unlawfully changed its working rules or condi- tions of employment. I This notice is hereby amended by substituting the words "A Decision and Order" for the words The Recommendations of^a Trial Examiner." In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the Labor Management Re- lations Act of 1947, 61 Stat. 136 ( herein called the Act), was heard in Houston, Texas, on September 11, 12, 13, and 14, 1956, pursuant to due notice to all parties. The complaint, issued on August 17, 1956, by the General Counsel of the National Labor Relations Board, ' based upon charges, as amended, duly filed and served, alleges that United Grinding Service, Inc., herein called the Respondent or the Company, has engaged in certain unfair labor practices in violation of Section 8 (a) (3) and ( 1) of the Act. In its answer the Respondent denies that it is en- gaged in commerce and that it engaged in any unfair labor practices. All the parties were represented at the hearing and were afforded opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, I The General Counsel and the staff attorney appearing for him at the hearing are referred to as the General Counsel, and the National Labor Relations Board as the Board. 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to argue orally, and to file briefs. The parties waived oral argument and did not file briefs with the Trial Examiner. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT I. THE RESPONDENT'S BUSINESS The complaint alleges, and the answer admits, that the Respondent is a Texas corporation and maintains its office and plant at Houston, where it is engaged in the performance and furnishing of precision grinding on various metal and related products. The complaint further alleges that the Respondent furnished and per- formed services to various companies engaged in interstate commerce, which services for the 12-month period ending June 30, 1956, amounted to more than $100,000. In its answer the Respondent asserts it is without sufficient knowledge to admit or deny the foregoing allegations of the complaint. At the hearing the General Counsel, through Charles A. Gardes, accountant for the Respondent, established that during the above-mentioned period, the Respondent performed or furnished services in specified amounts to 36 companies, totaling in excess of $153,000. The General Counsel also produced officials or representatives of the companies listed below, which maintain a place of business in Houston and were customers of the Respondent during the period in question, each of whom testified concerning the interstate character of the particular company, which the Trial Examiner finds as follows: Name of Company Type of business Out-of-State sales Value of cerv- ices rendered by the Respondent Reed Roller Bit Co-------_---_ Oil well drilling equipment---------------- $15,000,000 $3,081.99 Bowen Co. of Texas, Inc--_---__ Manufacture, sale, and lease of oil field equipment. 500,000 15, 280.24 Wallace Company___ ------------ _ Industrial suppliers (pipes, valves, etc.)--- 500, 000 3, 527.29 Texas Alloy Products ,--__--____ Manufacture of metal components for re- fining and chemical Industries. 150,000 10,780.51 Phillip Carey Mfg. Company-__ Manufacture of asphalt products---------- 750,000 2,680.50 Emsco Mfg. Co---------------- Manufacture of oil field equipment----_--- 88,000 10, 220.15 Baker Oil Tools, Inc ------------ Manufacure of oil field specialties--_------- 1,000,000 4,419.03 Cameron Iron Works, Inc-__---- Manufacture of oil tool specialties--------- 5,000,000 6, 220.02 Oil Center Tool Co------------- Manufacture of oil field equipment-------- 2,000,000 2,444.40 Johnson Testers Incorporated (subsidiary of Schlumberger). Manufacture of tools and servicing oil wells- 100,000 6,773.14 Schlumberger Well Surveying Corp. ----do------------------------------------- 369.60 W KM Mfg. Co. Incorporated Manufacture of oil field equipment -------- 5,000,000 28,781.62 Carbide Mfg. Co., Inc-----_---- ---- do---------------------------------- 50,000 7,019.19 Total--------------------- 101,597.68 The foregoing evidence plainly meets the requirements established by the Board for asserting jurisdiction over an employer performing services for companies engaged in interstate commerce. (Jonesboro Grain Drying Cooperative, 110 NLRB 481; The Plastic Molding Company, Inc., 110 NLRB 2137.) The Trial Examiner therefore finds that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction. In addition to the evidence thus adduced, the General Counsel moved that the Trial Examiner take judicial notice of the fact that the Board has asserted jurisdiction over the companies listed below, all of whom were customers of the Respondent. The Trial Examiner, over objection of the Respondent, granted the motion. (Avco Manufacturing Corporation, Appliance and