Crookston Times Publishing Co.

304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of 2 ore-washers and laid off 23 employees of Paga Mining Company. It appears from the record that m December 1958 one of the Em- ployers' largest purchasers of ground barytes terminated its contract for 1958 and 1959 and it was subsequently arranged to extend delivery of the tonnage contracted for over a 3-year period This represented a 60 percent decline in the 1959 sales of the product and necessitated the stockpiling of 90 percent of the ore mined during the past year The Employers state that it does not anticipate an increase in the requirements of the two customers which account for 90 percent of Paga's production, within the next 2 or 3 years. Although the Employers do not have a seniority system, there is testimony to the effect that laid-off employees usually are, and will be, recalled before new employees are hired in the event that business conditions improve The Employers do not expect business to im- prove within the next 2 to 3 years and it submitted evidence that the entire industry is experiencing a slack period Since the record does not indicate a definite prospect of improved business conditions which would warrant recall of the laid-off employees in the near future, we find that the laid-off employees have no reasonable expectancy of reemployment within the foreseeable future and that they, accord- ingly, are ineligible to vote in the election directed herein 5 We find that the following employees of the Employers constitute a unit appropriate for the purposes of collective bargaining within the meannig of Section 9 (b) of the Act All production and maintenance employees of Thompson, Weinman and Company and of the Paga Mining Company at their Cartersville, Georgia, operations, including leadermen, laboratory employees, con- struction employees, janitors, and all mine employees, including employees employed at processing and pulverizing plants, truck- drivers, and storeroom employees, but excluding all office clerical employees, guards, professional employees, full-time foremen, and supervisors as defined in the Act [Text of Direction of Election omitted from publication ] 8 L & S Macha2ne Company, Inc, 121 NLRB 266 Crookston Times Printing Company and John R. Kelly, Attorney for Employees. Case No 18-CA-979 November 24, 1959 DECISION AND ORDER On June 18, 1959, Trial Examiner Ramey Donovan issued his Inter- mediate Report in this case, finding that the Respondent had granted 125 NLRB No 38 1 CROOKSTON TIMES PRINTING COMPANY 305 wage increases to certain employees during the course of a strike in violation of Section 8 (a) (1) of the Act 1 and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. He also found that the Respondent had not violated Section 8(a) (3) of the Act as alleged in the complaint by discharging certain individuals on July 22, 1958, and thereafter refusing, upon request, to reinstate them. Thereafter, the General Counsel filed exceptions to the Inter- mediate Report and a supporting brief. The Respondent filed a brief in support of the Trial Examiner's recommendations that the 8 (a) (3) allegations of the complaint be dismissed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Bean and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the exceptions and additions hereinafter indicated. 1. The Trial Examiner found that the Respondent did not dis- charge the complainants on July 22, 1958, by Publisher McKenzie's admonition that "You men must realize that if you leave your jobs in this manner you can no longer be in the employ of this Company." We agree with this conclusion. Considering all the circumstances detailed in the Intermediate Report, we are persuaded, as was the Trial Examiner, that McKenzie's statement was designed merely to dissuade the employees from persisting in their course of conduct.' 2. Except for the violation of Section 8 (a) (1) noted above, the Trial Examiner considered himself precluded from finding certain additional independent 8(a) (1) violations for the reasons that the incidents in question were not alleged by the complaint to be violative of Section 8 (a) (1), either specifically or by way of general allegation, and they were litigated at the hearing only incidentally in connection with the 8(a) (3) issue in the case and not as a possible basis for an independent 8(a) (1) finding. We adopt the Trial. Examiner's dis- position in this connection. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor No exceptions were filed to this finding and it is hereby adopted. In view of our disposition of this case, we need not decide whether the employees were engaged in a protected activity at the time. 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations-Board hereby orders that the- Respondent, Crookston Times Printing Company, Crookston, Minnesota, its officers, agents, succes- sors, and assigns, shall : 1. Cease and desist from : (a) Paying wage increases to its employees during a strike as a reward for not participating in the strike or for returning to work during the strike. (b) In any like or related manner interfering with, restraining, or coercing its employees in the, exercise of the right to self -organiza- tion, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, and to engage in any other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post in conspicuous places at its plant in Crookston, Minnesota, including all places where notices to employees are customarily posted, copies of the notice attached to the Intermediate Report marked "Ap- pendix." 3 Copies of such notice, to be furnished by the Regional Di- rector for the Nineteenth Region, shall, after being duly signed by the Respondent's authorized representative, be posted by it immediately upon receipt thereof in conspicuous places, and maintained by it for at least 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notice is not altered, de- faced, or covered by any other material. (b) File with the said Regional Director within 10 days from the date of this ..Order a written report setting forth the steps which the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as,it alleges violations .of' the Act other than what has been specifically found herein. 8 The notice attached to the Intermediate Report shall be amended by substituting for the words "The Recommendations of a Trial Examiner" the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act, as amended, 61 Stat . 136 (herein called the Act ), was heard in Crookston, CROOKSTON TIMES PRINTING COMPANY 307 Minnesota, in March 10, 17, and 18, 1959, pursuant to due notice to all parties. The complaint alleged that the Respondent had violated Section 8(a)(1) and ( 3) of the Act by granting wage increases to its employees to discourage them from joining or assisting the International Typographical Union, AFL-CIO (herein called the Union ), and by discharging and refusing to reinstate eight named employees because the said employees joined and assisted the Union and because the said employees had ceased work for two reasons , to wit, to protest the Respondent 's refusal to recognize and to bargain with the Union and to consider steps to be taken by the employees in the light of the Respondent's aforesaid refusal. The Respondent filed an answer denying the commission of the alleged unfair labor practices . All parties were represented at the hearing and were afforded full opportunity to examine and cross- examine witnesses, to present oral argument, and, thereafter, to file briefs. Upon the entire record in the case, and from my observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT. Crookston Times Printing Company is a corporation located in Crookston, Minne- sota. In its building in Crookston, the Respondent publishes a newspaper, the Crookston Daily Times,' and also performs job printing and operates a stationery and office equipment store. The highest ranking officer participating in the active management of the corporation is D. L. McKenzie, who described his capacity as that of publisher. McKenzie is also vice president and treasurer of the corporation. Respondent's operations are closely integrated and are conducted as a single enter- prise. In 1958 the gross revenue from the Respondent 's business was in excess of $200,000. The major portion of this income is derived from the publishing of the newspaper Of this sales volume, over $26,000 represents sales to points outside the State of Minnesota . Jurisdiction was not contested by the Respondent and the Respondent admits that it is engaged in commerce within the meaning of the Act. Accordingly, it is found that "the gross volume of business of the particular enter- prise involved," in addition to the other factors mentioned above, bring Respondent within the purview of the Board 's jurisdictional standards . Belleville Employing Printers, 122 NLRB 350. II. THE LABOR ORGANIZATION INVOLVED International Typographical Union, AFL-CIO, herein called the Union , is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Sequence of events After organization activity among the Respondent 's mechanical department em- ployees,2 Carl E. Linder, a representative of the Union, contacted McKenzie, pub- lisher of the Respondent , on or about July 15, 1958. A meeting was arranged for Tuesday morning, July 22, 1958. On the latter date, the parties met in the Crookston office of the Respondent's counsel, Leonard A. Erickson. In addition to Erickson, the Respondent was represented at the meeting by McKenzie and Peter F. King, who described himself as "a labor relations man" employed by Graphic Arts Indus tries, Minneapolis. The Union, on this occasion, was represented by Linder, Charles Newquist, president of the newly formed local union, and Donald Pitmon, vice presi- dent of the local. Both Newquist and Pitmon were employees of Respondent, the former, classified as ad compositor and the latter, as a linotypist . In order to attend the meeting, Newquist and Pitmon had left their work stations in the plant. When Henning Sommer, managing editor and assistant publisher of the newspaper , became aware of the absence of Newquist and Pitmon he "punched out" their timecards. 