Vernon T. Mercer

VERNON T. MERCER 673 Dollinter and took him to the job site. As estimated, Dollinter worked but 2 days on the job. The record discloses, and the Trial Examiner finds, that: When Dollinter and four other laborers were laid off about January 1, 1954, Edward Wilson, United's then labor foreman, told them that they would be rehired as soon as work opened up; on or about March 3, Dollinter was rehired by United but not on the same job site on which he had worked in January; Dollinter worked on this job until on or about June 22; Dollinter was rehired in March, after Wilson had specifically requested Respondent Union to dispatch him; and all other laborers hired in or after March 1954 were dispatched by Respondent Union after Wilson had specified the persons wanted. The credited evidence further discloses that: In late February or early March, Nolan returned to United as superintendent of the job on which Dollinter and the other laborers were rehired in March; in March Nolan was Wilson's immediate superior; Nolan and Wilson discussed the advisability of hiring Wright in March, but decided against it for the time being because they were of the opinion that Wright had become persona non grata with Respondent Union; if Nolan had re- quested Wilson or Ward to hire Wright in March, either would have requested Respondent Union to dispatch Wright; Nolan made no request for Wright until May 13; had Respondent Union been requested in March to dispatch Wright, he would have been given the necessary clearance; and when United requested Re- spondent Union on or about May 13 to dispatch Wright it immediately did so. Wright testified without contradiction, and the Trial Examiner finds, that: Com- mencing on January 27, and continuing until he was dispatched to United on May 14, he checked with the Union Hall at least twice daily at the hours when Respondent Union "called jobs"; shortly after January 27, he commenced to draw unemployment compensation through the Territorial Employment Service, with which he had registered in 1953; he regularly, and as often as required, checked with the Territorial Employment Service in an effort to obtain employment; and he did not seek em- ployment after January 27 by applying to any source other than at Respondent Union and at the Territorial Employment Service. Joel Wiegert, secretary-treasurer and business representative of Respondent Union and one of the several persons who "call jobs" at the Union Hall, testified, and the Trial Examiner finds, that on March 15, Wright was in the Union Hall when a laborer's job at Lawrence Warehouse Company was called; that when Wright's name was called, Wright made no response; and that the job was then given to Oliver Richardson, whose name appeared below Wright's on the March 14 unemployed members list. B. Concluding findings Upon the entire record in the case, the Trial Examiner concludes : (1) Absent Respondent Union's" discrimination, Wright would have been employed by United on January 27 and 28, 1954, and he would have received as wages for working those days the amount of $48.96; (2) Wright did not exercise due diligence in seeking employment between January 27 and May 14, 1954; (3) Respondent Union would have dispatched Wright to United anytime United requested that Wright be dis- patched; (4) United did not request Respondent Union to dispatch Wright prior to May 13, 1954; (5) Dollinter's hiring by United on or about March 4 had no bearing upon Wright's failure to,obtain that employment; (6) United did not desire to employ Wright prior to May 14; and (7) Wright refused the proffered Lawrence Warehouse job on March 15, 1954, for reasons best known to himself. Accordingly, the Trial Examiner finds that the gross back pay due Wright is $48.96. [Recommendations omitted from publication.] Vernon T. Mercer and Charles Leo Harrison. Case No. 4-CA- 1395. December 6,1957 DECISION AND ORDER On March 20, 1957, Trial Examiner Sydney S. Asher, Jr., issued his -Intermediate Report in the above-entitled proceeding, finding 119 NLRB No. 90. 476321-58-vol. 119----44 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in other unfair labor practices and recommended that the complaint be dismissed with respect thereto.' Thereafter, the Respondent filed exceptions to the Inter- mediate Report and a supporting brief. 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 Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the Respondent's exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the modifications noted below. 1. While we agree with the Trial Examiner's conclusion that the Respondent did not violate Section 8 (a) (1) of the Act by asking employee Paskings, "Whose side are you on?" we do not adopt his rationale. The General Counsel maintained that this question was asked to ascertain whether or not Paskings intended to join the strike or remain at work. The Respondent, on the other hand, contended that the question referred to the gasoline-jacking situation. In resolv- ing this issue, the Trial Examiner assumed, without deciding, that although the General Counsel's interpretation was correct, the ques- tion to Paskings did not constitute a violation of the Act. In support of this conclusion, the Trial Examiner relied on the Gala-Mo Arts case.' In view of the ambiguity surrounding this incident, we make no such assumption but find that the evidence is insufficient to warrant a finding that the Respondent violated Section 8 (a) (1) of the Act in the aforesaid interrogation of Paskings. 2. We agree with the Trial Examiner that employee Harrison was discharged because he participated in a lawful and protected strike against the Respondent, in violation of Section 8 (a) (1) and (3) of the Act. With respect to the Respondent's argument in its brief before the Board that it discharged Harrison because he engaged in an unlawful, partial strike, we find that this was not the real reason for the discharge, but an afterthought on the part of the Respondent. In this regard, the record shows that upon reporting to the Malvern 'There being no exceptions thereto, and without passing on the merits, we adopt the Trial Examiner's recommendations that. the complaint be dismissed insofar as it alleges that the Respondent engaged in any unfair labor practices in August 1955, advised dis- charged employees that they would be offered reinstatement on the basis of abandoning their activities on behalf of the Union, or discriminatorily discharged Charles Washington. 2 Gala-Mo Arts, Inc., 113 NLRB 1, enfd. in part, 232 F. 2d 102 (C. A. 8). VERNON T. MERCER 675 garage on the date of his discharge, Harrison was told by one of the discharged employees that a strike was in progress. The Respondent directed Harrison to take a truck to nearby West Chester, but Har- rison refused. The Respondent asked Harrison, "Are you with the rest of the clique around here?" and Harrison responded, "What do you mean 'clique'?" The Respondent replied, "You know what I mean. The Union." Harrison remarked, "If that is what you mean, I am with them." The Respondent then stated, "I will not allow a Union in here," and directed Harrison to go to the office and draw his pay. Harrison complied. The foregoing evidence relating to Harrison's discharge adequately refutes the Respondent's contention that he was discharged for engaging in any unlawful activity. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Vernon T. Mercer, West Chester, Pennsylvania, his agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Local 384, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, or any other labor organization of his employees, by discharging or refusing to reinstate them or discriminating in regard to their hire or tenure of employment, or any term or condition of employment. (b) Threatening reprisals against his employees because of their membership in or assistance to the above-named labor organization, or any other labor organization. (c) Interrogating his employees regarding their union activities, affiliations, or sympathies, or those of their fellow employees, in a manner violative of Section 8 (a) (1) of the Act. (d) In any other manner interfering with, restraining, or coercing his employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named labor organiza- tion or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activi- ties except to the extent that such right may be: affected by an agree- ment 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 : 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Offer to Clyde B. Mercer, Jr., Charles Sidney Martin, and Charles Leo Harrison immediate and full reinstatement to their for- mer or substantially equivalent positions, without prejudice to any seniority or other rights previously enjoyed, and make them whole for any loss of pay they may have suffered as a result of the Respond- ent's discrimination against them, in the manner set forth in the section of the Intermediate Report entitled "Recommendations." (b) Preserve and make available to the National Labor Relations Board or its agents, upon request, 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 his office at West Chester, Pennsylvania, and in his garage at Malvern, Pennsylvania, copies of the notice attached hereto marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Fourth Region, shall, after being duly signed by the Respondent, be posted by him immediately upon receipt thereof and maintained by him for sixty (60) consecutive days there- after 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 the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent engaged in any unfair labor practices in August 1955, advised discharged employees that they would be offered reinstatement on the basis of abandoning their activities on behalf of the Union, or discriminatorily discharged Charles Washington. S In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, I hereby notify you that : I WILL NOT discourage membership in Local 384, International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America, AFL-CIO, or in any other labor organiza- VERNON T. MERCER 677 tion of my employees, by discharging or refusing to reinstate them, or discriminating in regard to their hire or tenure of em- ployment, or any term or condition of employment. I WILL NOT threaten reprisals against my employees because of their membership in or assistance to the above-named Union, or any other labor organization. I WILL NOT interrogate my employees regarding their union activities, affiliations, or sympathies, or those of their fellow em- ployees, in a manner violative of Section 8 (a) (1) of the Act. I WILL NOT in any other manner interfere with, restrain, or coerce my employees in the exercise of their right to self -organiza- tion, to form labor organizations, to join or assist the above- named Union, or any other labor organization, to bargain collec- tively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. I WILL offer to Clyde B. Mercer, Jr., Charles Sidney Martin, and Charles Leo Harrison immediate and full reinstatement to their former or substantially equivalent positions without preju- dice to any seniority or other rights previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination against them. All my employees are free to become, remain, or refrain from be- coming or remaining members of the above-named Union or any other labor organization, except to the extent that this right may be affected by agreements in conformity with Section 8 (a) (3) of the Act. Dated________________ VERNON T. MERCER, Employer. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT This proceeding involves allegations that Vernon T. Mercer, herein called the Respondent, has interfered with, restrained , and coerced his employees in certain specified respects since August 1955; and that he discharged employee Charles Washington on February 8, 1956, employee Clyde B. Mercer, Jr., on February 10, 1956, and employees Charles Leo Harrison and Charles Sidney Martin on February 11, 1956, and has since failed and refused to reinstate any of them, because they joined or assisted Local 384, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, herein called the Union, or engaged in other concerted activities . It is alleged that this conduct violated Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended (61 Stat. 136 ), herein called the Act. After issuance of a complaint by the Gen- 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eral Counsel 1 and the filing of an answer by the Respondent, a hearing was held before me between October 8 and 12, 1956, inclusive, at Philadelphia, Pennsylvania. All parties were represented and participated fully in the hearing. After the close of the hearing, the Respondent filed a brief, which has been duly considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT There is no dispute, and I find, that the Respondent is engaged in commerce within the meaning of the Act and his operations meet the Board's jurisdictional standards,2 and the Union is a labor organization within the meaning of the Act. A. The sequence of events The Respondent's business is seasonal. The busy season commences between March 15 and April 1, and lasts until between December 1 and December 15, with a slack period in the summer. During November and December 1955, the Respondent employed approximately 10 nonsupervisory employees who performed over-the-road driving. They also worked in the garage, doing such tasks as washing, lubricating, and painting trucks and changing tires.3 In November 1955, William J. McNichol, the Respondent's manager, became suspicious that the Respondent was the victim of gasoline "jacking" 4 being carried on by his drivers, and communicated his suspicions to the Respondent. McNichol then imposed a 1-week disciplinary layoff upon employees Charles Washington, James Edgar Walls, and Harold Ray for the week of December 11 through 17, 1955. He also imposed a similar layoff upon employee Ted Gates for the week of December 18 through 24, 1955. The Respondent retained Harold Smith, an accountant, to make a survey and determine the extent of the Respondent's loss due to gasoline jacking. And on December 22, 1955, the Respondent also retained Fred T. Cadmus, III, an attorney, to determine the amount lost by the Respondent and to attempt to recover it. Cadmus questioned Walls on December 27, 1955. Walls signed a written statement admitting his guilt and involving generally "all of the other drivers" employed by the Respondent. Cadmus then advised the Respondent not to impose any more disciplinary layoffs upon his drivers and not to discharge any of them until his investigation had been completed. Thereafter, Cadmus inter- viewed Ray on December 28, 1955, and obtained Ray's written statement admitting that he had "jacked" gasoline. Within the next week, Cadmus likewise interrogated Gates and employee Edward Paskings. Gates voluntarily relinquished his employ- ment with the Respondent either late in December 1955 or early in January 1956. Beginning in December 1955, some of the Respondent's employees gathered from time to time in the cellar of the garage, near the boiler. They discussed the advan- tages of unionization and decided to join the Union. On January 21, 1956, five of the employees-Charles Leo Harrison, Charles Sidney Martin, Clyde B. Mercer, I The designation "General Counsel" includes the General Counsel of the National Labor Relations Board and his representative at the hearing. To avoid confusion, the designa- tion "Respondent" will be applied to Vernon T. Mercer, and the designation "Mercer" to Clyde B. Mercer, Jr., one of the alleged discriminatees. 2 The Respondent, an individual, is engaged in the transportation of animals and other cargo for hire, and the retail sale of saddles, blankets, and other horse equipment. He maintains a retail store and office in West Chester, Pennsylvania, and a garage in Malvern, Pennsylvania. His trucks operate in 28 States. During 1955, he received in excess of $100,000 for transportation services rendered to and through States other than the Commonwealth of Pennsylvania. 8 The Respondent testified that he had been under contract with a New York local of the Teamsters for many years and that he has paid his drivers the wages called for by this contract. However, in response to a subpena issued at the request of the General Counsel, the Respondent's attorney reported : "A search has been made of the files of the company, and no such contract has been found." I accordingly make no finding with regard thereto. 4 The term "jacking" is used to designate a fraudulent conspiracy between the Respond- ent's employee or employees on the one hand, and the employees or owners of service sta- tions on the other, whereby the Respondent was charged for more gasoline than actually received, or for a higher grade grasoline than actually received, and the difference was divided between the conspirators. VERNON T. MERCER 679 Jr., Walls, and Washington 5-went to the Union's office in Norristown, Pennsyl- vania, and some of them applied for membership in the Union.6 On February 8,7 Cadmus interrogated Washington regarding gasoline jacking. Washington was separated from the Respondent's employ later that day under circumstances described in more detail hereafter.8 Thereafter, Cadmus attempted to secure refunds for the Respondent from service stations and gasoline companies, and succeeeded in obtaining one such refund in the amount of $325, and possibly a second one. On February 10, Mercer was separated from the Respondent's employ, and on February 11, Martin and Harrison were separated from the Respondent's employ. The events surrounding these separations are set forth at greater length below. On February 11, a representative of the Respondent directed Walls to drive a truck to Kentucky but George A, Dugan, an official of the Union, told Walls not to go. Walls then informed McNichol by telephone that he could not make the trip because he was in the Union.9 Thereafter Walls did not report for work for some time. During the next week, Mercer and Martin stationed themselves near the entrance to the Respondent's garage from time to time. When a truck came out, they attempted to persuade the driver to refuse to make the trip. No picket line was established, no signs were used, and no official of the Union appeared in the vicinity of the garage. On February 20, Dugan wrote to the Respondent informing him that Harrison, Martin, Mercer, Ray, Walls, and Washington were members of the Union and asking for a meeting for the purpose of negotiating an agreement and obtaining an explana- tion for the Respondent's discharge of "every man that signed an application with the Union." The Respondent replied on February 23, advising the Union that none of the six named men was in his employ, and that "their separation was for cause other than being union members or any union activity." The instant charges against the Respondent were filed with the Board by Harrison on March 8. Walls has now returned to the Respondent's employ, but Harrison, Martin, Mercer, and Washington have not, B. Interference, restraint, and coercion 1. Threats of reprisal The complaint, as amended at the hearing, alleges that in August and December 1955 and January, February, March and/or April 1956, the Respondent and his agents, McNichol and Young, threatened his employees with loss of employment in order to defeat union activity among them and threatened to dispose of his business if the Union sought recognition as the employees' bargaining agent. The amended answer, filed after the close of the hearing, denies these allegations, and avers that the Respondent did not know of any union activities among his employees. a. By the Respondent On February 11, between 8 and 9 a. m., the Respondent had a conversation with Harrison at the garage in Malvern which resulted in Harrison's separation. Dur- ing this conversation, the Respondent said to Harrison: "I will not allow a Union in here." Such a statement, coming as it did from the head of the business, was an implied threat to employ economic reprisal against the employees if they suc- ceeded in organizing. 5 There is some testimony that Ray was also in this group. However, I deem it un- necessary to determine whether or not Ray was among them. 6 At oral argument, the Respondent's counsel argued that the employees knew of the in- vestigation of gasoline jacking and were worried that they were implicated, and therefore joined the Union in order to protect themselves. On the other hand, Mercer testified that the employees had requested wage increases several times without success, and felt that unionization might help them attain this objective. In any event, the employees' reasons for joining the Union are deemed immaterial to the issues herein. All dates hereafter refer to the year 1956, unless otherwise noted. McNichol testified that he was present during the second interrogation of Ray and Walls about February 8. Cadinus, however, denied that he interviewed Ray or Walls a sec- ond time. I deem it unnecessary to resolve this conflict. 9 The finding of fact with regard to this telephone call is based upon Walls' testimony. McNichol denied that he had received such a telephone call. McNichol did not impress me as a forthright and candid witness. His denial in this respect is not credited. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. By William 1. McNichol William J. McNichol was, at all material times, the Respondent's manager. The parties agree, and it is found that he was a supervisor within the meaning of the Act. Mercer testified that in August 1955 McNichol remarked to several of the drivers that the Respondent would close his business rather than allow them "to bring our own union in." As pointed out above, the charge herein was filed on March 8, 1956. Hence, the alleged conversation, if it took place at all, occurred more than 6 months prior to the filing and service of the charge. Under Section 10 (b) of the Act, it cannot form the basis for a finding of unfair labor practices. In mid-January, Edwin Kelly, Jr., an employee of the Respondent, and Mercer and Martin delivered some horses for the Respondent to a racetrack at Camden, South Carolina. Upon their return, Kelly had a conversation with McNichol in the West Chester office, in the presence of Dean Montgomery, the Respondent's bookkeeper. Asked what had happened on the trip, Kelly reported: "Them fellows are going to join a union." McNichol inquired how Kelly knew this. Kelly replied that a jockey had told him so. McNichol then remarked: "If I get any- thing on Mercer that is all I want. I'll fire him." Kelly answered: "You got something on him" and described how Martin and Mercer had run the truck's motor for an hour and a half at the track causing an unidentified man to complain to Kelly that the smoke from the truck's exhaust was causing the horses to snort. When Kelly told of this, McNichol remarked: "That's all I want." 10 It is clear, and I find, that these statements by McNichol ("If I get anything on Mercer . . . I'll fire him" and "That's all I want") constituted a threat of reprisal against Mercer because of his suspected union activities. On February 10, shortly before 10 a. in., Mercer had a talk with McNichol in the office in West Chester, which resulted in Mercer's separation from the Respond- ent's employ. At the