Electronics Division, 107 NLRB 295; Aabel Corporation, d/b/a Kleber Glass & Mirror Company, 111 NLRB 180; Maxwell Brothers, Inc., 111 NLRB 1118; Crosley & Bendix Home Appliances UNITED GRINDING SERVICE, INC. 71 Division, Avco Manufacturing Corporation, 115 NLRB 245, footnote 6.) The Trial Examiner, accordingly, takes judicial notice of the fact that the Board has asserted jurisdiction over these companies and finds that the Respondent, as stated by Gardes, rendered services during the time in question in the amounts appearing opposite their names: Name of Company Value of services rendered by the Respondent American Bridge Division (U. S. Steel Corp.) (Consolidated Western Steel Corporation), 108 NLRB 1041, 1059; United States Steel Company, 100 NLRB 1294________________ $7, 752.89 American Can Company, 114 NLRB 1547---------------------------------------------- 850.55 American Smelting and Refining Company, Tacoma Plant, 115 NLRB 55---- __-____- 460.75 Carbide and Carbon Chemical Corp. (National Carbon Company, a Division of Union Carbide and Carbon Corporation), 110 NLRB 2184__________________________________ 2,649.55 Dow Chemical Company, Texas Division, 113 NLRB 1247___________________________ 2,018.78 Humble Research Center (Humble Oil and Refining Company), 115 NLRB 1485__-___ 1, 242.96 Lummus Company, 114 NLRB 656---------------------------------------------------- 505.5 Monsanto Chemical Company, 115 NLRB 702; 108 NLRB 1110------------------------ 217.20 Olin Mathieson Chemical Corporation, Calabama Plant, 115 NLRB 1501______________ 622. 12 National Biscuit Company, 115 NLRB 1542------------------------------------------- 690.65 Rohm & Haas Company 108 NLRB 1285- __ 1,855.65 , -- A. O. Smith Corporation of Texas, 115 NLRB 5---------------------------------------- 3,369.44 Westinghouse Electric Co___ __________________________________________________________ 339.00 Total------------------------------------------------------------------------- 22, 615.04 The Trial Examiner finds and concludes that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Trial Examiner finds and concludes that Lodge 12 of District 37, Interna- tional Association of Machinists, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The employees' request for wage increases and other benefits; organizational activities The present controversy began on June 18, 1956, and, according to the testimony of employees S. L. Wight and J. R. Jones (as substantiated by other witnesses for the General Counsel) and C. W. Ballard, president of the Company, there is no dispute as to the occurrences on that date as well as those taking place the following day. Wight and Jones related that on the morning of June 18, they and 10 other employees decided to present certain demands to Ballard, so when he arrived at the plant the group met with him and asked for an increase in the hourly wage rate. When Ballard inquired as to the amount of the increase the group replied about $2.45 an hour. In addition, the men asked for paid holidays and an increase in vacation pay from 1 to 2 weeks . Ballard told them he could not grant the demand for paid holidays and increased vacations, but, in accord with the group , agreed to make a survey of wages in other shops and meet with them the next day. At that time Ballard said the Company paid an average hourly rate of $2.20, but the rate was not uniform for all employees because certain workers had been previously granted individual increases on the basis of ability and cooperation . In line with his agreement with the group , Ballard had his office check with similar companies in Houston and found that the average hourly rate for these plants amounted to about $2.27 an hour. On June 19, Ballard again met with the group and offered to raise the average rate of about $2.20 to $2.35 per hour .2 Ballard, however, refused their request that a uniform rate be established for the reason that such a system would destroy initiative and each man would be looking for the easiest job. Ballard, 'according to Wight, reiterated that he could not afford to grant paid holidays or extra vacations. Jones said the group had been expecting more than Ballard had 0 Jones and Wight said Ballard reported that the average rate for other shops was about $2.33 an hour. While not too important, the Trial Examiner believes this figure to be correct, rather than the $2.27 average stated by Ballard. 