'The Times uses Associated Press stories and wirephoto services and advertises nationally sold products. 2 As of July 22, 1958 , Respondent had working for it two ad compositors , one apprentice printer, one job pressman , one stereotypist , one bookbinder, one janitor , and four lino- typists. There were also four part-time mailroom employees and a retired linotypist who. worked part time in May and June 1958 and was recalled to work about July 25, 1958. 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, during the course of the meeting in Erickson's office McKenzie telephoned the plant and gave instructions that the two employees were not to be "docked" for the time spent at the meeting. Although the testimony of participants in the aforesaid July 22 meeting differed in detail as to what transpired, the Trial Examiner is of the opinion that their versions are in substantial agreement. It is found, therefore, that at the meeting the Union claimed to represent a majority of Respondent' s mechanical department employees and requested that Respondent recognize the Union as the collective-bargaining representative of these employees for the purpose of negotiating a contract. The Respondent questioned, in effect, the appropriateness of a unit composed of such diversified classifications as compositors, pressmen, stereotypers, bookbinders, jani- tor, and so forth. Respondent expressed the view that "official" authorization by way of National Labor Relations Board certification should be obtained by the Union before recognition was feasible. Linder replied that his union did not use the services of the Board and that, consequently, certification was not possible. The meeting ended at approximately 1:15 p.m. with Linder informing Respondent's repre- sentatives that he was meeting that evening with the mechanical department em- ployees and that he would contact McKenzie the next day as to what the Union had decided to do. To facilitate our following the ensuing events, a brief description of the physical plant of the Respondent will be helpful. McKenzie's office is in the front of the building which faces east. Proceeding from McKenzie's office is a westerly direction toward the rear of the building, a person would pass through an office or clerical area, through a hallway, into the composing room. In the latter room, which is separated from the front part of the building by a wall, there is such equipment as 'linotype machines and turtles. The turtles, which were lined up together, are mova- ble stands that hold a form, e.g., one form would contain the front page of the news- paper. The turtles are high enough to permit a man to work at them standing up. The timeclock used by mechanical department employees is on the east wall of the composing room, which is approximately 25 by 40 or 50 feet overall. North of the .composing room or to the right, when one enters the composing room when coming from the front of the building, is the bindery. .A wall separates the two aforemen- tioned rooms and two doors open from one room to the other. The employees' washup area is in the bindery. In the west wall of the bindery is an exit door to the .outside of the building where Respondent's parking lot is located. There is no door from the composing room to the outside. The west wall of the composing room and the bindery comprises the rear wall of Respondent's building. The stereotype room and a press are in the basement and stairs lead to that room from the bindery. After eating lunch with. Linder, Newquist and Pitmon returned to the plant shortly after 2 p.m. They did not punch in at the timeclock, apparently because they had not punched out when they left to attend the aforedescribed meeting in Erickson's office. An employee named Torgerson encountered the two men as they Caine into the shop and inquired as to what had happened at the meeting, He was told by New- quist and Pitmon that McKenzie "would not negotiate with us at all at this time." The two union officers proceeded to their work stations in the composing room. Newquist had stopped at the door between the bindery and the composing room to put on his apron and then went to the turtles to work. Pitmon, who did not wear an apron, went to his machine which was being repaired by another employee, Hansen, .and proceeded to help in the repairing. There then occurred considerable conversa- tion between various employees, including Newquist, Pitmon, Hansen, and others. Newquist's testimony on this segment of the events was not controverted. The 'Trial Examiner credits Newquist's testimony that a number of employees kept asking Newquist and Pitmon about the meeting between the Union and the Respondent; there was some confusion as a consequence and it was -decided among a group of employees, including Newquist and Pitmon, "to have a little meeting in the back of the room to talk over everything...." Also credited is the uncontroverted testimony ,of employee Meinie on this score. Meinie testified that sometime after lunch on July 22 he talked to Pitmon in the shop and asked what was the outcome of the meeting with the Company. Pitmon informed Meinie that there would be a meeting held in the rear of the bindery in a few minutes at which Newquist and Pitmon would tell the employees what had happened at the meeting in Erickson's office. At approximately the same time as the foregoing situation was coming to a head, -Managing Editor Sommer, an admitted supervisor, whose principal responsibility was .the general supervision of getting out each day's newspaper, was in the composing CROOKSTON TIMES PRINTING COMPANY 309 room. Sommer's presence in the last-mentioned room was consistent with his prac- tice of overseeing the assembling of the last few pages of the newspaper, particularly page 1 thereof.3 Sommer, on July 22, was standing beside a turtle that contained the first page format. The next series of events following the employees' decision to hold a meeting was as follows: Newquist punched out his timeclock at 2:20 p.m.; he turned out the lights above the turtles, including a light directly in front of Sommer, and proceeded to the back of the room; other employees went to the timeclock, punched out, and proceeded to the rear; 4 substantially all the machines had been turned off; composing room work on at least two pages of that day's newspaper had not been completed when the foregoing incidents occurred. As soon as Sommer realized that work had stopped and that the machines were not running he asked Foreman Kinshella whether he was "walking out." Kinshella replied in the affirmative, walked to the timeclock, and punched out. Sommer then proceeded directly to McKenzie's office, interrupted McKenzie, who was on the telephone, informing McKenzie that the men had walked off the job .5 McKenzie, whom the Trial Examiner credits in this respect, testified that he placed a long-distance telephone call at 2:12 p.m., and commenced talking on the call at 2:18 p.m. The witness stated that he had checked with the telephone company on the precise time elements of his call. McKenzie had talked a little over 3 minutes when Sommer came in and told him the men were walking out. McKenzie promptly terminated his call, left his office, and went to the composing room. The Trial Examiner finds that Sommer imparted the aforementioned information to McKenzie at approximately 2:21 to 2:22 p.m. This finding is consistent with the fact that Sommer had spoken to Kinshella in the composing room, then observed Kinshella go to the timeclock to punch out, and then Sommer went straight to McKenzie's office, supra. Kinshella's timecard shows that he punched out at 2:21 p.m. In leaving his office to go to the composing room, McKenzie testified that he "walked right by" Sommer. He also testified that he walks more rapidly than Sommer who has a physical disability that affects his walking. Sommer testified that he was standing near the door of McKenzie's office when the latter left to go back to the shop and that he [Sommer] followed him, adding "he [McKenzie] can walk faster than I can." McKenzie went from his office to the composing room. In the latter room, the only person he saw was Foreman Kinshella. McKenzie had a conversation with Kinshella in which they discussed the walkout and whether or not Kinshella was going to walk out. McKenzie then went into the bindery through a door which is herein designated the east door.6 During this period, which the Trial Examiner finds was approximately between 2:22 and 2:24 p.m., Sommer came into the composing room. He testified that he saw only Pitmon and employee Brandner. Pitmon, according to Sommer was in the west door between the composing room and the bindery. Sommer states that Pitmon was urging Brandner to punch out and that Sommer said, "Don [Pitmon], if you are punched out, why don't you leave Duane [Brandner] alone." Sommer denied s Lockup time for Respondent's newspaper is approximately 2 :30 p.m. Lockup time is the time when the pages are prepared and ready to go to the stereotyping department for casting. Normal press time when Respondent commences running the newspaper is 3 p.m. 3 Respondent's timecards show that employees Newquist, Pitm^on, Alvin Torgerson, George ^aTorgerson, and Berg punched out at 2 :20 p.m. ; Foreman Kinshella and employee Hansen punched out at 2 :21 ; employees Brandner, Gronvold, Meinie, and Leslie Halver- son punched out at 2 :24 p.m. Dahlof was the only employee at work in the shop who did not punch out. 6 At this point the time element becomes important in arriving at an accurate composite picture of events and in resolving credibility issues. Each witness saw segments of the events ; some segments were larger than others ; some witnesses saw more than one seg- ment ; but no one witness saw all the segments. e As previously mentioned there were two doors leading directly from the composing room to the bindery. One door was nearer to the east end of the composing room and the other door was at the rear of the room, close to the west end of the room. This re- port designates the doors as east and west, respectively. Based on an indirect rough estimate of Sommer and Meinie regarding an incident in the composing room, the Trial Examiner is of the opinion that at least 20 to 30 feet separated the two doors. 