Combined Metal Mfg. Corp.

COMBINED METAL MFG. CORP. 895 Combined Metal Mfg. Corp. and Sheet Metal Workers Inter- national Association, AFL-CIO. Case No. 2-CA-5571. April 28, 1959 DECISION AND ORDER On July 18, 1958, Trial Examiner Louis Plost issued his Intermedi- ate Report in the above-entitled proceeding, finding that the Re- spondent had not engaged in and was not engaging in any unfair labor practices, and recommending that the complaint herein be dismissed in its entirety, as set forth in the copy of the Intermediate Report at- tached hereto. Thereafter the General Counsel 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 this case, has found merit in certain of the General Counsel's exceptions, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner only to the extent that they are consistent with our decision herein. 1. The principal allegation of the complaint herein is that the Respondent violated Section 8(a) (5) of the Act by its refusal to bar- gain with the Union since September 18, 1957. The Trial Examiner found no such violation because the Union had not at any time repre- sented a majority of the employees in the appropriate unit,' and had never made a proper request for bargaining. As set forth in the Intermediate Report, the strike, which began on September 9, began purely as an economic strike. The Union was not at that time in the picture at all. Organizing and signing of union authorization cards did not begin until September 13, and the majority of the cards the Union thereafter relied on were alleged to have been signed on September 16, and were in fact submitted to the Board's New York Regional Office in support of a representation petition filed by the Union on September 17. The Union also made several efforts to bargain with the Respondent. At a meeting on September 20, held 1 The General Counsel alleged that on March 10, 1958 , the Union had sent a letter to the Respondent unconditionally requesting the reinstatement of the strikers herein. The Trial Examiner found that the letter had not been sent because the General Counsel had not produced the certified mail receipt for it. However, it had been agreed at the bearing that if the Respondent would admit the authenticity of its signature on that receipt, which was in fact in the possession of the General Counsel at the hearing , this would be sufficient. Such an admission was made. We therefore find that the March 10 letter was sent, but' for the reasons set forth below we find that the Trial Examiner 's error was not prejudicial. 2 The Trial Examiner stated that the original charge herein was filed September 17, 1957. The correct date is October 4, 1957. 3 It was agreed that a production and maintenance unit with the customary exclusions was appropriate. 123 NLRB No. 110. 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD under the auspices of the New York State Mediation Board, the Respondent categorically refused to deal with the Union, but stated that it would deal only with the men directly. Contrary to the Trial Examiner, we find that this constituted a clear violation of Section 8(a) (5) if the Union at that time represented a majority of the em- ployees. To that question we now turn. The. Trial Examiner found that as of September 16, there were 47 employees in the unit, of which the Union represented only 20. We disagree with both these figures. The September 6 payroll, introduced into evidence, listed 42 em- ployees. It is clear that one additional employee, William Smith, was hired before the strike, and should therefore be included. Two other individuals, Charles Schoen and Oscar Way, do not appear on the payroll, which was admitted by the Respondent to be complete, nor on the list of new hires since September 6. They are listed only as having returned to work on October 2. We can see no reason for in- cluding them as of September 20. The remaining two men included by the Trial Examiner are Harold Holdridge and Albert Drexler, who appear on no documentary evidence at all, but were included by the Trial Examiner on the bare assertion, by S. Berzal, the majority stock- holder, that they were employees at the critical date. The documents in the case indicate that there was an employee named Ronald Hold- ridge, hired in January 1958, who would not, obviously, be included. We therefore doubt Berzal's accuracy, but even were we to include these individuals, the unit would be reduced to 45. Turning now to the Union's representation, we again disagree with the Trial Examiner. He found 20 cards valid as of September 16. He also accepted, in his computation of representation, the cards of William Bray and Christian Beck, which are dated September 17. Therefore, as of September 20, the Trial Examiner finds that the Union represented 22 of the employees. In his computations of the Union's September 16 status, the Trial Examiner rejected five cards. We are convinced that his rulings with respect to the cards of em- ployees Mitchell, Rossdentcher, and Walter are erroneous. None of these three employees testified. Their cards, offered in evidence, are dated September 16. These same cards were submitted by the Union to the Board's Regional Office in support of its petition, and also bear the Regional Office stamp of September 17, the date they were submitted. It has not been suggested that these dates are er- roneous. Therefore, the Trial Examiner's refusal to accept them must be based solely on his doubts as to the sufficiency of the identifica- tion of the signatures. In reaching his conclusions the Trial Examiner did not consider an exhibit of unquestioned authenticity, the original petition submitted by the employees to the Respondent in support of COMBINED METAL MFG. CORP. 897 their economic demands. This petition, retained by employee Wache,4 contains the signatures of these employees. Comparison of the cards here in issue with the petition suggests that the signatures are those they purport to be. Furthermore, with the cards in evidence, the Respondent had opportunity to.check .their authenticity, but it made no contention that they were not genuine. In these circumstances, we perceive no reason to reject these cards. We shall therefore count them 5 It therefore follows that as of September 20 the Union represented at least 25 employees in a unit of no more than 45 em- ployees, a clear majority. Since, as noted above, the Respondent, on and after September 20, refused to bargain with the Union, it follows that there was a violation of Section 8 (a) (5).1 2. The General Counsel contended that the strike, which began as an economic strike, was converted to an unfair labor practice strike by the Respondent's refusal to bargain. The Trial Examiner, who found no unfair labor practices, did not resolve this issue. We find that it is clear that the Respondent's unlawful refusal to bargain with the Union was an operative factor in prolonging the strike, which was therefore converted to an unfair labor practice strike. We note par- ticularly, in this connedtion, that at the hearing the uncontradicted testimony of several strikers was that they were still unwilling to go back to work for the Respondent without union representation.' THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, as set forth above, which have been found to constitute unfair labor practices occurring in connection with the operations of the Respondent Company, 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 ob- structing commerce and the free flow of commerce. THE REMEDY Having found, contrary to the Trial Examiner, that the Respondent has engaged in unfair labor practices, we shall require it to cease * The failure of the Trial Examiner to consider this exhibit is shown by his assertion that there is no explanation for Wache's statement that Wache could identify a certain signature because he had all the original signatures. 5 In a situation such as this , where the correctness of a finding depends entirely on the examination of documents , our customary rule as to reversal of factual findings dependent on observation of witnesses is obviously inapplicable. 9 The Trial Examiner suggests that the Respondent 's refusal to deal with the Union is justified by the fact that for part of the time a representation petition was pending, and that the refusal was tantamount to insistence on the election . We do not agree. The Respondent made no such argument to the Union . Its refusal was based not on such in- sistence, or on doubt of majority , but simply and explicitly on a rejection of the collective- bargaining principle. 4 The Trial Examiner credited and accepted this testimony in connection with the Union's alleged unconditional request for reinstatement of the strikers. 508889-60-vol . 123-58 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and desist therefrom and from any like or related conduct, and take certain affirmative action designed to effectuate the policies of the Act. As we have found that the Union represented a majority of the employees in the appropriate unit and that the Respondent refused to bargain collectively with it, we shall order the Respondent, upon request, to bargain collectively with the Union as the exclusive repre- sentative of the employees in the appropriate unit. We have also found that the strike which began on September 9, 1957, was prolonged by the Respondent's refusal to bargain in viola- tion of Section 8(a) (5). Consequently, as unfair labor practice strik- ers, the Respondent's employees could not lawfully be replaced, but were entitled to be reinstated to their old jobs upon their uncondi- tional applications for reinstatement. The record indicates that certain of the strikers have, in fact, been reinstated. It was contended at the hearing that the Union had made uncondi- tional requests for the reinstatement of all the strikers on March 10 8 and again on March 24, 1958. The Trial Examiner found that the request of March 24 was not made in good faith. We. do not agree, for the following reasons. The Trial Examiner relied on the fact that the request named strikers whom the Union had not been shown to represent. This factor obviously is irrelevant as the Union was the majority representative obligated to represent all employees in the unit. The Trial Examiner then relied on the fact that the request names certain strikers who had already been reinstated. Such an erroneous inclusion can have no. effect on the rights of those strikers who had not been reinstated. Finally, the Trial Examiner relied on the testimony of certain strikers that they would not return without the Union. This fact, in our opinion, is not relevant with regard to the issue of good faith. It is, however, material in determining whether or not the request was unconditional in nature. The Union's request for reinstatement was in terms unconditional. However, in view of the imposition of a condition, as indicated by the testimony adverted to by the Trial Examiner, we do not believe that the strikers had, in fact, made themselves available unconditionally for work on either March 10 or March 24.9 Accordingly, we do not deem it appropriate, in these circumstances, to direct that the Re- spondent award back pay the strikers from either of these dates. We shall, however, order that the Respondent, upon request, offer reinstatement to the employees listed in appendix A to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any persons hired on or after September 20, 1957, who were not in the 8 As noted in footnote 1, above, we reject the Trial Examiner's finding that this letter was not sent. We agree, however, with his finding that Joseph Deckers, having refused a valid offer of reinstatement, is entitled to no further relief. Bruns Coal Company, Inc., 106 NLRB 590, 593. COMBINED METAL MFG. CORP. 899 Respondent's employ on that date. Further, we shall order the Re- spondent to make those employees whole for any loss of pay they may suffer by reason of the Respondent's refusal, if any, to reinstate them upon request, by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period from 5 days after the