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD offered, so he suggested a trial period of a plan under which if the men could produce as much work in a 54-hour week as they had been producing by working unlimited overtime (some men were working a 100-hour week), they would be granted an additional 10 cents .an hour. Ballard said he was willing to accept the plan for a period of 30 days and if the Company showed a profit he would grant the 10-cent increase. Ballard further informed the group that if the workweek was cut to 54 hours he would have to put on a, second shift which proposal, according to Jones, was satisfactory to the men. Ballard then immediately advertised for workers in the local newspapers and started operating the second shift somewhere around June 22 or 23. Ballard further stated, and his testimony is not disputed, that at the meeting of June 19, he advised the workers of changes in the coffee break and the method of handling personal telephone calls. Prior to this date the employees were free to obtain coffee, furnished by the Company, anytime while they were working. This resulted in employees' gathering at the coffee urn at various times during the day, which practice did not impress customers in the opinion of Ballard. Accordingly, he told the employees that in the future there would be 2'coffee breaks of 10 minutes each, at 9:30 in the morning and 2:30 in the afternoon. In between breaks the men were still free to get coffee at any time but they were required to bring it back to their place of work and cautioned not to congregate at the urn. Ballard stated the men had been permitted to make and receive personal calls during working hours but this custom became a nuisance for the Company had only a two-line telephone, which was being used excessively by the employees. He therefore in- formed the men that they would be called from work only for emergency calls and that in the case of ordinary calls the Company would merely take the message and they could return the call during coffee breaks or at lunchtime. Jones testified that on June 18 or 19, his foreman, John Sperli, told him "we prob- ably would all get fired for asking for a raise." He further stated that he told the employees of Sperli's remark. Sperli did not testify at the hearing. On Friday, June 22, the 12 employees, pursuant to arrangements made by Wight, met with A. T. Adams, business representative for the Union, at his office after work hours, at which time each of the employees signed a card applying for membership in the Union and authorizing the Union to act as his collective-bargain- ing agent. The group informed Adams that the Company had about 15 employees as of that date. Adams, after explaining the usual procedure in such cases, advised the group that he would file a representation petition with the Board on Monday, June 25, which was agreeable to the group. At the meeting the group elected a committee consisting of Wight, Jones, and James L. Watson. Adams stated the petition was not filed on June 25, because on Saturday, June 23, Jones telephoned to report that the men had talked it over and believed there would be no one left in the shop if the petition was filed. Jones then asked Adams to see Ballard on June 25, and request recognition of the Union. Adams agreed to come to the plant on that date but after the conversation he found out he had other appoint- ments for that day, so he called Jones to tell him he could not be at the plant on June 25. As appears below Adams met with Ballard on June 26. Jones testified that on June 23, the men held a meeting during a work break and decided that since the Company was hiring many new men and there were rumors of their being fired, they "better get some representation" at the plant. Apparently Jones repeated Sperli's remark made to him on June 19. After the meeting Jones telephoned Adams and requested him to meet with Ballard on Monday, instead of filing the petition, since the men felt insecure and that they might be fired at anytime. While Adams agreed to meet Ballard on Monday, he was unable to do so because of other business, but he did come to the plant on June 26. B. The Union's request for recognition; events leading to the work stoppage of June 29 On Tuesday morning, June 26, Adams met with Ballard at the plant office and, after introducing himself, told Ballard that a majority of his employees had joined the Union and asked that it be recognized as their bargaining agent. Ballard told Adams he believed in unions but before giving any final answer he would have to check with his associates and would talk with Adams the next day. Ballard testified substantially the same as Adams concerning the meeting, except that Adams requested him to sign a recognition agreement (which Adams fixed as the next day) and added that this was the first time he had any knowledge that the UNITED GRINDING SERVICE, INC. 73 employees had joined the Union. Following this meeting he conferred with his associates and at their suggestion contacted Attorney Binion the same day . Binion advised Ballard not to sign the recognition agreement but to tell Adams to petition the Board for an election to determine the question of majority and "if we come under Interstate