Talladega Foundry & Machine Co.

TALLADEGA FOUNDRY & MACHINE COMPANY 125 weeks of November and the first 2 weeks of December, and that there is likely to be a sharp decline in the size of the operations after Janu- ary 1. In these circumstances, we hereby direct the Regional Direc- tor to hold the election hereinafter directed, at or near the peak of the season, occurring first after the issuance of this Decision and Direc- tion of Election. [Text of Direction of Election omitted from publication.] Talladega Foundry & Machine Company and Local 421, In- ternational Molders & Foundry Workers Union of North America, AFL-CIO. Case No. 10-CA-2746. November 19, 1958 DECISION AND ORDER On November 12, 1957, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged 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. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. 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 exceptions and brief, and the entire record in the case and hereby adopts the Trial Examiner's findings and recom- mendations insofar as they are consistent with our decision herein.' The Trial Examiner recommends that all dischargees 2 should be offered reinstatement and back pay, and that reinstatement be granted, upon request, to the strikers.3 The Respondent excepts, contending that all dischargees and strikers are disqualified from reinstatement by reason of strike-connected misconduct. We find, contrary to the Trial Examiner, that the evidence concerning strike misconduct by five of the six dischargees and by strikers Wright and Gilliland was 1 The Respondent excepts to the Trial Examiner 's conduct of the proceedings and urges that the proceedings be set aside under the doctrine of Indianapolis Glove Company, 88 NLRB 986 , to avoid the appearance of a partisan tribunal. Although, as discussed below, we disagree with the Trial Examiner 's conclusion that the conduct of the dis- chargees and certain strikers did not disqualify any of them from reinstatement, we have concluded that the Trial Examiner 's conduct of the proceedings does not warrant setting them aside. 2 James Sanders, Aughey (Bud) Mitchell , James Mellon , Uell Dyson, Grover Sperling, and James L. Watkins. The strikers named by the Trial Examiner were : Gentry Mellon, William Waites, Joseph Marler, John Watts, Leroy Wright, Charles Woods , Jesse Gilliland , Grady Mitchell, Edward Johnson , J. L. Wilson, Phillip Jones, James Keith, J. H. Wilson , Sam Gooden, Thornton Phillips , and Ollie Thornton. 122 NLRB No. 26. 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD substantial and of the kind to warrant the - denial to them of reinstatement. Ralph Mitchell, district representative of the Union, who called-the strike, testified that he told the pickets "that they wasn't supposed to let anybody into the plant." There is considerable evidence concern- ing activity of the dischargees and strikers implementing the apparent picketing objective of excluding people from the Employer's premises. Thus, five dischargees (Sanders, Mitchell, Mellon, Dyson, and Wat- kins) and strikers Wright and Gilliland engaged in individual wrong- doing, as follows : Mellon and Dyson physically restrained Supervisor Holt when he attempted to enter the plant during the strike. Under similar cir- cumstances, the Board and the courts have held that deliberate obstructions of this character to a supervisor's right to enter company premises during a strike warrants a denial of reinstatement to those engaged in the activity 4 In the Perfect Circle case, supra, the Court of Appeals for the Seventh Circuit denied reinstatement under com- parable circumstances, giving the same legal effect to the activity "as if they (the obstructors) had used physical violence to prevent the entry." Similarly, the Board stated in the American Tool Works Company case that it cannot regard this type of activity as divorced from all implication of a threat of physical violence. In addition, we note that while on the picket line, Mellon threatened employee Thorn- ton with harm, and Dyson threatened workers with forceful inter- ference if they tried to enter the plant. This activity independently of the physical restraint of the supervisor would disqualify them from reinstatement. For, as the Board noted in the Brookville Glove case,5 where strikers engaged in conduct of this type, they exceeded the per- missible bounds and were not entitled to reinstatement. It further appears that Mellon joined with others in hanging a "scab" dummy in effigy in front of the plant. Under the circumstances, we find, consistent with established law, that the foregoing conduct was so serious as to forfeit the right to reinstatement of Mellon and Dyson. Sanders, Mitchell, Watkins, and Gilliland engaged in deliberate obstructions to the use of the Employer's premises by those having a right to such use during the strike. Thus, they physically restrained trucks and their occupants from loading and unloading merchandise, and in other respects, by "ganging" around the trucks. Such obstruc- tions are likewise of a serious nature and the Board and courts have regarded the conduct as sufficiently reprehensible to disqualify those engaging in it from reinstatement.' Apart from the foregoing, we note, as in the cases of Mellon and Dyson, that Sanders, Mitchell, and 4 Perfect Circle Company v. N.L.R.B., 162 F. 2d 566; W. T. Rawleigh- Company v. N.L.R.B., 190 F. 2d 832; and The American Tool Works Company, 116 NLRB 1681, 1682. 5 Brookville Glove Company, 114 NLRB 213. See cases cited in footnote 4. TALLADEGA FOUNDRY & MACHINE COMPANY 127 Watkins engaged in activity which we have heretofore pointed out would disqualify employees from reinstatement. Thus,, Sanders shouted threats of harm to workers in the plant and threatened em- ployee Bell; Mitchell threatened employees coming to work and shouted threats into the plant; and Watkins warned truckdrivers not to enter plant premises, and shouted threats to employee Hardigree. In addition, it appears that Mitchell joined in hanging the "scab" dummy in effigy in front of the plant. We therefore find that Sanders, Mitchell, Watkins, and Gilliland also forfeited their right to rein- statement. Since employee Wright shouted threats into the plant at employee Hardigree and threatened employee Bell, we find also, as in the cases of the others engaging in similar conduct, that he forfeited his right to reinstatement.' We also disagree with the Trial Examiner's finding that Sam Good- en was an employee of Respondent. Contrary to the Trial Examiner, we find that Gooden was hired and worked with the understanding that he was employed by, and working for, Company Official Heacock as his personal employee, that he spent most of his time at Heacock's house digging a basement, and that he was paid with Heacock's per- sonal checks. In our opinion, therefore, Gooden was the employee of Heacock and had no employee status with the Respondent. In these circumstances, we shall not order his reinstatement. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Talladega Foundry & Machine Company, Talladega, Alabama, its officers, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Local 421, International Molders & Foundry Workers Union of North America, AFL-CIO, or in any other labor organization of their employees, by discharging any of their employees because of their union membership or other concerted activities, or in any other manner discriminating in regard to their hire or any term or condition of employment. (b) In any manner interfering with, restraining, or coercing em- ployees in the exercise of their right to self-organization, to bargain collectively through representatives of their own choosing, or to en- gage in concerted activities for the purposes of collective bargaining 7 Chairman Leedom and Member Rodgers would also find that Grover Spurling for- feited his right to reinstatement by whittling with a knife on the picket line, and that by reason of such activity itself Sanders, Mitchell, and Watkins also forfeited their right to reinstatement. In their view, the carrying of a knife , with the blade exposed, is, irrespective of an alleged purpose of whittling , sufficiently menacing to those seeking to enter the plant as to warrant a denial of reinstatement. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or other mutual aid or protection; or to refrain from any or all of such activities except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Grover Spurling immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole, in the manner set forth in the section of the Intermediate Report en- titled. "The Remedy," for any loss of pay he may have suffered by reason of the Respondent's discrimination against him. (b) Upon application, offer immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges to the following em- ployees: Gentry Mellon, William Waites, Joseph Marler, John Watts, Charles Woods, Grady Mitchell, Edward Johnson, J. L. Wilson, Phillip Jones, James Keith, J. H. Wilson, Thornton Phillips, and Ollie Thornton. If necessary, to effectuate reinstatement, any person hired after the commencement of the strike shall be dismissed. (c) Preserve and make available to the 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 the amount of back pay due and the rights of employment. (d) Post in conspicuous places in the Respondent's plant in Talla- dega, Alabama, including all places where notices are customarily posted, copies of the notice attached hereto marked "Appendix." 8 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, upon being duly signed by the Respondent's representatives, be posted by it, as aforesaid, immediately upon receipt thereof, and maintained for at least sixty (60) consecutive days there- after. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Tenth Region in writing, within ten (10) days from the date of this Decision and Order, what steps the Respondent has taken to comply herewith. 8 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, we hereby notify our employees that : TALLADEGA FOUNDRY & MACHINE COMPANY 129 WE WILL offer to Grover Spurling immediate and full rein- statement to his former or substantially equivalent position with- out prejudice to any seniority or other rights and privileges previ- ously enjoyed, and will make him whole for any loss of pay suffered as a result of the discrimination against him. WE WILL offer to each of the employees named below, upon request, immediate and full reinstatement to his former or sub- stantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed, discharging if necessary any employees hired on or after September 10, 1956: Gentry Mellon J. L. Wilson William Waites Phillip Jones Joseph Marler James Keith John Watts J. H. Wilson Charles Woods Thornton Phillips Grady Mitchell Ollie Thornton Edward Johnson WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Local 421, Inter- national Molders & Foundry Workers Union of North America, AFL-CIO, or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, and to refrain from any or all such activities except to the extent that such member- ship may be affected by an agreement requiring membership in a labor organization as a condition of employment as author- ized in Section 8(a) (3) of the Act. All our employees are free to become or remain or to refrain from becoming or remaining members of the above-named Union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employ- ment against any employee because of membership in, or activities on behalf of, any such organization. TALLADEGA FOUNDRY & MACHINE COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 505305-59-vol. 122-10 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges duly filed on October 10, 1956, and amended on February 28, 1957, by Local 421, International Molders & Foundry Workers Union of North America, AFL-CIO, hereinafter called the Union, the General Counsel of the National Labor Relations Board, herein called the General Counsel' and the Board, respectively, by the Board's Regional Director for the Tenth Region (Atlanta, Georgia), issued a complaint, dated February 28, 1957, against Talladega Foundry & Machine Company, hereinafter called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a) (1) and (3) of the Labor Management Relations Act, 1947, as amended, 61 Stat. 136, herein called the Act. Copies of the complaint, the charge, amended charge, and the notice of hearing thereon were duly served upon the Respondent and the Union. With respect to the unfair labor practices the complaint alleged that the Respond- ent: (1) By various enumerated actions interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act; (2) by discharging and refusing to reinstate employees Uell Dyson, James Sanders, Aughey (Bud) Mitchell, James Mellon, Grover Spurling,2 and James L. Watkins on September 10, 1956, because of their membership in and activities on behalf of the Union; and (3) by discharging 16 named employees 3 on September 21, 1956, because they went out on an unfair labor practice strike on September 10, 1956, in protest to the discharge of the aforementioned 6 employees and because of their membership in and activities on behalf of the Union, thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(I) and (3) of the Act. The Respondent duly filed its answer wherein it denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held before the Trial Examiner on August 20, 21, 22, and 23, 1957, at Talladega, Alabama. The General Counsel, the Union, and Respondent were represented at the hearing by counsel or representatives. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. The parties were advised of their right to argue orally at the hearing, which was waived, and to file briefs with the Trial Examiner thereafter. A brief was received from the Respondent on Octo- ber 10, 1957. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Talladega Foundry & Machine Company is an Alabama corporation having its office and place of business in Talladega, Alabama, where it is primarily engaged in the production of repair parts for the textile industry. During the 12-month period ending August 31, 1956, which is a representative period, Respondent sold and shipped in excess of $50,000 worth of such products to customers located outside the State of Alabama. The Respondent is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED Local 421, International Molders & Foundry Workers Union of North America, AFL-CIO, is a labor organization admitting to membership employees of the Respondent. i This term specifically includes counsel appearing for the General Counsel at the hearing. 2 Also spelled "Sperling" in the record. 3 Respondent moved to dismiss as to one Sam Gooden on the ground that the evidence proved him to.be a temporary employee of James Heacock employed to dig abasement for Heacock. However, the Trial Examiner denied Respondent's motion for the reason that the evidence proved that, in addition to digging Heacock's basement, Gooden also worked at the foundry where his timecard was punched in and out apparently regardless of where he worked and Gooden was also paid as were the remainder of Respondent's employees by Respondent's bookkeeper. The evidence to disprove Gooden's employment status with Respondent was not produced at the hearing although within Respondent's power to produce if it would have so proved. Consequently the Trial Examiner must find that Gooden was an employee of Respondent. TALLADEGA FOUNDRY & MACHINE COMPANY III. THE -UNFAIR LABOR PRACTICES 131 A. The facts Respondent is a corporation presided over by its 2 principal shareholders, A. M. Hocutt and James Heacock, and is engaged in the foundry and machine shop busi- ness on a job-shop basis at its plant in Talladega, Alabama, where it employed at all times material here approximately 32 production and maintenance employees under Plant Superintendent Grady Williams and Foundry Foreman Clarence (Pat) Col- quitt, Machine Shop Foreman James Hamlin, and Head Patternmaker Tom Holt. Respondent acknowledged the supervisory capacity of Colquitt and Hamlin but denied that Holt had supervisory authority. The facts show that Holt, an elderly man, back in the 1930's was foreman of the present foundry, had subsequently operated his own foundry, and since 1948 had been head patternmaker for the present owners and, as he described it, "I tell the boys [patternmakers] what to do, more-or-less." He expects the 2 patternmakers, 1 of whom is his son, to report to him if and when they leave their work. When Pat Colquitt is absent, Holt bosses the foundry. Although he executed affidavits stating that he had authority to hire and fire employees prior to the hearing, he testified at the hearing that he then could not recall ever being actually informed that he had such authority. Due to his experi- ence the employees recognized him as the "Boss-man" in the pattern shop. His admitted duties prove him to have supervisory authority. The Trial Examiner so finds. About September 5 employee Sanders asked Holt to sign a union authorization card. Holt refused saying that Respondent would never recognize a union, that "it's a bad thing to do" and that he had a brother who "joined a union, and had been put out of a job more times than one, and got in bad shape, . the same thing that will happen to you." Holt inquired as to who had joined the Union. Sanders gave him a few names including employee Bill Bowman. On the evening of Friday, September 7, 1956,4 following at least a week of organizing and getting union authorization cards signed, some 27 of the Respondent's employees were initiated into membership in the Union at the union hall in Talladega by Ralph Mitchell, the district representative of the International Union. On Sunday, September 9, Tom Holt stopped at employee Jesse Gilliland's house when Gilliland asked Holt what he was doing. Holt answered that he was just seeing some of the employees who wanted to work and "don't want to have nothing to do with what's coming up" and "That's my business out here, to see the ones that wanted to work, without having anything to do with the Union." Holt also stated that he had seen employee Spurling who was for the union "a hundred percent." When next thereafter the employees reported back for work at 6 a.m. on Monday, September 10, employees Bill Bowman and Bud Sexton 5 were notified that they had been laid off or discharged because of a lack of work in the plant .6 Before 10 a.m. on September 10, Foreman Hamlin asked employee Sanders how he "stood about the union" and was told that Sanders "stood on both feet." Hamlin made the same inquiry of employee James Watkins who stated that he was for the Union. Hamlin also asked employee Cull the same question. But Hamlin main- tained that employee Bud Mitchell "volunteered" the information that they were organizing a union. From the testimony of Holt and Hamlin it is clear that knowledge of the Union was widespread about Respondent's plant by September 10 at least. * All dates are in the year 1956 unless otherwise noted. 6In its original and amended charges the Union claimed that Bowman, Sexton, and one Enos Horn had also been discriminatorily discharged on September 10 in addition to the six previously mentioned herein. However, by letter dated February 28, 1957, the Regional Director wrote that "it does not appear that there is sufficient evidence [in the above three named instances] to warrant proceedings at this time" and, therefore, he refused to include said individuals in the complaint filed that same day. Hence the discharges of Bowman, Sexton, and Horn are not at issue here and are, therefore, dis- charges for cause. . 6 Hocutt testified that on the previous Saturday he and the foreman had discussed the possibility of laying off Bowman and Sexton in the event that the Sunday mail did not contain additional orders which would have kept them busy. Hocutt further testified that his first information that Bowman and Sexton had actually been laid off was given him by some "third party" (Ralph Mitchell) about 10 o'clock Monday morning and before he had opened the day's mail. 