date on which he applies for re- instatemen^t to the date of the Respondent's offer of reinstatement, such loss to be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289. We expressly reserve the right to modify the back-pay and reinstate- ment provisions of our order herein if such action should be required by facts not now in the record or by specific circumstances not now apparent. ADDITIONAL CONCLUSIONS OF LAW 1. All production, maintenance, shipping, and receiving employees of the Respondent at its Catskill, New York, plant, excluding office and clerical employees and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. The Union, on September 17, 1957, was, and at all times there- after has been, the exclusive representative of all employees in such unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 3. By refusing to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 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, Combined Metal Mfg. Corp., Catskill, New York, its officers, agents; successors, and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Sheet Metal Workers International Association, AFL-CIO, as the exclusive representative of all its employees in the appropriate unit with respect to rates of 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pay, wages, hours of employment, and other terms and conditions of employment. (b) In any like or related manner interfering with the rights of employees guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with Sheet Metal Workers International Association, AFL-CIO, as the exclu- sive representative of the employees in the appropriate unit, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an understanding is reached, embody such understanding in a signed contract. (b) Upon application, offer to the employees named in -appendix A, attached hereto, reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges in the manner set forth in,the section of this Decision entitled "The Remedy." (c) Post at its Catskill, New York, plant, copies of the notice attached hereto marked "Appendix B." 10 Copies of such notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by Respondent's authorized representative, be posted by Respondent immediately upon receipt thereof, in con- spicuous places, including all places where notices to employees are customarily posted, and maintained by it for at least 60 consecutive days thereafter. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Second Region in writing, within 10 days from the date of this Order, as to what steps it has taken to comply herewith. io 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 A William Bray James Davis Norman Deyo William Dunn Joseph Hoatling Chas. Kruppenbacker Teddy Kudlacik Martin Lasche George Mitchell Francis Parise George Quickert Clinton Roe Gerhard Rossdentcher Donald Rice William Shultes Henry Tice Frank Van Ness Donald Wache Joseph Walter COMBINED METAL MFG. CORP. APPENDIX B NOTICE TO ALL EMPLOYEES 901 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, we hereby notify our employees that : WE WILL bargain collectively upon request with Sheet Metal Workers International Association, AFL-CIO, as the exclusive bargaining representative of all our employees in the appropriate unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an agreement is reached, embody such understanding in a signed contract. The appropriate unit is : All production, maintenance, shipping, and receiving em- ployees at our Catskill, New York, plant, excluding office and clerical employees and supervisors as defined in the Act. WE WILL offer to the employees listed below, upon their appli- cation, reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges, dismissing, if necessary, any employees hired since September 20, 1957, to replace these employees, and we will make each employee whole for any loss of pay suffered by him as a result of our failure to reinstate him within 5 days after his application. William Bray George Quickert James Davis Clinton Roe Norman Deyo Gerhard Rossdentcher William Dunn Donald Rice Joseph Hoatling William Shultes Chas. Kruppenbacker Henry Tice Teddy Kudlacik Frank Van Ness Martin Lasche Donald Wache George Mitchell Joseph Walter Francis Parise WE WILL NOT in any like or related manner interfere with the rights our employees are guaranteed in Section 7 of the Act. COMBINED METAL MFG. CORP., 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. 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE On September 17, 1957, Sheet Metal Workers International Association, AFL- CIO (Union) filed a charge with the Second Region (New York, New York), of the National Labor Relations Board (Board), alleging that Combined Metal Mfg. Corp. of Catskill, New York (Respondent), had engaged in and was engaging in certain unfair labor practices affecting commerce, as set forth and defined in the National Labor Relations Act, as amended, 61 Stat. 136 (Act). On February 27, 1958, the General Counsel on behalf of the Board issued a complaint and notice of hearing, signed by John J. Cuneo, Acting Regional Director for the Second Region, alleging that the Respondent had engaged in and was en- gaging in unfair labor practices violative of Section 8(a) (1) and (5) of the Act, and setting March 31, 1958, as the date of hearing thereon. The complaint and notice was duly served. On March 7, 1958, the Respondent filed an answer. On March 24, 1958, the General Counsel issued an order amending complaint, signed by Ivan C. McLeod, Regional Director for the Second Region, amending the complaint to also allege unfair labor practices by the Respondent within the meaning of Section 8(a)(3) of the Act. No amended charge was filed, prior to the filing of the order amending complaint.' The date for hearing on the complaint as amended was set for April 28, 1958. On April 3 the Respondent filed an answer to the complaint as amended. Pursuant to notice a hearing was held before Louis Plost, the duly designated Trial Examiner, at Catskill, New York, April 28 through May 3, 4958. The General Counsel, the Respondent, and the Charging Party were all represented and partici- pated in the hearing, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing upon the issues, to argue orally, and to file briefs and/or proposed findings of fact and conclusions of law with the Trial Examiner. At the close of the General Counsel's evidence and again at the close of the hearing, the Respondent moved to dismiss the complaint; the Trial Examiner reserved ruling. The motions are disposed of by this report. Likewise at the close of the hearing the General Counsel moved to conform the pleading to the proof with respect to names, spellings, and like matters, not substantive. The motion was not opposed and was granted. A date was set for the filing of briefs with the Trial Examiner.2 Oral arguments were made on the record by the General Counsel and the Respondent. A brief has been received from the Respondent. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The complaint alleged and the Respondent conceded that: Combined Metal Mfg. Corp. is, and has been at all times herein mentioned, a corporation duly organized under and existing by virtue of the laws of the State of New York. At all times herein mentioned, Respondent Company has maintained its principal office and place of business at Lower Main Street, Village of Catskill, State of New York, herein called the Catskill plant, and is now and has been continuously engaged at said plant and place of business in the manufacture, sale and distribution of aluminum boats for bridge erection, and related products. During the past year, Respondent Company, in the course and conduct of its business operations, caused to be purchased, transferred and delivered to its Catskill plant, aluminum and other goods and materials, valued in excess of $350,000, of which, goods and materials valued at in excess of $200,000, were transported to said plant in interstate commerce directly from states of the United States other than the State of New York. During the past year, Respondent Company, in the course and conduct of its business operations, caused to be manufactured, sold and distributed at 'For the authority of the procedure see Triboro Carting Corporation, 117 NLRB 775. s Upon request of the Respondent, made to the Chief Trial Examiner after the hearing, the time for filing briefs was extended by him from May 26 to July 1, 1958. COMBINED METAL MFG. CORP. 903 said Catskill plant, products valued at in excess of $350,000 to $375,000 and shipped from said plant in interstate commerce directly to states of the United States other than the State of New York. II. THE LABOR ORGANIZATION INVOLVED Sheet Metal Workers International Association , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act, and admits employees of the Respondent to membership. III. THE UNFAIR LABOR PRACTICES A. Background On Monday, September 9, 1957, the Respondent's employees struck and had a picket line established before work began. The preceding Friday, September 6, a fruitless request for holiday pay had been made, and the strike was its direct result. It was wholly economic, no union organization existing or being contemplated at the time; however, the complaint alleges and the General Counsel contends that the employees' economic strike was converted into an unfair labor practice strike because of certain conduct of the Respondent during its progress. Donald Wache, spokesman for the employees on September 6 and one of the leaders of the strikers, testified that on the morning of September 9, after the picket line had been formed, Dominick Valentine, the Respondent's general manager, drove up to the packet line, "motioned to the key men to come with him into the plant," and called out to the strikers, "Let's go back to work boys," but that none of the employees followed Valentine into the plant; the men drew a handwritten list of 10 grievances which they signed and which was copied (exclusive of signatures) on a typewriter; that sometime during the morning: Mr. Prosser, the purchasing agent for the metal works, Combined Metal Works, came up and I gave a copy to him, and told him to relay it to the proper authority. Which he said he would do. The list of grievances made no mention of union organization or recognition, eight of the demands being wholly economic, one asking assurance that there be "no firing or layoff due to this petition," the last seeking that the Respondent change its general manager. Wache further testified that sometime during September 9 the strikers elected a committee, and that Martin Lasche, one of the committeemen, and he telephoned to Ernest Lanoue, a representative of the New York State Board of Mediation at Albany, New York, and also to the Regional Office of the Board in New York City. Wache testified that sometime during the first day of the strike: There appeared on the scene, mysteriously, from where I don't know, a member of the Machinist Union. He spoke to us, and of course he was very interested in organizing us. At this time we explained to him that we did not seek union representation. According to Wache, on September 10 Lanoue of the State Board of Mediation arrived, reported to him that he "was unable to find anyone to speak to in authority," and left Catskill with the promise to make a further attempt to contact the Respond- ent later; that on September 11 he and Lasche called at the office of the Respondent's attorney, whom they found at the point of leaving for a funeral; and that after having stated the purpose of their visit they were asked to come back later that afternoon but did not do so. Wache and Lasche both testified that they were unable to make contact with anyone in authority in the Respondent Company until September 17, that Sulustiano Berzal, the man who had complete authority in the Company, was not available until that date. Berzal testified that either on September 10 or 11, he came to the picket line and spoke to Wache. According to Berzal: He says to me, "Shorty, we will all come back to work if you get rid of Mr. Valentine." That was what was put to me every time. He said to me, "We can give you a man to run the plant for you." I said, "I am very sorry." TRIAL EXAMINER: He said what? The WITNESS: He can give me a man to run the plant for me instead of Mr. Valentine. I said, "I am sorry, the only man that I can trust with three or four hundred thousand dollars is that man." 