Commerce." On Wednesday , June 27, Adams and Ballard held a meeting at the plant in the course of which they discussed unions generally and Adams requested him to sign an agreement recognizing the Union and agreeing to engage in bargaining negotia- tions. Ballard replied that he had contacted Attorney Binion, who had advised him not to sign any papers, and before doing anything he wanted to check with his coun- sel. Ballard also asked for copies of contracts the Union had with other companies in the area and Adams agreed to furnish such copies the next morning. Ballard said that at the second meeting he asked Adams for a copy of a union contract with a similar company and that Adams furnished him with two sample contracts. On Thursday morning, June 28, Adams said he gave two sample contracts to Ballard which they discussed at length, Ballard being favorable to some provisions and opposing others. However, Ballard stated he would not go along with the uni- form wage scale provision for this eliminated initiative and that there should be a graduated scale. Adams pointed out they were merely sample contracts and as each shop had its own problems, no two agreements were the same. The meeting ended with Ballard stating he would go over the contracts with Binion and give him an answer the following day. While Ballard admitted Adams gave him two sample contracts, obviously at the third meeting,3 he made no mention whatever of any discussion concerning the terms of the contracts. About noon that day, Jones called Adams in regard to the meeting and when Adams advised him as to what had occurred, Jones expressed the opinion that Ballard was giving him "the run-around ." Later the same day, Jones again called Adams to report that the committee had met with Ballard and he believed he was going to recognize the Union. On Friday morning, June 29, Adams asked Ballard whether he would recognize the Union and Ballard replied that his attorney had advised him not to grant recog- nition because "they didn't believe they would meet the requirements of the Na- tional Labor Relations Board." Adams could not recall Ballard asking him to file a representation petition, but admitted he may have made such a request. Adams then asked permission to talk to the committee and Ballard said it was about time for the coffee break and he could meet with the entire group, which he did, after Ballard had made arrangements. Ballard stated that at this meeting he informed Adams that on advice of his counsel he was asking him to file a petition with the Board so the questions of ma- jority and jurisdiction could be determined. Adams answered that if Ballard did not sign the recognition agreement he would be in serious trouble because Adams knew that if he refused to sign, the men were going to walk out . Ballard told Adams he could give his decision to the men, which he did , after Ballard and the supervisory employees left the area. When Adams told the employees that Ballard had refused to recognize the Union the group wanted to picket the plant . Adams was opposed to any picketing and suggested that they meet at the parking lot adjacent to the plant . Adams then told the men to punch out and that he would see Ballard, who was standing outside the door. Adams informed Ballard the men were confused and needed additional time and he said to "take all the time you want," and offered to let the men meet in the shop . Adams answered the men would prefer to meet at the parking lot and Ballard said he would move so they would not be embarrassed when they.came out of the plant. The men thereupon punched out and met at the parking lot where they repeated their desire to picket but Adams asked them to wait until he had a chance to confer with officials at the union office. Adams left and returned in about 2 hours when he informed the group that they should return to work and the Union would file a representation petition , which was satisfactory to the men. Adams . 3 It seems unlikely that Adams carried copies of contracts with him so that he could have given then to Ballard at the time the request was made. The Trial Examiner therefore accepts Adams' testimony in regard to the circumstances under which the contracts were requested and supplied. 