535828-60-vol. 125-21 310 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD that he said anything else or spoke to anyone else. He stated that when he spoke to Pitmon he saw men standing outside the door in the rear of the bindery. He also testified that not all the men had punched out when he had returned to the composing room from McKenzie's office. Employee Meinie testified that the meeting in the rear of the bindery had just about started when Sommer came back and told the men to punch out their cards if they had not done so already and to get off the premises. Meinie then punched out his timecard at 2:24 p.m. and stood outside the rear door of the bindery room with the others. Employee Gronvold testifies to the same effect, stating that Sommer was in the door between the composing room and the bindery when he made the afore- mentioned statement. Gronvold, who, like Meinie, had not punched out, proceeded to do so after Sommer's statement. Gronvold's card shows that he punched out at 2:24 p.m. Newquist, who had previously punched out, testified that Sommer had come to the west door of the bindery and had made the statement as testified to by Meinie and Gronvold. After Sommer's statement, Newquist removed and hung up his apron and went out the back door of the plant with the other men. Pitmon also testified that Sommer made the statement about punching out and getting off the premises. Two employees called as witnesses by Respondent, Leslie Halverson and Duane Brandner, testified that they did not hear Sommer make any statement on the afore- mentioned occasion. Both these employees' timecards show that they had punched out at 2:24 p.m. They were in the general area of the composing room and the bindery when the events with which we are concerned occurred. In evaluating the testimony of Halverson and Brandner on this question of whether Sommer made the statement attributed to him by four witnesses, the Trial Examiner is of the opinion that Halverson's and Brandner's testimony is not necessarily inconsistent with that of the other employees nor is it necessarily confirmatory of Sommer's denial. Halverson testified that on July 22 he was working in the basement when Meinie came down and turned off the lights, saying the men are walking out. Halverson, who had not returned a signed union card to Organizer Linder during the organiza- tional drive of the Union, turned the lights on again; Halverson then went upstairs and saw the men standing in "bunches"; after a few minutes Halverson returned to the basement; he stayed there a few minutes, returned upstairs, and found the men washing their hands in the bindery area; when he came upstairs Halverson states that Pitmon told him to punch out, which he did; Halverson said that Sommer was standing by the water fountain in the bindery at this time and was not talking to anyone. It is the opinion of the Trial Examiner that Halverson was in the basement during the time that Sommer made some remarks since Meinie, Gronvold, Pitmon, Newquist, and Sommer, although differing as to what was said and to whom it was said, agree that the remarks were made in the composing room or at the west doorway of the composing room, facing into the bindery. As to Brandner, he, too, was apparently not in a proximate location to Sommer when the latter spoke. Brandner testified that Pitmon told him to punch out and that Brandner saw Sommer coming into the composing room and Brandner went from the composing room to the bindery where he washed and then punched out. Brandner did not testify that he heard Sommer say anything although the latter admits that he told Pitmon, whom he saw and heard talking to Brandner in the composing room, to leave Brandner alone if Pitmon had already punched out. Based upon his observation of the witnesses and the evidence in the record the Trial Examiner finds that, in the period subsequent to his return from McKenzie's office and immediately prior to 2:24 p.m., Sommer, from the west doorway of the composing room or near to the doorway, stated to a group of employees gathered in the west rear of the bindery that if they had not punched out they should do so and that they should get off the premises. Two employees, Meinie and Gronvold, who had not punched out but who were in the group aforementioned then punched out. All the employees in the group thereafter proceeded to step outside the rear door of the bindery. The Trial Examiner notes that since the employees in the rear of the premises had ceased working prior to Sommer's remarks, the latter's conduct on this occasion was consistent with his previous conduct on the same day, when, after noting that Pitmon and Newquist were not at their work stations (having left to attend the meeting in Erickson's office), he had punched out their timecards. In short, the general policy of employees punching out when not working was apparently embedded firmly in Sommer's approach to employees in carrying out his duties as managing editor. The stress of the instant circumstances, including the press deadline, CROOKSTON TIMES PRINTING COMPANY 311 evidently evoked in this individual the remarks attributed to Sommer by witnesses Meinie, Gronvold, Pitmon, and Newquist. McKenzie, after coming from his office to the composing room, where he spoke with Kinshella while in the east side of the room, then went through the east door into the bindery. The Trial Examiner estimates the time at this point to have been somewhere between 2:24 and 2:26 since McKenzie and Brandner had a conversation in the bindery between the time when Brandner had punched out at 2:24 and the time when he punched in at 2:26 p.m. Sommer had already spoken to the employees as above-described and found. According to McKenzie, some of the men were outside the rear door of the bindery and some were "by the door" as he came in.7 McKenzie met one of the employees, Brandner, walking through the bindery as McKenzie came into that room. Brandner had forgotten his glasses and was coming back to retrieve them. McKenzie asked Brandner where he was going. Brandner asked where he had a choice. McKenzie said he did and asked him did he want to work. Brandner replied that he did and that he wanted his job. McKenzie told him to go to work. Brandner then punched in at 2:26 and went to work. After speaking with Brandner, McKenzie went to the rear of the bindery.8 By this time the men were all outside the door. McKenzie. addressed the men, saying, "You realize that by leaving your jobs in this manner you will no longer be in the employ of this company." 9 Following McKenzie's remarks the employees who were in the back of the premises left the Company's property.'° The Crookston chief of police, Dillabough, testified that on the afternoon of July 22, McKenzie called him to the Times' office and instructed him to pick up the keys to the Times' building from the aforementioned employees who by this time were standing across the street from the building. McKenzie said to Dillabough that he had told the men when they walked out of the building they had just quit their jobs. McKenzie testified that it had been the policy of the Company that if anybody quit his job he turned in his key. The July 22 edition of the Crookston Daily Times which was gotten out by McKenzie, Sommer, Brandner, and some others, carried a story of the events afore- mentioned. This story, which was read by McKenzie before publication, stated that the "wildcat strike" followed McKenzie's request to the Union for National Labor Relations Board certification. Also contained in the article was the following: D. L. McKenzie, publisher, said as far as he is concerned "the men quit work voluntarily and have resigned their jobs." 4 McKenzie described the day as warm. The door was open but a screen door was in place. 8 McKenzie testified that he did not know where Sommer was and that he had not seen or beard Sommer after he left his office to go back into the shop. McKenzie testified that the first he heard that Sommer had spoken to the men was when the employees so testified at an unemployment compensation hearing in December 1958. 9 McKenzie, at the hearing, was asked by counsel for the General Counsel : Q. Isn't it true that when you came to the backroom area you told your employees as follows : 'You men realize that by walking off your jobs in this manner you can no longer consider yourselves employed by this company.' r a ♦ s s • • Q. And didn't you tell them what I just asked you? A. Substantially those words. . . . Later in the proceedings the Trial Examiner asked McKenzie : Q. And what were the words you used in speaking to the men. I know you testified to it but I would like you to repeat it. A. I couldn't say that these are the exact words that I used at that time, I was upset and I substantially said that you men must realize that if you leave your jobs in this manner you can no longer be in the employ of this company. 