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Berzal testified he often passed the picket line thereafter; each time he passed the line a similar conversation took place. Upon the entire record, the evidence considered as a whole, and from his observa- tions of the witnesses, the Trial Examiner credits Berzal and finds that not later than September 11, the striking employees first told him, personally, that one of their demands to be met before they would return to work was the removal of Plant Manager Dominick Valentine. The Coming of the Union Organizers Donald Wache testified that on September 11, Stephen J. Franzen 3 initiated the organization of the Union among the strikers. Wache testified: Mr. Franzen said he was going to Albany, I believe, to a local up there, and would get the cards and bring them back. And that was all that occurred on that day, to my knowledge. Martin H. Lasche testified that Franzen "said he was going up to Albany to the Sheet Metal Workers Union," And he says that he would bring a union representative down to us, as long as we were intending to join the union and we weren't getting any place. Both Wache and Lasche testified that on September 12 Franzen returned together with Union Representative Paul Canders, and that Canders distributed authorization cards for the Union among the strikers that day. Franzen, however, had an entirely different account of the invitation extended the Albany union official that he take a friendly interest in the strikers' problems. Franzen testified that: On September 12 or 13 he went to Albany, New York, to seek work and while there "a fellow that works in Albany" suggested that he see Paul Canders, the Union's representative, "to try to get into the Union" and get Canders' help in finding a job; he called on Canders and while there told Canders of the strike, agreed to take union authorization cards back to Catskill and tele- phone Canders Friday evening if the strikers showed interest in union representation; he distributed the cards on his return and called Canders at 9:30 p.m. Friday; and Canders came to Catskill and the picket line on Monday, September 16. Franzen testified that prior to going to Albany he had no conversations with any of the strikers regarding his seeking union representation in Albany; that "I just went up for myself. And then the question came up." He further testified: Q. (By Trial Examiner.) Then I take it you didn't go from here to Albany for the purpose of getting Canders to come here? A. Oh no. No, sir. Q. And if there is testimony in this record from other witnesses to the effect that they knew you were going to Albany for a job, and that they told you and you told them that you were going to ask the union about getting the plant, getting them to come down here and organizing the employees, is that or is that not correct? A. That is not correct. Paul Canders testified that: He is and for the preceding 9 years has been the busi- ness representative of Local 83, Sheet Metal Workers International Association at Albany, New York; that Franzen visited his office September 12 or 13; he gave Franzen blank authorization cards, asked that Franzen report to him by telephone the next Friday night, which Franzen did; he first came to Catskill after his con- versation with Franzen on Monday, September 16; he remained (apparently in the vicinity of the picket line) until 2 p.m., then left for Albany; and although he had furnished authorization cards to Franzen none were returned to him. Canders further testified that when he arrived at the picket line, Monday, Sep- tember 16, two other representatives of the Union were either already there or arrived "a little bit after." Canders did not name one of the representatives he referred to but pointed him out in the hearing room. The man in question immediately identified himself as James Ferrarie of Pinebrook, New Jersey, and stated: "I am International Or- ganizer for the Sheet Metal Workers International Association, out of Washington, D.C." Canders named the other union representative who was present Monday morning as "Mr. Laughlin," who at a later point testified he was William F. Laugh- lin of 10 Center Street, Randolph, New York, and that he was "International Or- 3 The record discloses that Franzen was a foreman who joined the strike. COMBINED METAL MFG . CORP. 905 ganizer with the Sheet Metal Workers International Association , 1000 Connecticut Avenue, Washington, D.C." Union Representative Laughlin further testified that he arrived in Catskill at 7 o'clock in the morning, Monday, September 16, and: Well, I was to meet another one of our organizers , as well as our local agent from Albany, in the area. Q. Who are they? A. A Mr. Canders , Mr. Paul Canders, who is the local agent out of Albany. And Mr. James Ferrarie , from New Jersey, who is an International Organizer like myself. Q. Then what happened? A. We were requested to come in here by Mr. Canders , who had contacted the employees of Combined in order to discuss organizing the people involved. [Emphasis supplied.] Union Representative Ferrarie testified he arrived in Catskill Monday morning pursuant to a telephone call from his regional director, Alan Roberts , who -in turn testified: The local had contacted our regional office in reference to a strike that had been in existence up here, and they had called us in on it to see what we could do to help and assist the people of Combined Metal that were out on the picket line. According to Ferrarie , he had never met Canders before September 16, and as to Laughlin he testified as follows: Q. (By Mr. Greenidge .) Will you please identify Mr. Laughlin? A. Bill O'Locklin, International Organizer. Q. Is it O'Locklin , or Laughlin? A. It could be O'Locklin, or Laughlin. You know how the Irish are. Canders, who was undoubtedly the first of the Union 's representatives to be informed of the situation at the Respondent 's plant by any of the strikers , testified on cross-examination: Q. From the time that Franzen saw you on the 12th or 13th, did you take it up with anyone at all before you came down here; yes or no? A. Did I take it up? No. He was also asked, "Did you assign anyone to come down here?" and answered, "I do not assign." Canders testified that he does not work out of the same office as Laughlin or Fer- rarie as "they are entirely different ." His cross-examination closed with the following: Q. (By Mr. Friedman.) Mr. Canders, I believe that in response to a question that I put to you at the early stage of your cross examination , in words or substance, I asked you whether you came on down here on the 16th of Sep- tember, 1957 , before you had communicated with any other official of the union, and I believe you said "yes." A. I did say that. Before I had. Q. And in spite of the fact, when you got here you found Mr. Ferrarie or Mr. Laughlin? A. I did, sir. Despite the glaring contradictions in the testimony of those allegedly receiving invitations to come and organize the Respondent 's striking employees, and the hazy story of the Union's entrance as developed by the volunteered testimony of the various union representatives who arrived simultaneously on September 16, apparently unacquainted with each other personally and ignorant of their similar missions, it is quite clear (in the testimony with respect to "background") that during the day authorizations for union representation were signed by various of the strikers which were turned over to Union Representative Laughlin. The Trial Examiner notes that both Franzen and Canders testified that on or about September 12 or 13 Canders furnished authorization cards to Franzen in Albany, New York . Franzen testified he signed one of these cards furnished by Canders as did several others, who also testified they signed cards furnished by Franzen before September 16. Of the cards offered and temporarily accepted, 14 are dated prior to September 16, 2 are dated September 12, 1 is dated Septem- ber 15, and 11 are dated September 13. All the cards offered by the General 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel are printed, with authorization to be signed on the face, the opposite side carrying guaranteed postage and a printed address to: International Organization Sheet Metal Workers International Association AFL-CIO 10 Center Street Randolph, N.Y. The address is that of Union Representative Laughlin who did not arrive until September 16. Randolph is on the extreme western side of New York State, while Albany (Canders' office address) and Catskill are on the eastern side of the State, about 300 miles from Randolph. No explanation was made. As found herein Canders testified he left Catskill at 2 p.m. on September 16. Union Representative Ferrarie testified he left Catskill on September 16 at 1:30 p.m. taking "in the vicinity" of 30 signed authorization cards with him. He testified: 30 cards; yes. I know I had an elastic around them. I didn't count them. And I put them in an envelope and I brought them to the regional office. Q. (By Mr. Greenidge.) When you say "regional office," you mean your union's regional office? A. Sheet Metal Workers regional office, Region No. 1. Q. In New York City? A. 130 West 42nd Street. Union Representative Laughlin testified that sometime during September 16 he telephoned the Respondent's attorney whom he did not know but to whom he introduced himself over the telephone and: I continued talking after I had introduced myself, giving him the reason for the call, which was to the effect that we represented the majority of the employees of Combined Metal, and that I had been informed that he repre- sented the company. and he told the attorney he "would like to get together and discuss the situation at the first possible moment." I think at that time he interjected the statement that, something to the effect that, "How do I know that you represent a majority of the people? You say that you do. How do I know that?" I says, "We are in a position to prove that by a card check, whatever means may become necessary." The attorney then told Laughlin "he was not in position to speak for the company," but would try to contact "the party who does speak for the company" and asked that Laughlin again call him at 5 p.m., but when Laughlin called at 5 p.m. he was told that the proper party had not been reached. Laughlin further testified that no other effort to reach the "proper party" was made but that a petition for determination of representation was filed in the Second Region of the Board (2-RC-9139) on September 17, the cards signed for the Union by the Respondent's striking employees being filed with the Board in support of the petition at the time. The complaint alleges and the General Counsel vigorously contends that: (a) On September 16, the day before the 9(c) petition was filed, a majority of the Respondent's employees "designated or selected" the Union as their representative; (b) on September 16 the Union requested recognition by the Respondent, repeating the request on September 20 and 24, which requests were refused; and (c) conduct amounting to unfair labor practices practiced by the Respondent from the inception of the strike converted it from an economic strike into an unfair labor practice strike.4 In the opinion of the Trial Examiner the record is barren of proof that either before September 9, and until September 16, the Respondent engaged in any conduct which can be termed an unfair labor practice opposed to its striking employees' statutory rights. * The Trial Examiner is mindful of the fact that Wache testified that representatives of the strikers called at the office of the Respondent's attorney on September 11, stated their purpose, and were