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sometime that morning Bowman and Sexton met Ralph Mitchell on the streets of Talladega and reported their discharge to him . About 10 a.m. Mitchell, accom- panied by Bowman and Sexton, repaired to the Respondent 's plant and to the 12-by-15-foot office then occupied by Hocutt and Heacock . After introducing himself by name and by occupation, Mitchell demanded that the Respondent rein- state Bowman and Sexton . Although this was Hocutt's first information as to these discharges, according to his testimony, Hocutt stated that such discharges were within the privilege of the foreman and that he would stand back of them. Mitchell then argued that the rules of the Union required that layoffs be in accord- ance with seniority and that Bowman and Sexton must be reinstated while two employees with lesser seniority should be laid off. Hocutt answered that there was no union in the plant, that the Respondent would not recognize a union , and that we "do business our way." Whereupon Mitchell informed Hocutt that the men had all joined the Union on Friday night and offered to show Hocutt the signed authorization cards as proof . When Hocutt replied that he could have signed the cards himself, Bowman was dispatched to the plant to bring in some of the employees to prove that they had all joined the Union. When Bowman returned to the office accompanied by employees Uell Dyson, "Red" Sanders , and Grover Spurling from the foundry and by "Bud " Mitchell, James Watkins, and Jimmy Mellon from the machine shop, Mitchell requested the men to tell Hocutt that the employees had all joined the Union which they proceeded to do, Hocutt reiterated that the Respondent had no union in the plant , would not recognize any union , and would continue to do business "our way." Hocutt then requested the employees present to "clock out" because "this might take 5 minutes or 2 hours." The six named employees thereupon left the office and returned to the time clocks in their respective departments where each group was met by its foreman with the employees' timecards in hand who informed the employees that he had already punched out their timecard , that they were discharged and were to get their tools and get out.7 The two groups then left their respective departments , met again on the pathway to the office , and reentered the office in a group . Employee James Watkins in- formed Hocutt that the foreman had already punched out their timecards and had informed the employees that they were fired . Again Hocutt stated that the foreman had authority to hire and fire and that he would stand back of them. Thereupon the argument in the office centered around the reinstatement of eight men with Mitchell demanding the reinstatement of these six plus Bowman and Sexton together with the layoff of the two employees in the plant having the least seniority in accordance with the union rules. After some futile argument about the reinstate- ment of these eight men during which Mitchell threatened at least twice that, unless the men were reinstated , he would pull out all the men and close the plant, Hocutt asked if he meant the men would "quit." Mitchell, according to the testi- mony of Hocutt, answered "yes." Finally Hocutt said that he had work to do and ordered the men to "get out." 8 In accordance with that order Mitchell and the eight employees then left the office and the plant, went out onto the street, and called through the windows to their fellow employees who were still at work telling them what had happened and requesting them to come out also. Almost all the employees left their work and joined the pickets sometime during the day of September 10 or the following day. The employees formed a picket line and, when picket signs had been painted that same day, carried picket signs. About noon on September 10 after the picket line had been established, Gilliland who did not join the strike that day was having lunch with Hamlin and Holt in the plant. Hamlin expressed surprise that the men had gone out and that Gilliland was not with them. When Gilliland noted that he was still inside , Hamlin said, "Well, I'm glad you're not, because you can work here, but there won't be no union , here. I can tell you that, here and now." Sometime that same day employee Harrison, Jr., who had not joined the strikers at first, told Hamlin that he was going to leave the plant and join the strikers. Ham- lin promptly punched out Harrison 's timecard. The Respondent's timecards for the week beginning September 10 are of signifi- cance. The timecards of Sanders , Dyson, Mitchell, Mellon, Watkins, Spurling, T In this record this is the only instance, With one exception , where a foreman ever clocked out an employee. 8 Hocutt and Heacock, alone of all the witnesses , testified that Hocutt twice ordered the employees to go back to work. TALLADEGA FOUNDRY & MACHINE COMPANY 133 Edward Johnson, and Charles Ingram indicate that these individuals checked into the plant at or before 6 a.m. with the exception of James Watkins who checked in at 7 a.m. All of the above cards are clocked out as 10:08 or 10:09 a.m. The timecard of Charles Woods contains the following notation on the line re- served for Monday, September 10: "0. K. by Pat C. [Olquitt]." 9 The timecard of Edward Johnson indicates that he clocked in at 5: 30 a.m., out at 11:59, in again at 12:26 p.m. and out again at 2:47 p.m. This timecard also contains the same annotation "o. k. by Pat C." 10 Hocutt testified that as soon as the employees had left the plant, he ordered the foreman to secure men to pour off "the hot stuff," molten iron. Hocutt was obviously mistaken in this testimony as the record shows that the cupola in which the iron was melted was never fired before 11:30 a.m. nor poured until 2:30 p.m. so that it was not fired on September 10 so there was no "hot stuff" to be poured. Hocutt also testified that iron was not poured on September 10 nor until December 31. As there was no iron to pour on September 10, it is clear that Hocutt did not order replacements that day. So far as this record shows the first replacement hired by Respondent was on September 25. On September 21 the Respondent gave all the strikers and the six discharged em- ployees their paychecks for work performed prior to the strike. Attached to these paychecks was a typewritten slip reading: Terminated 9/10/56 Reason: Quit voluntarily A W-2 income tax form was also attached. Jesse Gilliland, whose presence in the plant had surprised Hamlin on September 10, had gone to the hospital the next day for a period of 3 days and on doctor's orders had remained at home the following week. On Friday, September 21, he returned to the plant to get his paycheck. His check had the same "Terminated 9/10/56. Reason: Quit voluntarily" attached. Gilliland asked Hocutt about that explaining that his wife had told Colquitt that Gilliland would return to work as soon as he was able. Hocutt suggested that he, Hocutt, could remove the termi- nation slip and then asked "By the way, you were with those fellows out there, or are you with us?" When Gilliland answered that he was "with the fellows outside," Hocutt said, "Well, that's all. That [the termination notice] stays on there," pointed to the door and told Gilliland to get out. The strike was still current at the time of