10 McKenzie testified that 5 or 10 minutes after addressing the men he was informed that Newquist's car was still on the company parking lot in the rear of the building. McKenzie testified that if Newquist "wanted to walk off the job in the middle of the day then lie can no longer be in the employ of this company and I asked him to take his car off the lot." 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About an hour or an hour and a half after he had left the company premises following McKenzie's statement to the men aforedescribed, employee Gronvold came to the front entrance of the Times' building to get his watch. He was met by McKenzie who asked Gronvold if he would come back to work, mentioning that the National Labor Relations Board would not recognize the ITU. Gronvold declined and asked for his watch. Leslie Halverson, who had been in the group that had punched out and had subse- quently left the premises as previously described, states that his brother, Ernest, who had been called back to work from vacation on July 22, and who had worked steadily thereafter, spoke to him about coming back to work. Ernest warned Leslie that "if you aren't going to come back to work, we will have to get somebody else in your place, which would be very easy." This conversation occurred either on the evening of July 22 or sometime on Wednesday, July 23. Apparently Leslie was interested in returning and his brother made an appointment for him to see Mc- Kenzie at the latter's home on Wednesday evening. When Leslie Halverson went to McKenzie's home he asked for his job and McKenzie told him to start the next morning, July 24, which he did. Employee Pitmon, who had occupied an apartment above Respondent's plant, testified, without contradiction, that he had paid a lower rent than would have been the case if he had not been an employee. The apartment was on a month-to-month basis and Pitmon had paid his rent to the end of July. Within a week of the July 22 events he received a notice to vacate, which he did, on August 3 1. All the employees who left the plant on July 22 were mailed their paychecks on July 23, which was not a regular payday. No notice was sent with the last paycheck, no notations were made regarding status, and apparently the timecards were simply removed from the timeclock. Except as noted above, none of the employees involved in the July 22 events applied for reinstatement to their jobs prior to September 1958, and the Respondent, except as described hereinabove, did not recall or offer to reinstate any of these employees either prior to or after September 1958. On the evening of July 22, without solicitation by the employees, and, apparently, without amplification by the Respondent, Brandner received a wage increase of 35 cents per hour and Dahlof received an increase of 40 cents. Brandner received an additional 10 cents on February 1, 1959. Ernest Halverson received an increase of 30 cents per hour effective July 22. Leslie Halverson, who had asked McKenzie for a raise on July 23 when he saw him at his home, received a 10-cent raise, effective July 24, and a 5-cent raise, effective November 30, 1958. The Trial Examiner credits the testimony of Attorney John R. Kelly, who filed the instant charges, that on or about September 21, 1958, be met with McKenzie and asked "if we could get the men back to work ." and that he mentioned to McKenzie that he intended to go to Minneapolis the following day to file a charge with the Board. Kelly testified that he was authorized by the employees who par- ticipated in the July 22 events to represent them and that he had so informed McKenzie. McKenzie replied that he had replaced the men who were no longer working for the Times and he had an obligation to the replacements now working for him and that he was not interested in having the men back. McKenzie testified that Kelly had said something about why not talk to the men and that McKenzie had asked what should he do about the men working for him. McKenzie stated that Kelly did mention that he was going to file charges with the National Labor Relations Board. As stated above, the Trial Examiner credits Kelly, particularly in the light of McKenzie's admitted answer, which is consistent with a request by Kelly that the July 22 men be taken back and that, otherwise, unfair labor practice charges would be filed. The Trial Examiner also finds that Kelly on behalf of the men had thereby made an unconditional application for employment and that he also expressed interest in discussing the general situation at the plant regarding the Union when the men were reinstated. As of the date of the hearing the Respondent's complement in its mechanical department, compared with its complement on the morning of July 22, 1958, and during the intervening period, was as follows: 11 n Wage rates and Respondent's job titles are also set forth in this chart of the Trial Examiner. CROOKSTON TIMES PRINTING COMPANY 313 July 22 a.m. Per hour Replacement or addition Per hour to hired Date left Ad compositor----- Newquist_____ $2.00 G. Nickels____________ $2.00 8/11/58 Do_____________ Gronvold_____ 1.60 Gassler---------------- 2.00 7/24/58 12/8/58 (dis- charged). Apprentice printer- Brandner_____ 1.15 Remained throughout, $1.50 7/22/58 p.m.; $1.60 2/1/59 Do------------- --------------- ------- Vick 1.00 12/10/58 Jobpressman ------ Berg__________ 1.60 Newton______ 2.00 7/30/58 12/5/58 (quit). Do_____________ ________________ _______ Prochniak------------ 2.00 12/17/58 Stereotypist_______ L. Halverson__ 1.35 Missed approximately I day, $1.45 7/24/58; $1.50 11/30/58 F. Hansen ------------ 1 1.35 1 8/13/58 Foreman___________ Kinshella_____ _______ Remained throughout. Linotypist_________ Dabiof________ 1.60 Remained throughout, $2.00 7/22/58 p.m. Do_____________ G. Torgerson__ 1.60 M. 2.00 7/23/58 8(5(58. Do_____________ Pitmon_______ 2.00 B. Nickels-- 2.00 8/11/58 Do_____________ R. Hansen____ 1.70 Maldonrado___________ 2.00 7/23/58 Linotypist (part- Fargo_________ 1.66 Returned (full time) -- 7/25/58 time). Pressman__________ E. Halverson-- 1.50 Remained throughout, $1.80 7/22/58 p.m. Janitor_____________ Meinie________ 1.00 Blokzyl--------------- 1 1.00 1 9/4/58 Mailroom (part- Lawrence----- 1.00 Remained throughout. time). Lynghohn____ 1.00 Do. D. Halverson- 1.00 Do. S. Halverson-- 1.00 Do. There was, therefore, a total of 12 employees on Respondent's mechanical depart- ment payroll as of the morning of July 22, 1958. This figure excludes the four part-time mailroom employees and the foreman, Kinshella, but does include a part-time linotypist, Fargo. The 12 employees were: Newquist, Gronvold, Brandner, Berg, L. Halverson, Dahlof, G. Torgerson, Pitrnon, R. Hansen, Fargo,12 E. Halver- son, and Meinie. The comparable number of employees, excluding the same 5 individuals working for Respondent on September 21, 1958, when the strikers applied for reinstatement, was 13 and this number covered all job categories. On the date of the hearing Respondent had 12 mechanical department employees filling all job categories, excluding the 4 mailroom men and the foreman. The 12 were: G. Nickels, Brandner, Vick, Prochniak, L. Halverson, F. Hansen, Dahlof, B. Nickels, Maldonrado, Fargo, E. Halverson, and B].okzyl. Brandner had worked for the Respondent about 21/2 years. At the hearing he testified that he was 18 years old. On July 22 he was classified as an apprentice printer at $1 per hour. Apparently, he was still so classified at the date of the hearing but he was then receiving $1.60 per hour. McKenzie testified that classifica- tions were not too important to Respondent but that the important thing was the work a man was doing. Respondent had hired an apprentice printer in December 1958 at $1 per hour. Brandner testified that prior to the July 22 events his work had consisted of killing forms, i.e., taking type out of a form and dumping it. He has not performed that type of work since July 22, except "once in a great while" when the plant is short- handed. He testified that since July 22 he has been working on ads. Previously, he had only helped Newquist and Gronvold, the ad compositors, but he had never been assigned a sheet to put an ad in and set type himself as was the present situa- tion. McKenzie testified that Nickels and Brandner were the two ad compositors of Respondent at the time of the hearing. Brandner's classification as apprentice printer, according to McKenzie, would be attributable to the relatively brief period of his service in the trade. The testimony of Foreman Kinshella was to the effect "It will be noted that Fargo appears on Respondent's July 22 payroll as a part-time employee ; he also appears as an employee on the date of the hearing. McKenzie testified without contradiction that Fargo had worked for the Company since 1906: he retired at his own choice on August 24, 1957, due to age. In January to March 1.958 Fargo was recalled and worked full time when one of the employees was hospitalized. McKenzie was not sure whether Fargo worked full time in April, but in May and June 1958 Fargo worked about 50 hours each month, as needed by the Company. He did not work in July until he was recalled to work on July 25, 1958. 