invited to return at 5 p.m. but did not do so, and Wacbe followed this with testimony to the effect that, the strikers' committee could reach no one in authority until September 17, but here Laughlin's telephone call to the same attorney made on September 17 is used as the basis of a demand on and refusal to recognize by a responsible official within the meaning of Section 8(a)(5). COMBINED METAL MFG. CORP. 907 In order to ground a charge that the Respondent illegally refused to bargain with the Union, on the day before the Union filed its 9(c) petition (not the charge herein) it must be shown, as alleged, that on that day the Union represented a proper majority of the Respondent's employees and that a proper request for recognition was made and refused. With respect to the proper request. Assuming arguendo that the element of proper representation existed, it seems to be the General Counsel's contention that a telephoned statement to an employer's attorney claiming majority representation and expressing a desire to meet at the earliest possible moment, coupled with a further statement that proof of majority can be made by card check, which was followed by the attorney's reply that he was not empowered to speak for the Company, but would seek to contact the responsible company official, constitutes a proper request for recognition and a refusal to do so. The Trial Examiner does not agree with the General Counsel. Although it has no bearing on the validity of the "request" made September 16, the Trial Examiner is mindful, and influenced, by the fact that the Union's rep- resentative had never met the attorney nor had the Union's representative met any of the Respondent's officers, and it would therefore seem that formal and not casual dealings were to be expected in the first "business" contact. The Trial Examiner is also mindful that at 5 p.m. (September 16) when the Union's representative by previous agreement telephoned the Respondent's attorney regarding an expected meeting at which his proof of majority status presumably could be made by a card check, the Union's authorization cards had already been en route to New York City since 1:30 p.m. The petition for election was filed the following day before the Union had any meeting with the Respondent. The conduct of the parties after September 16 can hardly be explained or evaluated without a clear understanding of the basis of the Union's claim to majority representation as evidenced by the authorization cards signed for it by the strikers on or before that day. B. The appropriate unit The complaint alleged: All production, maintenance, shipping and receiving employees of Respondent Company employed at its Catskill plant exclusive of office and clerical em- ployees, and all supervisors as defined in Section 2 (11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. C. The Union's representation within the unit September 16, 1957 At the hearing the General Counsel introduced 32 authorization cards as proof of the Union's majority within the appropriate unit on September 16, 1957. The Trial Examiner admitted the cards, some on the authentication of their signers, others on different testimony, but at the time the Trial Examiner made the following statement: Let me make this statement: That in admitting the cards in evidence the Trial Examiner does not preclude himself from evaluating their values as cards, their authenticity, and all other matters relating to the cards, when he makes a complete study of the record, and may at that time, of course, reject or recommend that certain of these cards not be counted. That is the usual and customary practice. Of the 32 cards introduced only 28 are dated as having been signed on or before September 16, 1957. On September 17, at the time the Union filed its petition for representation with the Board's Second Region, it also filed 25 cards as proof of its claim. Each of these 25 cards was stamped in the Board's Regional Office as having been received there on September 17, 1957. It is therefore clear that these 25 cards were in the Union's possession before September 17, and as it may well be inferred that the Union would seek to put its best foot forward at the time, especially as it had already sought to lay the foundation for an 8(a)(5) charge based on a claim to majority status, it would have filed all the cards it possibly could. Of the 25 cards filed with the Board, 21 were identified by the persons whose names are signed to them as authorizing the Union to represent the signers for purposes of collective bargaining. 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner accepted these 21 cards as authentic as to signature; however one of them, the card signed by William A. Moon, cannot be counted toward majority showing. Moon was admittedly a foreman and not within the appropriate unit. This leaves 20 cards, proven by the credited testimony of persons within the unit and represented by the Union on September 16. -Together with the above cards there were also filed cards bearing the names of Raymond Denniston, George Mitchell, Gerhard Rossdentcher, and James Walter. None of the above testified; however, testimony regarding the cards allegedly signed by them was taken. Raymond Denniston Raymond Denniston's name does not appear on the payroll of production workers (the appropriate unit) introduced by the General Counsel. Dominick Valentine, the Respondent's general manager, testified that Denniston was foreman over "stern section" construction; set up and directed the work in this section; had the right to discharge employees, a right he, had not exercised because few men were ever discharged; and received a higher rate of pay than other employees. No testimony in contradiction was adduced. Denniston did not testify. The Trial Examiner, on the entire record, finds that Raymond Denniston was a foreman and that he cannot be counted by the Union toward a majority representation within the appropriate unit. Gerhard Rossdentcher The General Counsel seeks to include Gerhard Rossdentcher among those com- prising the alleged majority. Rossdentcher did not testify; however, a card bearing his name was filed on September 17 together with the petition for election. Francis J. Parise testified 'he saw Rossdentcher affix his name to the authorization card offered by the General Counsel, testified he saw Rossdentcher and five other named employees sign, at the same time testifying that on September 13 he saw two other employees sign authorization cards, at which time Union Representative Canders was distributing,and collecting cards on the picket line. Canders, however, testified he did not come to Catskill until September 16.5 Parise's general testimony was not persuasive; he further testified that one of the first to sign an authorization card was James Davis, testifying: Q. Where did this take place? A. That took place up on top of the hill the morning that Steve Franzen came down from Albany. It was on the 10th of September. Davis when called identified his signature and verified the date of the card as October 2. Without going into further detail as to Parise's general testimony, the Trial Examiner will say that while on the stand Parise created the impression of being totally unreliable. A careful reading of the transcript confirms the original impression. On the entire record and from his observation of the witness, the Trial Examiner does not credit Parise's testimony to the effect that he saw Rossdentcher sign the proffered authorization card and will therefore not add the card to those heretofore accepted as evidence of the Union's majority representation on September 16. George Mitchell The card allegedly signed by George Mitchell was offered by the General Counsel as proof positive that Mitchell had selected the Union as his bargaining agent on September 16, 1957. George Quickert testified that he saw Mitchell sign the card in question; he also identified five additional cards as being signed in his presence on different dates at different locations, the dates he recalled being September 12, 13, 15, and 16. On cross-examination after detailing .dates on which and places at which he allegedly saw cards signed, he testified: Q. (By Mr. Friedman). Who signed on the 16th? A. George Mitchell and Lynch. Q. And you saw them sign those cards? A. I seen them sign the cards. 5 The witnesses were separated. COMBINED METAL MFG. CORP. 909 Q. Do you know George Mitchell's signature when you see it, have you ever seen George Mitchell's signature before? A. No; not before. Q. Would you know his signature if you saw it? A. I seen him sign the card; but that's about the only time I seen his signature. Q. And would you recognize his signature now, after having seen it at the time? A. Well, that's hard to tell. On the entire record and from his observation of the witnesses, the Trial Examiner is not persuaded that the record contains proof that the card bearing Mitchell's name was actually signed by him, nor does he credit Quickert's testimony that he saw the signature on the card affixed thereto. The Trial Examiner therefore does not accept and count the card bearing the alleged signature of George Mitchell as showing the selection of the Union by Mitchell. Joseph Walter A card allegedly signed by Joseph Walter on September 16 and filed in the Board's Second Regional Office by the Union was offered in the proof of the Union's majority status. As found, Walter did not testify. Donald Wache testified that he saw various individuals on the picket line sign authorization cards on various dates, and that "he recalled" Joseph Walter signed a card on September 16, 1957. Wache volunteered the statement that he could be sure of the signature of cards he identified "because I have their original signatures at home." No explanation of this volunteered statement was asked for. Wache admitted he did not see the card bearing Walter's name filled out, and that he did not give the card to Walter nor receive it from him. In the opinion of the Trial Examiner the signature is not proven and the card purportedly signed by Joseph Walter is rejected. Contrary to the General Counsel's contention, for the reasons above given and on the entire record the Trial Examiner does not include the names of Raymond Denniston, Gerhard Rossdentcher, George Mitchell, nand Joseph Walter among those of the Respondent's striking employees offered as forming a majority by selecting the Union as their representative on and before September 16, 1957. In addition to the above, the General Counsel offered an authorization card bearing the date September 16, 1957, not verified by the individual whose name is alleged signed to it, and not included by the Union among those who filed by the Union in support of 2-RC-9139. The card bears the name John Thurmer. Francis J. Parise testified he saw John Thurmer sign the authorization above referred to on September 16. The Trial Examiner has discussed his impression of Parise and the general credibility of his testimony in connection with the card allegedly signed by Rossdentcher. For the reason that he considers Parise wholly unreliable he does not credit his testimony to the effect that he saw Thurmer sign, and for the further reason that the Union failed to file Thurmer's signed card with its petition the Trial Examiner now rejects the authorization card allegedly signed by John Thurmer on September 16, 1957, as probative of the Union's majority status among the Respondent's employees. Stephen Franzen Stephen Franzen identified his signature on an authorization card dated September 13, 1957; however, he testified that he did not enter the date on .the card. The Union did not file Franzen's card with its petition for election. General Manager Valentine testified without contradiction and credibly that: Franzen was the foreman in charge of "bow section "; he had authority to discharge employees , and laid out the work for men under him ; and "He most generally set it up and lined it out, and marked it out, and the boys went ahead and fabricated the boat." Franzen's name does not appear on