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then told Ballard of the decision and he said the men quit when they left the plant and he was making out their time. Adams reported back to the men and told them to see Ballard and state that they were ready to go back to work. Adams saw the men enter the plant and then come out, at which time the committee ad- vised him that Ballard said they had quit and their checks would be ready for them at 4:30 that afternoon. When the men reported to pick up their checks Adams again met with them and instructed them to report for work on Monday, July 2, and in the meantime he would notify Ballard that they would be available for work on that date. Wight and Jones testified that they, and other employees, reported for work early on the morning of June 29 (Wight at 6 o'clock and Jones at 7 o'clock). In sub- stance, they further testified that they saw Adams at the plant at about 8 o'clock and that after his meeting with Ballard he reported to the committee, at the coffee break, that Ballard had refused to recognize the Union. The committee thereupon decided to hold a meeting of the employees at the parking lot to decide what to do. Adams declared that he wanted to confer with union officials and then talk to Bal- lard, so he suggested that the employees punch out their time, pending his meeting with Ballard. The employees then punched out around 8:30 that morning.4 Adams returned about 2 hours later and, after meeting with Ballard, advised the men to re- turn to work, which they agreed to do. The group then went to Ballard and told him they wanted to go back to work, but he refused to allow them to do so on the grounds that they had quit and suggested they see his attorney. Wight said that about 4:30 that afternoon the men returned to pick up their checks and that they received paychecks for wages to date, plus vacation pay. Following the morning meeting of the employees, Ballard said that Adams informed him the men were leaving and at the same time he saw them go out of the plant. Ballard admitted that the men punched out early that morning and that he refused to permit them to return to work because "Those men violated a rule, they quit." C. The request for reinstatement; the picketing On Saturday, June 30, Adams addressed a letter to Ballard in which he recited the events of the previous day culminating in his refusal to permit the 12 employees to return to work and concluded by stating: Regardless of the bargaining rights of these employees, we request and demand at this time that you allow these employees to return to work by 8:00 A. M., Monday, July 2. This is the only demand that we are making at this time. Adams said he mailed the letter that afternoon. On Monday, July 2, Adams, accompanied by J. C. Hampton, senior union business representative, arrived at the plant shortly before 8 o'clock and met the 12 employees who were ready to go to work. Adams and Hampton went into the plant and Adams asked Ballard if he had received his letter. Ballard said he had not, whereupon Adams gave him a copy of the same. Ballard read the letter and advised Adams and Hampton that he would call his attorney and if they would come back at 9 o'clock he would give them his answer. Adams inquired why Ballard was contending the men had quit on June 29, when he had consented to their holding a meeting on that occasion. Ballard answered he did not "remember that ever happening" and that Adams would have to talk to his attorney. Adams agreed to call Ballard at 9 o'clock, then he and Hampton left the plant. Adams and Hampton went to the group at the parking lot and informed them of what had taken place at the meeting. About 9 o'clock Adams telephoned Ballard and asked if he was permitting the 12 employees to return to work and Ballard replied that his attorney advised him to continue operating as "at the present time" and that he was refusing to take back these employees. Adams advised the men of Ballard's decision, so they then went to the plant to pick up their tools. There they were met by a guard who allowed them to enter the plant singly to get their tools. About 10:30 that morning the employees began picketing the plant, carrying Lodge 12, IAM, signs, stating in substance that the Company unfairly discharged union members and refused to rehire them. Picketing continued until August 2, 'The timecards which were received in evidence show that the employees punched out around 8 : 30 in the morning. UNITED GRINDING SERVICE, INC. 75 when it ceased, obviously, by virtue of letters , dated July 31, which the Company sent to the strikers 5 offering each of them a job as of August 2. Wight, Jones, and Watson confirmed Adams' testimony that the 12 employees reported for work on the morning of July 2, that they were refused reinstatement, and that they then established a picket line . Employees John C. Ward , Ollie B. Kerr, V. I. Donaldson, and Hayes Lee, likewise testified that , following the events of June 29, they reported for work on July 2 and were refused reinstatement. All of the men admitted receiving letters, mentioned above, from the Company. Jones, Ward, and Kerr were offered , and accepted, jobs on the day shift. Watson, too, was offered a job on the day shift but declined since he had obtained other employment. Wight was offered a job on the night shift, which he accepted. Donaldson was submitted a similar