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ° that there were two men performing ad composition work, one of whom was Brand- ner. The newly hired apprentice printer, Vick, was performing the work of helper, a task formerly discharged by Brandner. Kinshella did not consider Brandner a full-fledged journeyman but Brandner was doing journeyman's work as an ad compositor. B. Analysis and conclusions 1. The immediate background In appraising the foregoing events the background in which they occurred merits passing consideration. The Respondent has no past history of labor law violations or of dealing with labor organizations in any respect. Linder, the union repre- sentative in the instant case, testified that when he first spoke to McKenzie about a contract, around July 15, 1958, McKenzie said he had no particular objection to his men belonging to the Union but that he would have to consult his attorney about what he could do in the way of wage increases. The following day, when Linder asked McKenzie what his attorney had advised, McKenzie said his attorney advised him to sit down and negotiate if his people wanted to organize. The meeting of July 22, described above, followed. The Trial Examiner does not have before him an allegation of a Section 8(a)(5) violation and, consequently, in commenting upon the July 22 bargaining meeting no finding is made or intended to be made with respect to whether or not the unit claimed by the Union was appropriate or whether the Union possessed a majority in such unit or whether the Respondent bargained in good faith. However, since the Trial Examiner has the duty of evaluating certain crucial events and statements that took place after the bargaining session on July 22, he has considered the conduct of the parties at that session as well as all the other factors in the case. In the opinion of the Trial Examiner, Respondent's position at the aforementioned session was expressed as one of concern about the appropriateness of a proposed mul- ticraft type unit in an industry where craft lines were basically well established and jealousy regarded. Whether such a unit, however, in a small homogeneous estab- lishment where craft lines, in practice, were not strictly observed and where no other union was contending for a particular craft, was inappropriate, we need not decide. Suffice it to say, that Respondent's proposal, that Board certification be sought, does not in our opinion reveal any discernible hostility toward union activity among Respondent's employees or toward the prospect of union representation. It was a tenable legal position and while a legally defensible position may, sometimes, none- theless, by its nature or by the circumstances in which taken, reveal a basic motive of strong opposition or hostility, we do not believe that the last-mentioned appraisal is appropriate in the instant case. True, a proposal of Board certification to a union that does not as a matter of policy comply with Section 9(f), (g), and (h) of the Act presents an almost insurmountable obstacle. However, this difficulty cannot be laid at the Respondent's door, particularly when the unit issue is not devoid of some question. The meeting, which had been devoid of acrimonious exchanges by either side, ended with the expectancy that the Union, as stated by Linder, would discuss the situation with its members that night and would advise the Respondent of its position on the following day. 2. The afternoon of July 22 and thereafter From this point onward a tide of generally unforeseen and unpremeditated or planned events swept each party into the vortex that resulted in the instant proceed- ing. We are of the opinion that the evidence demonstrates that the union repre- sentative, Linder, and particularly the two employee union officers, Newquist and Pitmon, intended no action in the Respondent's shop that afternoon when the two aforementioned employees returned to work. We find that both these men returned to their work station in the shop and initiated no effort to evoke any reaction or demonstration among their fellow workers. The decision to hold a meeting in the rear of the shop was of spontaneous or circumstantial generation as the facts set forth in the preceding section of this report will show. We are of the opinion that this meeting to discuss the subject of collective bargaining between the Employer and the Union was concerted or union activity protected by Section 7 of the Act.13 We reject Respondent's contention that, because negotiations were still in progress 'aKearney & Trecker Corporation, 113 NLRB 1145, and cases cited therein. CROOKSTON TIMES PRINTING COMPANY 315 between the Union and the Employer with the expectation and understanding that the Union would advise Respondent of its position on the following day, therefore the work stoppage by the employees on July 22 was illegal or unprotected activity.14 Work stoppages and strikes by their nature are intended to exert maximum incon- venience and pressure upon an employer. The lack of warning and the timing of the stoppage, occurring as they did shortly before press time, do not change our conclusion that the work stoppage to discuss the collective-bargaining situation was activity protected by the Act.15 Nor is the fact that the Union involved, concerning whose bargaining status the employees were meeting, is a noncomplying union determinative of the question whether the activity was protected.16 While the decision to hold a meeting in the rear of the shop arose from the expressed interest of the employees in the results of the morning bargaining session, there were three employees, Newquist, Pitmon, and one of the Torgersons, who already knew that Respondent had not recognized the Union as the collective- bargaining agent. It is highly probable that other employees also were aware of the general results since Newquist testified that various employees kept questioning him about the meeting after his return to the shop. In any event, the deliberate punching out of their timecards by the majority of the men, the shutting off of the machines, the turning off of the lights, including a light directly in front of Sommer, the effort to have everyone participate, indicates that once the decision to hold a meeting was made there was no effort to conceal the activity and, in fact, the pro- tected Section 7 activity was a work stoppage and a show of strength. The Trial Examiner is of the opinion that the legal rights of the parties at this point were as follows: The employees who were gathered in the rear of the bindery could not be discharged for engaging in protected Section 7 activity but the employer was not obliged to tolerate employees not working during working hours nor was he obliged to pay them for not working.17 As we have seen, Sommer was in the composing room when the lights and machines were turned off; he also witnessed employees walking past him and punching out their timecards; he asked the foreman whether he was walking out and was given an affirmative answer. Sommer then reported to McKenzie that the employees were walking out. When Sommer returned to the shop substantially all the employees were in the rear of the bindery and they were neither at their work stations nor were they working. Sommer addressed the group, telling them to punch out if they had not done so and to get off the premises. The only two employees in that group, thus addressed (Meinie and Gronvold), who had not previously punched out, punched out their timecards and all the employees proceeded to leave the building by the rear door. The Trial Examiner finds and concludes that Sommer did not discharge the em- ployees by directing them to punch out and to leave the premises. Since the employees were engaged in a work stoppage they were not entitled to be paid, hence they could be obliged to punch out. Further, since they were not working the employer could direct them to leave the premises. If Sommers had said, either return to work or punch out and leave the premises, there could, in the opinion of the Trial Examiner, be no question about the propriety of his statement. The question is, does the omission of the alternative choice change an otherwise proper statement into a violation of Section 8(a)(1) and/or (3) of the Act. In the Trial Examiner's opinion the answer is in the negative. To require a layman in the stress of circumstances such as existed in Respondent's shop on the afternoon of July 22 to use only a precise textbook-type formula would elevate semantics above realities. On the facts of this case the Trial Examiner is of the opinion that the employees had made a deliberate and open choice not to work until they held a meeting and discussed the status of negotiations between the Employer and the Union. At this stage the employees may also have decided to strike until Respondent recognized the Union. The evidence is uncon- troverted that on the evening of July 22 a group of strikers, including Union Vice 14 This case does not present the situation of an unauthorized strike by a minority while the Union to whom the Employer had given unqualified recognition as a bargaining agent was in the midst of negotiating a contract with the Employer. Buzza-Cardozo, 97 NLRB 1342. Cf. N.L.R.B. v. Draper Corporation, 145 F. 2d 199 (C.A. 4). 15 Cowles Publishing Company, 106 NLRB 801, 808; 214 F. 2d 708, 711 (C.A. 9) ; M & M Bakeries, Inc., 121 NLRB 1596. 10 United Mine Workers of America v. Arkansas Oak Flooring Co., 351 U. S. 62; David G. Leach, et al., d/b/a Brookville Glove Company, 114 NLRB 213, enfd. 234 F. 2d 400 (C.A. 3). 11 Solo Cup Company, 114 NLRB 121, 134. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD President Pitmon, stated, when asked what had happened, that at a meeting with McKenzie the latter would not do what they wanted (presumably referring to the July 22 morning bargaining session when Respondent did not recognize the Union as bargaining agent) so they just decided they were going to walk out. Everything that Sommer had seen and heard confirmed the fact that the employees had elected to cease work at the crucial prepress time period. He met the situation not by saying to the employees, you are discharged, or, you are through, or, get out and do not come back, but by telling them, in effect, that since they were not working they would not be paid and that they could not occupy the Employer's premises.18 In sum, the locus of the employees' protected activity was changed as a result of Sommer's statement and, with respect to the few who had not previously punched out, the remunerative aspect was altered. 