the September 6 production workers payroll. The Trial Examiner finds that Stephen Franzen was a foreman and not within the unit appropriate for collective bargaining involved in this proceeding. George Quickert George Quickert testified that he signed an authorization card bearing his name on September 13, and that the card was given him by Franzen and he returned it to Wache after signing. He also testified that he saw five others sign cards, recalling 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the various dates on which they signed but not what was done with them after signing; he "positively" identified cards as having been signed by individuals whose signatures he later admitted he did not know. His testimony regarding incidents occurring on the picket line and his testimony in general was confused and did not have the ring of authenticity. The Union did not file Quickert's authorization card with its petition. The Trial Examiner does not doubt that Quickert signed an authorization card for the Union but does not credit his testimony that he signed it on 'September 13, and upon all the evidence considered as a whole, as well as from his observation of the witness, he rejects the card signed by George Quickert as proof that Quickert designated the Union as his representative on or before that date. Conclusion Upon the entire record the Trial Examiner therefore finds that on September 16, 1957, the Union represented 20 of the Respondent 's employees within a unit ap- propriate for collective bargaining , these employees , then on strike, having desig- nated the Union as their representative by signing authorization cards. The Extent of the Unit The Respondent testified that on September 6 there were a total of 49 produc- tion employees on its payroll. The General Counsel introduced the purported payroll as of September 6, 1957. This roll contains 42 names, after striking the name of John Prosser as not within the unit. The record shows that on September 11, before the appearance of the Union's representatives , the Respondent employed William Smith as a general laborer. Smith's name must be added to those on the payroll list. Sulustiano Berzal 6 testified , without contradiction, that on September 6 Albert Drexler and Harold Holdridge were also employed in production; however their names do not appear on the roll. The Trial Examiner adds their names. It is also clear that Charles Schoen and Oscar Way belonged on the payroll list of September 6. The Trial Examiner, on the record as made, accepts the payroll list as accurate with the addition of William Smith, Albert Drexler, Harold Holdridge, Charles Schoen, and Oscar Way and finds that in order to represent a majority of the employees within the appropriate unit on September 16, 1957, the Union must have been designated by 24 employees within the unit. It has been found that the Union represented 20 members of the appropriate unit on September 16, 1957. Upon the record, the Trial Examiner finds that on September 16, 1957, the Union did not represent a majority of the Respondent's employees within a unit appropriate for the purposes of collective bargaining ; that the Union did not and could not make a valid request for recognition by the Respondent ; and that the Respondent did not engage in an unfair labor practice by refusing ( assuming that it did so refuse ) to recognize the Union on September 16, 1957. D. Alleged interference, restraint, and coercion Donald Wache testified that on September 17 Mediator Ernest Lanoue arranged a meeting between the Union 's committee and the Respondent in the office of the Respondent's attorney.? According to Wache, at the opening of the meeting Sulustiano Berzal, the Respondent 's principal stockholder and its final authoritative spokesman , came in, "shook hands all around," asked why the men had not come to see him before the strike, and: At this point we brought out the questions of our ten points , which were on the original petition . Shortly [Berzal] told us that he would consent to an equitable wage arrangement. When the question of Mr. Valentine arose, he said he would not consent to removing Mr. Valentine. Martin Lasche, a member of the committee, then offered to take Valentine's place and Berzal said, "How about it, lets go back to work , I will give you some 6 The Respondent's principal stockholder. 7 The hour of the meeting was fixed by other credited testimony as 5 :15 p.m. COMBINED METAL MFG. CORP. 911 things," to which Lasche replied that the strikers had joined the Union. According to Wache: At this point Mr. Berzal slapped his hands on the desk, pushed his chair against the wall, and stormed out of the room, saying, "No union, no union. Forget about it. I will go out of business first." The committee "started to go for the door" but Mediator Lanoue "motioned for us to be seated" and Berzal again said: Come back to work for me. Let's stop this nonsense. 1 will give you your ten cents. T will make the wages even, or equalize it, and I will see that Dominick [Valentine] won't bother you. The committee replied: We said we would convey that message to the men, but we did not think that would be effective, because we had now joined the union, and would seek union representation, and would not go back to the plant without it. Berzal replied, "No, no union. Forget about it" and at that "we left and he left and that was it." Wache, corroborated by Lasche, testified that Union Representative Laughlin was not at the aforesaid meeting. Martin Lasche testified with respect to the above September 17 meeting: The cause of the meeting breaking up, when I spoke to Mr. Lanoue, Mr. Friedman, and Mr. Berzal, that I wouldn't do anything now, I take back the message that they had said about the points, and what he had said to us in the meeting, and would deliver it to the men, and tell them what to do. Furthermore, I wouldn't do anything without a union representative being there, I said to him. Mr. FRIEDMAN: This was on the 16th? The WITNESS: This was on the 17th, Mr. Friedman. And I said that "We now have joined the union." He said, "Well, if you have joined the union, never mind." Lasche placed the conversation with Berzal "in the hall" while Wache placed it in the meeting proper. Sulustiano Berzal testified with respect to the meeting: Q. Now what happened at that meeting? A. Nothing. Now, they wanted Mr. Valentine out of the picture. I said, "Let's not go any further. We stop right here." The Respondent's attorney, first expressing regret that the circumstances com- pelled him to testify, took the stand and with respect to the meeting above referred to testified that the principal matter raised by the committee was the discharge of Manager Valentine which Berzal refused. He testified: They still persisted that Valentine had to go out, and Lasche said, "I can run that plant, you don't need Valentine." Mr. Berzal said that there was no need of discussing the matter under those circumstances , and the meeting came to an end. Upon the entire record, the evidence considered as a whole, and his observation of the witnesses while testifying, the Trial Examiner is persuaded and finds that the account of the meeting in question as given in the testimony of Berzal and the Respondent's attorney represents the more accurate version thereof. However, assuming, arguendo, the account given by Wache and Lasche to be correct there is nothing to warrant the conclusion contended for by the General Counsel that by its conduct with respect to this meeting the Respondent prolonged the strike, thus converting it from an economic strike into an unfair labor practice strike, or that on September 17 the Respondent did, or evidenced that it would, refuse to bargain with a union which legally represented a majority of its employees within an appropriate unit. On September 20,8 a second meeting was arranged in the office of the Respond- ent's attorney. Union Representative Laughlin , being present for the strikers to- gether with their committee. Laughlin testified that he did not participate in any discussion with the Respondent and the mediator; he did not speak to Berzal until September 24; and at the "meeting" 8 The date was stipulated. 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the committee sat in one room, the Respondent's representatives in another. Laughlin testified that the mediator called the strikers' committee and himself into the halt where- He told us that he had talked to the company officials, and that there was no use continuing, because as long as there was a union representative present, that they would talk to the men themselves, deal with the men directly, but they would not deal through a union. The committee and Laughlin "therefore turned and left the building." 9 Berzal testified that he did not discuss the Union with any of the men at the September 20 meeting but did tell the mediator he would talk to the men but not to the union representative. Francis J. Parise testified that Berzal came out into the street after the mediator had spoken to them and in the presence of Lasche and Union Representative Laughlin entered into a conversation with him during which Parise told Berzal that the men would not deal with him without the Union and that: Well, he said that if we didn't go back to work, and if we insisted on a union, he was going to shut the plant and move to Florida. Berzal denied holding this conversation. Union Representative Laughlin, who displayed an excellent memory and who kept a notebook on events from his first arrival in Catskill to which he referred while testifying, made no mention of this statement attributed to Berzal by Parise. Should the Trial Examiner feel the need to support for his opinion of Parise's veracity as heretofore expressed he surely could find it here. Parise's statement that on September 20, 1957, Berzal stated he would shut the plant if the employees insisted on a union is not credited. The complaint alleges and the General Counsel contends that on September 20, 1957, the Union requested that the Respondent bargain collectively and that the Respondent refused. The Trial Examiner finds that on September 20 the Union was in no legal position to request bargaining, that in fact it did not do so. The Trial Examiner finds that none of the conduct of the Respondent surrounding the meeting of September 20, 1957, hereinabove set out in anyway prolonged the strike or converted it from its character as an economic strike. The Sign Superintendent Valentine admitted that on September 18, 1957, the Respondent posted a sign at the plant entrance reading "plant closed." Lasche testified that Berzal removed the sign "around the 24th or the 25th of September"; that when Berzal removed the sign: I [Laschel said, "Will you give us the Sheet Metal Workers Union too," point- ing to the sign that was over on the wall." I said, "Will you recognize the union?" He said, "No goddamn union," he said. According to Lasche he asked the question after Berzal had asked the strikers present to return and had made the statement, "I will give you anything you want." Wache testified that he talked to Berzal at the time the sign was removed. Accord- ing to Wache: I said, "How about a union, Shorty? We want to bring union representation in with us." He said, "No, no. No union. I won't have you that way. Forget about it." The posting and the removal of the "plant closed" sign can at most be characterized as a tactical maneuver on the part of the striker-besieged Respondent; in the opinion of the Trial Examiner it cannot (as contended by the General Counsel) be viewed as "conduct which prolonged the strike" and an unfair labor practice by the Respondent. Union Representative Laughlin testified: He first talked to Berzal on the day the "plant closed" sign was removed which he fixed as September 24; he was called to the scene by Wache who came to the hotel for him and accompanied him to the picket line; when he arrived "the sign had just been taken down"; and Wache introduced him 6 This incident is saved from being pure hearsay by later testimony of Berzal. COMBINED