offer but it is not clear whether or not he accepted it. Lee obtained a job in Dallas shortly after the picketing commenced and when he received a letter offering him a job on the night shift he declined it. However, about 2 weeks prior to the hearing he returned to the plant but it is not definite whether he was placed on the day or night shift. Ballard did not testify in regard to the events taking place on July 2, other than to admit Adams presented him with a copy of his letter , mentioned above, which he conceded was a demand that the employees be returned to their jobs. D. The representation petition . Ballard admitted , and the records of the Board show, that the Company was served with a copy of a petition filed by the Union on July 2 ( 39-RC-1060 ) together with a notice scheduling a hearing thereon for July 19 . On July 9, the instant charge was filed . Thereafter, on July 12, the Regional Director issued an order revoking the notice of hearing on the petition. E. Alleged acts of interference, restraint, and coercion In substance the complaint alleges that: Ballard and certain supervisory employees interrogated employees concerning their union affiliation and threatened and warned employees to refrain from assisting the Union and becoming or remaining mem- bers .thereof; Ballard changed the working rules so as to deny former privileges and to invoke stricter discipline in order to have a pretext for discharging employees engaging in concerted or union activities ; he inquired of the employees their reasons for wanting a union and warned the picketing employees the Company would cease operation before it would reinstate them ; and certain supervisors warned union members they would be replaced. As set forth above, Jones related that on June 18 or 19 , Foreman Sperli told him the employees would probably be fired for asking for a raise . He further stated that sometime after June 22, Sperli informed him that Ballard was "very much against the union and he would probably let us all go one at a time when he started hiring his men." Ward stated that during the time he was performing picket duty Ballard said he would never rehire the men either individually or as a group and that before he would rehire them he would pay off his debts out of his accounts receivable and close the plant. Ballard repeated the threat to Ward around the date he received notice (dated July 12) that the hearing on the petition had ben canceled. Donaldson said he drove Foreman H. R. Magee home on the evening of.June 19, and at that time Magee stated that since Ballard had given a wage increase it would be strictly business from then on; that there would be no visiting and specified coffee breaks, and he wanted Donaldson to know that he was not riding him but simply carrying out Ballard's instructions. Lee stated that during the week of June 25 , W. T. French, an inspector, in the presence of Ballard, remarked to Lee that he had heard that some of the employees had joined the Union . When Lee replied that all the men had joined , French said he did not think it was a good idea, that the employees did not need a union for the plant was small and that they would be sorry for signing up in the Union. Watson related conversations he had with Ballard , apparently in the last 2 weeks of picketing, during which Ballard made some reference to blacklisting the picketing employees ; that 25 companies in Houston had called Ballard to obtain the names of the pickets, which information he refused to give; and that he was opposed to 5 At the time there were 11 strikers , one of them , Sam Dick, having applied for and was given reemployment during the picketing. Dick is not named in the complaint. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unions and would shut down the plant before he would reinstate any of the employees. Sperli, Magee, and French did not appear as witnesses at the hearing.6 Ballard denied that he or French questioned the employees in regard to their union activities or membership and he further denied that he ever threatened or warned employees that he would close the plant rather than rehire the picketing employees. Ballard stated that Watson was a gullible person and that everyone at the plant kidded him. Ballard admitted that he talked to Watson while he was on the picket line, and that he served him coffee and "told him several things, kidding him around there." As appears above, Ballard made changes in the coffee breaks and the manner of handling personal telephone calls. Concluding Findings It is undisputed that Adams, by virtue of authorization given him by the 12 employees, requested the Company to recognize the Union as their collective- bargaining agent and on June 29, after several meetings, the Company declined the request because it had some question concerning jurisdiction