1D Following the foregoing incident, McKenzie, whose movements we have previously set forth in detail, observed the employees in the rear of the bindery. Some em- ployees were outside the exit door and others were in the process of going out. The record is uncontroverted that McKenzie and Sommer were not together and neither saw nor heard each other from the time McKenzie left his office to go to the shop until sometime after he spoke to the employees at the rear of the building. When McKenzie saw his employees as aforedescribed all that he had previously heard and seen was confirmed. In his office he had been informed by Sommer that the men were walking out; Foreman Kinshella confirmed this when McKenzie spoke to him; McKenzie himself saw that the lights were out and the machines turned off; finally, he saw the men themselves going out the rear of the building. McKenzie then said, you men realize that by leaving your jobs in this manner you will no longer be employed by this company.20 The Trial Examiner has previously found that the employees were engaged in activity protected by Section 7 of the Act. The employer was not obliged to permit employees who had ceased work as aforedescribed to remain on its premises and when the employees proceeded to leave the shop they were economic strikers. Being economic strikers, the employer was free to replace them at any time prior to their unconditional application for reinstatement. N.L.R.B. v. Mackay Radio & Telegraph Company, 304 U.S. 333, 345-347. Equally well settled is the principle that the strikers retained their status as employees and they could not be discharged for participating in the strike. Jeffery-De Witt Insulator Co. v. N.L.R.B., 91 F. 2d 134, 138-139 (C.A. 4); David G. Leach, et al., d/b/a Brookville Glove Company, 114 NLRB 213, 222, enfd. 234 F. 2d 400 (C.A. 3). The position of the General Counsel is that Respondent discharged its employees because they engaged in activity protected by the Act. Respondent argues, in its oral argument and brief, that the action of the employees was either a voluntary quit, a wildcat strike, or downright disobedience and insubordination and that in any event it did not terminate them. The Trial Examiner, earlier in this report, has rejected the wildcat strike argument. Equally untenable as to legal significance is the concept of disobedience and insubordination. All strikes, in a sense, are acts of disobedience and insubordination, but more than this is required to alter the legal position of strikers as heretofore described. The Trial Examiner is also of the opinion that the employees had not quit in the sense of abandoning their employee status entirely. True, a striker ceases to work or quits working by going on strike but he does not therefore abandon his rights as a striker unless there is convincing evidence of such fact. The instant case, including the filing of charges, does not establish a complete abandonment of employee status. In this connection it is appropriate to observe that, in the Trial Examiner' s opinion, the words "quit" and "discharge" are not words of art. The important consideration is what did the Respondent intend and what did he do. For example, if an employee (not a striker) does not report for work for 5 days his employer, when the employee does come to work, may hand him his check and termination notice and tell him is Electric Auto-Lice Company, 80 NLRB 1601 , 1605; Gala-Ho Arts, Inc., 113 NLRB 1; 232 F. 2d 102 ( C.A. 8). Of. N.L.R.B. v. Rockaway News Supply Company, Inc., 345 U.S. 71, 75. le This was not a situation where the employees were seeking to meet with the Employer or to present a grievance. Cf. Kennametal. Inc., 80 NLRB 1481. The Trial Examiner does not consider it material that McKenzie was unaware when be spoke to the employees that Sommer had already ordered the men to punch out and to leave the premises . The activities of the Respondent, in the Trial Examiner's opinion, are not subject to segmentation in this respect and we regard the situation from the standpoint of legal responsibility as in no wise different from one in which McKenzie had spoken to the employees on both occasions. CROOKSTON TIMES PRINTING COMPANY 317 that he is discharged. On the other hand, in the same situation, the employer may hand the employee his check and termination notice and say, since you did not report for work for 5 days we considered that you had quit our employ. Absent other evidence, we could, in the foregoing, equate the "quit" instance with the "discharge" instance. However, let us assume a factual situation in which the employer simply says to the employee, when he finally reports after 5 days' absence, we considered that you had quit and had resigned from our employ so we sent you your pay; since you have come in today ready for work you can go back to your old job, at your old rate of pay, and it will not be necessary to fill out a new employ- ment application. In the opinion of the Trial Examiner this last-mentioned example presents a different pattern and result from the two preceding examples. In short, "quit" or "resigned" can have at least two meanings when used by an employer in the context of employer-employee relations. They can be (1) the equivalent of action by the employer terminating employment and foreclosing reinstatement entirely or reinstating as a new employee; or (2) they can be passive in meaning in that the employer acknowledges, recognizes, or characterizes a quitting, a resigning, a ceasing from the job of working, and assumes that this condition continues until the employee indicates otherwise, at which time the employer is accorded his original status and in all respects is treated as an "old" rather than as a "new" employee. Before reaching a conclusion in the instant case, attention must be given to a doctrine of the Board, approved by the courts, which has been enunciated for many years in numerous decisions. The Board has often concluded that in strike situations employers go through the motions and state that they are terminating or discharging the strikers for the purpose of breaking the strike or dissuading the employees from striking but without meaning to refuse reinstatement when requested by the employees. Under this type of tactical discharge there is customarily found to be a violation of Section 8(a)(1) of the Act since the employer has interfered with the exercise by the employees of their rights under Section 7; however, the determination of whether or not there has been an actual discharge and a violation of Section 8(a)(3) is dependent upon the particular facts and whether the employer refuses to reinstate the strikers upon request and the reason therefor. American Manufacturing Concern, 7 NLRB 753, 759-760; Majestic Manufacturing Company, 64 NLRB 950, 951; Clem D. Johnson, d/b/a Roanoke Public Warehouse, 72 NLRB 1281, 1283, 1293; Myers Products Corporation, 84 NLRB 32, 49; Wooster Division of Borg-Warner Corporation, 113 NLRB 1288, 1296, enfd. as mod. 236 F. 2d 898 (C.A. 6). Notwithstanding the foregoing, which, in effect, is a principle that actual conduct by the employer, when the employees evince a clear desire to work, is more deter- minative than his previous statements or actions, the decisions of the Board make it clear that the qeustion of discharge is a factual one. There are numerous cases where the employer initially has taken more definitive action than that involved herein but has been found not to have terminated its employees because of its sub- sequent actions regarding the strikers. There are also, of course, many cases where a discharge by strikers has been found to have taken place. Generally speaking, where the Board has found an illegal termination of strikers the following condi- tions have existed: language and action of termination by the employer and either no subsequent opportunity for the employer to retract or alter the original language and action of termination (i.e., no striker applies for reinstatement and employer does not offer reinstatement after his original statement and action) or, the employer by subsequent conduct or language reiterates or makes manifest that his original conduct and action were intended to be as originally revealed. In those cases where the employer by subsequent action and conduct manifests that his original language of termination was not so intended and has not been put into effect (i.e., employer reinstates strikers and does not treat them as new applicants or as new employees), an illegal termination has not been found.21 a Cf. $en.nametal, Inc., supra (clear and unequivocal discharge) ; Electric Auto-Lite Company, supra (economic strikers ordered out of plant and subsequently replaced; no discrimination found) ; Kerrigan Iron Works, Inc., 108 NLRB 933, 934-935; 219 F. 2d 874 (C.A. 6) : 350 U.S. 835 (strikers advised by letter that unless they returned by specific date they would be "permanently terminated" ; stipulated by parties that these letters were treated by respondent as termination notices and that office records were acted upon accordingly ; after critical date, respondent, however, did reinstate strikers who applied, except those who had been replaced. Held, respondent's objective conduct showed no discharge in violation of Section 8(a) (3) ; United Grinding Service, Inc., 118 NLRB 67, 74, 76 (employees went on strike for 2 hours ; respondent refused to allow them 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McKenzie's words to the strikers, "you realize that by leaving your jobs in this manner you will no longer be employed by this company," have the earmarks of a tactical statement and are so found. When a person says to another, you realize that by leaving me alone on this island you are