the hearing and the picket line still in existence . No request for reinstatement has been made. Nor have there been any reinstatements. Ultimately the Respondent did secure replacements for the men on the picket lines but there is no evidence in this record that any of the strikers were replaced on or before September 21. In fact so far as this record indicates the first replace- ment hired by the Respondent was "Red" Hardigree who was employed on Sep- tember 25. Other replacements who testified at the hearing had been hired as late as January 1956. B. The Respondent's evidence The findings made above are a synthesis of the credible testimony of all the wit- nesses produced at the hearing. However, the tale told in the testimony of the Respondent's witnesses differs greatly from that above. In fact the Respondent's testimony in many places can- not be reconciled with that given by witnesses for the General Counsel. According to Hocutt and Heacock, about 10 a.m. on September 10 a group of 11 or more employees "suddenly burst" into their 12-by-15-foot office with a "stranger," whom they subsequently during the picketing learned was Ralph Mitchell, demanding the reinstatement of Bowman and Sexton which Hocutt testified was the first that he knew of the fact that Bowman and Sexton had been discharged. They maintained that they had no idea that there was a union in the picture at all and that Mitchell failed to introduce himself either by name or by occupation. They claimed that at least twice Hocutt ordered the men to go back to work, that Respondent never discharged any of the employees but that they just "voluntarily quit" when the Respondent refused to reinstate Bowman and Sexton. 0 Hocutt testified that on the morning of the strike Charles Woods left the plant be- cause of sickness and said he would like to stay home until "things kind of quieted down." 10 The record contains no further information as to employee Edward Johnson other than that his timecard like that of Woods' indicates that at least he did not work the remainder of the week beginning September 10. 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Neither Hocutt nor Heacock could recall being told by the employees upon their return from clocking out that they had been discharged by their foreman . Hocutt's memory of events proved to be quite restricted. Heacock's was even more so in view of the fact that he contended that even the "sudden burst" of 11 or more employees into that small office failed to disturb his concentration upon his affairs until Hocutt ordered the men to clock out. However, he had roused sufficiently to note that Ralph Mitchell , Bowman, and Sexton led the group of employees into, the office. Heacock's alleged concentration verged on the unbelievable. There are several things in the Respondent 's version of events which make it extremely hard, if not impossible , to believe. In the first place, according to Hocutt, he held a 20- to 30-minute conference over employment and working conditions with a total "stranger" whose name and occupation Hocutt claims not to have learned until some little time after the picketing had been in progress . Admittedly this conference revolved around the reinstatement of employees , conditions of employment, and seniority. Both stockholders admitted that this "stranger" had offered them the signed union authorization cards as proof of his authority to speak on their behalf. Furthermore, Hocutt acknowledged having heard rumors that other Talladega foundries were being organized by the Union . Thus, at this late date in the year 1956 A.D ., it stretches credulity beyond the breaking point that two present .-day employers in the United States of America in the light of these facts could still remain in ignorance that they were involved with a union . In addition, the inquiries made by Foreman Hamlin and Holt as to the affiliation of the em- ployees earlier that same morning proves beyond cavil that they , at least, knew at that time that the Union was active in the plant . It is impossible for this Trial Examiner to believe that Hocutt and Heacock would have discussed employment problems, working conditions, and seniority in the plant with a total "stranger" for a period of 20 or 30 minutes without knowing that the statutes of the United States gave that "stranger" some rights in regard thereto . Thus the Trial Examiner cannot credit the Respondent's first defense of ignorance. Although the matter is of little consequence , the Respondent maintained that all 11 or more employees "burst in" to the office at the same time while the General Counsel's witnesses maintained that Ralph Mitchell, Bowman, and Sexton held a preliminary discussion on the reinstatement of Bowman and Sexton prior to calling the other 6 employees into the office to prove the authenticity of the cards offered to Hocutt and also the fact of their union membership . Although from his testimony at least one of the six employees would seem to have been present throughout the complete conference which, of course, militates against the finding made by the Trial Examiner heretofore, logic appears to dictate that the grievance of Bowman and Sexton would have been handled by the union representative and the grievants alone and that, when Respondent questioned the representative capacity of Ralph Mitchell and the authenticity of the signed authorization cards, the employees themselves would have been called to prove or disprove the contention made by Ralph Mitchell. At one point in the hearing Heacock appeared to confirm the testimony of the witnesses for the General Counsel that Ralph Mitchell , Bowman, and Sexton were in the office first but immediately thereafter explained that he only meant that those three had led the other employees in "bursting" into the office. However, it makes no difference to the result in this case as to whether the conference was in two parts or in only one. Respondent's contention that the employees "voluntarily quit" their employment is important but will not withstand analysis. Hocutt's own testimony makes it clear, even though Hocutt testified definitely that the word "strike" was not used during the conference , that Ralph Mitchell threatened at least twice that the employees would not return to work unless Bowman and Sexton were reinstated . It was on the second occasion , according to Hocutt 's testimony, when he, Hocutt, asked if that meant that the men "quit" to which Ralph Mitchell allegedly answered "yes." Even with the use of the terminology testified to by Hocutt, the fact was clear that the employees intended to withhold their services unless their demand that Bowman and Sexton and, after the clocking out incident , the other six employees be reinstated was granted and were not resigning their employment as contended by the Respond- ent. In addition, the immediate setting up of the