of the Board and majority and, therefore, suggested that the Union file a representation petition. The employees, who were working at the time, upon being advised of the Company's answer declared they should picket the plant at once. Adams was opposed to this action and told the men to punch out their time and leave the plant while he conferred with officials at the union office. The men followed Adams' instructions and when he returned about 2 hours later he informed them that the Union would file a representation petition and that they should go back to work. This arrange- ment was satisfactory to the group and, again, they followed his advice. The Trial Examiner concludes and finds that when the 12 employees left the plant under the above circumstances they were, in effect, striking for recognition and, therefore, were plainly engaging in protected concerted activities. (Brookville Glove Company, 114 NLRB 213, enfd. 234 F. 2d 400 (C. A. 3); Brookville Glove Manufacturing Company, Inc., 116 NLRB 1282; Commodore Watch Case Co., Inc., 114 NLRB 1590.) Being economic strikers the Company was, of course, free to replace them at any time prior to their unconditional applications for reinstatement. (N. L. R. B. v. Mackay Radio & Telegraph Company, 304 U. S. 333, 345-347.) It is equally well settled that the strikers retained their status as employees and could not be discharged for participating in the strike. (Jeffery-De Witt Insulator Co. v. N. L. R. B., 91 F. 2d 134, 138-139 (C. A. 4); Brookville Glove cases, supra.) Here the Company raises no issue concerning the fact that the strikers uncondi- tionally applied for reinstatement a few hours after the strike commenced, nor does it contend that the strikers had been replaced in that brief period. Moreover, it is undisputed that the employees were paid in full the same afternoon and their em- ployment terminated. The only defense offered by the Company is that the em- ployees quit their employment when they went on strike. Manifestly, there is no merit to this contention and it is rejected. (Texas Natural Gasoline Corporation, 116 NLRB 405.) In view of the foregoing authorities, the only conclusion to be reached is that the Company engaged in conduct prohibited by the Act. See also, Solo Cup Company, 114 NLRB 121, enfd. 237 F. 2d 521 (C. A. 8); Kitty Clover, Inc. v. N. L. R. B., 208 F. 2d 212 (C. A. 8); N. L. R. B. v. Greensboro Coca Cola Bottling Co., 180 F..2d 840, 843-844 (C. A. 4). The Trial Examiner further finds that the Company, on July 2, again refused demands for reinstatement of the dischargees made by the Union as well as the discriminatees themselves. By reason of the above findings the Trial Examiner concludes and finds that the Company thereby engaged in conduct in violation of Section 8 (a) (3) and (1) of the Act. As a consequence of the foregoing action on the part of the Company, the employees commenced picketing the plant on July 2, and maintained a picket line until August 2. As set forth above, the Company sent letters, dated July 31, to the strikers (11 at that time) offering each of them a job as of August 2. In the O Ballard admitted that at the time in question Sperli and Magee were foremen and French was an inspector. He further admitted that each of these individuals had au- thority to effectively recommend the hiring, firing, and promoting of employees. The Trial Examiner accordingly finds each of them to be supervisors within the meaning of the Act. UNITED GRINDING SERVICE, INC. 77 opinion of the Trial Examiner the letters cannot be considered as clear and unequivo- cal offers of reinstatement for the simple reason that they do not contain offers of reinstatement to the former or substantially equivalent positions held by the strikers prior to their discharge without prejudice to their seniority and other rights and privileges enjoyed by them at that time. Further, while the strike termi- nated on August 2, it is clear that at least some of the strikers declined the offer because of its inadequacy. Thus of the 7 strikers who testified, and all strikers were previously employed on the day shift, 3 were offered jobs on the night shift (Wight, Donaldson, and Lee), and 4 (Jones, Ward, Watson, and Kerr) were offered jobs on the day shift. One of the men (Lee) obviously refused to accept the job because it was on the night shift. In addition, the record fails to disclose the circumstances under which the remaining four strikers were reemployed, if they were, or the jobs assigned to them. For these reasons the Trial Examiner finds that the letters of July 31 did not constitute valid offers of reinstatement. The Trial Examiner finds, on the basis of the undisputed testimony of Jones, that on June 18 or 19, Foreman Sperli warned Jones that the employees would be fired for requesting a wage increase and