METAL MPG. CORP. 913 to Berzal with whom he then had a conversation.10 According to Laughlin he talked to Berzal "for some time" and: I told him that we represented the majority of the people , we were willing to..provethat fact, and that I wish we could get together and get these men back to work. Q. What did Mr. Berzal say, if anything? A. He said at numerous times during our conversation , every time I would mention the word "union," he would throw up the hands and say "No union." He said, "I am going to finish this one contract . After that I come and get you. And we have the union." Berzal testified that he had numerous conversations with Laughlin but "Always by the truck. He never came down to the office or any other place"; Laughlin asked him to sign a contract, and: He told me he wanted me to sign an agreement with the union, for the whole shop. I.said I would sign an agreement with the men but not with the union. He asked me why I refused to sign with his union . I told him because the job would only last four or five months and I did not want to get involved-that it would not pay to organize-the time was so short. He said "If you join with us you will probably get more contracts, but without the union you will not get any more." I said I did not want any more contacts-I just wanted to finish the job and get out. I left then . [Emphasis supplied.] Regardless of when the first conversation between Laughlin and Berzal took place, it is clear that both before and on the day the "plant closed " sign was taken down the Union did not represent a majority of the Respondent 's employees within an ap- propriate unit. The Trial Examiner therefore finds that on September 24, 1957, on all the circumstances herein , the Respondent had a legal right to refuse any request for recognition made by the Union . Moreover such refusal, with a petition for election pending, would be tantamount to insistence on Board determination. The Trial Examiner believes that Berzal's statement to Laughlin, to the effect that "the time was too short " to consider union recognition by the Respondent, if more than a mere statement of opinion can in no event be termed an unfair labor practice which prolonged the strike or otherwise violated the rights guaranteed employees by the Act. The Trial Examiner so finds. Union Representative Laughlin testified that: On September 25 (the day after the "plant closed" sign was taken down ), a field representative of the Board together with a committee of the striking employees and himself called at the Respondent 's office, in order to discuss the election sought in the Union 's petition; the Board's representa- tive conferred alone with the Respondent's officials and then told the committee and Laughlin that the Respondent did not desire an election by consent agreement but wished a formal hearing on the petition ; and the Respondent's attorney and Laughlin then went to the attorney's office to determine an agreeable date. According to Laughlin, at his office he told the attorney: "To save time in the matter , we would be willing to submit to a card check," and I asked the Board Agent , Mr. O'Laughlin , to verify the number of cards we have signed at that time, which I believe was 28. However, the attorney "said they wanted to proceed with the formal hearing." October 4 was agreed as the hearing date on the petition. E. The Union withdraws its 9 (c) petition and files an 8(a) (1) (5 ) charge Union Representative Laughlin testified that on October 3 (the day before the hearing date ) Alan Roberts, the Union's Regional Director from New York City, and he met with the Respondent 's attorney at the attorney's home in Catskill. Laughlin testified: At that meeting we again requested recognition as the bargaining agent from Mr. Friedman [the attorney], and we offered to prove again that we represented the majority of the people. is Wache's testimony to the effect that he held a conversation with Berzal as the "plant closed" sign was being taken down does not quite mesh as to timing with Laughlin's testimony regarding Wache 's arrival at the hotel and the ensuing events. 50'S 8'39-60-vol . 123-59 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The attorney could not reach Berzal and the Union 's representatives left asking that the attorney call them before 11 p.m., which he did again telling them he had not reached Berzal; meanwhile a meeting of the union members had taken place and: Mr. Roberts called the Board Agent and requested to withdraw the petition without prejudice, and we were to submit an unfair labor practice charge. Laughlin testified the call was made after 11 p.m.; and that the call was followed up by a telegram. Union Regional Director Alan Roberts testified that about 11 p.m . of October 3, he called the Board 's agent in New York City, and that: My purpose in doing so was to stop him from making an unnecessary trip from New York to Catskill in view of the fact that I intended to file my unfair labor practice and withdraw our petition without prejudice at that time. TRIAL EXAMINER : There was a hearing set for the next day, was there not? The WITNESS : The next day; that's right. He identified the telegram sent after the telephone call; it was sent at 1:08 a.m., October 4. Roberts testified: Mr. FRIEDMAN : Where was it sent from? The WITNESS: It must have been sent from here if it was 1 : 08 a.m., or somewhere along the line. I think I stopped on the road to send the telegram, or sent it from here. The telegram is marked as having been received in the office of the Board's Second Region in New York City at 9:40 a.m., October 4. Union Representative Laughlin testified on cross-examination: Q. (By Mr. Friedman.) I don 't seek to fence with you, Mr . Laughlin. I have asked you frankly whether as a matter of fact , during the course of that conference that we had at my home on the 3rd of October, 1957, in the evening, whether I wasn't told in words or substance that if a contract was forthcoming from the respondent company with the union, that the union would file charges against the respondent involving unfair labor practices ; yes or no? A. Basically, yes. Q. And isn't it a fact, also, sir, that the subject matter was also discussed on the night of the 3rd of October, 1957, that after the charges of unfair labor practices are filed, that can always be overcome by giving us a contract, yes or no? [Emphasis in original.] A. If we arrive at an agreement between ourselves , yes. We agreed that the charges could be withdrawn at any time. On October 4, 1957, the Union filed the charge in the instant matter alleging violation of Section ^8(a)(5) of the Act, in the following language: The employer has also engaged in a refusal to bargain collectively with Sheet Metal Workers International Association, AFL-CIO, a labor organization chosen by a majority of the employees in an appropriate unit , for the purpose of collective bargaining with regard to wages, hours and conditions of employment. The charge also alleges: Since on or about September 9, 1957, the above named Employer by his officers, agents and representatives did discriminate against the employees by causing them to engage in a concerted refusal to work and has prolonged such strike by various other unfair labor practices . Further, the employer does refuse to rehire the employees . Despite their unconditional request for reinstatement. Of course a charge filed with the Board is not a pleading, it serves only as the key to open the door to an investigation , yet, because of all the circumstances in the case, the Trial Examiner points out that when the allegation regarding unconditional requests for reinstatement and refusals were written into the charge , nothing of the kind had occurred. F. The Union's representation in the unit on October 10, 1957 Apparently the Regional Office returned to the Union the authorization cards it had filed in support of 2-RC-9139, and on October 10 (6 days after the charge was filed) the Union refiled all of the cards in support of the charge. COMBINED METAL MFG. CORP . 915 With these cards the Union also filed cards bearing the names of Stephen Franzen, George Quickert, and John Thurmer. It has been found that Franzen was not within the appropriate unit. The card bearing Thurmer's alleged signature has been rejected. On the entire record the Trial Examiner accepts the card of George Quickert as having been signed before October 10, and will count it toward the majority claimed by the Union. Upon the entire record the Trial Examiner therefore finds that on October 10, 1957, the Union filed 21 valid authorization cards with the Second Region in support of the charge herein. At the hearing the General Counsel offered four additional cards in support of the Union's claim of majority status in the appropriate unit. None of these cards were filed with the Regional Office by the Union in support of the charge herein. The four cards in question were signed by William Edwin Dunn , William George Bray, Christian Beck, and James Davis. William Edwin Dunn William Edwin Dunn testified he signed the authorization card bearing his name on September 17, 1957, while on the picket line and that at the time he signed the. card "at least 40 of the men standing there signed them." Dunn testified: Q. You mean on that same day that you signed? A. Yes, sir. Q. Can you name me some of the men who signed at that same time? A. Well, I didn't know many of the men by name. I had only been there two weeks. Dunn pointed out Union Representative Ferrarie as the Union 's representative giving him the card. The record is clear that Ferrarie was not in Catskill on September 17. Only three cards produced by the General Counsel are dated September 17. Dunn further testified he stayed on the picket line September 9, 10, and 11, and thereafter only came down "after 4:30 or five o'clock" for "a week" at the end of his day's work on another job which he obtained. The Trial Examiner is not persuaded that Dunn signed the card on the date indicated thereon and further he believes that Dunn had not signed the card in question on October 10. The Trial Examiner is mindful that no explanation was given as to the Union's failure to file Dunn's card in support of the charge , although the Union had 6 days to assemble any cards not previously filed before any were filed to support the charge. The Trial Examiner on all the evidence considered as a whole and from his observation of the witnesses is persuaded and finds that the Union had not yet obtained the authorization card signed by Dunn at the time it filed the charge herein for the reason that Dunn had not yet signed it. The card is rejected. William George Bray William George Bray testified he was first employed by the Respondent as a laborer about 3 weeks before the strike ; he did not join the picket line on the first day of the strike but did so the next day; and he signed the authorization card bearing his name on September 17 while on the picket line. Bray's testimony on matters relating to the strike was confused ; however, cross- examination did not destroy the testimony regarding his signing of the authorization card for the Union , therefore, although there is a serious doubt raised by the Union 's failure to file Bray's authorization with the Region in support of its charge, the Trial Examiner accepts and counts it toward the Union's claimed majority within the unit. Christian Beck Christian Beck testified that he came in to work the day of the strike but went out after the picket line had been formed; he received an authorization card for the Union which he took home and there signed on September 17 returning the card "to either Bill Moon , or somebody." The card was not filed in the Regional Office by the Union; however, although this fact does create a serious element of doubt in the mind of the Trial Examiner as to the accuracy of the date thereof, there was no evidence to contradict Beck's testimony. Therefore, the Trial Examiner accepts and counts the card as evidence toward the claim of majority status. 