picket line confirmed the fact that the employees never intended to resign from their employment with the Respondent. Respondent at least knew the employees were striking and not resigning . Further- more, it is clear from his testimony that Foreman Hamlin also recognized that the men had been discharged even though he had not attended the conference. Both foremen denied having discharged the six employees although both admitted that they had clocked the men in their division out. The timecards of the Re- spondent proved that Foreman Hamlin checked out employees Mitchell, Jimmy Mellon, and James Watkins at 10:08 a.m. and that Foreman Colquitt 1 minute later TALLADEGA FOUNDRY & MACHINE COMPANY 135 checked out employees Charlie Woods , Uell Dyson, Jimmy Sanders, and Grover Spurling. The timecard of employee Woods also contains on the line reserved for Monday, September 10, the notation "o. k. by Pat C." Although his timecard is not in evidence, Foreman Colquitt testified that, when employee Harrison, Jr., informed him that he was going out with the Union, Colquitt clocked him out. The other timecards in evidence indicate that in seven other cases of employees at work on September 10 their cards were not clocked out by the employee or by his fore- man. Thus it is quite evident that the foremen were clocking out only those em- ployees whom they knew to be participating in the conference on reinstatement, working conditions, and seniority with Hocutt and Heacock or those they knew had joined the strike. This unique and simultaneous action of the foremen together with the testimony of the witnesses for the General Counsel convinced the Trial Examiner, and he therefore finds, that Respondent discharged Uell Dyson, James Sanders, Grover Spurling, Aughey Mitchell, Jimmy Mellon, and James Watkins on September 10 because of their participation in a concerted or union effort regarding conditions of employment, reinstatement, and seniority. C. Conclusions Under the facts of this case there can be no question but that the six employees who were called to the conference in Hocutt 's office were engaged in a protected concerted union activity in protesting the discharge of Bowman and Sexton and in attempting to promote their own interests by securing Respondent 's approval of the use of seniority in layoffs. The facts also prove that these six employees were discharged by the Respondent for having left their work in order to participate in this protected concerted union activity. It is too well settled for citation of authority that an employer commits an unfair labor practice in violation of Section 8(a)(3) of the Act when he discharges an employee for having engaged in such union and concerted activities . The Trial Examiner finds that these six employees were discharged in violation of Section 8(a)(1) and ( 3) of the Act. Nor can there be any question but that the strike which resulted immediately thereafter was caused by the Respondent 's unfair labor practices in discharging these six employees for having engaged in such concerted activities . This is so even though said strikers may have also been protesting the discharges of Bowman and Sexton as well as those of the six. The law is well settled that when there are two concurrent causes of a strike, only one of which happens to be an unfair labor practice, the resulting strike is still an unfair labor practice strike. Thus the strike here caused by the discharges of Bowman and Sexton , which were legitimate, and by the discharges of the six for engaging in the Union's concerted protest, which constituted an unfair labor practice , is still an unfair labor practice strike. So those employees listed in Appendix A attached hereto who left their work to engage in an unfair labor strike are unfair labor practice strikers entitled to reinstatement upon request therefor . The Trial Examiner so finds. Furthermore, the facts prove that Respondent attempted to discharge all the striking employees at least on September 21 by giving them their termination notices along with their checks . These termination slips made it clear that the employees had been terminated , so far as Respondent was concerned , as of September 10, the day they went on strike . That it was Respondent's policy to terminate an employee upon determining that the employee had joined the strike was clearly demonstrated by Respondent's action in the Harrison, Jr., and the Jesse Gilliland episodes . It is an unfair labor practice for an employer to attempt to discharge an employee for engaging in a legal strike. By thus discharging the 16 employees listed in Ap- pendix A because they engaged in a legal strike Respondent violated Section 8(a) (3) of the Act. Strangely enough, even if we accept the Respondent 's theory that the six employees were not discharged and that the other employees merely went out on an economic strike against the Respondent in protest against the legitimate discharges of Bowman and Sexton and against the Respondent's refusal to recognize their own economic demands, the ultimate result as to all these employees is not substantially changed. Section 2(3) of the Act defines the term "employee " as " . . . any employee . . . and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor prac- tice. " Thus, even under the Respondent's theory, the six employees and those strikers listed in Appendix A whose work ceased as a result of a current labor dispute with the Respondent on or about September 10 continued to remain employees of the Respondent until replaced permanently . The Respondent had the right to replace such economic strikers but it had no right to discharge them on September 21 for concertedly engaging in an economic strike as it tried to do on 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that day when the strikers were notified that they had been discharged as of Sep- tember 10 allegedly for "voluntarily quit[ting)." In view of the existence of the picket line in front of Respondent's plant from September 10 on, even Respondent must have recognized that the employees were engaged in a strike and had not voluntarily "resigned" their positions with the Respondent. This mass discharge of September 21, prior to replacement, was in violation of the statutory right of employees guaranteeing them the right to strike and thus constituted an unfair labor practice in that it amounted to discharging employees for engaging in protected concerted union activities in violation of Section 8(a) (3) of the Act. As this mass discharge had the normal and natural tendency to prolong the strike, it would convert what, under the Respondent's theory, had been an economic strike into an unfair labor practice strike. Nor can the Respondent contend logically that this mass discharge was a mere "tactical maneuver," as it sometimes has been called in Board cases. At least on September 21, even