sometime subsequent to June 22 uttered a similar threat to him. Ward and Watson testified in substance that during the time of the picketing Ballard declared that he would close down the plant before he would rehire any of the strikers. Ballard did not deny making these threats but sought to pass off his remarks to Watson as being made in a joking or kidding manner. On the other hand Watson stated that Ballard was speaking seriously, as far as he was concerned. Accordingly, the Trial Examiner finds that the fore- going threats and warnings, considered in the context of the Company's course of conduct, constituted interference, restraint, and coercion on the part of the Com- pany in violation of Section 8 (a) (1) of the Act. The Trial Examiner finds nothing coercive in the remarks made by Magee and French to Donaldson and Lee, re- spectively. The Trial Examiner further finds that by fixing definite periods for coffee breaks and changing the method of handling personal telephone calls the Company was merely exercising one of its management prerogatives and that the changes were reasonable and not prompted by any antiunion considerations. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth above, occurring in connection with the operations of the Respondent, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take the following affirmative action. designed to effectuate the policies of the Act: (1) Offer to L. F. Binford, V. I. Donaldson, Kenneth Doud, Charles A. Heinrich, J. S. Ivey, J. R. Jones, Ollie B. Kerr, Hayes Lee, John C. Ward, James L. Watson, and S. L. Wight immediate and full reinstatement to their former or substantially equivalent positions 7 without prejudice to their seniority or other rights and privi- leges; (2) make whole each of the employees for any loss of pay each may have suffered by reason of the Respondent's unlawful discharge, by payment to each of a sum of money equal to the amount he would normally have earned as wages, from the date of discharge to the date of the Respondent's offer of reinstatement, less his net earnings during said period; 8 (3) the Respondent shall, upon request, make available to the Board payroll and other records to facilitate the checking of the amount of back pay due, which shall be computed in accordance with the Board's customary formula; 9 and (4) the Respondent be ordered to cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: 7 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 8 Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. OF. W. Woolworth Company, 90 NLRB 289. 78 DECISIONS OF NATIONAL LABOR . RELATIONS BOARD CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2 (6) and (7) of,the Act. 2. The Union is a labor organization as defined in Section 2 (5) of the Act. 3. By discharging and refusing to reinstate the employees named herein the Re- spondent has engaged in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 6. The Respondent did not unlawfully interrogate any of its employees con- cerning their union affiliation or activities and has not engaged in any unlawful conduct by reason of any statements on the part of its supervisory employees Magee and French, nor did it illegally effectuate any changes in its working rules or conditions of employment as alleged in the complaint. [Recommendations omitted from publication.] APPENDIX A NOTICE To ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Rela- tions Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in Lodge 12 of District 37, Inter- national Association of Machinists, AFL-CIO, or in any other labor organi- zation of our employees , by discriminating in regard to their hire and tenure of employment. WE WILL NOT in any other manner interfere with , restrain , or coerce our employees in the exercise of their right to self-organization, to form, join, or assist Lodge 12 of District 37, International Association of Machinists, AFL- CIO, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL offer to the employees named below, immediate and full rein- statement to their former or substantially equivalent positions without preju- dice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered by them as a result of the dis- crimination again them: L. F. Binford J. R. Jones V. I. Donaldson Ollie B. Kerr Kenneth Doud Hayes Lee Charles A. Heinrich John C. Ward J. S. Ivey James L. Watson S. L. Wight All of our employees are free to become, or refrain from becoming, members of the above-named Union or any other labor organization, except to the extent that this right may be effected by an agreement in conformity with Section 8 (a) (3) of the Act. We will not discriminate against any employee because of membership in or activity on behalf of any such labor organization. UNITED GRINDING SERVICE, 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.