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD James Davis An authorization card for the Union bearing the signature of James Davis was offered by the General Counsel in support of the majority status claimed by the Union. As found at the outset of this discussion Davis' card was not among those filed by the Union with the Second Region. Davis testified he signed the card on the picket line October 2, 1957; he further testified that he was on the line "for a week or better" after September 9, then obtained a job in another town and "stopped going there." Davis testified: Q. But had you been in the vicinity of the plant? A. The only thing that I went in the vicinity of the plant, after that date, after the Monday, I go down there to tell the lady, the secretary, "Send my check out, I might not be back to work." Davis volunteered the following: As far as I remember, my health is in bad shape. I have been in the hospital, so that I couldn't remember. There are lots of things that are coming to mind. I have got on my mind more than this. It is bothering me more than this other thing. In view of Davis' testimony that he did not visit the picket line after the first week of the strike, his testimony that he signed on the picket line on October 2, his testimony with respect to his memory, and the fact that Davis' signed card was not produced until the hearing, all serve to convince the Trial Examiner that Davis' card was not in the Union's possession on October 10, 1957, or that it was signed prior to that date. The Trial Examiner so finds and rejects the card as evidence of the Union's majority status among the Respondent's employees. The count of the Respondent's employees represented by the Union on October 10, therefore, stands at 23. The Extent of the Unit on October 10, 1957 It has been found that on September 16, 1957, the unit appropriate for the purposes of collective bargaining among the Respondent's employees contained 47 individuals. As of October 4, 1957, the date of the filing of the charge herein, one other employee, Elton Vandermark, hired October 2, entered the unit, and his name must therefore be added thereto bringing the total within the unit to 48 individuals. It has been found that the Union represented a total of 23 members within the appropriate unit at the filing of the charge herein. The Trial Examiner therefore finds that Sheet Metal Workers International Association, AFL-CIO, did not represent a majority of the employees of Combined Metal Mfg. Corp., within an appropriate unit for purposes of collective bargaining." The Trial Examiner further finds that at the time the charge herein was filed the Respondent had not engaged in any conduct violative of the Act as therein alleged. G. Additional alleged 8(a) (5) violations Although it has been found that the Union did not represent a majority, therefore any further discussion of unfair labor practices based on a refusal to bargain is sur- plusage, still, in order to present all the evidence offered the Trial Examiner will burden this report with a notation of such testimony. Union Representative Laughlin testified that on October 8 Berzal driving a truck passed him, whereupon "I hollered at him and he stopped his truck"; he "again asked him to recognize the union" which Berzal refused to do; on October 16 "I hailed him again" and held another conversation "basically the same as on the first two occasions." The complaint alleges that the Respondent refused to bargain on October 16. Apparently the refusal is based on Laughlin's truckside conversations. The Trial Examiner finds that no effective demand for recognition or illegal refusal was made on either October 16 or October 8. As has been found herein, on the day the strike began Wache presented the 10 demands of the strikers to the Respondent. These demands contained no request for union recognition, and were admittedly made before any of the organizers ap- peared and before the strikers told one representative of a different union who visited the picket line that they were not interested in any union organization. Wache testified that at some later date he "revised" the demands. He testified: "I prepared this new revision on my own, more or less." The "revised" copy has an 1' See Appendix A attached hereto. COMBINED METAL MFG. CORP. 917 eleventh demand reading: "The men must be allowed to join a union of their own choice . The "revised" demand dated October 14 was handed to Berzal by Wache on October 21. The same day the Respondent answered it in writing, making no refer- ence to the "union demand" but offering to take back all the employees on condition that certain named individuals return. The Trial Examiner fails to understand how the "revised" demand which Wache prepared "on my own" is a valid request for recognition, or an unconditional offer to return to work. The Trial Examiner finds it was not. H. Alleged discrimination in regard to hire and tenure of employment 8(a) (3) As found herein the Board's Regional Director for the Second Region 12 issued a complaint on February 27, 1958, alleging that the Respondent had engaged in conduct violative of Section 8(a)(1) and (5) of the Act. Hearing was set for March 31, 1958. On March 24 the General Counsel issued an order amending complaint, in which the complaint was amended inter alia by the following allegation: Since on or about March 11, 1958, all of the employees, including the follow- ing-named employees, employed by Respondent Company at the Catskill plant who had engaged in a strike or other activities . . . applied for reinstatement to their former or substantially equivalent positions of employment and offered unconditionally to return to work in Respondent Company's Catskill plant. The complaint then alleged refusal by the Respondent to reinstate the applicants "since on or about March 12, 1958" in violation of Section 8(a) (3) of the Act. That the General Counsel had the right to include violations not within the charge has been affirmed by the Board.13 A fairly recent decision of the Board contains a complete discussion of the right to add additional unfair labor practices by way of an amended complaint covering matters not within the charge or original complaint.14 As stated in N.L.R.B. v. Kohler Company: 15 The charge should therefore be construed broadly so as to allow any specific allegations in the complaint that are of "the same general nature." Although here we are concerned with an order amending complaint and the amend- ment enlarges the complaint by adding "newly discovered" 8(a)(3) violations to an 8(a)(5) complaint, without an "amended charge," and although in the opinion of the Trial Examiner an 8(a)(3) violation (discrimination in employment), is not of "the same general nature" as an 8(a)(5) violation (refusal to bargain), still inas- much as both alleged violations herein stem from the same facts, or rather the same general incidents, under existing Board decisions the action of the General Counsel seems proper. In the opinion of the Trial Examiner in order to have a clear understanding of the 8(a)(3) allegation, mention should be made herein of all matters surrounding the order amending complaint. The Trial Examiner admitted, without objection, a copy of a letter dated March 10, 1958, offered by the General Counsel. The letter, signed by Alan Roberts, the Union's regional director, was allegedly sent to the Respondent by the Union on the date it bears. The Respondent stated on the record that the letter had never been received, or if it had reached its office there was no record of it there, but that it would not object to its introduction, subject to the statement. The Union's representative stated that the Union had a post office receipt showing delivery of the letter. The receipt was not produced. The March 10, 1958, letter (General Counsel's Exhibit No. 3) stated: Please be advised that on several occasions, the strikers: represented by us, have unconditionally offered their employment to the Company. On each occasion, they were notified that the only way they could return to work would be to give up their Union affiliation. We hereby again make an unconditional offer for the strikers to return to work. This offer is not based on any previous offers made. No individual strikers were named in the document. 12 The complaint was signed by an Acting Regional Director. 13 Ferro Stamping and Mann fact aring Co., 93 NLRT3 1.459. 14 Triboro Carting Corporation, 117 NLRB 775. is 220 F. 2d 3 (C.A. 7). 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the entire record considered as a whole and from his observation of the wit- nesses, the Trial Examiner finds that ( a) the self-serving statements above quoted are not supported by evidence , and (b ) the Union did not mail a leter , of which General Counsel's Exhibit No. 3 is a purported copy, to the Respondent. On March 24, 1958, 1 week before the hearing date, the Union mailed a letter to the Respondent in which it made the following statement: On March 10, 1958, we forwarded a letter to you advising that the strikers represented by us, unconditionally offered their employment to your company. As of this date, we have not received a reply to that letter. We hereby again make an unconditional offer for the strikers , including the following, to return to work unconditionally. The names of those for whom the offer is made are then given. Likewise on March 24 , 1958, the General Counsel issued the order amending complaint and rescheduled the hearing from March 31 to April 28. The individuals named in the order amending complaint are the same individuals, named in exactly the same order (also repeating two misspellings ), as are the names set out in the Union 's March 24 letter, with the exception that the name of Raymond Denniston appears twice in the order amending complaint. The order amending complaint, disregarding the obvious error as to Denniston, names 34 individuals as having offered to return unconditionally on March 11, 1958, and having been refused reinstatement on March 12.16 Of the 34 named individuals 12 were not represented by the Union.17 The Union not having been shown to be their agent cannot now volunteer to act for them. Of these 12 individuals 5 had already returned to work. Also, two others named 18 have been found to be foremen , not within the unit. Of those represented by the Union , by reason of signed and proven authorizations, seven had already returned to work 19 before March 24. Of the 13 remaining individuals for whom the Union had the right to act as agent in their offer to return to work: Martin Lasche testified: Q. Have you been and are you now prepared to return to work? A. I will go to work now if I can have whatever union representative-my union representative there, yes. As Lasche refused to return unconditionally after the Union 's offer in his behalf, he is not entitled to reinstatement. Donald Wache testified: Q. (By Trial Examiner.) Did you ever offer to return to work uncondition- ally, just asked for your job back without anything tied to it? A. No. I would not go back to work without the union representation. * * * * * * Q. (By Mr. Greenidge.) Is that your condition? A. That was my condition . It still is. 18 Those named in the amended complaint as offering to return unconditionally and having been refused reinstatement on the offer are : Leonard Denniston Donald Wache Frank Van Ness Raymond Denniston Francis Parise Norman Deyo George Quickert Albert Tice Charles Lynch Christian Beck Russell Garrison Martin Lasche John Thurmer William Shultes Clinton Roe, Jr. Markian Gott * Ronald Rice Teddy Kudlacik Joseph Deckers Gerhard Rossdentcher Frank Zebura Charles Kruppenbacker Joseph Hoatling James Davis Leonard Carrano Joseph Walter William Holdridge William B. Dunn Gordon Woodward Stephen Franzen George Mitchell George Augustine Raymond Denniston*** William Broy** Henry Tice *should be Got **should be Bray ***named twice V Davis, Leonard Denniston, Dunn , Holdridge , Iudlacik, Mitchell, Rossdentcher, Rice, Albert Tice , Thurmer, Van Ness, Walter. ^ Raymond Denniston, Franzen. 