under Respondent's theory, Respondent discharged all those employees involved here for participating in an economic strike prior to replacement in violation of Section 8(a)(3) of the Act." In addition, the Trial Examiner finds that Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act by the interrogation of the employees by Foreman Hamlin, by the statements made to Jesse Gilliland by Foreman Tom Holt, and by the statement made to Jesse Gilliland by Hocutt, and that thereby Respondent violated Section 8 (a)( 1 ) of the Act. D. Alleged violence and misconduct As its last line of defense to the reinstatement of the dischargees and the strikers here, Respondent contends that various acts of alleged violence and misconduct committed during the period of the strike disqualified all these individuals from their right to reinstatement. The Trial Examiner cannot agree. Although a goodly portion of the hearing was devoted to this subject, almost without exception the evidence contained nothing of substance. The police, who spent a considerable amount of time around the plant at the insistence of Hocutt, agreed that the picketing was peaceful. Even more important is the fact that even those employees who continued working throughout the strike with one exception concurred in this opinion. During the whole period of the strike only two strikers were arrested under circumstances which will be described hereinafter and those two were never brought to trial. Although this strike has lasted for over a period of a year, yet there are only three minor matters which require any attention here. This appears quite remarkable. The first of these three incidents occurred the morning after the strike began when Foreman Tom Holt, a crippled, elderly man who was the head patternmaker, arrived for work. He parked his automobile alongside the plant and walked a half block or more to the front entrance of the plant while employee Joe Marler and a group of pickets, in Holt's words, "told me he was going to ask me to stay out [of the plant]." The strikers congregated around the old man as he was walking urging him to stay out of the plant and told him that he would be a "scab" if he crossed their picket line. While the group was arguing with Holt at the front door of the plant, Hocutt came out, got Holt by the arms and began pulling him up the stairs to the front door. Thereupon, employees Dyson and Mellon caught hold of Holt's person with the result that a sort of tug-of-war commenced. Two policemen arrived on the scene at this point and, at Hocutt's suggestion, arrested Dyson and Mellon. Holt continued on into the plant and has continued to do so daily thereafter without further incident. As noted, the cases against Dyson and Mellon have never been tried. Of course, neither Dyson nor Mellon had any right to touch Holt-but then neither did Hocutt. It was an unfortunate fracas which will happen on any picket line. There was noth- ing vicious in the incident for even Holt, old and crippled as he was, was not injured in any way. Despite the fact that Dyson and Mellon had no right to touch Holt, the Trial Examiner is convinced that there is nothing in this incident which would war- rant disqualifying either man from reinstatement. The next thing is that the strikers readily admitted that they customarily called persons who crossed their picket line "scabs." Respondent's brief relies heavily upon the decision of the Seventh Circuit Court of Appeals in the Caterpillar Tractor case, 230 F. 2d 357, which quoted extensively from Member Rodgers' dissenting opinion in the Board decision in that same matter, 113 NLRB 553, as authority for the proposition that by using such a term of opprobrium the strikers forfeited their rights to reinstatement. The Caterpillar case is inapposite here. That case is authority for u N.L.R.B. v. J. E. McCatron et al. d/b/a Price Valley Lumber Co., 216 F. 2d 212 (C.A. 9), cert. denied 348 U.S. 943. TALLADEGA FOUNDRY & MACHINE COMPANY 137 the proposition that an employer may take reasonable precautions to maintain dis- cipline and to prevent dissension among its employees within the plant . In the instant case, unlike the Caterpillar case, a picket line was in existence and employees were on strike outside the plant. In the common, ordinary day-to-day use of language those on the picket line were either "strikers" or "pickets" while those who crossed the picket line to continue working were either "loyal employees ," "strike-breakers," or, in labor parlance, "scabs." No case has been cited, nor has the Trial Examiner found one, where this Board has ever denied reinstatement to unfair labor practice strikers for mere name-calling . In fact, the Board has refused to find mere name- calling to amount to a violation of Section 8(b) (1) (A) of the Act.12 Consequently, the Trial Examiner finds that the mere name-calling here is insufficient to deny reinstatement. Respondent also complained that the pickets succeeded in practically shutting the Respondent's plant off from the delivery and pickup service of the trucking com- panies by speaking to the truckdrivers as they approached the Respondent's loading platform and to the managers of the trucklines. This was legitimate and proper so long as no coercion or intimidation was used especially in the absence of the filing by the Respondent of an 8(b)(1) (A) charge.13 The only possible evidence of any such coercion or intimidation of such truck- drivers was on one occasion when the picket speaking to the driver happened to be eating an apple by slicing off bits thereof with the assistance of a pocketknife. As this is, and has been for a long time , one well-recognized method of eating apples, the Trial Examiner can find neither the presence of the pocketknife for that purpose to amount to coercion nor that a man, just because he is on a picket line , must change his method of eating apples in order to avoid the suspicion of attempting to coerce someone. Nor can the Trial Examiner find, as requested by Respondent, that pickets on a picket line for the same reason must abandon their right to while away the time by whittling. On one occasion, however-and this is the third incident referred to above- pickets Bud Mitchell and Watkins did continue picketing in front of the loading plat- form as the company truck started to back into it. The truck was stopped when the pickets failed to get out of the way. The truck was delayed a very few minutes until a policeman took Mitchell by the sleeve and gently removed him from in front of the loading platform. This failure of the pickets to move amounted to physical obstruction of the right of entry to the building and, as such, does amount to mis- conduct. But, as it was the only such episode in a strike of more than a year's duration, thus qualifying it as only an "isolated incident," such isolated incident will not disqualify the guilty