close of the conversation, McNichol stated to Mercer: "The boss definitely will not allow a Union to come into this shop." This constituted an implied threat of reprisal against any employee who was a union adherent. In mid-March, McNichol telephoned to Mercer and, among other things, told him: "If you have any business around the garage again, or come down around there, make sure you have a reason. We are out to get you. Now, if you come around the garage we will get you." In view of the fact that Mercer and Martin had been parking in the vicinity of the garage in order to attempt to persuade other drivers not to work for the Respondent, McNichol's remark constituted a clear threat of reprisal in retaliation for engaging in further concerted activities. Martin testified to a gesture that McNichol made in his direction in mid-March, but the evidence is not clear that the gesture could reasonably be deemed to have been threatening. c. By George Young George Young was, at all material times, the shop foreman in the Respondent's garage at Malvern. While the employees were working in the garage, they were under Young's supervision, that is, Young assigned them their individual tasks. He was the only official of the Respondent who regularly spent full time in the garage. He had no authority to hire or discharge the employees working under him. The General Counsel contends that Young was a supervisor within the mean- ing of the Act; the Respondent takes no position on the matter. I am convinced that Young possessed authority responsibly to direct the employees when they worked in the garage, and that this authority was not merely routine, but required the use of independent judgment. Accordingly, it is found that, at all times material, Young was a supervisor within the meaning of the Act. In mid-January, Young remarked to Mercer in the garage that he had "heard through the grapevine that we were trying to put a union in," and that the Respondent "would close down his shop and sell his business before he would allow a union to come into his shop." Late in January, Martin was wearing a union button on his coat. Young told him: "They won't allow a union in here." Each of these statements constituted a threat of reprisal for union activities. On the morning of February 10, Mercer returned to the garage at Malvern from the West Chester office, where he had just been separated from the Respond- ent's employ. As Mercer began removing his personal belongings from a truck, 10 These findings of fact are based upon Kelly's testimony. McNichol denied that he had heard that Martin and Mercer were "trying to bring a union in." Montgomery did not testify. McNichol's denial in this respect is not credited. VERNON T. MERCER 681 Young asked him what he was doing. Mercer explained that he had been dis- charged. In the presence of Martin and employee William J. Hughes, Young stated: "It's only done to keep the Union out." Thus, Young made clear to the other two employees the type of treatment they might expect to receive at the Respondent's hands if they, too, supported the Union. 2. Promises of benefit The complaint, as amended at the hearing, alleges that in August and December 1955 and January, February, March, and/or April, 1956, the Respondent and his agents, McNichol and Young, "advise[d] discharged employees that they would be offered reinstatement on the basis of abandoning their activities on behalf of the Union." The amended answer, filed after the close of the hearing, denies that the Respondent ever "offered to reemploy discharged employees on the basis of their abandoning activity on behalf of the Union." In support of this allegation of the complaint, the General Counsel called Walls as his witness. It will be recalled that Walls stopped working for the Respondent on February 11. Walls testified that, about a month and a half after he stopped working, he went "out to the farm" and asked the Respondent to reinstate him. The Respondent answered: "You are working for the other man. You are not working for me. When you make up your mind who you are working for you can come back to work." Walls further testified that, about a week later, he again went "out to the farm" to see the Respondent about being reinstated, and that on this occasion, the Respondent told Walls "he would put me back to work." Thereafter, Walls returned to work for the Respondent and has been so employed ever since. The General Counsel argues that the phrase "the other man" used by the Respondent referred to the Union, and that the purport of the entire con- versation was an offer by the Respondent to reinstate Walls only after Walls gave assurances that he had decided to forego further support of the Union. While the matter is not entirely free from doubt, I do not believe that Walls' testimony, standing alone, establishes that the Respondent made an offer to reinstate Walls upon condition that Walls abandon his union adherence. As hereafter related in more detail, when Mercer was separated from the Respond- ent's employ on February 10, he was told by both McNichol and Young that the Respondent would contact him to determine whether he desired to return to work under the Respondent's "terms." However, the Respondent did not thereafter get in touch with Mercer. Assuming, without deciding, that the word "term" as used by McNichol and Young reasonably implied abandonment of union activities, there was no followup; the proposition was never squarely put up to Mercer. The incident therefore falls short of proving that a promise of benefit was made to Mercer in exchange for his foregoing further efforts toward self-organization. In view of the above, it is found that the General Counsel has failed to prove by a fair preponderence of the evidence that the Respondent offered discharged employees reinstatement if they would abandon their activities on behalf of the Union. 3. Matters not covered in the complaint The General Counsel introduced evidence which may be looked upon as tending to indicate that the Respondent engaged in surveillance of the union activities of his employees, and interrogated his employees with regard to their union member- ship and sympathies or those of their fellow employees. However, the complaint does not allege that the Respondent engaged in any such conduct. The Board has stated that "when an issue relating to the subject matter of a complaint is fully litigated at a hearing, the Trial Examiner and the Board are expected to pass upon it even though it is not specifically alleged to be an unfair labor practice in the complaint."" In line with that rule, it is found that all instances of alleged surveillance and interrogation discussed hereafter relate to the subject matter of the complaint. The question then remains whether they were "fully litigated" at the hearing. If so, it is my duty to decide the matters on the merits, although not mentioned in the complaint. Mercer and Martin testified on direct examination that, in mid-March, they parked in Mercer's car near the Respondent's garage and shortly afterwards the Respondent attempted to eavesdrop when they made a telephone call to Dugan and followed them to the Union's office in his car. Neither of the employees involved in this alleged incident was cross-examined with regard to it by the Respondent's 11 Alonroe Feed Store, 112 NLRB 1336, 1337. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attorney. Moreover, the Respondent did not introduce any evidence or witnesses either to dispute or to explain their story . Finally, the matter was not mentioned by either the General Counsel or the Respondent's counsel in oral argument. Under all the circumstances , I conclude that the matter of surveillance was not "fully litigated" at the hearing. I therefore will not evaluate the evidence with regard to this incident.12 Walls testified on direct examination that, between January 21 and February 10, he was called to the office, that in McNichol 's presence the Respondent asked Walls whose side he was on , and that he replied that he was on the side for right. Walls further testified that he may have answered that he was on the Union's side. Walls was not cross-examined by the Respondent's attorney. Neither the Respondent nor McNichol was questioned with regard to this incident . I therefore find that this matter was not "fully litigated " at the hearing. Accordingly, it will be not con- sidered further.13 Edward Paskings , one of the Respondent's employees , testified on direct ex- amination that sometime before Christmas 1955 he was called to the office where he found the Respondent, McNichol, Montgomery , and James O'Banion, one of the Respondent's track agents . The Respondent asked Paskings if he had heard anything about a union in the garage and Paskings replied that he had not. The Respondent then asked Paskings : "Who is the ringleader, Charlie Harrison?" Paskings answered that he did not know. On cross-examination by the Respondent's attorney, Paskings admitted that Cadmus was also present at this meeting and that Cadmus questioned Paskings about gasoline "jacking." The Respondent, called as an adverse witness by the General Counsel, denied under cross-examination by the General Counsel that he had talked to any employees about the Union, or that he knew of the employees ' interest in the Union at that time. In view of the cross- examination of Paskings by counsel for the Respondent , and the denial of the Respondent , I conclude that the matter was "fully litigated" at the hearing. Pask- ings was still employed by the Respondent at the time of the hearing and therefore would not be likely to fabricate testimony damaging to the Respondent . For that reason , and because Paskings impressed me as a candid witness, I find that this incident occurred substantially as related by Paskings. In the Blue Flash case , the Board held that the legality of the questioning of employees depends upon "whether, under all the circumstances, the interrogation reasonably tends to restrain or interfere with the employees in the exercise of rights guaranteed by the Act." 14 Applying this test to the facts at hand , I am of the opinion that the Respondent 's interrogation of Paskings regarding the identity of the ringleader of union activity , in the context of threats of economic reprisal for union adherence described above, was coercive.15 Paskings further testified that on February 11 he went to the "Mansion House" to obtain his pay and was asked by the Respondent : "Whose side are you on?" but did not reply. The Respondent's wife then asked McNichol : "What is he doing in here?" and McNichol answered : "He is all right. Don't worry about Eddie." Paskings was cross -examined by the Respondent's attorney regarding this incident. The Respondent admitted that he asked Paskings : "Whose side are you on?" In view of the cross-examination of Paskings and the testimony of the Respondent with regard to this incident , I conclude that the matter was "fully litigated" at the hearing. The Respondent testified that, in asking this question of Paskings , he was refer- ring to the gasoline jacking situation . The General Counsel, however, maintains that at the time the question was asked Harrison and Walls were already on strike, and the purport of the question therefore was whether Paskings intended to join the strike or remain at work. Assuming without deciding, that the thrust of the question was as described by the General Counsel , this would not constitute a violation of the Act. Under similar circumstances , the Board held in Gala-Mo Arts, Inc.,16 that Section 8 (a) (1) of the Act had not been violated , saying: . the Respondent sought no more than to exercise its right to operate its business in an orderly manner by being assured whether these employees would 12 Ford Radio & Hica Corporation , 115 NLRB 1046 , 1074-1075. is Texas Natural Gasoline Corporation, 116 NLRB 405. 