condemning me to starvation, he is attempting to dissuade the other person from taking the action in question. If a parent says to a child, you realize that by not eating your spinach, you will not have ice cream for dessert, it is clear that an attempt is being made to dissuade the child from its announced position of not eating spinach. A husband, saying to his departing wife, you realize that by walking out this door, you will no longer have a home with me, can generally be said to be making a last ditch effort to save the tottering marital situation. To complete the foregoing analogies it is clear that when our man on the island is unsuccessful in dissuading his friend from leaving him he may starve to death; on the other hand, his friend may return and rescue him within a week; the parent may refuse to give the spinach rebel his dessert if he refuses to eat the vegetable; on the other hand, the parent may serve the dessert in spite of the failure to eat spinach; the itinerant wife may be divorced by the husband if she leaves him or he may be reconciled with her when she returns 3 hours or 3 months later. In the instant case the Trial Examiner credits the following uncontroverted evi- dence and finds in accordance therewith: Within 2 hours of McKenzie's statement and the vacating of the premises by the employees, Gronvold, an employee and a full participant in the strike, came to the entrance of Respondent's building to get his watch. McKenzie asked him to return to work but Gronvold refused. The evening of the following day Leslie Halverson, an employee and a participant in the strike, went to McKenzie's home and asked for his job. McKenzie gave it to him and he went to work the following morning. On July 22 Brandner, who had punched out and had gone to the rear of the bindery with the others, came back in the shop for some personal effects. McKenzie asked him, did he want to work, and, when Brandner said he did, he was told to go to work. There is no instance, prior to the hiring of replacements, where any striker who either asked for reinstatement or who to return telling them they had quit and paid them ; a few days later respondent again refused a request for reinstatement. Held, illegal discharge) ; Fleetwood Trailer Co., Inc., 118 NLRB 1355, 1356 ; Springs, Inc., 121 NLRB 892 ; Wooster Division of Borg- Warner, supra (no 8(a) (3) violation notwithstanding respondent's letters to strikers since strikers were not subsequently discriminated against regarding reinstatement) ; Myers Products Corporation, supra, at pp. 48, 49, and cases cited ; Intertown Corporation (Michigan), 90 NLRB 1145, 1148 (respondent sent notices of "termination" to strikers, refused request for reinstatement, and stated that it considered those who applied for reinstatement as new applicants; violation of Section 8(a) (3) found) ; David G. Leach, et al., d/b/a Brookville Glove Company, 114 NLRB 213, 221 (termination notices sent to strikers ; when strikers applied for reinstatement they were told they would have to file applications for employment as new employees ; violation of Section 8 (a) (3) found) ; Clearfield Cheese Company, Inc., 106 NLRB 417, 418 (when unfair labor practice strikers applied for reinstatement they were given application blanks and were referred to as "formerly employed" or as having "terminated their employment" previously ; Cowles Publishing Company, 106 NLRB 801, 808 (resp)ndent had informed the strikers that they were "all through" ; subsequently, when the strikers applied for reinstatement they were told that they had quit their jobs and had been replaced ; although the strikers had in fact been replaced at the time of their application it was found that they had been illegally discharged) ; Associated Wholesale Grocery of Dallas, Inc., 119 NLRB 41 (the Board found an illegal discharge, stating, inter alia, "in the instant case, Respondent made it plain that any employee who did not return by August 29 would be reemployed only upon written application, thus creating an inference, not present in Kerrigan [supra], that a new employment relation would be established for those who returned after the deadline date" ; present in the case were two letters to the strikers by the employer ; one letter fixing a deadline for return and stating that "your employment . . . Is terminated" unless you return ; the second letter, after the deadline, stated : "You failed to re- turn . . . and your employment is terminated" ; the Board's finding that the strikers had been discharged was reversed, 262 F. 2d 281 (C.A. 5) ; M & Al Bakeries, Inc., 121 NLRB 1596 (the Board found that the strikers had been discharged, noting that ". . . Respond- ent admitted at the hearing that it discharged the strikers . . ," and also referring to a letter and subsequent wire of respondent which were statements of termination, and to a statement by respondent to a striker, making application for reinstatement for all the strikers, that returning strikers would lose seniority and would have to file "a new appli- cation," as well as to respondent's testimony before a State compensation commission that strikers who did return, did so as new employees with loss of seniority. . CROOKSTON TIMES PRINTING COMPANY 319 even talked to or approached McKenzie was not reinstated. All strikers who were reinstated were accorded their former or better jobs and their former or better pay. There were no recriminations and no.conditions were imposed 22 The question to be answered is whether Respondent terminated the strikers, when, after McKenzie's statement, they left the premises. It is found and concluded by the Trial Examiner, after careful consideration of the facts and the law, that a negative answer must be given. The complaint, therefore, insofar as it alleges an illegal discharge of employees and the conversion of an economic strike into an unfair labor practice strike in violation of Section 8(a)(1) and (3) of the Act, is dismissed. The Trial Examiner, however, would find that the Respondent in violation of Sec- tion 8(a)(1) of the Act, interfered with the rights of the employees as guaranteed by Section 7 by the following conduct: (a) McKenzie's statement to the strikers on July 22 in which he threatened them with nonemployment; (b) the newspaper story of July in which it was stated that the employees had resigned; and (c) the notice of eviction, served upon Pitmon to vacate his apartment in Respondent's building within a week of July 22 and his subsequent eviction, is attributable to Pitmon's protected strike activity in the absence of any evidence by Respondent that its action was otherwise legitimately motivated. There is no evidence that the only ingress to the apartment and Respondent's business premises and shop was a common one and it would be as reasonable to conclude that the apartment in fact had a separate entrance. The apartment was apparently satisfactory to Pitmon and as an employee he enjoyed a favorable rent rate. Since, as a striker, he con- tinued to be an employee his eviction would constitute interference.23 G. Lowry Anderson, Inc., et al., d/b/a Utah County Tractor Sales, 103 NLRB 1711; Hart Cotton Mills, Inc., 91 NLRB 728, 729; United States Gypsum Company, 90 NLRB 964, 969. The Trial Examiner would find that Respondent's action, through the local chief of police, in collecting from the strikers the keys to its premises and shop was not illegal. It appears to have been a legitimate action to insure that access to the premises and equipment would not be available to the strikers during the course of the strike. Respondent's statement to the chief of police that the employees had quit their job is not shown to have been uttered in the presence of the employees or to have been communicated to them.24 It would also be found that McKenzie's direction that the strikers' cars be removed from the Respondent's parking lot in the rear of the building was not illegal. The Trial Examiner has considered all the foregoing evidence in connection with the allegations of the complaint and has deemed such evidence to be relevant to the issues framed by the complaint; the Trial Examiner has also stated that he would find that certain conduct of the Respondent, specified above, constituted independent violations of Section 8(a)(1) of the Act. However, the Trial Examiner is of the opinion that he is foreclosed from making findings of independent Section 8(a)(1) violations, with regard to the above specified conduct, for the reason that the said occurrences were not alleged in the complaint as independent violations of Section 8(a)(1), nor was the complaint amended in this respect nor did the complaint con- tain a general allegation of interference in violation of Section 8(a)(1). The fact that the conduct in question was litigated in the general context of the other allega- tions of the complaint is not determinative.25 It is also the opinion of the Trial 22 The July 22 newspaper story that the employees had quit work and resigned was representative of Respondent's thinking throughout this case but, for the reasons stated in this report, the Trial Examiner is not persuaded that "quit" and "resigned" meant a fixed and definite termination of employment by the Respondent. 23 The record does not establish that the favorable rental rate was regarded as a part of Pitmon's wages and that therefore Respondent was under no obligation to subsidize or to pay a striker any wages. We are not confronted with a situation where Respondent, while not evicting Pitman, charged him the same rental as any other person not working in Respondent's shop. Whether a different conclusion would be warranted in the fore- going situations we need not decide. 