parties from their right to reinstatement. One other incident requires mention here. Respondent hired "Red" Hardigree on September 25. He had no trouble entering the plant seeking employment. When Hardigree started to drive into the plant the next morning, September 26, there were pickets on and about the driveway into the employees' parking lot. Hardigree stopped his car at the entrance to the driveway to the Respondent's parking lot. He then backed his car to the middle of the street, put it in gear, and started forward at a speed he estimated as 10 or 12 miles per hour across the sidewalk and into the entrance to the parking lot, scattering pickets as he went. He stopped the car in the parking lot, got out, reached into the back and brought forth a shotgun which he admitted having placed in his automobile that morning. At this point Foremen Colquitt and Hamlin, who were in the parking lot, took both Hardigree and his shot- gun in hand and into the plant. According to Hardigree's testimony, he was fol- lowed by an automobile with a few pickets in it as he left work that evening. This caused him to take a circuitous route on his way home and to drive his car up to an admitted speed of 90 miles per hour. Even if we assume the Hardigree story to be true, which this Trial Examiner doubts in view of the fact that even Hardigree admitted that the car with pickets was not behind him all the time during this circui- tous drive, it must be admitted that Hardigree's actions of that morning were suf- ficiently provocative to have provoked personal retaliation by those whose life and limb had been endangered by Hardigree earlier. Hardigree was arrested for reckless driving but his case was never tried. Thereafter, Hardigree entered and left the plant without further incident. After considering all of the evidence presented, the Trial Examiner finds that, whether considered as to individuals alone or as to the men on the picket line as a group, the evidence fails to establish any violence or strike misconduct sufficient to warrant disqualifying said strikers and pickets from reinstatement. 12 Sunset Line and Twine Company, 79 NLRB 1487, 1505. 13 J. W. Banta Towing Company, Inc., at at., 116 NLRB 1787. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. It having been found that the Respondent discriminated in regard to the hire and tenure of employment of James Sanders, Aughey (Bud) Mitchell, James Mellon, Uell Dyson, Grover Spurling, and James L. Watkins by discharging them on September 10, 1956, the Trial Examiner will recommend that Respondent offer said employees immediate and full reinstatement to their former or substantially equivalent position without prejudice to their seniority or other rights and privileges and make each of them whole for any loss of pay he may have suffered by !reason of said discrimination against him by payment to him of a sum of money equal to that which he would have earned as wages from the date of the discrimination against him to the date of the offer of reinstatement less his net earnings during said period, in accordance with the formula set forth in F. W. Woolworth Co., 90 NLRB 289. It having been found that the Respondent further discriminated in regard to the hire and tenure of employment of those employees listed in Appendix A attached hereto by attempting to discharge each of them on September 21, 1956, while they were engaged in an unfair labor practice strike, the Trial Examiner will recommend that, upon request, the Respondent grant each of them immediate and full rein- statement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges, discharging, if necessary, any and all employees hired subsequent to September 10, 1956. In the opinion of the Trial Examiner, the unfair labor practices committed by the Respondent in the instant case are such as to indicate an attitude of opposition to the purposes of the Act generally. In order, therefore, to make effective the inter- dependent guarantees of Section 7 of the Act, thereby minimizing industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, it will be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Local 421, International Molders & Foundry Workers Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discharging James Sanders, Aughey (Bud) Mitchell, James Mellon, Uell Dyson, Grover Spurling, and James L. Watkins on September 10, 1956, thus discriminating in regard to their hire and tenure of employment, because each of them had engaged in protected concerted activities for the purposes of collective bargaining or other mutual aid or protection of employees and because of his membership and activities on behalf of the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. By attempting to discharge those employees listed in Appendix A attached hereto on September 21, 1956, because each of them had engaged in concerted union activities by engaging in a strike for the purposes of collective bargaining or other mutual aid or protection of employees and because of his membership and activities on behalf of the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has committed unfair labor practices within the meaning of Section 8(a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] ,MONTEX DRILLING COMPANY APPENDIX A 139 Gentry Mellon Jesse Gilliland J. H. Wilson William Waites Grady Mitchell Sam Gooden Joseph Marler Edward Johnson Thornton Phillips John Watts J. L. Wilson Ollie Thornton Leroy Wright Phillip Jones Charles Woods James Keith Montex Drilling Company and International Union of Operating Engineers, Local No. 672, AFL-CIO. Cases Nos. 33-CA-439 and 33-CA-440. November 19, 1958 DECISION AND ORDER On July 1, 1958, Trial Examiner Martin S. Bennett issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report together with a supporting brief.' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom ,and Members Bean and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. 1. We find, in agreement with the Trial Examiner, that the Re- spondent is engaged in commerce, and that it will effectuate the poli- cies of the Act to assert jurisdiction in this case. The Respondent, while not denying that it is presently engaged in commerce, contends, in effect, that the Board should not assert jurisdiction because the General Counsel failed to prove his allegation that Respondent was engaged in commerce during the 12-month period immediately pre- ceding the filing of the complaint. We find no merit in this conten- tion. The unfair labor practices involved herein occurred between October 10 and 27, 1957. As the record shows that during its fiscal year ending October 31, 1956, the fiscal period immediately proxi- 1 The Respondent also requested oral argument. This request is hereby denied as the record, including the exceptions and brief, adequately presents the issues and positions of the parties. 122 NLRB No. 20.