14 13lue Flash Express, Inc., 109 NLRB 591, 593. 15 N. L. R. B . v. Associated Dry Goods Corporation, 209 F. 2d 593 ( C. A. 2) ; Sam v. N. L. It. B., 171 F. 2d 769 ( C. A. 7), cited in the Respondent's brief, are not in point. In neither of these cases did the employer attempt to ascertain the identity of the leader of the union movement , as the Respondent did here. ' 113 NLRB 1, enforced in part, 232 F. 2d 102 ( C. A. 8). VERNON T. MERCER 683 be at work at 1 o'clock, October 1, 1953, or would join the strike that had already begun. . 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 necessary business operations. I deem the Gala-MMo case binding upon me 17 and determinative of the issue herein. Accordingly, it is found that the Respondent's conduct in this respect did not violate the Act. 4. Conclusions regarding interference, restraint, and coercion I conclude that, since December 1955, the Respondent has interfered with, restrained, and coerced his employees in the exercise of rights protected by Section 7 of the Act, thus violating Section 8 (a) (1) of the Act. `this finding is based upon his threat to Harrison on February 11 that he would not allow a union in his shop, his interrogation of Paskings, in December 1955, regarding the identity of the ringleader of union activity, and the following additional conduct of his supervisors: 1. McNichol's statements to Kelly, in January 1956, that he was seeking an excuse to discharge Mercer, and-upon learning of an available pretext-"That's all I want." 2. McNichol's warning to Mercer on February 10: "The boss definitely will not allow a union to come into this shop." 3. McNichol's threat to Mercer, in mid-March, to stay away from the garage because "we are out to get you." 4. Young's remark to Mercer, in January 1956, that the Respondent would dis- pose of his business rather than permit "a union to come into this shop." 5. Young's similar threat to Martin in January 1956. 6. Young's statement to Mercer, on February 10, in the presence of two other employees, that the sole purpose of Mercer's separation was "to keep the Union out." It is further found that the allegation of the complaint regarding interference, restraint, and coercion in August 1955, is barred by the 6 months' statute of limita- tions contained in Section 10 (b) of the Act. C. The Respondent's knowledge of union activities and his reaction As previously noted, the answer avers that the Respondent did not know of any union activities among his employees . The Respondent testified that he first learned of his employees' interest in the Union when Smith told him that Dugan had "stopped in the office" and that this was approximately 3 or 4 days before the Respondent received Dugan's letter of February 20. McNichol testified that the first knowledge he obtained that the employees were attempting to organize was in February, when he learned of it through an incoming telephone call answered by O'Banion. The Respondent's attorney, at oral argument, contended that the Respondent "knew nothing about union activity, land] if [he] had heard anything about union activity, it was only the vaguest of rumors." Let us analyze the evidence on the subject. It has previously been found that in mid-January Kelly reported to McNichol that Mercer and Martin were "going to join a union." It has further been found that in mid -January Young remarked to Mercer that he had heard "through the grapevine" that the employees were attempting to organize , and warned Martin (who was wearing a union button) that a union would not be allowed . Moreover, it has been found above that the Respond- ent in December 1955 asked Paskings if he had heard anything about a union and if Harrison was the ringleader. Thus it is clear, and I find, that before Febru- ary 1956, the Respondent either knew of or suspected his employees' efforts toward self-organization.18 I turn next to the Respondent's reaction to this knowledge or suspicion . In view of the numerous threats of reprisal and the coercive interrogation of Paskings, found "To the extent that New Hyden Coal Company, 108 NLRB 1145, enfd. as mod, 228 F. 2d 68 (C. A. 6), is inconsistent, the Gala-Ho case-although it does not specifically so state-must be deemed to have overruled the New Hyden decision. 18 In reaching this conclusion, I have not relied upon the testimony of Hughes that, in January or February 1056, he informed the Respondent that "the boys is going to try to get the Union in" and that the Respondent replied that he knew of it. 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD above, I am convinced and find that the Respondent was, at all material times, antagonistic to the attempts made by his employees to obtain representation by a union of their own choice.19 And this conclusion is not materially weakened by McNichol's testimony that, after the separations of Washington, Mercer, Martin, and Harrison, he "hired two union men." Assuming that he had in fact done so knowingly, such self-serving conduct presumably occurring after the filing of the instant charges 20 should, in my opinion, be accorded only the slightest weight. The General Counsel introduced evidence that the Respondent had, for a number of years, paid the union initiation fees and/or dues of Hughes and Harrison in a Teamsters local in New York, New York; Paskings in a Teamsters local in Camden, New Jersey; and Washington in the Teamsters local in Norristown, Pennsylvania- the Union involved herein. The Respondent made no deductions from the wages of the employees concerned as reimbursement for these payments. The Respond- ent's attorney contends that this fact, among others, indicates the Respondent's lack of animus toward unions. But the record clearly reveals that the Respondent only paid the union dues of some of his drivers in order to assure the unobstructed access of his trucks to certain racetracks in New York where nonunion drivers were likely to encounter difficulty. Moreover, the Respondent chose which locals his drivers were to join 21 and transferred the union books of union drivers to nonunion drivers to suit his own convenience. Thus, McNichol revealed that he (not Washington) had made the decision that Washington should join the local at Norristown rather than some other local. And Harrison testified that he had never attended a meeting of the Teamsters local in New York and that, on one occasion, the book showing his standing in the Union was taken away from him by a representative of the Respondent and given to Mercer for Mercer to carry and use, although Mercer was not then a member of any local of the Teamsters. Certainly the Respondent's attitude toward the drivers' pro forma membership in locals chosen by the Respond- ent, under conditions controlled by the Respondent, is an entirely different thing from the Respondent's attitude toward his drivers, on their own, selecting and joining a local without the consent of the Respondent. I conclude that the fact that the Respondent paid the union dues of certain of his drivers is insufficient to overcome the convincing evidence of the Respondent's antagonism toward a union chosen by the drivers themselves. D. The separations 1. Charles Washington a. Facts Charles Washington began to work for the Respondent early in 1954 as a driver. As previously related, the Respondent paid Washington's dues in the Union because, as McNichol expressed it, "I wanted Charles to work out of New York." Washing- ton accompanied Harrison, Martin, Mercer, and Walls to the Union's office in Norris- town on January 21, 1956, when they applied for membership in the Union. Early in the investigation of gasoline jacking referred to above, McNichol mentioned Washington's name to Cadmus as one of the suspects. As set forth previously, Washington was among the drivers given a 1-week disciplinary layoff by McNichol in December 1955. Both Ray and Walls, during their interviews with Cadmus, implicated Washington. On the afternoon of February 8, Cadmus interrogated Washington about the gasoline situation in the presence of the Respond- ent and McNichol, and alone, but Washington denied his guilt.22 Later Washington, McNichol, and the Respondent returned to the Respondent's office. The witnesses vary as to what happened then. According to the Respondent, Washington said 19 In reaching this conclusion, no controlling weight has been given to testimony, referred to above, that McNichol made certain remarks in August 1955, as that date is more than 6 months prior to the filing and service of the charge herein. News Printing Co., Inc., 116 NLRB 210; and Bricklayers, Masons and Plasterers International Union of America, AFL- CIO. et al. (Selby-Battersby & Company), 117 NLRB 366. 20 The charges were filed before the busy season commenced. 21 It may be that the Respondent selected the locals with an eye toward dispersal, that is, not permitting too many drivers to join the same local. However, I deem it unnecessary to determine on what basis the Respondent chose the locals for his drivers. 22 The finding that Washington denied his guilt is based upon Cadmus' credited testi- mony, corroborated by that of McNichol. The contrary testimony of the Respondent is not credited. VERNON T. MERCER 685 to the Respondent: "Well, I guess if I am wrong, why, you have no more use for me," and walked out. According to McNichol, Washington said to the Respondent: "You have caught up with me. I guess you don't have any more use for me," and the Respondent replied: "That's the way it looks, Charles" or "That's right, Charles." Washington gave a somewhat different version. According to Washington, on February 8, Montgomery accused him of gasoline jacking, but Washington denied this; Washington and Montgomery cursed each other and Washington threatened to "punch him in his mouth"; that later in the day the Respondent told Washington that Ray and Walls had implicated Washington in the gasoline jacking, but Wash- ington protested his innocence, saying: "Why don't you bring the gas station man in here and prove it instead of going on what some driver said?"; that the Respondent then told Washington: "You are fired. I don't need you any more. I [will] take the money out of your pay on you, for what gas you took"; that Washington retorted: "Well, then I will go see my lawyer," and that Washington then consulted James Foxall, an attorney. According to Cadmus, Foxall contacted Cadmus by telephone regarding $25 withheld from Washington's wages. About 5 or 5:30 p. m. that day Cadmus told the Respondent, in McNichol's presence, that he thought Washington had been lying to him and that, if it were up to him, he would discharge Washington. The Respondent replied either that he was going to do so, or that he had already done so, and asked Cadmus' advice about $25 he had withheld from Washington's wages. Cadmus related his telephone conversion with Foxall and advised the Respondent to retain the $25. So far as the record shows, there has been no further communication between Washington and the Respondent.23 b. Positions of the parties The complaint alleges, and the General Counsel maintains, that the Respondent discharged Washington on February 8, and thereafter refused to reinstate him, because of his union activities. The answer, while not denying the discharge of Washington on February 8, denies that he was discharged because of his union activities or that the Respondent knew that he was a union member or had engaged in union activities. On the contrary, the answer avers that Washington