21 The fact that employees during the course of the hearing heard the chief of police testify regarding McKenzie's statement to him is so far removed from the res gesta.c of the case, and, in view of the present posture of the entire situation, as found in this report, that the Trial Examiner adheres to his above conclusion. 2, I. F. Sates Company, 82 NLRB 137, 138, footnote 6; The Columbus Show Case Company, 111 NLRB 206, 207. 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Examiner on the evidence before him, that the aforementioned conduct of the Respondent did not convert the economic strike into an unfair labor practice strike.26 The General Counsel has alleged that Respondent has violated Section 8(a)(1) of the Act by granting wage increases to its employees and had thereby caused the strike to continue as an unfair labor practice strike. The employees who received wage increases during the strike were, as we have seen, Dahlof Brandner, Ernest Halverson and Leslie Halverson. The Trial Examiner is of the opinion that a wage increase given to an employee who remains at work during a strike or to a striker who returns to work during a strike is, on its face, presumptively a reward for not striking or for returning to work. It is therefore a form of interference proscribed by Section 8(a)(1) of the Act, indistinguishable legally from an employer's action in promising or giving a raise to an employee as an inducement not to join a union or not to engage in a strike. The fact that it may be natural for an employer to reward an employee who remains at or returns to work during a strike, thus manifesting his loyalty to the employer, is not de- terminative. Natural reactions and legal permissibility are not synonymous. This record indicates that Dahlof and Ernest Halverson, after the commencement of the strike, were doing the same work as they had previously performed. This was also true of Leslie Halverson. If these employees were working more hours or beyond the normal workday they could have been compensated by overtime pay- ments but the granting of permanent wage increase is a different type of action. As the Court of Appeals for the Second Circuit has stated (N.L.R.B. v. James Thompson & Co., Inc., 208 F. 2d 743, 748) : The second instance was a wage advance . of five dollars a week to all those who had remained at work. The respondent explains this by saying that there was more work to do at the plant because of the strike. . . . which we can well believe. . Regardless of the respondent's motive, that was conduct that the recipients of the advance would naturally, if indeed not inevitably, think was made to encourage them for not joining the union [for not striking]. See also James Thompson & Co., Inc., 100 NLRB 456, 465; Wagner Iron Works, a corporation, 104 NLRB 445; Charles H. Seyfert, etc., d/b/a Seyfert Foods Co., 109 NLRB 800, 814. With respect to Brandner, it is the Trial Examiner's opinion that a different con- dition existed. Brandner, beginning on July 22, performed the work of a higher classified job. Whereas before the strike he had been a helper, he, from the necessity of the situation, was thereafter doing ad compositor work with reasonable com- petency. His two wage increases brought his rate to $1.60 per hour. The two prestrike ad compositors had received $2 and $1.60, respectively. The ad com- positors subsequently hired received $2. While Brandner's raises undoubtedly had an aspect of a reward for returning to work, the Trial Examiner is of the opinion that an employer's right to try to carry on his business during a strike, with the aid of replacements or returned strikers, is meaningless unless the employer may pay the men in accordance with the rate of pay normally paid to those performing the particular type or classification of work. It is therefore found that Respondent violated Section 8(a)(1) of the Act by reason of its wage increases to Dahlof and the two Halversons. The Trial Examiner does not find that the wage increase to Brandner was illegal. In the Trial Examiner's opinion the evidence does not establish that the remaining strikers were aware of the rates of pay received by the three aforementioned employees and, in any event, the Trial Examiner finds that, on all the evidence including that heretofore referred to and discussed, the economic strike was not converted into an unfair labor practice strike by reason of the wage increases. The allegations of the complaint to the contrary are dismissed. 3. The replacement issue On September 21, 1958, when the strikers applied for reinstatement through their attorney, Kelly McKenzie, in substance, replied that he had hired replacements and owed an obligation to them. 24 The union leaflet of July 24 or 25 stated that it wished to tell the public "why the printers at the Times vacated their job" . . . ; it went on to say that when the union and company representatives met on Tuesday morning (July 22) McKenzie said that if employees were dissatisfied they were free to leave. "This attitude on the part of McKenzie precipitated the action of the employees Tuesday afternoon." See also the strikers oral statement to Mrs. Halverson, referred to above, that, at a meeting with McKenzie, McKenzie refused to do what they wanted ( presumably, to grant union recogni- tion ) "so they just decided that they were going to walk out." CROOKSTON TIMES PRINTING COMPANY 321 Since an employer may legally replace economic strikers and thereby foreclose their reinstatement (Mackay Radio & Telegraph Company, supra ), the Trial Ex- aminer concludes, based on the evidence set forth previously in this report and the findings thereon, that Respondent had permanently replaced the strikers by Sep- tember 21, 1958. There is no evidence and no contention that the replacements were not hired as permanent replacements . Having replaced the strikers Respondent was under no obligation to afford them preferential treatment as to future vacancies. As the Board has said: "Permanently replaced economic strikers merely have the right not to be penalized for their concerted activity, and are not entitled to pref- erential status in hiring. They are in the position of applicants for new employment as to whom the General Counsel must sustain his burden of proving discriminatory motivation on the part of the Respondent." Bartlett-Collins Company, 110 NLRB 395, 397. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to constitute unfair labor practices, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY The Trial Examiner has found that Respondent did not violate Section 8(a)(3) of the Act by discharging the striking employees on July 22, 1958, or at any other relevant period. Although the Trial Examiner is of the opinion that Respondent interfered with the rights of its employees under Section 7 of the Act in violation of Section 8(a) (1) by the newspaper story of July 22 and by McKenzie's statement to the strikers on the same date, as well as by the eviction of employee Pitmon from his apartment, he has concluded that he is foreclosed from making a finding thereon or from ordering any remedial action relating thereto. The granting of wage increases to certain employees during the course of the strike has been found herein to constitute conduct violative of Section 8(a)(1) of the Act. Under all the circumstances of this case the Trial Examiner is of the opinion that the affirmative action hereinafter recommended is necessary to effec- tuate the policies of the Act. It is believed that language related specifically to the violation is appropriate but rescission of the wage increases is not recommended. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with and restraining its employees in the exercise of rights guaranteed them by Section 7 of the Act, as found above, the Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The Respondent has not violated Section 8(a)(3) of the Act as alleged in the complaint. [Recommendations omitted from publication.] APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT pay wage increases to our employees during a strike as a re- ward for not participating in a strike or for returning to work during a strike. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the right to self-organization, to form labor or- ganizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized in Section 8(a)(3) of the Act. CROOKSTON TIMES PRINTING COMPANY, Employer. Dated-------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other, material. Redwing Carriers, Inc. and Teamsters, Chauffeurs & Helpers Local Union No. 79, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America Redwing Carriers, Inc. and Alfred B. Hults. Cases Nos. 12-CA- 475, 12-CA-4176,12-CA-11,77, and 12-CA-505. November 24,1959 DECISION AND ORDER On June 30, 1959, Trial Examiner Lloyd Buchanan issued his Intermediate Report in the above-entitled proceedings, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended that the complaint be dismissed with respect to such allegations. Thereafter, the Respondent filed excep- tions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Dlembers Rodgers, Bean, and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report,' the exceptions and brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and recom- mendations 2 of the Trial Examiner with the following modifications : 1. The Trial Examiner found, and we agree, that the Respondent violated Section 8 (a) (1) of the Act by the following conduct : 1 The Intermediate Report incorrectly states that Spurlock testified to interrogation and a threat by Cunningham on July 21, 1958. Spurlock's testimony does not attribute these acts to Cunningham, but rather to Klein. The Intermediate Report is corrected accordingly. 2 The Trial Examiner found that employees Wilson, Farrow , and Hults were not dis- charged for discriminatory reasons . As no exceptions have been filed to these findings, we adopt them pro forma. 125 NLRB No. 27.