10 Augustine , Jan. 2 , 1958; Beck, Oct. 28, 1957 ; Carrano, Nov. 5 , 1957 ; Garrison, Nov. 3, 1957 ; Got, Oct. 2S, 19,57 ; Woodward , Jan. 2, 1958 ; Zebura, Oct. 24, 1957. COMBINED METAL MFG. CORP. 919 Q. You will return- A. I will return tomorrow, but I want union representation. Wache's testimony clearly absolves the Respondent of any obligation to reinstate Wache. Francis Parise testified: Q. Have you been, are you know prepared to return to work? A. I am; but with the union representation. Parise by this testimony rejected any claim to reinstatement. William Bray testified: Q. (By Mr. Greenidge.) Are you prepared to return to work unconditionally? A. Well, I would like to have some kind of agreement to come back with me if I come back. The Trial Examiner finds that Bray has no claim to reinstatement. Joseph Deckers testified that at a time he could not fix except that it was after he was "on unemployment," for which he "had to wait 49 days after the strike began" he telephoned Manager Valentine. According to Deckers: I told him that I heard he was hiring back, and I informed him of my name. I says, "I heard you are hiring back. I worked there before. I wonder if there is any chance of going back to work." ' So he told me, he says, "you are one of these guys that walked out and doesn't want to work." So I just let him rave and rant over the phone. I figured it was my money I was spending, I might as well get some enjoyment out of it. So I let him speak his piece, and then he hung up. Valentine testified that he received a call from a man who later identified himself as Deckers. After refusing to give his name the caller asked if anyone was being hired, and that: I says, "If I put anybody on, I will put on the men that worked for us before, because I could use a few more men." The party hung up but called again about an hour later giving his name as Deckers and asked "would I hire him now that I know who he is" and: I said, "If you want to work, come to the plant," I says, "Because I have never refused nobody a job, and I don't see why I should refuse you." Well, he never did show up. According to Valentine the conversation took place about 2 weeks before the hearing. On the entire record and from his observation of the witnesses the Trial Examiner credits Valentine, and being convinced on the entire record that Joseph Deckers was the man who called finds that Joseph Deckers has forfeited his right to reinstatement .by refusing a valid acceptance of his offer by the Respondent. Conclusion From their testimony the Trial Examiner is constrained to infer that Lasche, Wache, Parise, Bray, and Deckers were expressing their individual, adamant, un- changeable, convictions regarding the condition precedent to their return to work for the Respondent. They may have been misguided but their testimony must have expressed not only their sentiments at the time of the hearing but also at the time the Union offered unconditional return in their names. As they clearly did not join in the Union's action the Union did not in fact at the time of the offer represent them. The Trial Examiner so finds. Conclusion as to the Union's Offer The Trial Examiner on all the evidence does not believe that the Union's offer to the Respondent that the strikers would unconditionally return to work can be construed as bona fide. Quite the contrary. The Trial Examiner has carefully considered the Union's "unconditional offer" and all the surrounding circumstances in detail and believes the inescapable con- clusion to be that the "offer" was not made in good faith, but was a mere "shot in the dark," a tactical maneuver which fits well with other maneuvers of the Union herein referred to. 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Union offered the unconditional return to work for strikers who had already returned, some in 1957. It made its unconditional offer for strikers it did not represent, some of these having also returned to work. It "offered" for men not in the unit claimed appropriate. It offered the return of strikers who rejected the right by sworn testimony. It becomes clear that the list of strikers- for whom the Union made its'dffer of unconditional return, and which it must also have furnished the Board's Regional Office, was merely that list of names appearing on the payroll furnished by the Respondent in the, long withdrawn 9(c) proceeding, plus some foremen and minus some individuals who were known to have returned to work. On all the circumstances herein the Trial Examiner finds that the Union's offer as contained in .its letter of March 24 to the Respondent was not made in good faith and thus not valid. In support of this finding the Trial Examiner makes mention of testimony by strikers regarding their knowledge of the Union's letter to the Respondent in their behalf. The testimony was vague, contradictory, and not at all persuasive. During the strike certain new employees were hired. These employees must, in the opinion of the Trial Examiner, be treated as replacements for the strikers. There are enough of them to offset the number of strikers not yet returned to work. The Trial Examiner finds therefore that (a) no bona fide offer of unconditional return to work was made by the Union, and (b) further, on all the circtitiistances herein, the Respondent did not refuse to reinstate any of its striking employees after an unconditional offer to return to work had been made in their behalf by the Union. Concluding Findings The Trial Examiner finds that the Respondent has not engaged in any of the con- duct alleged as independent violations within the meaning of Section 8(a)(1) of the Act. The Trial Examiner finds that the Respondent did not engage in any conduct which in any way unlawfully prolonged the economic strike of its employees and caused it to become an unfair labor practice strike. The Trial Examiner finds that the Union did not represent a majority of the Respondent's employees within an appropriate unit for the purposes of collective bargaining at any time material herein. The Trial Examiner finds that the Respondent did not refuse to bargain with the Union in violation of Section 8(a) (5) of the Act. The Trial Examiner therefore will recommend that the complaint and the order amending complaint be dismissed insofar as it is alleged that the Respondent engaged in any conduct violative of Section 8(a) (1) and of Section 8(a) (5) of the Act. The Trial Examiner further finds that the Union did not send a letter dated March 10,.1958, to the Respondent wherein it made an unconditional offer to return to work in behalf of the Respondent's striking employees, and recommends that the complaint and order amending complaint be dismissed insofar as it is so alleged. The Trial Examiner finds that on March 24, 1958, the Union had the legal right to represent and did represent eight of the Respondent's striking employees. . The Trial Examiner further finds that on said date the Union did not make a bona fide offer of return to work by said strikers or any other employees to the Respondent. The Trial Examiner finds that on and after March 25, 1958, the Respondent has not refused to reinstate any of the strikers and that the Respondent has not dis- criminated against any of its employees or the strikers with respect to their hire and tenure of employment within the meaning of Section 8 (a) (3) and (1) of the Act. Final Conclusions The Trial Examiner is convinced and finds that the General Counsel has not sus- tained his burden of proof and will therefore recommend that the complaint be dismissed in its entirety. 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. Combined Metal Mfg. Corp., of Catskill, New York, is engaged in commerce within the meaning of the Act. 2. Sheet Metal Workers International Association, AFL-CIO, is a labor or- ganization within the meaning of the Act. COMBINED METAL MFG. CORP. 921 3. The allegations of the complaint that the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1), (3), and (5) of the Act have not been sustained. [Recommendations omitted from publication.] APPENDIX A Card accepted as valid Returned to Named in Union Payroll work "Offer" of Sept . 16, 1957 Oct. 10, 1957 March 24, 1958 Augustine, George ___-- --________________________ x------------ x----------- 1- 2-58 x Bray, William-------- --- ---------------------- x----------- -------------- N Beck , Christian __________________________________ x----------- 10-28-57 x Bittner, Steve ------------------------------------ 10- 7-57 Bogardus , Joseph__ ______________________________ ---------------- Carrano, Leonard________________________________ x------------- x----------- 11- 5-57 N Crewell, Raymond----- ------------------------- x------------- N---------- 10- 7-57 Davis, James------------------------------------ ---------------- x ])eye , Norman----------------------------------- x------------ x----- ------ x Drexler , Abert ----------------------------------- --------------- ------------- -------------- Dykeman, Donald -_____________________________ x------------- x----------- 10- 2-57 Denniston , Leonard____________ __________________ --------------- 11-11-57 N Deckers, Joseph __________________________________ x------------- N----------- -------------- x Dunn, William ---------------------------------- --------------- ------ x Garrison , Russell _____ ____________________ ------ Got, Markian ------------------------------------ x------------- x------------- x----------- x---------- 3- 3-58 10-28-57 N x Haenlein , August_______________________________. --------------- -------------- Hoatling, Joseph__-_____________________________ x------------- x----------- -------------- x Holdridge, William_ _ ________ ____________________ ---------------- 4- 8-58 x Holdridge , Harold___ ____________________________ -------------- Kruppenbacker, Chas ________________________-_. x------------- x----------- -------------- x Kudlacik, Teddy ___________________--_-_-______ --------------- -------------- x Lasche , Martin_ _________________________________ x------------- x----------- -------------- x Lynch , Chas------------------------------------- x------------- x----------- 4- 7-58 x Mitchell , George_________________________________ ---------------- -------------- x Omer , Ross----- --------------------- -------------- Parise, Francis ___________________________________ x------------ x---------- -------------- x Quickert , George____ _____________________________ x----------- -------------- x Ray, Chas. E------------------------------------ -------------- Roe, Clenton------------- -- - ------------------ x------------- x----------- -------------- x Rossdentcher , Gerhard___________________________ -------------- x Rice, Donald ------------------------------------ -------------- x Shultes, William- ----------------------------- --- x------------- x----------- -------------- x Smith, William__________________________________ -------------- Styles, Lawrence--- --------------- --------------- x------------- x----------- 10- 2-57 Tice, Albert -------------------------------------- 4-21-58 x Tice, Henry ---------- ------------------------- x------------ x----------- -------------- x Tburmer , John _ _-_ ------------- --------------- 10-28-57 x Torches, Patsy ___- _______-_-_-_-______ --------------- -------------- VanNess, Frank _________________________________ --------------- -------------- x Wache, Donald- --------------------------------- x------------- x----------- -------------- x Walter, Joseph - -------- ---------- ---- ------- ---- - x Woodward , Gordon______________________________ x------------- x----------- 1- 2-58 x Wipper, Adolph------ --------------------------- --- -------------- Zebura, Frank ----------------------------------- x_----------- x----------- 10-24-57 N Schoen, Chas----------------------------------- ---------------- ------------- -------------- Way, Oscar------------------------------------ - Vandermark, Elton______________________________ ---------------- --------------- -- -- 10- 2-58 Cards signed by following-Not in unit. Denniston , Raymond. Moon, William A. Franzen, Stephen.