was dis- missed for "good and sufficient reason," namely, his services were inefficient, he violated company policies, and he refused to obey the instructions of his supervisors. The Respondent denied that Washington was discharged or that he intended to dis- charge Washington, but testified that Washington voluntarily quit. McNichol like- wise testified that Washington quit, but further testified that he intended to discharge Washington "if he admitted being guilty of stealing gasoline." At oral argument, the Respondent's attorney took the position that Washington's separation was "a combination" of a resignation and a discharge, but if a discharge, was because he had been implicated by other employees in the gasoline jacking and had admitted his guilt. The Respondent's brief argues that there is no evidence that the Respond- ent "knew that Washington was engaged in any union activities," and points out that "Washington was apparently heavily involved in the `jacking' of gas and that the [Respondent] had grave reason to suspect his honesty." c. Conclusions The General Counsel's case regarding Washington rests entirely on the Respond- ent's union animus, the timing of Washington's separation, and the allegedly related discriminatory discharges of other union adherents, discussed below. However, there is no evidence that Washington engaged in any union activities other than his membership in the Union and his accompanying some of his fellow employees to the Union's office in Norristown in January. As to the former, the Respondent had long been aware of Washington's membership in the Union and indeed paid his dues. As for the latter, while the Respondent became aware of, or suspicious of, his employees' interest in self-organization, there is no probative evidence (as dis- tinguished from pure surmise and speculation) that he-or any of his supervisors- knew or suspected that Washington was involved in this movement. In the absence 23 The General Counsel introduced evidence tending to indicate that the Respondent from time to time required Washington to work more than 10 hours a day; in violation of Inter- state Commerce Commission regulations, and to falsify his logbooks with regard thereto. The Respondent introduced evidence tending to indicate that, in October 1955, Washington deliberately-refused to leave Ligonier, Pennsylvania, when directed to do so by a repre-. sentative of the Respondent . I deem these alleged matters extraneous to the issues herein. 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of such evidence, a prima facie case is lacking, regardless of whether the separation is considered a quit or a discharge, and regardless of which version of the events of February 8 is credited. It is accordingly found that the General Counsel has failed to prove by a fair preponderence of the evidence that the Respondent discriminatorily discharged Washington on February 8. In view of this conclusion, it is unnecessary to determine whether Washington was separated, as the Respondent's attorney contends, because the Respondent believed him to have been guilty of gasoline "jacking." 2. Clyde B. Mercer, Jr. a. Facts Clyde B. Mercer, Jr., was first employed by the Respondent in August 1953, but left for a while in December 1953. He returned to the Respondent's employ as a driver in April 1954. On February 10, Mercer reported for work as usual at the garage in Malvern at about 8 a. m. Young directed him to go to the West Chester office to see McNichol. Mercer complied, arriving at West Chester before 9 a. m. McNichol told Mercer that the Respondent "was thoroughly dissatisfied with the way things went this year" and had instructed him "to get rid of every man on the job and replace [them] . . . with all new drivers." Mercer replied that he could obtain employment elsewhere, and asked to see the Respondent. McNichol replied that the Respondent was not there, and then stated: "Clyde, I'm sorry to see you go. ... The boss definitely will not allow a union to come into this shop." McNichol then wished Mercer "the best of luck" and handed him 1 week's pay. He remarked to Mercer: "The boss will be in touch with you over the weekend, probably by 'phone. Probably he wants you to come back on his term[s]." As Mercer started to walk away, McNichol asked if Martin was working and Mercer replied that he was. McNichol added: "Send him to the office, he's the next one to be fired." Mercer did not reply but returned to the Malvern garage.24 There he had a conversation with Martin which will be described below. Mercer then began to take his personal belongings out of his truck. Young asked him what he was doing, and he explained that he had been dis- charged. Young stated: "This is only Friday. You'll be back to work by Monday. It's only done to keep the Union out. The boss is going to call you over the week- end to see if you will come back on his terms." Mercer then took his belongings and went home. He has not worked for the Respondent since. During the next week, Mercer participated with Martin in attempts to persuade the Respondent's drivers to refuse to work, as mentioned previously. Shortly after his separation from the Respondent's employ, Mercer applied to the appropriate agency of the Commonwealth of Pennsylvania for unemployment com- pensation. A hearing was held, but the record herein does not reveal the ultimate disposition of Mercer's application. b. Positions of the parties The complaint alleges, and the General Counsel contends, that the Respondent discharged Mercer on February 10, and thereafter refused to reinstate him, because of his union activities. The answer, while not denying the discharge of Mercer on February 10, denies that he was discharged because of his union activities or that the Respondent knew that he was a union member or had engaged in union activities. On the contrary, the answer avers that Mercer was dismissed for "good and sufficient reason," namely, his services were inefficient, he violated company policies, and he re- fused to obey the instructions of his supervisors. c. Mercer's union activities and the Respondent's knowledge of, and reaction to, them Mercer was among the employees who, beginning in December 1955, gathered near the boiler in the cellar of the Malvern garage from time to time and discussed the desirability of self-organization. He was also one of those who went to Norris- town on January 21 and applied for union- membership. At that time, he paid his union dues and initiation fee in full. ^ The findings of fact regarding this interview are based upon Mercer's testimony. Mc- Nichol gave a somewhat different version. According to McNichol, McNichol told Mercer that the Respondent "was very dissatisfied regarding the gasoline situation . . . and I was going to have to let him go for a while" and then gave Mercer his pay. Mercer's account of this conversation is credited as the more accurate. VERNON T. MERCER 687 In mid-January, as previously related, Mercer took a trip to Camden, South Carolina, with Martin and Kelly, following which Kelly reported to McNichol that Mercer and Martin intended to join a union. Also in mid-January, as set forth above, Young warned Mercer of the consequences which might be expected if the .Union were chosen to represent the employees. In view of these two incidents, it is found that, before February 1956, the Respondent knew or suspected that Mercer was a sup- porter of the Union. McNichol's reaction upon learning from Kelly that Mercer and Martin intended to join a union of their own choice was swift. He immediately indicated his desire to find some excuse to discharge Mercer. And, when Kelly supplied him with an available pretext, McNichol showed his satisfaction by remarking: "That's all I want." I conclude from this that McNichol, when he discovered or suspected Mercer's at- titude toward self-organization, determined to be rid of this union adherent. d. The nature of Mercer's separation The Respondent testified that Mercer was not discharged, but merely laid off, and that he intended to recall Mercer "if we could use him under certain circum- stances." He further testified that, due to a death in his family and his own illness, he was not aware that Mercer was not working until about 8 or 10 days after Mercer's separation. McNichol likewise testified that Mercer's separation was a layoff rather than a discharge. When asked whether he intended to recall Mercer, McNichol answered: "If I couldn't have gotten anybody else, yes, 1 might have called him back," but he also testified: "I was hoping he wouldn't come back." On the other hand, the Respondent's attorney, at oral argument, took the opposite position-that Mercer's separation was a discharge rather than a temporary layoff. Let us analyze the record. At the time of his interview with Mercer on February 10, McNichol clearly indicated to Mercer that he was under orders to "get rid of" Mercer and "replace" him. This is exactly what was done. For on February 13- only 3 days later-the Respondent rehired Marvin Payne, a former employee, to drive. In view of this fact, the failure of the answer to deny that Mercer was dis- charged,25 and the position taken by the Respondent's attorney at oral argument, it is found that on February 10 McNichol intended to sever Mercer's employment permanently, not merely to lay him off temporarily. e. The reason for Mercer's discharge The Respondent testified that Mercer was separated "because we had no work for him, and other various reasons." Likewise McNichol testified that business was slow and "we didn't have any work." However, no details of the alleged falling off of business were presented. Moreover, as pointed out above, Payne was rehired only a few days after Mercer's discharge. And McNichol admitted that Joseph De Marino, who reported for work for the first time on February 13, had actually been offered the job a week or 10 days earlier-thus well before Mercer's discharge. I conclude that lack of work had nothing to do with Mercer's discharge. McNichol also testified that the gasoline "jacking" situation played a "slight part" in the decision to discharge Mercer. He explained that in December 1955 he had imposed a 1-week disciplinary layoff upon 4 of the drivers, that Cadmus had then advised the Respondent not to engage in any further disciplinary action until his investigation was complete, that on February 8 Cadmus informed the Respondent that his investigation was finished, and that thereafter he determined to impose a disciplinary layoff of 1 or perhaps 2 weeks upon Mercer, Martin, and Harrison because "[you] can't do something with one man and not do it with the other. . . . 1 intended to give the rest of them the same treatment." This defense proves too much. For Hughes, and Kelly, and Paskings, who were believed by the Respondent to be opposed to the Union,26 were never given any disciplinary treatment.27 It is therefore clear, and I find, that there was no connection between the investigation of gasoline "jacking" and the discharge of Mercer. v Section 102.20 of the Board's Rules and Regulations, Series 6, as amended, provides : ,,any allegation in the complaint not specifically denied or explained in an answer . . . shall be deemed to be admitted." 29 Kelly disclosed the fact of Mercer's and Martin's interest in the Union to McNichol and supplied him with a pretext for their discharge ; Hughes told the Respondent he would quit if the shop became unionized ; and McNichol said of Paskings : "He is all right. Don't worry about Eddie." -7 Paskings testified that he did not work the week beginning February 13, but McNichol testified to the contrary. I do not consider it necessary to resolve this conflict, as neither of them testified that Paskings was given a disciplinary layoff that week. Egg DECISIONS OF NATIONAL LABOR "RELATIONS BOARD McNichol described a number of other alleged reasons for Mercer's discharge as follows: A customer in South Carolina had complained that Mercer and Martin left the motor of their van running "all afternoon"; the garage foreman in Malvern (Young) "couldn't get him [Mercer] to do anything"; he "wouldn't service his truck"; he "violated interstate commerce regulations [by taking] his wife on trips with him"; he "threatened to quit"; he was "very hard to find on weekends"; he "left a van in Maryland" and "came home on another truck"; he "refused to work with colored help"; on trips to Kentucky and South Carolina he "stayed down there longer than he should"; and the Respondent's New York agent, Roy Mc- Comsey, complained "about not being able to find him once he would check in there." McComsey testified that for about 2 years Mercer refused to take orders from him and that he complained about this to the Respondent a number of times, the last time being in September 1955. McComsey also testified that, in October 1955, Mercer refused to leave Ligonier, Pennsylvania, promptly when ordered to do so. Mercer denied that he stayed in South Carolina or Kentucky longer than he should have, or that he left a van in Maryland, or that he took his wife along on any trip. He testified that his work had been complimented by a customer and that Young had told him that his gasoline mileage was good. Young did not testify. I ueem it unnecessary to decide the merits of these numerous complaints against Mercer. No doubt he had some shortcomings as an employee. But the Respondent continued to employ him without-so far as the record shows-reprimanding him, disciplining him, or warning him that any disciplinary action was contemplated. Moreover, all the complaints (except the running of the truck motor at the Camden, South Carolina, racetrack) dealt with matters which occurred many months before Mercer's discharge. Furthermore, not a single one of these matters was mentioned to Mercer during the interview on February 10 when McNichol discharged him. I conclude that none of these matters contributed to the Respondent' s decision to discharge Mercer. On the contrary, I am convinced that they were mere after- thoughts, seized upon to cover up the real motive for the discharge. What, then, was the true reason that Mercer was discharged? The answer lies in the Respondent's antagonism to his employees' attempts to be represented by a union of their own choice, and the information supplied by Kelly that Mercer was active in this movement. That this provided the underlying and basic motive for the discharge is clearly shown by McNichol' s statement to Kelly that he would like to have a pretext to discharge Mercer, his expression of satisfaction when Kelly supplied him with one, his mention to Mercer at the time of the discharge that the Respondent would not tolerate a union in his shop, and Young's remark on the same day that the sole purpose of the discharge was to keep the Union out. I conclude that Mercer was discharged because of his known or suspected support of the Union, in furtherance of the Respondent's determination to keep a union chosen by the drivers out of his shop, and as an object lesson to employees who might be considering self-organization . The Respondent thereby discriminatorily dis- couraged union membership, in violation of Section 8 (a) (3) of the Act. He also thereby interfered with, coerced, and restrained his employees in the exercise of rights guaranteed in Section 7 of the Act, and thus violated Section 8 (a) (1) of the Act. f. The alleged offer of reinstatement The complaint alleges that the Respondent has refused to reinstate Mercer at all times since his discharge. The answer denies this, averring that on February 17 the Respondent offered Mercer employment in the same position he had formerly occu- pied, but that Mercer refused to accept it. McNichol testified that he telephoned to Mercer on February 17 and told him that the Respondent was sending a truck to Kentucky and needed some extra men, and asked "if he was interested in going on it" but that Mercer replied: "No." Mercer denied that McNichol called him on February 17, but testified that McNichol telephoned to him in mid-March. According to Mercer, McNichol asked Mercer if he was working and Mercer replied that he was not. McNichol then said "he had a trip going to Kentucky and he didn't need drivers but he had some dirty horses that he didn't dare send any of his employees on . . . [and] he thought he would give me a couple of bucks to eat on if I would make the trip," but that Mercer replied: "I am not interested in riding with horses. I drive a truck." McNichol then told Mercer: "I was only kidding you. I don't have employment for you anyway." Mercer impressed me as a more candid and reliable witness than McNichol; his version is credited. It is accordingly found that after February 10 the Respondent made no bona fide offer to reinstate Mercer to his former position. VERNON T. MERCER 689 3. Charles Sidney Martin a. Facts Charles Sidney Martin had been employed by the Respondent as a driver for approximately 3 years at the time of the events related herein. Martin reported to the Malvern garage as usual on February 10 and was assigned by Young to grease one of the tractors. Between 8 and 10 a. m., Mercer returned from his interview in West Chester with McNichol during which he had been discharged. Mercer told Martin: "Sid, I have been fired. He is going to fire them all. You are the next man on the list. Bill McNichol told me to tell you to come into the office. He wanted to talk to you." A short while later, Young directed Martin to report to the West Chester office. Martin answered: "I have always got my pay here. They can bring it out," and left. During the balance of that day, Martin went to several places, including the Union's office in Norristown, and Malvern. 28 He ultimately reported to the West Chester office between 4 and 5 p. m. There he encountered the Respond- ent, McNichol, Montgomery, Smith, and Kelly. Montgomery handed Martin an envelope containing 1 week's pay, and Martin left. On the following morning, February 11, Martin reported to the Malvern garage.29 O'Banion handed Martin an envelope containing a week's back pay, and Young then told Martin: "Get your belongings and get out." Martin complied. He has not worked for the Respondent since. During the following week, as described above, Martin participated with Mercer in trying to persuade the Respondent's drivers not to work. Martin applied to the Department of Labor and Industry of the Commonwealth of Pennsylvania for unemployment compensation. On March 2, the Unemployment Compensation Bureau denied benefits to Martin, ruling that "he had resigned his position on February 11th in anticipation of a dismissal for violation of company policy." Martin's subsequent appeals were turned down, first by a referee on April 18, after a hearing, and later by the Unemployment Compensation Board of Review on July 20. b. Positions of the parties The complaint alleges, and the General Counsel contends, that the Respondent discharged Martin on February 11, and thereafter refused to reinstate him, because of his union activities. The answer admits that Martin was discharged on February 11, but denies that he was discharged because of his union activities or that the Respondent knew that he was a union member or had engaged in union activities. On the contrary, the answer avers that Martin was dismissed for "good and sufficient reason," namely, his services were inefficient, he violated company policies, and he refused to obey the instructions of his superiors. c. Martin's union activities and the Respondent's knowledge of them Martin was one of the employees who went to the Union's office on January 21 and applied, for union membership. He wore a union button on his coat, and solicited Hughes' support for the Union. Martin's activities on behalf of the Union were reported to McNichol by Kelly in mid-January, as described above. Moreover, there can be no doubt that Young also knew that Martin was a union adherent. For late in January, while Martin was wearing a union button, Young told him: "They won't allow a union in here." It is accordingly found that before February 1956, the Respondent knew or suspected that Martin was prounion, d. The Respondent's intention toward Martin on the morning of February 10 McNichol testified that, on the morning of February 10, he instructed Young to send Mercer to the West Chester office, adding: "When I am finished with him, send Sidney Martin up." McNichol testified as follows with regard to his intention: Q. What did you want to see Mr. Sidney Martin about?-A. The- Q. The same thing?-A. Yes. Q. You intended to give him his-A. That's right. Q. (Continuing.) Layoff?-A. That's right, but he didn't come up. On cross-examination of Martin, the Respondent's counsel brought out that once in the past Martin had been arrested for speeding, and that on another occasion in 28 Mercer accompanied Martin to the Union's office in Norristown. Walls joined Martin in Malvern that afternoon and went with him to the Respondent's West Chester office. 2° Mercer was with Martin, but Mercer did not go inside the garage when Martin did. 476321-58-vol. 119-45 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD March 1955 he was involved in an accident while driving one of the Respondent's trucks, which caused some horses riding in the van to suffer injuries. However, the Respondent's attorney stated that this event had no connection with Martin's dis- charge, but was introduced "merely to show the type of employee he was." The Respondent produced McComsey as a witness who testified that in September 1955 Martin had refused to take a truck out of Belmont Park when ordered to do so, that in 1954 and 1955 Martin refused to work with colored employees, that these matters were called to the Respondent's attention, and that Martin would often leave the garage to go home at lunchtime and fail to return until the next morning. Martin admitted that in 1955 he refused to work with Paskings but denied any other refusal to work with colored employees. Presumably these matters, like Martin's accident, were introduced "merely to show the type of employee he was" and not because of any direct connection with the issues herein. Martin indeed appears to have been somewhat less than an ideal employee, but despite this the Respondent continued to employ him without reprimand, warning, or other discipline and there seems to be no contention that these past incidents played any substantial part in McNichol's decision regarding Martin on February 10. At oral argument the Respondent's attorney maintained that Martin was separated because "he was an unsatisfactory employee, but primarily the gas situation. The gas situation culminated in all of it." However, in view of the failure of the Respond- ent to impose disciplinary layoffs upon Hughes, Kelly, and Paskings, who were believed to be opponents of the Union, I find that there was no connection between the investigation of gasoline "jacking" and McNichol's decision of February 10 respecting Martin. What was the decision that McNichol reached on the morning of February 10? McNichol testified that he merely intended to give Martin a disciplinary layoff for 1 week, but his testimony in this respect was unconvincing. In view of the clear and convincing evidence that McNichol intended to treat Mercer and Martin alike and the finding that McNichol permanently discharged Mercer on the morning of Feb- ruary 10 because of Mercer's known or suspected union activities, I am convinced and find that McNichol sent for Martin that morning with the intention of discharg- ing him permanently, because of his known or suspected support of the Union. e. Conclusions It is beyond question that on the morning of February 10 Martin learned through Mercer that McNichol had discharged Mercer and was about to do the same to him.30 What Martin did in the next 6 hours is not entirely clear because his testi- mony on the subject was somewhat evasive. But it appears from the record as a whole that he went with Mercer to the Union's office in Norristown, and to Malvern, and from there to West Chester with Walls. No party contends either that he quit his employment during this period,31 or that he went on strike, and there is nothing in his own testimony indicating his intent to do either. And although he took 6 hours to answer McNichol's summons-an unconscionable amount of time 32-he was not criticized or reprimanded for this by either McNichol or the Respondent, both of whom saw him when he arrived at West Chester at about 4 p. in. And Young, when he dismissed Martin the next day, gave no explanation for doing so. I conclude that McNichol's mind had been made up on the morning of February 10 to discharge Martin because of his union activities, that nothing done by Martin thereafter altered this determination, and that the only effect of Martin's delay in reporting to West Chester as ordered was to postpone the hour of final effectuation of McNichol's plan to get rid of Martin. It follows, and I find, that Martin was discriminatorily discharged in violation of Section 8 (a) (1) and (3) of the Act. ao Pointing out that McNichol directed Mercer to tell Martin to come to the West Chester office, the General Counsel contends that Mercer thereby became the Respondent's agent to notify Martin that he was about to be discharged. I cannot agree. The General Counsel's position would give controlling weight to McNichol's authorization of the specific act per- formed, contrary to the provisions of Section 2 (13) of the Act. 11 It is true that the Respondent took the position before the Pennsylvania Unemploy- ment Compensation Board that Martin voluntarily quit his employment, and that the State body so found. But that position was not taken by the Respondent in the instant proceed- ing. Moreover, I do not have before me the record upon which the decision of the Pennsyl- vania Unemployment Compensation Board was based. 22 The distance from Malvern to West Chester is 9 or 10 miles. VERNON T. MERCER 691 f.- The alleged offer of reinstatement The Respondent's answer avers that on February 17 McNichol offered employ- ment to Martin "in the same position formerly occupied by [him] but that [he] refused to accept the said employment and since that time [has] never contacted Respondent or any of his representatives with respect to being employed by Re- spondent." McNichol testified that on February 17, after telephoning to Mercer,, he called Martin and asked him "if [he] wanted to work." McNichol did not: testify as to Martin's reply, -but his testimony infers that Martin answered nega- tively. Martin denied that McNichol telephoned to him on February 17. He tes-. tified that in mid-March he received a telephone call and recognized the voice on,, the other end as that of McNichol, and that the following conversation ensued:. McNICHOL: What are you doing? MARTIN: I am not doing nothing as yet. Who is this speaking, McNichol? MCNICHOL: Don't worry who it is. Are you doing anything in the morn- ing about eight o'clock? MARTIN: Not that I know of. MCNICHOL: Well, you be down to the garage in Malvern at eight o'clock in the morning. MARTIN: I [Will]. Martin further testified that the next morning he and Mercer drove together to the Malvern garage, and remained seated in their parked automobile outside. Neither of them got out of the car or went inside the garage and neither of them spoke to any of the Respondent's supervisors. Neither Martin nor McNichol impressed me as a candid witness. Nevertheless of the two I consider Martin the more forthright. I accordingly credit his version of the telephone conversation and the succeeding events. But a suggestion that Martin should report to the garage at a given time is not the equivalent of a firm offer of reinstatement. It is therefore found that the Respondent has not, since February 11, offered to reemploy Martin in the position formerly held by him. 4. Charles Leo Harrison a. Facts Charles Leo Harrison, the Charging Party, had been employed by the Respondent as a driver for 10 or 11 years before the events related herein. For the last 6 or 8 years of Harrison's employment, the Respondent had paid his dues in a New York local of the Teamsters. Harrison was one of the employees who gathered near the boiler in the garage and discussed self-organization. He was among those who went to the Union's Norristown office on January 21, 1956, and applied for membership. At that time, he made a partial payment toward his initiation fee. He was designated shop steward for the Respondent's shop, and solicited Hughes to join the Union. As pointed out previously, the Respondent asked Paskings if Harrison was the union "ringleader." Harrison returned from a trip on the evening of February 10. Between 8:05 and 8:10 a. m. the next morning, February 11, he reported to the Malvern garage. There he talked to Martin, who told him that he had "heard from Mr. Dugan that we was all fired, and not to go out until this business was straightened out." Har- rison then commenced to fill out his logbook and expense account from the previous trip. McNichol approached him between 8:10 and 8:30 a. m. and asked: "Charley, can I see your license?" Harrison exhibited his driver's license, which McNichol then returned to him. Harrison, still in street clothes and not having changed to coveralls, continued the preparation of his log. The Respondent then came up to Harrison and directed him to take his truck to West Chester, but Harrison refused. The Respondent asked Harrison if he quit and Harrison replied: "No, sir, I haven't quit. I just refuse to take the truck to West Chester." The Respondent inquired: "What do you mean?" and Harrison answered: "I just mean I'm not going to take it. Mr. Dugan gave his orders not to go out on the road until this thing was straightened out." The Respondent then inquired: "Are you with the rest of the clique around here?" and Harrison countered: "What do you mean 'clique'?" The Respondent answered: "You know what I mean. The Union." Harrison responded: "If that is what you mean, I am with them." The Respondent then remarked: "I will not allow a Union in here," and directed Harrison to go 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the office and draw his pay.33 Harrison complied. He has not worked for the Respondent since.34 b. Positions of the parties The General Counsel contends that the Respondent discharged Harrison' for refusing to take out a truck, but that when the Respondent asked Harrison to take a truck out, Harrison was already on strike, and that the discharge was therefore violative of the Act. The Respondent contends that Harrison was an unsatisfactory employee, that there was no strike, but that, in the words of the answer, "Harrison did terminate his employment with Respondent voluntarily and of his own free will." c. The nature of Harrison's separation McNichol testified that he intended to give Harrison a disciplinary 1-week lay- off. Yet when McNichol saw Harrison on the morning of February 11, all he did was to ask Harrison to show him his driver's license; he said nothing about a lay- off. In any event, McNichol's intentions toward Harrison are immaterial. The Respondent's counsel contended at oral argument that Harrison "refused to work. I think you can say he quit." Let us see what actually happened. When Harrison refused to obey the Respondent's order to perform his regular duties, the Respondent asked him if he quit and he replied that he was not quitting. Indeed, he made it plain that his refusal to work was temporary, "until this thing was straightened out." It is therefore clear that Harrison had no intention of abandon- ing his employment, but on the contrary, voluntarily withheld his labor in order to take part in concerted activities, as more fully described below.35 And when the Respondent then told Harrison to go to the office and draw his pay, the Respondent thereby discharged Harrison. d. Conclusions Upon cross-examination of Harrison, the Respondent's counsel developed evidence that in 1953 Harrison lost his license for a year because he drove while intoxicated, that he was arrested for the same reason in 1954 but did not lose his license at that time, and that the Respondent paid a higher than normal premium on the insurance of trucks driven by Harrison. Moreover, McComsey testified that Harrison "wasn't the most responsible employee," that he was drunk in 1953, that in January 1955 Harrison "spent the majority of his time" in a taproom, and that he became in- toxicated in Ligonier, Pennsylvania, in October 1955. The Respondent's attorney explained that he exhumed these ancient incidents "to show a course of conduct of this employee over a period of time . . . leading tip to why he was discharged." While it may be that Harrison had definite faults, the fact remains that the Respond- ent retained Harrison in his employ for more than 10 years, and at Christmas 1955 even presented him with a gift of a turkey and a $10 bonus. In any event, none of the incidents mentioned above can reasonably be looked upon as having any sub- stantial bearing upon Harrison's discharge. It is clear beyond doubt that the Re- spondent discharged Harrison on the morning of February I I primarily because Har- rison refused to obey a legitimate order to perform his regular duties. If Harrison's refusal to do so was part of protected concerted activities in which he was then engaging, the discharge was proscribed. And this is true even if the Respondent was not aware that Harrison was participating in protected conduct.36 Conversely, if Harrison's refusal was not part of protected concerted activities, the discharge was lawful. 33 These findings of fact are based upon a synthesis of the testimony of the Respondent, Harrison, and Martin, who overheard the conversation. ,McNichol testified that he-not the Respondent-directed Harrison to drive a truck to West Chester that morning. Mc- Nichol's version is not credited. 34 The Respondent testified that he did not learn that Harrison was no longer working for him until about 8 or 10 days after February 11. This testimony is not credited. It is difficult to reconcile this testimony with other testimony by the Respondent that on February 11 he (the Respondent) asked Harrison to drive a truck to West Chester but that Harrison replied that he would not work anymore. 35N. L. It. B. v. McCatron, 216 F. 2d 212, 214 (C. A. 9), cert. den. 348 U. S. 943; Andreeos Company, 87 NLRB 379, 393 ; Ace Handle Corporation, 100 NLRB 1279, 1290-2 ; Brookville Glove Company, 114 NLRB 213, 222, enfd. 234 F. 2d 400 (C. A. 3) ; and Texas Natural Gasoline Corporation, 116 NLRB 405. 3e Home Beneficial Life Insurance Company, Inc. v. N. L. R. B., 159 F. 2d 280, 285-6 :(C. A. 4), rehearing denied March 10, 1947, cert. denied 332 U. S. 758. VERNON T. MERCER 693 If Harrison was on full strike when the Respondent spoke to him, he intended (a) not to perform any further services for the Respondent until the grievance was settled; (b) to leave the Respondent's premises upon request, as soon as his log- book and expense account were completed; and (c) not to claim further wages until he resumed working. If such was the case, Harrison was protected by Section 7 of the Act if he was acting in concert with other employees. On the other hand, if Harrison was on a "partial" strike when the Respondent ordered him to drive his truck to West Chester, he intended (a) not to perform any driving, but to con- tinue to perform other services in the garage, such as maintenance of the truck; (b) not to leave the Respondent's premises; and (c) to continue to claim full wages. If such was the case, under well-established Board and court precedents, Harrison's conduct was not protected by the Act 37 On the subject of his intentions at the time, Harrison testified under cross-examination as follows: Q. (By Mr. Knecht.) Going back to that, in other words, it was your in- tention that you would not again obey any orders of any Company officials in there until the Union told you so? [Emphasis supplied.] A. That's right. In view of this testimony and the fact that Harrison had not yet changed into cov- eralls, I am convinced and find, in agreement with the General Counsel, that when the Respondent spoke to Harrison on the morning of February 11, Harrison was already engaged in full strike and intended to withhold his services completely38 In this he was joined by Walls who, it will be recalled, likewise refused to work for the Respondent that morning and likewise explained that he was doing so under instructions from Dugan. Moreover, Harrison appears to have acted in this re- spect in concert with Mercer and Martin, who had already been discharge.39 And it is immaterial (if indeed such was the fact) that the strikers did not notify the Respondent in advance of their intention to strike, or state their demands to the Respondent, or engage in formalized picketing with signs40 Thus, Harrison was discharged because he participated in a lawful and protected strike against the Re- spondent. It follows that his discharge violated Section 8 (a) (1) and (3) of the Act. I so find. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local 384, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, AFL-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 Clyde B. Mercer, Jr., Charles Sidney Martin, and Charles Leo Harrison, thereby dis- couraging membership in the above-named organization, the Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By such conduct, by threatening reprisals against his employees because of their membership in and assistance to the above-named labor organization, and by coercively interrogating an employee regarding the union activities, affiliations,, or sympathies of his fellow employees, thereby interfering with, restraining, and coerc- ing his employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The above-described unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce, and constitute 81 For example : Home Beneficial Life Insurance Company, Inc. v. N. L. R. B., supra; G. C. Conn, Limited v. N. L. It. B., 108 F. 2d 390 (C. A. 7) ; N. L. R. B. v. Kohler Company, 220 F. 2d 3 (C. A. 7) ; N. L. R. B. v. Montgomery Ward & Co., 7.57 F. 2d 486 (C. A. 8) ; Honolulu Rapid Transit Company, Limited, 110 NLRB 1806; and Valley City Furniture Company, 110 NLRB 1589. It is true that normally an employee who has made up his mind to strike would leave the premises immediately. But here Harrison could not very well do so until he had completed the log and expense account for the trip from which he had recently returned. 80 Texas Natural Gasoline Corporation, 116 NLRB 405. 40N. L. It. B. v. Cowles Publishing Company, 214 F. 2d 708 (C. A. 9), cert. denied 348 U. S. 876; West Coast Casket Company, Inc., 97 NLRB 820, 824, enfd. 205 F. 2d 902 (C. A. 9) ; and Ford Radio & Mica Corporation, 115 NLRB 1046, 1078. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unfair labor practices affecting commerce, within the meaning of Section 2 . (6) and (7) of the Act. 5. The General Counsel has failed to prove by a fair preponderance of the evi- dence that the Respondent engaged in any unfair labor practices in August 1955, advised discharged employees that they would be offered reinstatement on the basis of abandoning their activities on behalf of the Union, or discriminatorily discharged Charles Washington. 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 It has been found that the Respondent threatened his employees with reprisals because of their membership in and assistance to the Union, coercively interrogated one employee, and discharged three employees and thereafter failed to reinstate them because they engaged in concerted activities. In view of the underlying purpose and tendency of this unlawful conduct, I conclude that there exists danger that the Re- spondent will commit other unfair labor practices in the future. Accordingly, in order to effectuate the purposes of the Act, it will be recommended that the Re- spondent 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. Normally, when employees have been discriminatorily discharged, it is customary to recommend their immediate reinstatement to their former or substantially equiva- lent positions. Where, however, the dischargee testifies unequivocally at the hearing that he does not desire reinstatement, reinstatement will not be recommended 41 On this subject, Martin's testimony on cross-examination was as follows: Q. You were out of work at this time [mid-March] ?-A. I was out of work at this time. Q. Were you looking for a job?-A. I was looking for a job. Q. Would you have worked for the company?-A. Under conditions, no. Q. You wouldn't have worked for the company if Mr. McNichol offered you a job?-A. Not after pertaining to the union officials. I felt it was justice for them to take them up, to put me back to work. Q. Right. And you also said that if the company, if Mr. McNichol or anybody else had offered you employment subsequent to the date of your termination, you would not have accepted it.-A. That I would not accept it? Q. Without the consent of Mr. Dugan. Is that not correct?-A. I won't say "any company." Q. No. I am talking about this company, Vernon T. Mercer.-A. I said I would check with the Union for further instructions from them. Q. And without the permission of the Union, you would not accept such employment?-A. I couldn't say that I wouldn't. Q. You say you would accept employment?-A. I said, "I couldn't say that I wouldn't." Q. Could you say that you would?-A. Very possible. In my opinion, this testimony does not indicate an unequivocal determination by Martin never to accept reinstatement under any circumstances. No offer of employ- ment has been tendered to him by the Respondent and refused. Until he is called upon to make an election in the face of an actual offer of reinstatement, I believe the policies of the Act will be effectuated if the Respondent is required to assume full responsibility for the consequences of his own unlawful acts.42 It will therefore be recommended that the Respondent offer to Mercer, Martin, and Harrison immediate reinstatement to their former or substantially equivalent positions, without prejudice to any seniority or other rights and privileges previously enjoyed. 41 Colonic Fibre Company, Inc. v. N. L. R. B., 163 F. 2d 65, 70 (C. A. 2) ; Happ Brothers Company, Inc., 90 NLRB 1513, 1518, enf. denied on other grounds, 196 F. 2d 195 (C. A. 5) ; Baxter Bros., 91 NLRB 1480, 1488; Sellers Manufacturing Company, 92 NLRB 279, 295: Pacific American Shipowners Association, et at., 98 NLRB 582, 605 ; Morgan Furni- ture Company, 102 NLRB 944 (unpublished portion of Intermediate Report adopted by Board) ; and Texas Natural Gasoline Corporation. 116 NLRB 405. 42 Oklahoma Transportation Company, 50 NLRB 907, 924-5, enfd. 140 F. 2d 509 (C. A. 5) ; Pacific American Shipowners Association, et at., supra, p. 603; Fox Midwest Amuse- ment Corporation, et at., 98 NLRB 699, 720, footnote 15; and Texas Natural Gasoline Cor- poration, supra. Compare Sterling Furniture Company, 109 NLRB 602, 603, footnote 4. KAISER ALUMINUM & CHEMICAL CORPORATION 695 It will be recalled that Harrison was discharged while on strike. It has been the Board's practice to award back pay to employees discharged while on strike from the date of their unconditional application for reinstatement, on the theory that it cannot be said that their loss of pay was caused by the employer's conduct until they indicate willingness to return to work.43 The General Counsel did not produce any evidence that Harrison had indicated his willingness to abandon the strike and re- turn to work. However, the Respondent's answer states: "Respondent avers that during the month of April 1956, Charles Leo Harrison did request reemployment with Respondent, but was informed that, due to the seasonal nature of Respondent's busi- ness, there was no work available during that period. Since that time the said Charles Leo Harrison has never requested to be reemployed by Respondent." It is accordingly found that, on April 16, 1956,44 Harrison indicated his willingness to re- turn to work, but his request for reinstatement was not granted. It will accordingly be recommended that the Respondent make Harrison whole for any loss of earnings he may have suffered because of the discrimination against him, by paying to him a sum of money equal to the amount he normally would have earned from April 16, 1956, when he indicated his willingness to return to work, to the date of the offer of reinstatement, less his net earnings during the said period. Mercer and Martin stand on a different footing. Unlike Harrison, they were not on strike at the time of their discharges. It will therefore be recommended that the Respondent make Mercer and Martin whole for any loss of earnings they may have suffered because of the discrimination against them, by paying to each of them a sum of money equal to the amount he normally would have earned from the date of his discriminatory dis- charge, February 10, 1956, and February 11, 1956, respectively, to the date of the offer of reinstatement, less his 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 quarter shall have no ef- fect on the back-pay liability for any other period. It will also be recommended that the Respondent preserve and make available to the Board, upon request, pay- roll and other records which facilitate the checking of the amount of back pay due. It will further be recommended that the Respondent post appropriate notices. Final- ly it will be recommended that the complaint be dismissed, insofar as it alleges un- fair labor practices which were not adequately proved. [Recommended Order omitted from publication.] 43 Happ Brothers Co., Inc., supra., pp. 1518-19 ; Brookville Glove Company, 114 NLRB 213, enfd. 234 F. 2d 400 (C. A. 3) ; Ford Radio & Mica Corporation, 115 NLRB 1046; and Texas Natural Gasoline Corporation, supra. "A mean date is adopted. Columbia Pictures Corporation at at., 82 NLRB 568, 574, footnote 24. Kaiser Aluminum & Chemical Corporation and Aluminum Work- ers International Union, AFL-CIO and United Steelworkers of America, AFL-CIO and Local Union 968, International Brotherhood of Electrical Workers, AFL-CIO and United Association of Journeymen and Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada, AFL-CIO, Petitioners. Cases Nos. 9-RC-3103, 9-RC-3104; 9-RC- 3111, and 9-RC-3712. December 6,195'1 DECISION, ORbER, AND DIRECTION OF ELECTION Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before William C. Humphrey, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' 1 Requests for oral argument and for leave to file briefs amicus are hereby denied, as the record and briefs, in our opinion, adequately present the issues and positions of the parties. 119 NLRB No. 98.